Nickson Nyala @ Bujilima vs Republic (Criminal Appeal No. 552 of 2023) [2025] TZCA 847 (11 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: MWARIJA. 3.A.. MAIGE J.A. And MLACHA J.A.1 ) CRIMINAL APPEAL NO. 552 OF 2023 NICKSON NYALA @ BUJILIMA...........................................APPELLANT VERSUS THE REPUBLIC................................................................. RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Itemba, J.l Dated the 26th day of May, 2023 in Criminal Appeal No. 165 of 2021 JUDGMENT OF THE COURT 25th July & 1Ith August, 2025 MWARIJA. 3.A.: This appeal is against the decision of the High of Tanzania sitting at Mwanza in Criminal Appeal No. 165 of 2021 in which the High Court (Itemba, J.) upheld the judgment of the Resident Magistrate's Court of Geita in Criminal Case No. 15 of 2021. In that case, the appellant, Nickson Nyala @ Bujilima, was charged with and convicted of the offence of rape contrary to sections 130 (1), (2) (e) and 131 (1) (3) of the Penal Code, Chapter 16 of the Revised Laws (the Penai Code). i

It was alleged that, on 4/8/2021 at Karifonia area within the District and Region of Geita, the appellant did have carnal knowledge of a girl child aged 6 years. She shall hereafter be referred to as the "child" or the "victim" for the purpose of hiding her identity. Following his conviction, the appellant was sentenced to life imprisonment. He was aggrieved by the judgment of the trial court and therefore, appealed to the High Court. His appeal was unsuccessful hence this second appeal. The background facts giving rise to the appeal may be briefly stated as follows: On 4/8/2021, Salome Damas (PW4), the younger sister of the victim's mother, Nahima Hamis Kaholo (PW2), took the victim to a salon for haircut. PW4 left the child in the hands of the appellant and went to the market where she was sent by PW2 to buy potatoes. When PW2 returned to the salon, she found that, the victim had not been attended. She took her home. The victim arrived at home while crying and when she was asked as to what had happened to her, she replied that, the appellant took her to his home and raped her. PW2 inspected the victim's private parts and noticed that she had bruises. PW2 told the victim's father about the incident and he immediately reported the matter to Katoro Police Station.

At the police Station, a PF3 was issued and the victim was taken to Katoro Health Centre for medical examination. She was examined by Kabuia Kipete (PW5), a Clinical Officer, who found that, the victim had bruises in her vagina and that, her hymen was not intact. The witness tendered the PF3 which was admitted In evidence as exhibit PI. Testifying at the trial court, PW4 stated that, when she returned at the salon, she did not find both the victim and the appellant. She called her sister (PW2) and asked whether the victim and returned home. While still on the phone, he saw the appellant going to the salon while carrying the victim on his shoulders. According to PW4, when she asked him as to why the victim's hair had not been cut, the appellant's reply was that, the hair cutting machine stopped working and therefore, he decided to take the victim to his home. It was PW4's evidence also that, the victim was crying but when she was asked as to why she was in that state, she did not, at that moment, state the reason until when she arrived at home and told her mother that she had been raped by the appellant. The victim, who testified as PW1 stated that, on the material date, after PW4 had left her at the salon, the appellant, who was well known

to her because she used to be taken there to cut her hair, took her to his home. Having arrived there, he lied her on the bed, lowered her skintight wear and proceeded to insert his penis into her private parts "where she uses to urinate" (her genitalia). She said further that, she suffered pain as a result of the appellant's act. After having committed that act on her, the appellant took her back to the salon while crying. She met PW4 there but did not tell her why she was crying until when she arrived at home and narrated the incident to her mother, PW2. The appellant's neighbour at Karifonia Street, Katoro, Ruchius Tibendagita (PW3), testified that he witnessed the appellant and the victim entering and leaving the former's residence. He said also that, when the victim was leaving the appellant's house, she was crying. Curious of that state of the victim, he asked the appellant about the cause. According to the witness, the reply by the appellant was that, the victim wanted money to buy ice cream but he did not have the money. PW3 testified further that, on that date at about 21:00 hrs, he witnessed the appellant being arrested on the allegation that he raped the victim. In his defence, the appellant, who testified as DW1, told the trial court that, on 4/8/2021 at about 19:00 hrs while at his work place (hair

cutting salon), two persons, a young woman and a child arrived there. The young woman left the child so that her hair could be cut. When the young woman returned, she found that, the child had not been attended because, according to the appellant, he was still attending other customers. The young woman complained, accusing him of having humiliated her that she had gone there to be attended without paying for the hair cut service. She then took away the child. As the young woman had been advised by those who were in the salon to lodge her complaint with the ten-cell leader, she did so and the appellant was summoned to respond to the complaint. When he appeared before the ten-cell leader, however, he was told that the young woman had complaint that, he had beaten her daughter. When he returned to his work place, police officers arrived there, arrested and sent him to Katoro Police Station. He was later charged in Court on 13/8/2021. When he was cross examined, the appellant admitted that he was well known to the victim because, she was being frequently taken there for haircut. He admitted also that, he had known the victim's mother before the date of the incident but that, he had quarrels with her.

Having subjected the evidence of the prosecution witnesses and the defence to scrutiny, the trial court was satisfied that, the case had been proved beyond reasonable doubt against the appellant. The learned trial Resident Magistrate relied on the evidence of PW1 as supported by that of PW5, PW3 and PW2. On the question of identification, the trial court observed that, since the appellant was well known to the victim, the identification issue did not arise. As stated above, the appellant's appeal to the High Court was bereft of success. The learned first appellate Judge upheld the appellant's conviction and sentence. She upheld the findings of the trial court that, the evidence of the prosecution witnesses was cogent and thus proved beyond reasonable doubt the offence charged. She was of the view that, whereas the age of the victim was proved by her mother, PW2, the victim's evidence, which was supported by PW5, the Clinical Officer who examined her, proved the penetration element of the offence. She found further that, the evidence of PW1, PW4 and PW3 proved that the offence was committed by none other than the appellant.

In this second appeal, the appellant has raised a total of seven (7) grounds of appeal. His memorandum of appeal filed on 9/8/2024, had six grounds but at the hearing, he abandoned the sixth ground which, he said, was raised inadvertently because it related to a different case. On 23/7/2025, he filed a supplementary memorandum consisting of two grounds. All the seven grounds are in a narrative form. The same may be consolidated and paraphrased into the following four grounds

1. That, the learned first appellate Judge erred in law and facts in upholding the decision of the High Court while according the record, the appellant was not sentenced by the trial court.
2. That, the first appellate Judge erred in law and facts in upholding the appellant's conviction which was based on a defective charge.
3. That, the learned first appellate Judge erred in law and facts by failing to find that, the appellant's conviction was based on insufficient identification evidence.
4. That, the learned first appellate Judge erred in upholding the decision of the trial court while the case against the appellant was not proved beyond reasonable doubt. 7

On the date of hearing of the appeal, the appellant appeared in person without representation by a counsel while on its part, the respondent Republic was represented by Ms. Luciana Shabani, learned Senior State Attorney assisted by Ms. Kabula Benjamin, learned State Attorney. When the appellant was afforded the opportunity to argue his grounds of appeal, he preferred to hear first, the learned Senior State Attorney's reply submissions and thereafter, would make his rejoinder submissions, should he find it necessary to do so. Submitting in opposition to the 1s t paraphrased ground of appeal (the 1s t, 2n d and 3rd grounds of the appellant's memorandum of appeal), Ms. Shabani argued that, the judgment of the trial court complied with the provisions of section 312 of the Criminal Procedure Act, Chapter 20 of the Revised laws (the CPA). She cited the case of Emmanuel Phabian v. Republic (Criminal Appeal No. 259 of 2017) [2021] TZCA 133, to support her argument that, once the section under which an accused person was charged has been stated in the judgment, the statement that the accused person has been convicted as charged, is sufficient compliance of s. 312 (1) (e) of the CPA.

On the 2n d ground of the paraphrased ground of appeal (grounds 4 and 5 of the appellant's memorandum of appeal), Ms. Shabani argued that, the hand written words on the charge sheet correcting the name of the accused person (the appellant), did not render the charge defective. According to the learned Senior State Attorney, after the alteration, the author initialed on the charge and therefore, the change reflected the correct name of the accused person. She argued further that, the appellant did not dispute his name during the preliminary hearing. As to the point that, the time of the incident was not specified, Ms. Shabani's argument was that, time was not of essence and in that regard, the omission did not render the charge fatally defective. To bolster her argument, she cited the case of John Stephano and 5 Other v. Republic (Criminal Appeal No. 251 of 2021) [2022] TZCA 469. For the 4th paraphrased ground of appeal (the 1s t and 2n d grounds of the supplementary memorandum of appeal), the learned Senior State Attorney opposed the contention that the case was not proved beyond reasonable doubt. She argued that, from the evidence of PW1 and PW5, penetration, which is one of the ingredients of the offence of rape, was proved. As for the age of the victim, citing the case of Rutoyo Richard v. Republic (Criminal Appeal No. 114 of 2017 [2020] TZCA 298, she

argued that, the age was proved by PW2, the victim's mother. On the identification of the appellant, it was Ms. Shabani's submission that, he was properly identified because, he was known to both the victim and PW2 and was also seen by PW3, entering and leaving his house with the victim. In rejoinder, the appellant did not have much to state. He urged the Court to considered and allow his grounds of appeal, reiterating his defence that, the case was framed against him. We have considered the substance of the grounds of appeal and have also duly considered the submissions of the learned Senior State Attorney. To start with the 1s t and 2n d paraphrased grounds of appeal, we are in agreement with the learned Senior State Attorney that, the same have been raised without sufficient reasons. On the 1s t ground, as found by the learned first appellate Judge, the sentence meted out to the appellant appears in the hand written judgment immediately after pronouncement of conviction. After having heard the prayer for a severe sentence which the prosecution said, should act as a deterrent measure and after hearing the appellant, who had nothing to say in mitigation,

the learned trial Resident Magistrate proceeded to sentence the appellant as follows: "...this court in consideration o f section 131 (3) of the Pena! Code [Cap 16 R.E. 2019] humbly sentences the convicted person to life imprisonment as the law dictates." As for the 2n d ground, the deletion of the name of Baraka Seif and its substitution with the name of the appellant, did not render the charge defective. The correction was made on 13/8/2021 and the charge was read to the appellant who admitted his name in the memorandum of agreed facts. As submitted by Ms. Shabani, the alteration was initialed by the author and therefore, the charge was not rendered defective. We also agree with the learned Senior State Attorney that, failure to state the time at whichthe offence was committed did not render the change defective. In thecase of John Stephano and 5 others (supra) cited by Ms. Shabani, after having considered the provisions of s. 135 (1) (f) of the CPA, the Court observed that: "...the necessity to describe time in the charge sheet or information arises where time is of essence in proving the offence. Construing the li

provision otherwise would render aii charges and information pertaining to offences whose time of commission is unknown, defective." Since in the case at hand, the time was not of essence, failure to describe the time of commission of the offence was, in our considered view, inconsequential. For these reasons, we find no merit in the 1s t and 2n d grounds of appeal. The two grounds are therefore, dismissed. That said and done, we now turn to consider the 4th ground of appeal in which the appellant contends that, the case was not proved beyond reasonable doubt. We hasten to state that, from the available evidence on the record, we agree with the learned Senior State Attorney that, the case was proved beyond reasonable doubt. To begin with the age of the victim, as stated by Ms. Shabani, the same was proved by her mother, PW2. She was the proper person to do so as held in among others, the case of Rutoyo Richard (supra), cited by the learned Senior State Attorney. See also the case of Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218. In that case, the Court observed that; 12

"...it is most desirable that, the evidence as to proof o f age be given by the victim, relative, parent, medical practioner or where available, by the production of a birth certificate." With regard to the penetration, that was sufficiently proved by the victim who testified inter alia that: "Nick [the appellant] held me on shoulders and took me to his home at Karifonia. When we reached at his home, he took me to his room. When we got to his room he put me on the bed. I was wearing skintight He then lowered my skintight and then he inserted his penis in my place where urine comes out I feit pain." [Emphasis added] The victim's evidence was supported by PW5 who found bruises in the victim's vagina, observing further that, her hymen was not intact. It is trite principle that, the evidence of a victim of a sexual offence is the most reliable in proving the offence of rape. See Selemani Makumba v. Republic [2003] TLR 379. On the identification of the appellant, which is the subject of the 3r d ground of appeal, we also respectfully agree with the learned Senior State Attorney that, the appellant was properly identified. In our 13

considered view, from the evidence of the victim, PW2, PW3 and PW4, we find that, the issue of identification raised by the appellant, was an afterthought. PW1 and PW2 testified that, the appellant was well known to them because the victim used to cut her hair at his salon. Furthermore, as shown above, when he was cross examined after he had given his defence, the appellant admitted that, he was well known to the victim. It was his evidence also that, he was known to PW2 before and that, he had been involved in a quarrel with her. He did not however, state the cause of their quarrel and whether it had anything to do with the charge levelled against him. Again, on the material date, he was seen by PW3 with the victim entering into his house and later went out with her. In his own evidence, the appellant admitted that, on the material date, the victim was taken to him for the purpose of cutting her hair. He admitted further that, she took her to his home instead of cutting her hair allegedly because his hair cutting machine stopped working. The evidence of the prosecution witnesses mentioned above was believed by the two courts below. On our part, we could not find any justifiable reason to fault that concurrent finding. 14

On the basis of the foregoing, we similarly find no merit in the 3r d and 4th grounds of appeal and as a result, we hereby dismiss them. In the event, this appeal, which lacks merit, is hereby dismissed. DATED at MWANZA this 8th day of August, 2025. A. G. MWARIJA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 11th day of August, 2025 in the presence of the appellant in person unrepresented and Ms. Revina Tibelengwa, learned Principal State Attorney for the respondent/Republic via video link from Mwanza is hereby certified as a true copy of the original. .. __ r. . 15