Issa Lenatus Elias vs Republic (Criminal Appeal No. 242 of 2023) [2025] TZCA 843 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: MWARIJA. J.A.. MLACHA. J.A. And ISMAIL. J.A.1 CRIMINAL APPEAL NO. 242 OF 2023 ISSA LENATUS ELIAS........................................................ APPELLANT VERSUS THE REPUBLIC.............................................................. RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Mwanza) (Morris, 3,1 Dated the 23r d day of February, 2023 in Criminal Appeal No. 106 of 2022 JUDGMENT OF THE COURT 23rdJuly, & 7thAugust, 2025 MWARIJA, J.A.: This appeal arises from the decision of the High Court of Tanzania at Mwanza in Criminal Appeal No. 242 of 2023. The impugned decision originated from the judgment of the District Court of Nyamagana in Criminal Case No. 19 of 2022. In that case, the appellant, Issa Lenatus Elias was charged with and convicted of the offence of rape contrary to sections 130 (1), (2) (e) and 131 (3) of the Penal Code, Chapter 16 of the Revised Laws (the Penal Code). It was alleged that, on 20/1/2022 at Igoma area within Nyamagana District in Mwanza Region, the appellant i t

did have carnal knowledge of F.E. (name withheld) a girl child aged two (2) years, to be also referred to as "the child or the victim" When he was arraigned, the appellant pleaded not guilty and as a result, the case proceeded to a full trial. At the trial, the prosecution relied on the evidence of five witnesses while the appellant was the only witness for the defence. At the end, the trial court was satisfied that, the evidence which was adduced by the prosecution witnesses had proved the case against the appellant beyond reasonable doubt. It thus convicted and sentenced him to the statutory term of life imprisonment. His appeal to the High Court was unsuccessful hence this second appeal. The background facts giving rise to this appeal may be briefly stated as follows: The appellant and Suzana Gisinda (PW1), were until the material time, living together as husband and wife. They started that relationship in August, 2021. Before that relationship, PW1 had already got F.E. (the child) with another man. On 20/1/2022 at 8:00 hrs, PW1 went out leaving the child and the appellant in their room. The appellant was siting on a coach while the child was in the bed sleeping with her clothes on. When she returned in the room, PW1 found the child naked and different from the position she left her sleeping, which was on her side. She was lying on her back and was uncomfortable. PW1 asked the

appellant as to what had happened that the child was naked. He replied, while in a panicking state, that she wanted to urinate. On the next day in the morning, while being bathed, the child started to cry and when PW1 inspected her private parts, she found that, the same was swollen. Suspecting that the child might have been raped, she immediately called her landlady, Agness Augustine (PW3) who also inspected the child and formed the same opinion. She called the street chairman and reported the matter to him. The incident was also reported to the police whereupon, some police officers arrived and arrested the appellant. The case was investigated by WP 4977 S/SGT Justina (PW4). She testified that, after the complaint had been lodged at Nyakato Police Station, she was handed over the police case file to continue with investigation. According to her evidence, she interrogated the appellant who denied the allegation that he raped the child. She stated further that, she later forwarded she police case file to the office of the National Prosecution Services and subsequently, the appellant was charged as shown above. Testifying in the trial court, the child, who adduced evidence as PW2, gave a brief statement, that, while she was in bed, the appellant 3

undressed her and put his "lidudu" on her private parts after he had widened her legs. According to the record, the child touched her private parts to show the part of her body where "lidudu" was put by the appellant. The medical personnel who examined the victim, Shafika Ramadhani, a Clinical Officer, testified as PW5. It was her evidence that, after having examined the child's private parts, she noted that, there were signs indicating that she was raped. She said that, the child's private parts were redish and had a gap, adding that, she was also having pain. When she was cross examined, the witness stated that, she did not find semen in the victim's private parts because she was bathed by her mother (PW1) before she took her to hospital. In his defence, the appellant testified that, on 21/1/2022 in the morning, he left for work, leaving PW1 and PW2 at home. When he returned, he found PW1 in a hurry. She told him that, she was going to hospital to see her sick relative. Shortly thereafter, he said, two members of the peoples' militia arrived and arrested him on the allegation that, he had raped PW2. He was taken to Igoma Police Station and was later charged in court. He challenged the evidence of PW1 contending that, on the date on which he was alleged to have

committed the alleged rape, PW2 was not naked at the time when PW1 returned in the room. He also challenged the prosecution evidence contending that, it did not prove the case because no evidence was adduce by any of those who resided in the house to show that the child had cried, if at all she was raped. In her judgment, the learned trial Resident Magistrate found that, the prosecution had proved its case to the required standard and as stated above, found the appellant guilty and thus convicted him. She acted on the evidence of PW2 which she found to have been supported by the evidence of PW5, a Clinical Officer who examined the victim at Igoma Health Centre. Guided by the Court's decision in the case of Selemani Makumba v. Republic [2003] TLR 379, the learned trial Resident Magistrate found that, the evidence of PW2 had sufficiently proved that she was penetrated. The trial court believed the evidence of PW1 that she left the appellant with the victim asleeping in the bed with her clothes on but when she returned, she found her naked. She also considered the state of panic which the appellant exhibited when PW1 asked him about the condition in which she found the child in the room. On appeal to the High Court, the learned first appellate Judge upheld the conviction and sentence. He found PW2's evidence credible 5

and on that view, he agreed with the trial court that, the crucial ingredient of the offence of rape, that is, penetration, was proved. Citing the case of Emmanuel Kabelele v. Republic, (Criminal Appeal No. 536 of 2017) [2021] TZCA 531, he underscored the position of the law that, penetration, however slight, is sufficient to prove the offence of rape. The learned Judge was also of the view that, the evidence of PW 5 and the medical report contained in exhibit PI as well as the evidence of PW 1, supported the trial court's finding that, penetration was proved. On the appellant's defence that penetration was not proved for want of evidence showing that, as expected, the victim should have cried and heard by the tenants who were in the house, the learned first appellate Judge did not, with respect, consider that defence. He relied, instead, on the evidential value of the testimony of the victim of sexual offence, that, it was the best evidence as stated in the case of Selemanl Makumba (supra) and reiterated in, inter alia, the cases of Victory Mganzi @ Mlowe v. Republic (Criminal Appeal No. 354 of 2019) [2021] TZCA 149 and Vedastus Emmanuel @ Nkwaya v. Republic, (Criminal Appeal No. 519 of 2017) [2021] TZCA 298. In this appeal, the appellant has raised five grounds of appeal which have been paraphrased as follows:

1 . That, the High Court erred in law in upholding the appellant's conviction while the evidence of the victim was wrongly received because the provisions of section 127 (2) of the Evidence Act was not fully complied with in that, the questions leading to the victim's promise to tell the truth, were not recorded. 2. That, the High Court erred in law in acting on the evidence of PW2 which was unreliable for her failure to specify the date and time at which the incident took place. 3. That, the High Court erred in law in upholding the appellant's conviction while the prosecution evidence did not prove penetration. 4. That, the High Court erred in law in failing to find that, the prosecution evidence wastainted with contractions and inconsistencies but acted on it to uphold the decision of the trial ) court. 5. That, the High Court erred in law and fact in sustaining the decision of the trial court while the case was not proved byond reasonable doubt. 7

At the hearing of the appeal, the appellant appeared in person, unrepresented while the respondent Republic was represented by Ms. Magreth Mwaseba, learned Principal State Attorney assisted by Ms. Tabita John, learned State Attorney. When he was afforded the opportunity to argue his grounds of appeal, the appellant opted to leave it to the learned Principal State Attorney to respondent to the ground of appeal and thereafter make rejoinder submissions, if he would find it necessary to do so. Before she could submit in reply to the grounds of appeal, Ms. Mwaseba challenged the 2n d and 4th grounds of appeal contending that, they raise new issues which were not argued and decided by the first appellate court. She thus urged us not to consider the two grounds of complaint. As for the other grounds, starting with the 1 s t ground of appeal, Ms. Mwaseba was brief but focused. She argued that, the evidence of the victim was properly received under section 127 (2) of the Evidence Act, Chapter 6 of the Revised Laws (the Evidence Act) because the witness promised to tell the truth. According to the learned Principal State Attorney, under the stated provision, a child of tender age may give evidence after promising to tell the truth. She supported her argument

by citing the case of Mathayo Lawrence William Model v. Republic (Criminal Appeal No. 53 of 2020) [2023] TZCA 52. She contended that, under the above stated provision, it is not a requirement that the procedure adopted by the trial court to determine whether or not a child should give evidence after promising to tell the truth, should be recorded. With regard to the 3r d and 5th grounds of appeal, it was Ms. Mwaseba's submission that, the case against the appellant was proved beyond reasonable doubt. She argued that, as for the age of the victim, the same was proved by PW1. To bolster her argument Ms. Mwaseba cited as an authority, the case of Issaya Renatus v. Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218. In that case, the Court observed that, age may be proved by a victim, parent, relative, medical practioner or by production of a certificate of birth, if it is available. On the complaint that penetration was not proved, the learned Principal State Attorney opposed that contention arguing that, the act was proved by the evidence of the victim as supported by that of PW5. Citing the case of Selemani Makumba (supra) and section 130 (4) (a) of the Penal Code, Ms. Mwaseba stressed that, there was sufficient

proof that the appellant raped the victim. Regarding the complaint by the appellant that the two courts below wrongly acted on the evidence of PW1 and PW3 which was contradictory and inconsistent, it was Ms. Mwaseba's argument that, although there are such contradictions and inconsistences, the same did not affect the significant purpose of that evidence in proving the case. In rejoinder, the appellant did not have any substantial arguments to make. He reiterated the import of his grounds of appeal that, the evidence of PW2 was wrongly acted upon, adding that, she was not truthful. He contended further that, the case against him was not proved and particularly so because, both courts below relied only on the prosecution evidence. As a prelude, before we embark on the duty of determining the grounds of appeal, we find it imperative to begin by stating the trite principle that, this being a second appeal, the Court will hardly interfere with concurrent findings of the two courts below on matters of fact. It may do so only where the findings are based on misapprehension of evidence, misdirection or violation of any principle of the law. The principle was stated in, among others the case of Jafari Mohamed v.

Republic (Criminal Appeal No. 112 of 2006) [2013] TZCA 344. In that case, the Court observed as follows; "An appellate court like this one will only interfere with such concurrent findings of fact only if it is satisfied that \they are on the face of it unreasonable or perverse' leading to a miscarriage of justice, or there had been a misapprehension o f the evidence or a violation o f some principles o f law; see for instance, Peters v. Sunday Post Ltd [1958] E.A. 424: Daniel Nguru and Four Others v. R, Criminal Appeal No. 178 o f2004 (unreported). We have duly considered the contents of the grounds of appeal and the learned Principal State Attorney's submissions. To start with the contention that, the 2n d and 4th grounds raise matters of facts which were not considered and decided by the first appellate court, after having gone through the record, we agree that, the two grounds raise new issues and therefore, this court lacks jurisdiction to entertain them. In the case of Abdalah Nasibu Kisimpo (supra) cited by the learned Principal State Attorney, the Court declined to consider the grounds which were raised for the first time in appeal before the Court. It observed that: li

"...the settled position of the law on the grounds of appeal before this Court is that, [when the grounds] were not canvassed in the first appellate court, [they] cannot be entertained for lack ofjurisdiction." We therefore, find that, the 2n d and 4th grounds are not worth consideration. With regard to the 1s t ground of appeal, we agree with the submissions of Ms. Mwaseba that, the evidence of the victim was properly received under section 127 (2) of the Evidence Act. The section provides that, a child of tender age may testify without taking oath or making affirmation provided that, before doing so, he/she promises to tell the truth to the court. As argued by the learned Principal State Attorney, there is no requirement of recording the questions put to the victim that made the trial court to require the witness to adduce her evidence after promising to tell the truth. We thus find the 1s t ground of appeal devoid of merit and dismiss it. As for the 3r d and 5th grounds, starting with the question of the age of the victim, we hasten to agree with the learned Principal State Attorney that, the same was proved. It was proved by PW1, the mother of the victim. In her evidence at page 6 of the record, she stated that, 12

the victim was bom on 22/4/2019. She was therefore, 2 years and 9 moths at the time of the incident. In the case of Issaya Renatus (supra) cited by Ms. Mwaseba, it was held that, the age of a victim may be proved by among other persons, a parent. It was observed as follows: "... it is most desirable that the evidence as to proof of age be given by the victim, relative, parent, medicai practitioner or, where available, by the production of a birth certificate." The other issue arising from the two grounds of appeal in which the appellant contended that, the case was not proved beyond reasonable doubt, is whether penetration was proved. We have painstakingly considered Ms. Mwaseba's submissions on that issue. In answering the issue in the affirmative, the two courts below acted on the evidence of the victim as supported by the that of PW5. They also relied on the famous case of Selemani Makumba (supra). In her evidence, the victim testified that: "... baba Issa was in the bed and undressed me akafanya hivi, aliweka Hdudu huku akinipanua miguu... he did this, he put Ududu here, he widened my legs." [Emphasis added] 13

The testimony of PW5 was, in our view lacking the strength and clarity of a cogent evidence. She testified that, upon her examination of the victim, she found that her private parts were redish, had a gap and the victim was also having pains. She stated as follows at page 14 of the record of appeal: "... after medical investigation I saw redness on her private part and gap also (she) was having pain... I filled the PF3." According to the PF3 which was admitted in evidence as exhibit PI, it is recorded that, the redness and opening of the vagina was the evidence of penetration. With respect, we find the evidence to the effect that, there was penetration to be incompatible with the evidence of PW1, who testified to the effect that, on the material night, she merely found that the victim was uncomfortable. She did not find her crying or with any visible injury other than that, in the morning while bathing her, she found that her labia manora had swollen and had become redish with bruises. That was also the evidence of PW3, that on the next day when she was informed about the matter by PW1 and after having inspected the victim, she found her in that state.

On the basis of that evidence, we are unable to hold with certainly, that penetration was proved. It is highly doubtful that, from her age, the victim could have been penetrated and yet did not have any serious signs such as bleeding. She could not also have remained calm with only the discomfort stated by PW1 until the next morning when she started crying at the time of being bathed. In her own evidence, the victim said that the appellant "aliweka' (did put) his "lidudu" on her private parts. She did not say that he inserted it and both. The prosecution and the trial court did not seek clarification on whether the victim had used the word "put" differently. As it stands therefore, and on the basis of the evidence on the record as shown above, the penetration ingredient of the offence was not proved to the required standard. In the course of her submissions, we asked the learned Principal State Attorney whether by citing section 130 (4) (a) of the Penal Code, she meant that, even though the victim did not show the sign that she was really penetrated, there was proof of slight penetration. We asked so because, in her evidence, PW5 did not specify that, the rediness which she observed was in the victim's vaginal opening. The response by Ms. Mwaseba was that, the evidence proved entrance into the victim's vagina and that, despite the age of the victim, it was possible 15

notwithstanding the state in which she was found having no expected signs of a raped child after the alleged incident. On the basis of the foregoing reasons, we find, with respect that, the appellant's conviction for the offence of rape was based on misapprehension of the evidence. As a result, we quash the conviction and set aside the sentence of life imprisonment. The evidence has however shown that, the appellant did sexually abuse the victim. PW1 left the appellant in the room with the victim while asleep with her clothes on but when she returned, she found the victim naked. He appellant panicked when he was asked about the situation in which the victim was found. In the morning, the victim was found to have been feeling pain and her labia manora had swollen. The evidence of the victim was that the appellant did put his "lidudu" meaning his male organ on her private part. The evidence of PW5, proved that the appellant's act stated by PW2 caused resulting redness private parts and into suffering pains. The evidence of PW1 PW2, PW3 and PW5 on that aspect was believed by the two courts below. On our part, we could not find any justifiable reason to find that the appellant was not liable for that act. 16

From the evidence therefore, we find the appellant guilty and convict him of a lessor offence of grave sexual abuse contrary to section 138C (2) (b) of the Penal Code. Consequently, we sentence him to twenty (20) years imprisonment commencing from the date of his conviction by the trial court. The appellant is also ordered to pay the victim a compensation of TZS 1,000,000.00 (one million shillings) for the pains suffered by her. In the event, the appeal is partly allowed as indicated above. DATED at MWANZA this 7th day of August, 2025. A. G. MWARIJA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL The Judgment delivered this 7th day of August, 2025 in the presence of the appellant in person unrepresented and Mr. Evance Kaiza, learned State Attorney for the respondent/Republic is hereby certified as a true copy of the original.