Kelvin s.o Kelvin Nyondo vs Republic (Criminal Appeal N o. 528 of 2021) [2024] TZCA 1255 (11 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: MWANPAMBO. J.A., KAIRO, J.A. And ISSA J.A. CRIMINAL APPEAL NO. 528 OF 2021 KELVIN S/O KELVIN NYONDO.................................................. APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Ngunyale, J) dated the 22n d day of October, 2021 in Criminal Appeal No. 86 of 2021 JUDGMENT OF THE COURT 5th & 11thDecember, 2024 KAIRO, J.A,: In the District Court of ileje at Itumba, the appellant Kelvin s/o Kelvin Nyondo was charged with and convicted of the offence of rape contrary to sections 130 (1), (2) (e), and 131 (1) of the Penal Code, Cap 16 (the Penal Code). According to the prosecution, around 14:00 hrs on 24th November, 2020, at Lupando village within Ileje District in Songwe Region, the appellant raped a girl of 15 years. For the purpose of disguising her true identity in this judgement, we will be referring to her as PW2 or the victim. Following his conviction, the appellant was sentenced to serve thirty (30) years in jail.

Aggrieved, the appellant unsuccessfully appealed to the High Court at Mbeya. Still adamant, he has preferred this second appeal to challenge the latter decision armed with four grounds of appeal upon which this appeal shall be determined having the following complaints:- one; that the first appellate court erred to dismiss the appeal without evaluating the appellant's petition of appeal, two; that the first appellate court erred in dismissing the appeal relying on the evidence of PW2 without assessing her credibility. He is particularly questioning PW2's willingness to accompany the appellant after the incident and the victim's failure to raise alarm when dropped at Moravian Church area, instead of waiting to report the incident to PW4. Three; that the first appellate court erred in dismissing the appeal relying on exhibit PEI as corroborative evidence disregarding that the same was doubtful for containing two different names of the victim and further, the presence of discrepancies on the name and age of the victim in prosecution evidence, and four; that the first appellate court erred to dismiss the appeal disregarding the improper visual identification of the appellant considering that neither PW2 nor PW3 mentioned the appellant's name. The following are the brief facts of the case. On 24th November, 2020 which seemed to have started well, must be the worst and unforgettable day to the victim for the tragedy befallen on her. On that

day, the victim commenced her journey to go back to her parents at Ipapa in Isongole village after spending some days with her grandmother at Ibungu village. Initially, the victim was escorted by her uncle, one Kelvin Jackson Kasekwa (PW3) in his motorcycle. Unfortunately, when they reached at Ibungu village, the motorcycle got mechanical defects thus, it could not proceed with the journey. PW3 decided to hire the appellant who was a motor cycle driver commonly known as bodaboda, instructing him to take the victim to Isongole village. On the way, the appellant diverted from the main road to an isolated path where there were no residential houses claiming that, he was going to take his money from somebody, in the course, he alleged to have confused the way. The appellant stopped the motorcycle, got hold of the victim who attempted to run away in escape following the stoppage of the motorcycle. He laid her down, undressed her underwear and raped her while threatening to kill her if she shouted. After satisfying his lust, they continued with the journey and the appellant dropped her at Moravian Church, near her parent's home. Upon reaching home, PW2 narrated to her mother, one Edina Jackson Kasekwa (PW4), the ordeal she underwent in the hands of the motorcyclist who was later discovered to be the appellant. PW4 inspected the victim's private parts and noted some fluids oozing from her vagina.

PW4 reported the incident to the village authorities and later the matter was reported to Ileje Police Station where the victim was issued with a PF3 and taken to Ileje District Government Hospital where she was examined by Dr. Kibona (PW1). After examining the victim, PW1 discovered that, the victim hymen was perforated, there were bruises and frozen blood inside her vagina and was also discharging white fluid. PW1 filled the PF3 which he tendered in court and admitted in evidence as exhibit PI. The appellant was arrested on the same day and later taken to court. In his defence, the appellant admitted to have been dealing with "bodaboda "business and further that, he was, on the fateful date, hired to carry the victim from Ibungu to Isongole village, but disputed to have raped her. Despite his denial, the trial court found him guilty as charged and convicted him as alluded to above. At the hearing of the appeal, the appellant appeared in person unrepresented whereas the respondent Republic had Mr. Joseph Mwakasege, learned State Attorney, resisting the appeal. The appellant opted to give an opportunity to the learned State Attorney to respond to his grounds of appeal with a view to rejoining later if necessary.

On his part, Mr. Mwakasege who did not support the appeal, was of the view that, the prosecution proved its case against the appellant beyond reasonable doubt and urged the Court to find no merit in the appeal and dismiss it. Refuting the 1s t ground of appeal premised on the complaint that, the 1s t appellate court did not evaluate the appellant's ground of appeal, Mr. Mwakasege argued it to be a misconception and urged us to find it baseless. He clarified that, the learned Judge analysed all grounds of appeal in the appellant's petition appearing at page 29 of the record of appeal and seriatim from pages 44-50 of the record of appeal and found them baseless. He contended that, dismissing the appeal does not mean the grounds of appeal were not analysed and determined, rather they were found meritless. We go along with Mr. Mwakasege's submission in this respect. To begin with, it is not the first appellate court's duty to evaluate the petition of appeal, but to consider and determines the grounds of appeal raised therein before reaching its determination. Going through the record of appeal on pages 44-50 it is glaring that, the learned High Court Judge analysed the grounds of appeal seriatim before dismissing the appeal as depicted in his judgment. The record further reveals that, the learned Judge re-evaluated the evidence when determining the appellant's

grounds of appeal. Likewise, we join hands with the learned State Attorney's argument that, dismissing the appeal does not mean that the same was not analysed. The ground is therefore without merit and we dismiss it. In the 2n d ground of appeal, the appellant is questioning the victim's credibility and his complaint is twofold, one; why the victim agreed to accompany the appellant by boarding his motorcycle after the incident if she was truly raped, and two; her failure to alert people at the Moravian Church on the incidence for him to be arrested instead of waiting to report the incident to PW4. Addressing the first limb, Mr. Mwakasege started by recounting the settled legal principle that credibility of a witness is the monopoly of the trial court in so far as demeanour is concerned, and to him, the trial court assessed PW2' credibility and found it unshaken. He submitted that, and rightly so in our view that, in the case at hand the trial court was firm that PW2's evidence was reliable basing on the case of Selemani Makumba vs Republic [2006] T.L.R. 379 to the effect that, true evidence of rape comes from the victim. The learned State Attorney went on to illustrate that, when narrating what transpired, PW2 told the court that she was threatened to

be killed if she shouted. Nevertheless, contended Mr. Mwakasege, shouting in the circumstance was irrelevant as the offence was statutory rape. As regards the second limb, Mr. Mwakasege submitted that, the victim was dropped at Moravian church which was a walking distance from the victim parents' home and upon reaching there, PW2 immediately told PW4 of the incident which also assured her credibility. He therefore concluded that, the attack on the victim's credibility is unfounded in the light of the above analysis and implored the Court to dismiss the 2n d ground of appeal. We respectfully agree with the learned State Attorney in his submissions on both complaints. According to the record of appeal, PW2's testimony at page 9 of the record addresses the first complaint while her response to the appellant's cross examination on page 10 of the record addresses the second complaint. We wish to quote the two excepts for easy of reference as follows starting with page 9: "While sexing me , he intimidated me that ; if I shout ; he will kill me, later on he told me that ; I better board again his motor cycle so that he can carry me to the agreed destination, I thought to resist but later on I boarded his motor cycle and he brought to Isongoie village"

As to why the victim did not alert the people when dropped at Moravian Church, PW2's response in cross examination questions at page 10 of the record of appeal speaks it all. She said: "'After being raped by the accused person , I boarded his motorcycle to I papa hamlet. I planned to report the event immediately after dropping me at our home but he dropped me when we reached at Moravian church. I told the accused to drop me at our home since I had banana and clothes but he responded that he was in a hurry. I was raped while in the bush that is why nobody saw us..." Flowing from the above, we are of the view that, PW2's evidence not only negates both of appellant's complaints, but further builds up the prosecution case on victim's credibility. The trial court addressed this issue in its judgment at page 25 of the record of appeal and, relying on the case of Selemani Makumba (supra) it was of the view that, PW2's testimony was truthful. The findings were upheld by the first appellate court and we respectfully agree with both courts in this aspect. The law is long settled that every witness is entitled to credence and his/her evidence believed unless there are good and cogent reasons to the contrary. See: Goodluck Kyando vs Republic [2006] T.L.R. 263. In this case, neither, the trial

court nor the first appellate found any reason for not believing PW2. We hold the same view. That apart, the victim's prompt reporting to PW4 of the incident is again an assurance of her reliability and credibility contrary to the appellant's contentions. See: Marwa Wangiti & Another vs Republic [2002] T.L.R. 39. In view of the foregoing, we find the 2n d ground of appeal meritless and accordingly dismiss it. We now turn to the 3r dground of appeal wherein the main complaint hinged on the reliability of Exhibit PEI which the appellant alleges that it was used as corroborative evidence to convict him despite having doubtful discrepancies on the name and age of the victim. The appellant contended that, the pointed-out infractions suggest that PW2 was never examined and therefore she was not raped and the allegations against him were fabricated. Responding, Mr. Mwakasege submitted that, exhibit PI reflects the names of PW4 and PW2 as victims of rape which he conceded to be an error. However, he argued that, the document contains an expert opinion which is not binding on the court. He beseeched the Court to retain the oral evidence of PW1 if the Court will be inclined to expunge exhibit PI.

He cited to us the case of Hamis Kayanda vs DPP, [2021] TZCA 487 TanzLii to support his argument. On the inconsistency of the victim's age whereby she herself testified to be 15 years old while exhibit PI indicated her age to be 14 years old, Mr. Mwakasege urged the Court to find it minor which did not dent the evidence of PW2 who was a witness of truth relying on Selemani Makumba's case (supra). The arguments notwithstanding and upon reflection, Mr. Mwakasege contended further that, the record of appeal reveals neither the trial court nor the first appellate court relied on exhibit PI either as a stand-alone or as corroborative evidence to convict the appellant. In view of that, he argued, the complaint is misplaced and implored the Court to dismiss it. We agree with Mr. Mwakasege that indeed, the complaint is misplaced as the record of appeal neither shows in the trial court's judgment nor in the judgment of the 1s t appellate courts to have relied on exhibit PI to ground conviction either separately or as corroborative evidence. In that respect, we do not have to be labour further determining the complaint for being irrelevant. Consequently, we find the 3r d ground of appeal without merit and dismiss it.

Turning to the 4th ground of appeal, the appellant's complaint was to the effect that he was not identified as neither PW2 nor PW3 mentioned his name as the offender and that the omission rendered the allegation a mere suspicion. He argued that, carrying the victim to Isongole did not mean that he committed the offence. In his response, Mr. Mwakasege started by urging the Court to refrain from entertaining the complaint for containing factual matters not raised at the first appellate court. In support, he referred the Court to page 35 of the record of appeal where the appellant's grounds of appeal lodged at the High Court. He argued that, in the circumstances, the Court lacks jurisdiction to entertain it. He relied on the case of Emmanuel s/o Samson vs Republic, [2021] TZCA 507 TanzLii to support his argument. Alternatively, Mr. Mwakasege submitted that, even if the Court decides to consider the complaint, still the same is meritless. In illustration, the learned State Attorney argued that, according to PW2's testimony of what transpired, the incident occurred in the afternoon. Besides, the victim and the appellant were together for a long time and therefore, the possibility of mistaken identity was eliminated. Mr. Mwakasege added that, PW2 further identified the appellant in court when testifying. li

We agree that, the appellant's complaint on identification was not raised at the first appellate court. Though Mr. Mwakasege invited us to decline considering it for being new and based on factual matters, we do not subscribe to his argument. In our view, the issue of identification involves a point of law and so we are bound to entertain it. That notwithstanding, we are in agreement with Mr. Mwakasege's argument that, the complaint is without merit. The fact that the incident occurred in the afternoon, coupled with the long time the victim was with the appellant in our view, eliminated all possibilities of mistaken identity on the part of PW2 though she did not mention his name. After all, PW2 in her testimony was clear that it was her first time to see the appellant on the fateful date. Thus, she would not be expected to know his name. As for PW3, the witness was categorical in his testimony at page 12 of the record of appeal that, he had seen the appellant before the incident date and that he knew him by face being a motorcycle driver (bodaboda) but not by name. Besides, PW3 also identified the appellant as the person he paid him fare and instructed to take the victim to her parents at Isongole village. In view of the above, we do not entertain any doubt that, the identification of the appellant by PW2 and PW3 was optimum, contrary

to the appellant's complaint. We thus find the ground meritless and accordingly dismiss it. In fine and for the foregoing reasons, we sustain the concurrent findings of the two courts below and find the appeal devoid of merit. We dismiss it in its entirety. DATED at MBEYA this 10th day of December, 2024. L. J. S. MWANDAMBO JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 11th day of December, 2024 in the presence of the Appellant in person and Mr. Albert Kikuli, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of original. D. R. LYIMO DEPUTY REGISTRAR COURT OF APPEAL