Rai Kalolo vs Republic (Criminal Appeal No. 360 of 2022) [2024] TZCA 1186 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MKUYE, 3.A., MGEYEKWA. J.A. And NGWEMBE, J.A/1 CRIMINAL APPEAL NO. 360 OF 2022 RAI KALOLO ............ .... . ......... . ................ . ........... .. ......... ....... APPELLANT VERSUS THE REPUBLIC . ........................... . ......... . ............... . ....... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) fMatoaolo, 3 .^ dated the 6thday of April, 2022 in Criminal Appeal No. 74 of 2021 JUDGMENT OF THE COURT 26th November & 3,d December, 2024 MGEYEKWA, 3.A:. Rai Kalolo, the appellant, stood trial at the District Court of Iringa at Iringa for rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap, 16 (the Penal Code). It was alleged that on 5th January, 2019 in Nyamhanga area within the District and Region of Iringa, the appellant did have carnal knowledge of a girl aged eight (8) years who, for the sake of protecting her privacy, we will refer to her as ” the complainant"or 'PWl' the codename by which she testified.

A brief account of the evidence that led to the conviction of the appellant is as follows: PW1 was a grade three pupil on the fateful day, she was eight (8) years old. The victim was staying with her parents, the appellant, and one Samwel. The crux of the victim's evidence was that, on the fateful day, she was playing with her playmates outside their house. She recalled that the appellant called her; inside his room and placed her on his bed, undressed her, and forcibly had sexual intercourse with her. It was the testimony of PW1 that, the experience was painful. A moment later, Felister (PW2), her sister appeared, stayed for a minute, and left. Then PW1 went outside to play. The following day, PW2 asked PWi some questions and she told her what had befallen her. According to Felister Kibiki (PW2), she testified that on the fateful day, she returned home around 17:00 hours in the evening and found the gate open. When she entered the house, she heard noises inside the appellant's room and heard one saying I am feeling pain. She entered inside the appellant's room and found the complainant lying on the bed naked and the appellant was also inside his room. Later, the appellant left with the complainant. On the following day, PW2 informed her father about the ordeal and her father took the complainant to the hospital for medical examination and they were referred to the police station to

obtain a PF3 form. On 5thJanuary, 2019 they recorded their statements at the police station. According to PW2, the appellant was their houseboy and they stayed with him for almost five years. On the part of the complainant's father, Stamicus Samwei Kibiki (PW3), testified that on 5th January, 2019, he returned home from the farm around 21:00 hours and found that his children had gone to sleep. He was unaware of what had happened to the victim until January 6th, 2019, when he returned from church, PW2 informed him that the appellant, who was his houseboy, raped the complainant. Subsequently, PW3 took the complainant to the police station and obtained a PF3. Thereafter, he took the complainant to Ipogoro Health Center for a medical examination. The victim's evidence was supported by Halima Ahmed (PW4), a medical doctor at Ipogoro Health Center who recalled that on 6th January, 2019, she examined the victim. Her findings, which she posted into PF3 (exhibit PI), were that PWl's vagina exhibited bruises and that her hymen was perforated. More evidence of the encounter came from DC H1593 (PW5), who testified that on 7th January, 2020, the appellant arrived at the police station. According to PW5, he was instructed to record the appellant’s

cautioned statement and while at the police station, the appellant confessed to having raped the complainant. However, PW5 did not tender the cautioned statement in court. The defence by the appellant was a total denial, refuting all the allegations fronted against him. He asserted that there were grudges between him and PW3. The appellant believed the prosecution case against him was a frame -up given the past grudges between him and the complainant's father related to his salary as amounted to TZS. 400, 000.00. To his surprise, he was charged with the offence of rape. In its judgment, the trial court was satisfied with the evidence of the complainant which it found to have been sufficiently corroborated by PW1, PW3, and PW4. The evidence of PW4 was supported by exhibit PI. Consequently, the appellant was convicted and sentenced to thirty (30) years imprisonment. Aggrieved by the outcome of his trial, the appellant unsuccessfully appealed to the High Court at Iringa where the conviction was sustained and the sentence was enhanced to life imprisonment. Still undaunted, the appellant has preferred this second appeal. He filed a memorandum of appeal containing four (4) grounds of appeal which can be paraphrased as follows; one, that, the trial court failed to

address the appellant on his right to call a witness in defence contrary to section 231 (1) (a) and (b) of the Criminal Procedure Act (the CPA), two, that, section 192 of the CPA was not complied with, three, that, section 214 of the CPA was not complied with; and four, that, the case was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant entered appearance unpresented. He out rightly urged the Court to consider his grounds of appeal and let the respondent Republic submit in response while reserving his right to rejoin afterwards, should that need arise. On the adversary side, the respondent Republic was represented by Mr. Amani Kyando and M 's. Winifrida Mpiwa, both learned State Attorneys but it was Ms. Mpiwa who addressed us first by stating categorically that the respondent is opposing the appeal. She also informed the Court that the appellant's grounds number one, two, and three were not raised and determined by the first appellate court. Nevertheless, since they involve points of law, we will determine them. We shall revert to the details of the appellant's arguments in the course of the determination of the issues of contention. The first ground of the complaint is that the provisions of section 231 (a) and (b) of the CPA was flouted. Responding to it, Ms. Mpiwa forcefully contended that section 231 of the CPA was duly complied with.

She reinforced her submission, by referring us to the case of Charles Yona v. Republic, Criminal Appeal No. 79 of 2019 [2021] TZCA 339 (2 August 2021 TanzLII) and argued that, after the ruling on a case to answer, the trial court addressed the appellant in respect of section 231 of the CPA and the appellant is recorded to have said he was ready to defend his case as appears in page 27 of the record of appeal. However, upon our scrutiny of the record of appeal, we acknowledge that there is no clear indication that the trial magistrate specifically addressed the appellant in terms of section 231 of the CPA. The section enjoins a trial magistrate at the end of the prosecution’s case to address the accused on his right to give evidence on oath or not and to call witnesses, if any. It is clear at page 23 of the record of appeal that after the trial court had rendered its ruling that a case had been made against the appellant to require him to present his defence, the court did not expressly address him on his rights and manner to present his defence in terms of the above-cited provision. However, the appellant was recorded to have replied to the court that "I will testify myseif in defence inquiry case. I am ready for inquiry defence case." In our view, his response undermines his complaint because his response indicates that the trial magistrate informed him of his rights. The Court

has dealt with non-compliance with section 231 of the CPA in numerous cases, including, Twalaha Ally Hassan v. Republic, Criminal Appeal No. 127 of 2019 [2021] TZCA 242 (9 June 2021 TanzLII) and Charles Yona (supra). In the latter case, the Court held that: "Although there is no express indication that the trial magistrate specifically addressed the appellant, his response reproduced above militates against his complaint. In our view, the response is indicative of the trial magistrate having addressed the appellant on his rights. " We subscribe to the above holding and hoid that, the appellant exercised his right to defend himself upon oath. In consequence, we reject this complaint. On the second ground of appeal, the appellant is trying to fault the preliminary hearing procedure. Ms. Mpiwa contended that the memorandum of disputed facts was read out. The learned State Attorney, however, conceded that there is no indication that the memorandum of undisputed facts was read over. Ms. Mpiwa took a diverse swipe in addressing this issue, She was quick to argue that the omission did not prejudice the appellant. She referred us to the case of Mashishi Lwenge v. Republic, Criminal Appeal No. 660 of 2021

(unreported), and argued that the purpose of a preliminary hearing is to promote a fair and expeditious trial. In the present matter, the preliminary hearing was conducted on 24th July, 2019, the memorandum of agreed facts were read over to the appellant who replied and the trial magistrate recorded that the appellant admit his personal particulars as per charge sheet. Admittedly, in the present case, the undisputed facts were not recorded which means the same were not explained to the appellant as required by under section 192 of the GPA. However, as rightly submitted by the learned State Attorney, we did not find any instance or suggestion that the appellant was prejudiced by the omission and hold that, the proceedings which were conducted without invoking the procedure laid down under section 192 of the CPA did not vitiate the proceedings of the court below. See the case of Joseph Munene & another v. Republic [2005] T.L.R 141. Therefore, we find this complaint without substance and dismiss it In support of ground three, the appellant complained that the provisions of section 214 of the CPA were flouted. Responding therein, the learned State Attorney contended that the case commenced before Rwehumbiza, RM and he heard the first to the fourth witnesses and

partly heard the fifth witness, then the hearing was adjourned until 3r d December, 2019, where the matter was called on for hearing before Mwankejela, RM, who explained and informed the appellant that Rwehumbiza , RM was transferred, therefore, he took over. The learned State Attorney continued to submit that Mwankejela, RM stated clearly the reasons for taking over, however, the appellant was not asked if he wants the trial court to recall the witnesses, instead, he proceeded with the hearing. It was her view that the defect is curable under section 388 of the CPA. Having revisited the record of appeal, we do unreservedly agree with the learned State Attorney that this ground is unfounded. It is glaring from the trial court proceedings that the appellant stood trial before two magistrates. The predecessor was Hon. Rwehumbiza, RM who received the evidence of four witnesses before his transfer to another station. It is equally plain from the record that after several adjournments, on 24th February, 2020 the date on which the trial was to continue with hearing, the case was called on before Mwankejela, RM who informed the appellant that Rwehumbiza, RM was transferred. Thus, we agree with Ms. Mpiwa that the successor magistrate disclosed the reasons for

taking over. However, as rightly stated by the appellant, the successor magistrate did not comply with the requirement under section 214 of the CPA for failure to ask the appellant if he wished for the trial court to recall the witnesses, instead, it proceeded with the hearing of the case. In our view, we find the omission as minor that cannot affect the validity of the proceedings. As rightly stated by Ms. Mpiwa, the defect is curable under section 388 of the CPA. This ground likewise lacks merit and we dismiss it. We turn to the allegation by the appellant that the prosecution failed to prove the case beyond reasonable doubt. Responding, Ms. Mpiwa forcefully argued that the case was proved beyond reasonable doubt. She argued that, the appellant was charged with statutory rape. Elaborating, she submitted that the prosecution established the ingredients of statutory rape that the appellant faced as predicated under sections 130 (1), (2) (e), and 131 (1), (3) of the Penal Code. She clarified that the prosecution had to establish; one, whether there was vagina! penetration of the complainant; two, that the complainant's age at the time of the sexual act is below 18 years; and three, that the perpetrator of the sexual act was the appellant, She clarified that the prosecution established that penetration took place, the

complainant's age at the time of the sexual act was below 18 years and the perpetrator of the sexual act was the appellant. To buttress her submission, she referred us to the case of lssaya Renatus v. Republic, Criminal Appeal No. 542 of 2015 [2016] TZCA 218. The learned State Attorney continued to elaborate that, the complainant recognized the appellant and she narrated how he took her inside his room, undressed her and inserted his manhood into her vagina. She pointed out that, PW2 also testified that she heard the complainant lamenting that it was painful. She added that besides, PW2 entered into the appellant's room and saw PW1 without any clothes. She added that in the case of sexual offences, the best evidence comes from the complainant. To bolster her submission, she cited the case of Ponsiano Ntamaboko v. Republic, Criminal Appeal No. 206 of 2022. In her response in respect of the cautioned statement (exhibit P2), the learned State Attorney readily conceded that exhibit P2 was un- procedurally admitted in evidence as it was tendered by the learned State Attorney while he was not a witness. She thus, urged us to expunge it from the record. To support her submission, she cited the case of Athuman Almas Rajabu v. Republic, Criminal Appeal No. 416 of 2019 [2021] TZCA 529. She was however quick to point out that,

even after expunging the said exhibit from the record, the remaining evidence is still sufficient to sustain the appellant's conviction . Upon being prompted by the Court about the unexplained delay in arraigning the appellant in court. She readily admitted that the appellant was arraigned in court after a lapse of seven (7) months from the date when he was arrested. That notwithstanding, she insisted that the prosecution proved the charge beyond reasonable doubt and the grounds of appeal were baseless and ought to be dismissed, she pressed. Having discounted exhibit P2 from the record, the crucial issue in this appeal turns on the reliability and sufficiency of evidence that predicted his conviction. We have chosen to start addressing the issue of whether the prosecution proved the case beyond reasonable doubt. As we approach the issue, we are alive to the established principle that, in the absence of misdirection, non- directions or misapprehension of the evidence, the Court on a second appeal, should refrain from interfering with the concurrent findings of the two courts below. Instead, we are only supposed to deal with questions of law. In our previous decision Jafari Mohamed v. Republic, Criminal Appeal 112 of 2006 [2013] TZCA 344 (15 March 2013 TanzLII), we held that:

"An appellate court, like this one, will only interfere with such concurrent findings o f fact only if it is satisfied that "they are on the face o f it unreasonable or perverse" leading to a miscarriage o f justice, or there had been a misapprehension o f the evidence or a violation of some principle 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); RichardMgaya (supra)..." As rightly submitted by Ms. Mpiwa, it is the settled law that the best evidence in sexual offences comes from the victim, this was the standing of the Court in the celebrated case of Sslemani Makumba v. Republic (2006) TLR 374. The principle was reiterated in the case of Mohamed Haji AM v. Director of Public Prosecution, Criminal Appeal No. 225 of 2018 [2018] TZCA 332. However, this position is general, it is not to be taken wholesale without considering other important factors, such as the credibility of the prosecution witnesses, the reliability of their evidence and the circumstances relevant to the case in point. See Majaliwa Ihema v. Republic, Criminal Appeal No. 197 of 2002 [2021] TZCA 304. In view of the prosecution evidence, we are satisfied that the age of the complainant was proved by PW1. The evidence is also supported

by PW3, the victim's father who testified, in summary, that the victim was aged 8 years. In proving whether or not there was penetration; PW1 testified that the appellant undressed her and inserted his male organ in her vagina, and she had a painful experience. Having revisited the record of appeal, it is evident that the conviction of the appellant was based on the credibility of prosecution witnesses. In its decision, the High Court found that the evidence of PW1 was reliable, hence confirmed the trial court's findings and conviction upon the appellant. As mentioned earlier, since this is a second appeal, we recognize the principle that the Court should rarely overturn concurrent factual findings made by the lower courts based on credibility, as we lack the advantage of seeing, hearing, and assessing the demeanor of the witnesses. However, there is an exception to the rule, that the Court will interfere with any such findings, if the findings have been reached in misapprehension of facts and quality of the evidence resulting in unfair conviction or violation of some principles of law, occasioning a failure of justice. See Wankuru Mwita (supra) and Jafari Mohamed v. The Republic, Criminal Appeal No. 112 of 2006 (unreported).

In addition, the credibility of a witness can also be determined by a second appellate court when examining the findings of the first appellate court by assessing the consistency of such a witness. It is noteworthy that the trial magistrate, who had the advantage of observing PW1 while she testified in court, already considered her demeanor. However, as mentioned earlier, PWl's demeanor is not the sole factor in assessing credibility. It must be evaluated in concurrence with the coherence and consistency of her testimony. See Abraham Wilson Kaaya (supra). Reverting to the case at hand, a lingering question is whether the complainant gave a credible account of the charge of rape. It is evident on the record as per the evidence of PW1 that, the appellant carnally knew her and this was the only evidence that directly implicated the appellant. From the record, both lower courts found the evidence of PW1 highly credible and sufficient without testing her credibility. It is important to note that in rape cases, a witness's credibility refers to how believable and trustworthy their testimony is in relation to the alleged offense. In the case of Salum Ally v. Republic, Criminal Appeal No. 106 of 2013 (unreported), the Court held;

"...on whether or not any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence . We are aware that at its most basicy credibility involves the issue of whether the witness appears to be telling the truth as he believes it to be. In essencef this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case of AbdaUha Teje @ Ma/ima Mabula v. Republic, Criminal Appeal No. 195 o f2005 (unreported)." See also: Elisha Edward v. Republic, Criminal Appeal 33 of 2018) [2021] TZCA 397. We have revisited the record of appeal and noted that at page 9, PW1 testified that the appellant inserted his manhood in her vagina. Despite being seen naked by PW2, the complainant dressed up and went outside to play with her playmates, she decided to keep quiet as nothing had befallen her. It was the testimony of PW2 that she did not witness the sexual assault of PW1 by the appellant. However, she claimed that she heard PW1 saying that she was feeling pain. According

to PW2, when she entered the appellant's room, she found the appellant dressed and the complainant was lying naked on his bed. Then, she decided to leave. It leaves a lot to be desired that, a 20 years girl left behind her sibling with the appellant in the appellant's room, despite suspecting that the environment in his room was unusual. Nevertheless, it is unclear why PW2 did not report the ordeal to anyone until the next day when she informed her father. Besides, ordinarily, it is not easy for a well-mannered child to speak direct words. During cross examination, PWl on page 9 of the record of appeal, without a tinge of shame, described the appellant's male organ as thick. It raises doubt if PWl was telling the truth. In Mathias Bundala v. Republic, Criminal Appeal No. 62 of 2004 (unreported) the Court held that: "Good reasons for not believing a witness include the fact that the witness has given improbable evidence or the evidence has been materially contradicted by another witness or witnesses." [Emphasis added] Applying the above decision to the case at hand, it is evident that PW1 and PW2's behaviour undermines their credibility regarding the appellant's involvement. As such, their evidence ordinarily ought to have

been treated with caution; which the lower courts failed to do. In our previous decision in Jackson Simon Daud v. Republic, Criminal Appeal No. 621 of 2021, [2024] TZCA 415 97 June 2024), the Court held that: 'We find and hold that, PW l's credibility is questionable, it is uncertain whether she was telling the truth. " We are aware that every witness is entitled to credence and be believed. However, there are exceptions where there are good reasons not to believe a witness. In the case at hand, we think that the word of the complainant should not be taken as gospel truth, but her testimony should pass the test of truthfulness. See Mohamed Said v. the Republic, Criminal Appeal No. 145 of 2017 (unreported). In the end, for the reasons we have shown, we find that the evidence of PW1 was shaken. Unlike, the learned State Attorney, we do not agree with her that PW1 was telling the truth. Her credibility was questionable. In our settled view, had the courts below correctly assessed the prosecution witnesses' evidence, and addressed themselves to these unsatisfactory features in the evidence of PW1 and PW2, they would not have readily taken it as wittiness of truth.

This brings us to another aspect of the case which was raised by the Court suo mottu. The unexplained delay in arresting the appellant. Gleaning from the record of appeal (page 1), it is clear that, the offence was committed on 5th January, 2019 but the appellant was arraigned before the trial court on 9th July, 2019, after a lapse of six months. The learned State Attorney in her submission was unable to explain the said delay but she admitted that the delay cast doubt on the veracity of prosecution evidence. We have thoroughly gone through the record of appeal, but could not find a clear explanation as to why it took the prosecution more than six months to arraign the appellant in court. There is no any explanation from the prosecution concerning the appellant’s whereabouts after the incident except that he was arraigned before the trial court on 9th July, 2019. In relation to the issue, it was echoed in Ramson Peter Ondile v. The Republic, Criminal Appeal No. 84 of 2021 [2022] TZCA 608, where the Court held: - "It is therefore our considered view that the unexplained delay to arraign the appellant in court creates doubt in the prosecution case as to whether the incident occurred as alleged." [Emphasis added]

See also: Juma Shabani @ Juma v. Republic, Criminal Appeal No, 168 of 2004 and Chakwe Lekuchela v. Republic, Criminal Appeal No, 204 of 2006 (both unreported). The important takeaway from the above authorities is that it is an undeniable fact the appellant was apprehended six months after the incident occurred. More so, the unexplained delay in arresting the appellant is linked with the prosecution's failure to produce material witness. It is incontrovertible that in terms of section 143 of the Evidence Act, no particular number of witnesses is required in any particular case for the proof of any fact. Thus, it is clear that there is no law that compels the prosecution to call all witnesses. However, we wish to emphasize that the decision to call a particular person as a witness depends on the circumstances of each case and the relevance of evidence of such witness to a case. See Wambura Marwa Wambura v. Republic, Criminal Appeal No. 115 of 2019 [2022] TZCA 429 (14 July 2022 TanzLII). For the aforesaid findings, we believe that in the present case, where it is alleged that the appellant was arrested by a police officer, it was important for him to be called as a witness to testify in court. Failure by the prosecution to call the arresting officer who was the

material witness entitles the Court to draw adverse inference where such witnesses are within reach but are not called without sufficient reason being shown by the prosecution. We have this principle in a number of decisions. See Aziz AbdaHa v. Republic [1991] TLR 71 and Boniface Kundakira Tarimo v. Republic, Criminal Appeal No. 350 of 2008 (unreported). When considering a similar matter, the Court in the latter case stated that: "...it is thus now settled that, where a witness who is in a better position to explain some missing links in the party's case, is not called without any sufficient reason being shown by the party, an adverse inference may be drawn against that party, even if such inference is only a permissible one . " In our considered view, the arresting police officer was a material witness who could have clarified the exact time of the appellant's arrest, thus justifying the delay in bringing the appellant to court. Further, in view of the foregoing, we find that there was dereliction of duty on the part of the prosecution when they did not call the arresting police officer who was considered as material witness in this case. Given the above, we are satisfied that the implausibility of the prosecution witnesses' testimonies, the failure to call material witness,

and the unexplained delay in arresting the appellant raise reasonable doubt on the prosecution's case. Paying reverence to the cardinal principle in criminal justice, the appellant should be given the benefit of the doubt. In the upshot, we allow the appeal, quash the conviction, and set aside the sentence imposed on the appellant. We hereby order his immediate release from prison unless otherwise lawfully held. DATED at IRINGA this 3r d day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P . 1 NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 3r d day of December, 2024 in presence of the Appellant in person and Mr. Amani Kyando, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.