Ndeki Joseph vs Republic (Criminal Appeal No. 445 of 2021) [2024] TZCA 1068 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT MOSHI CORAM: MWARIJA. J.A., KAIRO. J.A, And FELESHI J.A. CRIMINAL APPEAL NO. 445 OF 2021 NDEKI JOSEPH ........ ......... ...... ..... .... ...... ....... APPELLANT VERSUS THE REPUBLIC .................... ........ RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Moshi) (Mutunqi. J) dated the 28th day of July, 2021 in Criminal Appeal No. 17 Of 2021 JUDGMENT OF THE COURT 28th October & 07th November, 2024 KAIRO, J.A.: This is an appeal against the judgement of the High Court at Moshi in Criminal Appeal No. 17 of 2021. The appellant was charged with rape in the District Court of Moshi at Moshi in Criminal Case No. 493 of 2019 contrary to sections 130 (.1), (2) (e), and c/s 131 (1) of the Penal Code, Cap 16 (the Penal Code). It was alleged that on 1s t December 2019 at Leghomulo Kirua within the District of Moshi in Kilimanjaro Region, the appellant had a

carnal knowledge of a girl of 9 years of age. For the purpose of this judgment, we shall refer her as the "victim" or "PW1" to conceal her true identity. The background leading to this appeal is that; on 1s t December 2021, the victim (PW1) attended a Holy Communion training at Legho Roman Catholic Church. At around 16:30 hrs, she was through with the training and decided to visit her maternal aunt, namely Pamela Alfred Mbando (PW4) at her home. Unfortunately, PW1 did not find her at the place she was living. She thus, decided to go back home. On her way, the victim met Ndeki, the appellant whom was known to her as she usually sees him when going to the church. The Appellant asked her name, and she obediently responded. Thereafter, the Appellant grabbed and dragged her to the nearby bush where he undressed her, torn her underpants and inserted his penis into her vagina. The victim screamed, but no one came to her rescue. Fortunately, a motorcycle was passing by. On hearing it, the appellant ran away leaving her behind. The victim went home crying and on reaching there, she informed her grandmother; Fortunata Alfredy Mbando (PW2), her sister; Editha Philip Kessy (PW3) and PW4. She told them the ordeal she underwent in the hands of the appellant who raped her. They inspected her private parts

and found some blood. The victim then was taken to Kilema hospital after reporting the incidence to the police where she was given a PF3. In their testimonies, PW2, PW3 and PW4 confirmed what PWl stated. At the hospital, the victim was examined and treated by D r. Goodluck Tumaini Mlaki (PW5) who after examining her, he discovered some bruises into her private parts, that her hymen was perforated and after applying the vaginal swab, he discovered the presence of spermatozoa. PW5 concluded that, the victim was penetrated by a blunt object into her vagina and went further that, the presence of spermatozoa denotes penetration of a penis into the victim's vagina. He recorded his findings in the PF3 which was tendered and admitted in evidence as exhibit PI. The appellant was arrested and taken to court for trial. Based on the above prosecution evidence, the trial court was satisfied that, a prirna facie case was established against the appellant and he was therefore required to enter his defence. In his defence, the appellant (DWi) denied to have raped the victim. According to him, he was at home on the material date. To support his assertion, the appellant summoned two defence witnesses;

Joseph John (DW2) and Severine Maina (DW3) whose testimonies was on the circumstances in which the appellant was arrested. Having heard both sides, the trial court was convinced that the prosecution case had proved the case against the appellant to the required standard. The trial court therefore entered conviction against the appellant and sentenced him to life imprisonment. The appellant was not amused and decided to appeal. However, his appeal was found meritless as the High Court upheld the conviction and sentence. Consequently, the appeal was dismissed in its entirety. Stifl determined to vindicate his innocence, the appellant has preferred this second appeal to challenge both the conviction and sentence vide two sets of grounds of appeal. The first set was the memorandum of appeal lodged on 8t h November, 2021 containing the following five (5) grounds:-

1. That the learned first appellate Judge grossly erred in law and fact in upholding the appellant's conviction and sentence despite the same being based on a fatally and incurably defective charge as the names o f the victim as per charge differs

with the one in evidence as testified by PW1, PW5f and as recorded in exhibit PL 2. That, the learned first appellate Judge grossly erred both in law and fact in failing to note that the age o f the victim was not proved to the hilt to render life imprisonment imposed on the appellant 3. That,’ r the learned first appellate Judge grossly erred both in law and fact in failing to re- evaluate the entire evidence on record so as to arrive to her own findings. Instead[ she reproduced what was already determined by the trial court. 4. That the learned first appellate Judge grossly erred in law and fact in upholding the appellant's conviction but failed to note that the trial court based the same on un-existing evidence to convict the appellant 5. That/ the learned first appellate Judge grossly erred in law and fact in upholding the appellants con viction and sentence despite the charge being not proved beyond reasonable doubt against the appellant. The appellant further filed a supplementary memorandum of appeal on 8th October, 2023 raising the following four (4) grounds:-

1. That the courts below grossly erred in law and fact when convicted and sentenced the appellant

while the charge sheet is incurably defective for non-citation o fpunishment provision 2. That, the courts below grossly erred in law and fact when convicted and sentenced the appellant while there is variance on the name o f the complainant between the charge sheet and the evidence. 3. That the courts below grossly erred in law and fact when convicted and sentenced the appellant while there was serious violation o f section 127 (2) o f the Evidence Act R.E. 2002 (the Evidence Act) 4. That the courts below grossly erred in law and fact when convicted and sentenced the appellant while the prosecution case was loaded with contradictions, inconsistencies and discrepancies. At the hearing of the appeal, the appellant appeared in person with no legal representation. On the other hand, Ms. Rose Sulle, learned Senior State Attorney assisted by M r. Isack Mangunu, learned State Attorney represented the respondent, Republic. When invited to amplify his grounds of appeal, the appellant opted to let the learned State Attorney respond first but reserved his right to make a rejoinder, if the need would arise.

It was Mr. Mangunu who responded to the appellant's complaints. At the outset, he declared the respondent's position to oppose the appeal. He further informed the Court that, the respondent has noted that, the 1s t and 4th grounds in the memorandum of appeal and 2n d ground in the supplementary memorandum of appeal are new factual matters whose substance was not dealt with at the High Court, which was the first appellate Court. He moved the Court to refrain from entertaining the said grounds. The appellant, being unrepresented lay person, left the matter to the wisdom of the Court. Having carefully reviewed the complaints in the referred grounds, we are in agreement with M r. Mangunu that, indeed the complaints in grounds 1s t and 4th grounds in the memorandum of appeal and 2n d ground in the supplementary memorandum of appeal contain matters of facts that were not been raised before the High Court, as such they are knew before us. The settled principle of law is that, the Court is mandated to decide on matters that came up in the first appellate court and were decided upon, and not matters that were neither raised nor determined by the court from which the appeal emanates, unless, they

contain points of law. There is a plethora of decisions in this regard including: Abdul Athuman vs Republic [2004] T.L.R. 151 and Juma Manjano vs DPP, Criminal Appeal No. 211 of 2009 [2012] TZCA 52 (1 March 2012) to mention but a few. On that account, we desist from determining them. Addressing the 1st ground in the supplementary memorandum of appeal, M r. Mangunu conceded that, the charge did not cite the punishment provision. He however refuted not to be correct the contention that, failure to cite the sentencing provision renders the charge defective as contended by the appellant. He argued that, the omission is curable under section 388 (1) of the Criminal Procedure Act, Cap 20 R.E.2022 (the CPA). He further argued that, there was no prejudice to the appellant as the charge was read over to the appellant and particulars of the offence charged with were explained which enabled to enter his defence. Besides, he argued, citing a sentencing provision is not a mandatory requirement under the CPA. He thus prayed the Court to find the ground unmerited. Responding to the 3r d ground in the supplementary memorandum of appeal, the learned State Attorney refuted the appellant's complaint

that there was violation of section 127 (2) of the Evidence Act, Cap 6 R.E. 2019 (Evidence Act) when recording the evidence of PW1. In amplification, Mr. Mangunu argued that, the referred provision requires a child of 14 years and below to be sworn/affirmed if he/she understands the meaning of oath. If not, he/she has to promise to tell the truth to the court and not lies. It was the contention of M r. Mangunu that, the victim in this case promised to tell the truth to the trial court and referred us to page 11 of the record of appeal for verification. Winding- up on this point, he concluded that the provision was complied with and the ground is misconceived. As regards the 2n d ground in the memorandum of appeal, the complaint is in respect of the proof of the age of the victim to justify the life imprisonment sentence meted on the appellant. It was the contention of the appellant in the said ground that, neither the victim, nor the parents/guardians have mentioned the date when the victim was born so as to prove that she was below the age of 10 years. Rebutting the contention, M r. Mangunu submitted that, the victim's age was clearly ascertained by the victim herself when testifying in April, 2020 whereby she stated her age to be nine years old. He contended

that, the victim went ahead to state the year she was born to be 2010. It was his contention that, since the charge indicates that the incident occurred in December, 2019, it goes that, the victim was nine years when raped. M r. Mangunu further submitted that, the victim's age was also ascertained by PW5, the Doctor who examined her, as well as in exhibit PI. It was his argument that, the victim and the medical practitioner who ascertained the victim's age in this case, are among the competent witnesses to prove the age of a victim. He cited the case of Leonard Sakata vs Republic, (Criminal Appeal No. 235 of 2019) [2022] TZCA 30 (17 February 2022) TanzLii to back up his argument and concluded that, the 2n d ground in the memorandum of appeal is baseless. On the 3r d ground in the memorandum of appeal, the complaint is in respect of the failure by the first appellate Judge to re-evaluate the entire evidence on record and arrive at her own findings. In clarification, the appellant contended that, the learned Judge just reproduced the judgment of the trial court in her judgment. In his brief reply, the learned State attorney submitted that, the High Court determined the grounds of appeal brought before it by

making thorough analysis of the evidence adduced at the trial court and further applied the relevant laws in the circumstances. As such, he argued, the appellant's complaint does not hold water. As regards the presence of contradictions and inconsistencies of the evidence of the prosecution witnesses complained in the 4th ground of the supplementary memorandum of appeal, Mr. Mangunu submitted that, though the appellant did not clarify the raised complaint, but could not find them in the record of appeal. As such, the complaint has no substance. Addressing the 5th ground in the memorandum of appeal, Mr. Mangunu dismissed the argument by the appellant that, the charge was not proved beyond reasonable doubt to mount conviction. He contended that, for the offence of statutory rape like the one at hand, the prosecution is required to prove three ingredients; first, that the victim was under age; second, that there was penetration; and third, that the accused was the offender. Illustrating, the learned State Attorney submitted that, the first and second ingredients were proved by PW1, PW5 and exhibit PI. Regarding the offender, the victim was categorical that, it was the appellant, the person she knew before the date of

incident, who raped her. It was the argument of the learned State Attorney that, all of the three ingredients were proved to the required standard by the prosecution witnesses. He therefore, beseeched the Court to dismiss the appeal in its entirety and sustain the conviction and the sentence imposed on the appellant. In rejoinder, the appellant had nothing useful to add. Having heard the learned State Attorney responding to the complaints raised by the appellant in his grounds of appeal and scanned the evidence on the record before us, the issue for our determination is whether or not this appeal is meritorious. We shall deliberate on the grounds of appeal raised in the order adopted by the respondent, starting with the 1s t ground in the supplementary memorandum of appeal wherein the complaint concerns non-citing of the sentencing provision in a charge sheet. Admittedly, the sentencing provision was not indicated in the charge at issue. However, the contentious issue is whether or not the omission is fatal and renders the charge to be unproven, to which we answer negatively. The case of Peter Kabi & Another vs Republic (Criminal Appeal No. 5 of 2020) [2022] TZCA 5 (1 February 2022) TanzLii serves

as a guiding authority on this aspect whereby, in an akin circumstance the following was observed "On our part, we are inclined to agree with the learned State Attorney that the provision o f the law that was invoked in charging the appellants was improper in the sense that the provision providing for punishment was not indicated. However, we find that this is no longer an incurable anomaly in the wake o f the case o f Jamafi Ally @ Sa/um v. Republic, Criminal Appeal No. 52 o f 2017 (unreported) where it was held that failure to cite the punishment provision in a rape case was curable under section 388 o f the CPA." In the same parity of reasoning, the above decision was fully followed and applied in the case of Abdul Mohamed Namwanga @ Madodo vs Republic (Criminal Appeal No. 257 of 2020) [2022] TZCA 123 (21 March 2022) TanzLii. Basing on the cited authorities, we subscribe to M r. Mangunu's argument that, the omission is not fatal as contended by the appellant. The 1st ground in the supplementary memorandum of appeal is therefore baseless, it is accordingly dismissed.

As regards the 3r d ground in the supplementary memorandum of appeal, the appellant is complaining that, the provision of section 127(2) of the Evidence Act was violated. Our starting point is the section at issue which states as foilows:- "127 (2) A child o f a tender age may give evidence without taking oath or making an affirmation but shaii, before giving evidence promise to teii the truth and not iies." Perhaps it is also imperative to define who legally is "a child of a tender age" The expression has been defined in subsection 4 of the same act as foliows:- "(4) For the purposes o f subsections (2) and (3), the expression "chiid o f tender age" means a child whose apparent age is not more than fourteen years." In the instant case, the testimony of PW2 who was born in 2010 was recorded on 14th April, 2020 which means, her testimony was to be recorded in compliance with the provision of section 127 (2). The interlocutory issue therefore is whether there was any violation in the recording of her evidence as contended by the appellant.

According to record, the testimony of PW1 appears at pages 10-13 of the record of appeal. For ease of reference, we find it apposite to reproduce the excerpt in respect of what transpired in court before recording her evidence:- PROSECUTION CASE OPENS: PW1: Elizabeth Johnbosco Lyimo, female, 9 years old student: Court: How old are you? PW1: I am nine years old Court: Do you go to church? PW1: Yes, I go to church every Sunday. Court: Do you understand the meaning o f oath? PW1: No. Court: Do you know how to tell the truth? PW1: To tell the truth means not to He. It is a sin to tell lies, we have been told in church. Court: You are a witness in this case, do you promise to tell the truth before the Court? PW1: Yes I promise to tell the truth. Court: The witness being a child o f tender age, does not understand the nature o f oath but she understands the duty o f speaking the truth. Therefore, her evidence will be received without taking an oath in terms o f section 127 (2) o f Cap 6

R.E.2002 as amended by Act No.4 2016 Section 26. [Emphasis added]. Looking at the excerpt above, needless to say that, PW1 promised to tell the truth to the court. It goes therefore, her evidence was taken in full compliance with the dictates of section 127 (2) of the Evidence Act, contrary to what was contended by the appellant in the 3r d ground in the supplementary memorandum of appeal. On that account, the ground is unfounded and devoid of merit. We dismiss it. On the 2n d ground of the memorandum of appeal, the appellant criticizes what he stated to be non-proof of the victim's (PW1) age. Thus, the sentence of life imprisonment imposed on him was unjustifiable. The contention was refuted by the respondent. The issue to be addressed therefore is whether the age of the victim was not proved. It is on record that, PW1 when testifying, stated that she was nine (9) years old. She went further to state her year of birth to be 2010. According to the particulars of offence in the charge sheet appearing at page one (1) of the record of appeal, the incident occurred in December, 2019. Simple arithmetic denotes that, the victim was nine years of age when the incident occurred.

Further to that, the victim's age was re-stated by PW5, the doctor who examined her (page 21 of the record of appeal). Besides that, exhibit PI also corroborates what was testified by PW1 and PW5 as regards the age of the victim. It is a settled position in our jurisprudence that, among the competent witnesses to prove the age of the victim include the victim himself/herself, a parent, guardian or a doctor. This is an area rich of Court's authorities including the cases of Isaya Renatus vs The Republic, (Criminal Appeal No. 542 of 2015) [2016] TZCA (26 April 2016), John Mgema® Sabago vs Republic, (Criminal Appeal No. 601 of 2017) [2021] TZCA 745 (3 December 2021), and Jaspin S/O Daniel @ Sikazwe, (Criminal Appeal No. 519 of 2019) [2021] TZCA 58 (26 February 2021) all from TanzLii, to mention but a few. We are thus in agreement with M r. Mangunu that the victims age was proved by PW1 and PW5 who are legally competent witnesses to prove that, as well as exhibit PI. The ground is therefore lacking merit and is accordingly dismissed. The appellant's complaint in the 3r d ground in the memorandum of appeal is to the effect that, the first appellate Judge failed to re-evaluate the entire evidence on record and arrive at her own findings, instead, she reproduced the judgment of the trial court. We need not be detained in disposing of this ground. Suffice to state that, we wholly

agree with M r. Mangunu that, the learned High Court judge re-evaluated the evidence adduced at the trial court through determining the grounds of appeal brought before her. In so doing, she properly applied the relevant provisions of the laws, as well as the legal principles applicable, and arrived at the conclusion reached, to which we concur with, and find nothing to fault her. In view of the above, we don't find any substance in the ground and we accordingly dismiss it. As regards the contentions in the 4th ground of the supplementary memorandum of appeal relating to the presence of contradictions and inconsistencies of the evidence of the prosecution witnesses, it is noteworthy that, the appellant neither pointed them out nor clarified them. Nevertheless, we have thoroughly gone through the entire record of appeal, but we encountered none. We therefore join hands with M r. Mangunu's submission that, the complaint was not substantiated. We now turn to the 5th ground in the memorandum of appeal of which the appellant contends that the charge was not proved to the required standard. As correctly submitted by M r. Mangunu that, in statutory rape offences, the prosecution is required to prove the following three elements: one; that the victim is under age, two; that there was penetration of the accused manhood into the victim's vagina,

and three; that the offender is none other than the accused. [See: Yusufu Selemeni Akandu vs Republic, (Criminal Appeal No. 623 of 2021) [2024] TZCA485 (13 June 2024) TanzLiiJ. In the case at hand, it is on record that, the victim's age was proved by PW1 and further corroborated by the doctor who examined her and filled the PF3 (exhibit PI) which also ascertained the age of the victim to be 9 years of age. (pages 11, 21 and 29 of the record of appeal). As for penetration, it was the victim who narrated the ordeal she underwent. The law is settled that, in sexual offences, rape inclusive, the true and best evidence has to come from the victim. [See: Selemani Makumba vs The Republic [2006] T.L.R. 379 and George Jonas Lesilwa vs Republic, (Criminal Appeal No. 374 of 2020) [2024] T2CA 269 (16 April 2024) TanzLii]. The following quotation from the victim's testimony at page 11 of the record of appeal proves the element of penetration "...//e dragged me into the bush. There was no one passing along the way. He then started to undress me, he removed my skin tight, and torn my

underpants. He then inserted his penis into my vagina..." On the part of the perpetrator, the victim mentioned Ndeki; the appellant whom she knew before the incident date to be the one who raped her. It is imperative to note that, the victim mentioned the appellant immediately after reaching home, to PW2, PW3 and PW4 (page 12 of the record of appeal) which added to the credence and reliability of her evidence. Her tale as regards to the offender was corroborated by PW2, PW3 and PW4 in their testimonies. It is a cardinal principle of law that, the ability of a witness to mention a suspect at the earliest opportune time is an assurance of the reliability of the witness [See: Swalehe Kalonga and Another vs Republic, Criminal Appeal No. 45 of 2001 (unreported), Jaribu Abdallah vs Republic [2003] T.L.R, 271]. On the basis of the above analysis, we can say without hesitation that, all of the elements for the offence of statutory rape were proved. Thus, the 5th ground in the memorandum of appeal is without merit as well.

In fine, we are with firm view that, the charge was proved beyond reasonable doubt against the appellant. The appeal is therefore dismissed in its entirety. DATED at MOSHI this 06th day of November, 2024. A. G. MWARIJA JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered this 7t h day of November, 2024 in the presence of the Appellant in person and M r. Isack Mangunu, learned State Attorney for the Respondent, is hereby certified as a true copy of the original. jk .P P E 'U _______ _ ' felm I , ? ) J.J.k a m a w 1° \j v-bEPUTY REGISTRAR

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