Martine Kaiza vs Republic (Criminal Appeal No. 371 of 2016) [2017] TZCA 947 (14 December 2017)

IN THE COURT OF APPEAL OF TANZANIA AT BUKOBA ( CORAM: MUSSA. J.A. LILA, 3.A. And MWAMBEGELE. CRIMINAL APPEAL NO. 371 OF 2016 MARTINE KAIZA ................................................................... ....APPELLANT VERSUS THE REPUBLIC............................................... ........................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Bukoba) (Matoqolo, J.) dated the 9thday of August, 2016 in Criminal Appeal No. 25 of 2016 JUDGMENT OF THE COURT 11th & 14th December, 2017 MUSSA. 3.A.: In the District Court of Muleba, the appellant stood arraigned as follows:- " STA TEMENT OF OFFENCE:- Attempt Rape C/S 132 (1) o f the Penal Code Cap 16 R/E 2002. PARTICULARS OF OFFENCE:- That MARTINE s/o KAIZA charged on 19th day o f December, 2011 at about 18:00 hrs at MJUNWA/IRAMBA Island within Muleba District in Kagera Region did attempt to have sexual intercourse with one ELIDA c/o PETER a Girl aged 3 yrs." i

The appellant pleaded not guilty to the charge, whereupon the prosecution featured three witnesses, namely, Kagemulo Peter (PW1), Kulwa Joseph (PW2) and Faustine Keberiti (PW3) in support of its case. Kagemulo (PW1), who happens to be the mother of the alleged victim (Elida), is a resident of Mjunwa Island which is referred in the charge sheet. The prosecution evidence was to the effect that, on the fateful day, she was selling local brew at her home to which several consumers, including the appellant, attended. At a certain point in time, PW1, PW2 and PW3 went outdoors leaving Elida who was, apparently, naked. In the meantime, the appellant picked the infant and held her in his hands. Whilst he held the infant, somehow, the appellant lowered his trousers to his knees and exposed his manhood which was fully erected. Just then, the three ladies (PW1, PW2 and PW3) re-emerged from outside and seeing the appellant half-naked, they all exploded in a frenzy of screams. In response, the appellant put the infant on the ground and tried to threaten the wailing ladies but, soon after, he was securely apprehended by a gathering mob and consequently arraigned. In reply to the foregoing prosecution damnation, the appellant did not quite deny being at PWl's residence on the fateful day where he was consuming " P o m b e Only he completely refuted the prosecution accusation

which, he said, was sheer fabrication manufactured by PW1 with whom he had a prior grudge. This explanation did not, in the least, find purchase in the mind of the trial Magistrate who was rather impressed by the version told by the prosecution witnesses. In the upshot, the appellant was found guilty, convicted and sentenced to ten years imprisonment. On his first appeal, the High Court (Matogolo, J.) found no cause to vary the appellant's conviction but, as it were, the sentence was enhanced to a term of thirty years imprisonment. Dissatisfied, the appellant presently seeks to impugn the conviction and sentence upon two points of grievance, namely:- "1. The Hon. Trialjudge erred when he relied to sustain the conviction and sentence against the appellant without considering and procuring the fundamental requirement o f the victim which was delivered to the subordinate Court or listed as prosecution witnesses and did not produce the birth certificate or clinical record to prove the age o f the victim. 2. That the Hon. Trial Judge erred when he contravened the mandatory proviso c/s 132 o f the CPA Cap. 20 R.E 2002 ." 3

When the appeal was placed before us for hearing, the appellant was fending for himself, unrepresented, whereas the respondent Republic had the services of Ms. Chema Maswi, learned State Attorney. The appellant fully adopted the memorandum of appeal but deferred its elaboration to a later stage, if need be, after the submissions of the learned State Attorney. On her part, Ms. Maswi supported the appeal solely for the reason that the charge was incurably defective. To begin with, she submitted, the charge sheet was not explicit as to which manner the appellant manifested his intention to procure the prohibited sexual intercourse. The learned State Attorney argued that that even if, going by the factual setting, the intent was that the appellant manifested his intention by threatening the girl in terms of paragraph (a) of section 132 (2); the irony is that the charge sheet did not indicate that the appellant used any threats to the infant. In the premises, Ms. Maswi concluded, the charge sheet was incurably defective which alone suffices to dispose of the appeal in the appellant's favour. To buttress her position, the learned State Attorney referred to us the unreported Criminal Appeal No. 216 of 2008 - Niyonzima Jamal Vs The Republic. Having heard the learned State Attorney in support of his quest, the appellant did not wish to make any rejoinder.

With respect, we are in agreement with the conclusion formulated by the learned State Attorney. Section 132 (2) (a) which was supposed to be laid at the appellant's door provides thus: "A person attempts to commit rape if, with intent to procure prohibited sexual intercourse with any girl or woman, if he manifests his intention by - (a) threatening the girl or woman for sexual purposes ;." [Emphasis supplied] The issue, thus, was not that of a mere attempt to have prohibited sexual intercourse, which is, indeed, stated in the particulars of the charge at hand; rather, it was the duty of the prosecution to see to it that the charge was correctly framed so that the appellant understood the nature of the charge and the effect of any evidence that would be given against him. In the case of Mussa Mwaikunda vs The Republic [2006] TLR 387 we observed "The principle has always been that an accused person must know the nature o f the case facing him. This can be achieved if a charge discloses the essential elements o f an offence. Bearing in mind the charge in the instant case ought to have disclosed the aspect o f threatening which is an

essential element under paragraph (a) above. In the absence o f the disclosure it occurs to us that the nature o f the case facing the appellant was not adequately disclosed to him." The situation at hand squarely befalls on the same predicament. Going by the factual setting unveiled during the trial, the appellant was, certainly, up to no good. Nonetheless, on account of the defective charge laid at his door, the appeal succeeds with the result that his conviction and sentence crumbles. The appellant is to be released from prison custody forthwith unless he is detained there for some other lawful cause. Order accordingly. DATED at BUKOBA this 13th day of December, 2017. K.M. MUSSA JUSTICE OF APPEAL S.A. LILA JUSTICE OF APPEAL J.C.M. MWAMBEGELE JUSTICE OF APPEAL I certify that this is a true copy of the original. SENIOR DEPUTY REGISTRAR COURT OF APPEAL 6