Michael Isaya Mwita vs Republic (Criminal Appeal No. 000025748 of 2025) [2026] TZHC 3091 (11 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000025748 OF 2025 MICHAEL ISAYA MWITA .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT NDUMBARO, J The appellant herein was aggrieved by the decision of the Arusha District Court delivered on the 14 day of June, 2024, for the offence of unnatural th offence, and conviction of 30 years’ imprisonment, hence this appeal with the following grounds;

1. The trial Court erred in law and fact by convicting and sentencing the appellant on a case which was not proved beyond a reasonable doubt.
2. The trial Court erred in law and fact in not finding that the evidence adduced was at variance with the charge sheet.
3. The trial Court erred in law and fact by relying on the evidence of PW3(victim) in convicting and sentencing the appellant against the trite position of sexual offences that the evidence of victims of sexual offences should not be relied. Wholesome in convicting and sentencing the appellant unless the court is Hon. DAFINA NDUMBARO Page. 1

satisfied that the same is credible. 4. The trial Court erred in law and fact in not finding that the unexplained delay in arraigning the Appellant in Court prejudiced him, because it constituted an intentional breach of section 32(1) of the Criminal Procedure Act [cap 20 R.E 2022], which demands a prompt arraignment of a suspect in Court, hence denying the Appellant a fair hearing. 5. The trial Court erred in law and fact in convicting and sentencing the appellant despite contradictions and inconsistencies in the prosecution’s witnesses. 6. The trial Court erred in law and fact in convicting and sentencing the Appellant, despite no police investigation to establish the truthfulness of the case and despite the failure by the prosecution to call material witnesses. When the matter was for hearing, the appellant was self-represented, and the respondent enjoyed the service of Ms Naomi Seniour, State Attorney, with leave of the court. The appeal was disposed of by way of a written submission. The appellant chose to combine grounds 1, 2, 3, 5, and 6 and treated the 4 ground separately. th It was the appellant's submission in the 1 limb of st grounds that the case against the appellant was not proved beyond a reasonable doubt, contrary to section 3(2)(a) of the Law of Evidence Act, R.E 2023. There is a variation between the charge sheet and evidence particulars of the 1 offence indicates that the offence was committed on st diverse dates between the 1 day of November 2022 to the 31 day of January 2023, st st whereas the evidence adduced does not mention the dates or months on which the offence was committed for instance PW1 only mentioned 19 day of th Hon. DAFINA NDUMBARO Page. 2

January 2023 as the day she was told by PW3 that the appellant had been sodomizing him, on the other hand PW4 only mentions January 2023 and PW3(Victim) in his evidence never mentioned any date or year. Argued Exhibit P1(PF3) shows that the victim was examined on the 21 day of January 2023. st Therefore, if the victim was examined on the 21 day of January 2023, how st does the charge show that the appellant kept on committing the offence even up to 31 January 2023, and the said charge was not amended; argued since st there is no amendment which was made to cure the variation, it cannot be said that the case was proved against the appellant beyond a reasonable doubt. Submitted that, it is a cardinal principle of law that in criminal charge doubts are resolved in favour of the accused, however slight they may be; as it was held in the case of Zakaria Japhet @ Jumanne & 2 Others - Versus- The Republic, Criminal Appeal No. 37 of 2003, Court of Appeal of Tanzania at Arusha at page 18 (Tanzlii) and Frank Charles@ Sumbuka vs. The Republic (Criminal Appeal No.678 of 2020) [2024] TZCA [9 May 2024] Tanzlii at page 6 and 7. Appellant further argued he was not well informed of the particulars of the offence he was charged with and was tried on a defective charge. The evidence adduced suggests that the offence was committed before 19 th January 2023, whereas the charge indicates that the offence was being committed even after 19 January 2023, that is to say, up to the 31 day of th st January 2023. Hon. DAFINA NDUMBARO Page. 3

The appellant challenged the credibility of PW3, a victim. Submitted that a victim not credible witness; argued that quality evidence is based on the credibility of a witness, referring to the cases of Yohana Msigwa vs The Republic (1990) T.L.R 143; Anangise Masendo Ngw’angw’a vs The Republic (1993) T.L.R 202; Richard Mtengule and Another vs Republic (1992) T.L.R 5; and Shaban Daudi vs The Republic Criminal Appeal No. 28 of 2001 TZCA Tanzilii, on which the latter case held that; “The credibility of the witness can also be determined in two other ways. One, when assessing the coherence of the testimony of that witness and two, when the testimony of that witness is considered in relation to the evidence of other witnesses, including that of the accused person.” Argued that the testimony of PW3's narration to his mother, PW1, differs with the narration to his grandmother, PW4. That PW1 testified that she was told by PW3 that a victim used to meet the accused at school playgrounds or a place called Maua. However, on the contrary, the PW3 told his grandmother that the appellant used to meet him at a place called Shinda, and sometimes PW3 used to see the appellant at kibanda cha mama Linda. Faulted that variations make PW3 not a credible witness worth believing. It was a further appellant argument that there is contradiction on the testimony of PW1 and PW4; as PW1, a victim's mother, testified that she was called by her mother on 19 /01/2023; when the victim reported to be late coming back home; but the victim's grandmother, PW4, testified she called victim mother on the next day, Hon. DAFINA NDUMBARO Page. 4

referring to page 20 of the trial court proceedings. The appellant argued that the prosecution failed to bring material witnesses, one TITO, to whom PW3 testified to have been together when the appellant used to take him, and the said police investigator who was said to have arrested the appellant, to testify as to when the appellant was arrested and as to why the appellant was delayed in being taken to the court as the law requires. The trial court ought to draw an adverse inference for such failure as it was stated in the case of Pascal Mwinuka Versus Republic, Criminal Appeal No 258 of 2019, Court of Appeal of Tanzania at pages 23-24 (Tanziil). It was the applicant's submission that the record shows the appellant was arraigned on 15 day of May 2023, but the record is silent as to when the appellant was arrested. However, the same can be depicted from the evidence of PWl, who stated that he was arrested not very far from the day when the accused claimed to have sodomised the victim, argued delay was an unexplained delay in arraigning the appellant in court, which was contrary to section 33(1) of the Criminal Procedure Act Cap 20 RE 2023. Hence, made a prayer that the appeal be allowed; the conviction and sentence be quashed and set free. The respondent did not file a reply despite the extension of time to file; hence, the court proceeded to analyse the appellant's submission. Hon. DAFINA NDUMBARO Page. 5

It was the appellant's argument that there are variations between the charge sheet and evidence charge shows offence was committed on diverse dates between the 1 day of November 2022 and the 31 day of January st st 2023, whereas the evidence of PW1 mentions only mentioned 19 day of th January 2023 as the day when PW1 testified that PW3 was sondomized by the appellant. Exhibit P1(PF3) shows that the victim was examined on the 21 day st of January 2023. However, the charge sheet shows the victim kept on committing offences up to 31 January 2023, arguing the variation calls for st amendment of the charge sheet, but it was not amended. Going through the trial court charge sheet shows the offence was committed on diverse dates between November 1 2022, and January 2023; it is my view that there is no contradiction considering the date to which prosecution evidence testified the offence to have been conducted is within the date stated in the charge sheet. The appellant raised a contradiction of testimony of PW1, a victim's grandmother, and PW4, a victim's mother, that the grandmother testified the victim had been sodomised on 19/01/2023, the same day she called and informed her mother, PW4; while PW4 testified to have been informed of the incident on 20/01/2023. Referring to the trial court proceedings, particularly on page 9, it is apparent that PW1 Silira a victim mother testified that she was informed by her mother Yasinta Nicolaus on the said date of incident 19/01/2023 that, the victim was late coming back from school on the date of the, while the victim's grandmother, PW4, in page 20 and 21 of trial court Hon. DAFINA NDUMBARO Page. 6

proceedings testified to having told the victim mother on the incident then next day which is 20/01/2023; in deed there is contradiction as to when the incident happened to create doubt. Material witnesses were not summoned; the one named Tito claimed being together with victim on the date of the incident, was not summoned to testify as to when the incident occurred, and the police investigator who arrested the accused was not brought to testify as to when the accused was arrested to clear the doubt as to when incident occurred as to why he was not promptly brought before the court. Going through trial court proceedings, particularly page 17, PW3, a victim, testified to having been with Tito when he was coming back from school and when he met the accused. It is apparent that Tito was not summoned, as to whether the victim was taken by the accused; the omission creates doubt. Further, the investigator was not brought to clear the issue that the accused was delayed in being aligned before the court; the trial court ought to draw an adverse inference and resolve in favour of the accused, as it was stated in the recent case of Jacob Enock Shindika & Others vs Republic (Criminal Appeal No. 75 of 2023) [2026] TZCA 295 (11 March 2026) page 14, citing the case of Jummane s/o Marco v. Republic [2020] TZCA 228; and Idrisa Salehe Mwangobola v. Republic [2025] TZCA 1299, that; “ there is a plethora of authorities that failure to call material witness invites the Court to draw adverse inference to a party that failed to call Hon. DAFINA NDUMBARO Page. 7

that witness, in this case the prosecution”. Since the appellant managed to create doubt, the said doubt ought to be resolved in his favour, as it was stated in the recent case of Deogratius Brendan Ndewingia vs Republic (Criminal Appeal No. 399 of 2024) [2026] TZCA 407 (13 April 2026), page 16, citing the cases of Issa Mwanjiku @ White v. Republic (Criminal Appeal No. 175 of 2018) [2020] TZCA 1801 and Thobias Michael Kitavi v. Republic (Criminal Appeal 31 of 2017) [2020] TZCA 1746 that any doubt arising from the prosecution's evidence must be resolved in favour of accused. In the matter at hand, there is a contradiction in the statement of PW1 and PW4 as to when the incident occurred; further, material witness Tito was not summoned, and the doubt is resolved in favour of the appellant herein. That said, I set aside the sentence and conviction of the Criminal Case No. 68 of 2023, Arusha, imposed against the appellant. The appellant is released from custody unless lawfully ordered otherwise. It is ordered accordingly. Dated at ARUSHA this 11th of June 2026 . D. D NDUMBARO JUDGE OF THE HIGH COURT Hon. DAFINA NDUMBARO Page. 8