Mika Zakaria Otorivoki vs Republic (Criminal Appeal No. 000025747 of 2025) [2026] TZHC 3090 (11 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000025747 OF 2025 MIKA ZAKARIA OTORIVOKI .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT NDUMBARO, J The Appellant is aggrieved by the decision of the Arumeru District Court, dated the 12 day of June, 2025, which convicted and sentenced him to life th imprisonment and to pay compensation of two million to the victim. Hence, filed an appeal with the following grounds:

1. The trial Court erred in law and fact when it convicted and sentenced the appellant based on a charge whose particulars of offence varied with the evidence adduced by PW1 and PW4, rendering the charge incurably defective.

2. The trial Court erred in law and fact when it convicted and sentenced the Appellant while the prosecution case was not proved against the Appellant beyond reasonable doubt. Hon. DAFINA NDUMBARO Page. 1

3. The trial Court erred in law and fact in having convicted and sentenced the Appellant, despite serious contradictions in the evidence adduced by prosecution witnesses.

4. That the trial Court erred in law and fact in not finding that PW1 and PW2 were not credible witnesses worthy of belief.

5. That the trial Court erred in law and fact by failing to evaluate and analyze the evidence adduced by the Appellant.

6. That, the trial Court erred in law and fact by failing to draw an inference adverse to the prosecution for not calling material witnesses. Hence, a prayer was made that the conviction and sentence be quashed and the appellant set free. When the matter was for hearing, the appellant was self-represented, and the respondent enjoyed the service of Ms. Naomi Senior, State Attorney, with leave of the court, the appeal was disposed by way of written submission. The appellant chose to combine all issues, as the case against the appellant was not proved to the required standards. There was a variance between the charge and the evidence given by the prosecution. The charge shows that the victim was sexually abused on 1 December 2024, but the st prosecution witnesses show the victim was sodomized three times on different days, making the charge defective, worthy of being nullified, refered the case of Tumaini Frank Abraham V. R, Criminal Appeal No.40/2020 (2023) TZCA 1746 [1 August 2023], and Hussein Ramadhan V. R, Criminal Appeal Case of Francis Fabian ©Emmanuel V. R (2023) TZCA 17936 Tanzilii. The Hon. DAFINA NDUMBARO Page. 2

appellant argues that the contradiction goes to the root of the case and affects the credibility of the prosecution of the witnesses. The appellant made a prayer that the contradiction be resolved in his favour as it was stated in the case of Abubakari Shaban V. R, Criminal appeal no. 312/2021 (2024) TZCA 527 [8™ July 2024] TANZLII. The respondent did not file a reply despite the extension of time to file; hence, the court proceeded with the appellant's submission. I had time to go through trial court proceedings; PW1, a 6-year-old victim, testified that he was sodomised by the accused three times on different dates, all in her mother's room. The charge sheet showed the offence was committed on 1 December 2024 once, and it was defence of appellant in the trial court st that he had a conflict with the victim's father on ownership of land, and he was accused of sodomising the victim child. Having analysed the victim's testimony and charge sheet, there is variation which call for amendment; the chargesheet ought to reflect that the act was committed four times on the said different dates. That said, the charge ought to be amended, since it was not amended to make it fatally defective. The position of law is apparent that failure to amend a charge sheet makes it unproven. The position was stated in current jurisprudence in the case of Abisai Said vs Republic (Criminal Appeal No. 418 of 2023) [2026] TZCA 270 (9 March 2026), Page 5 that “Therefore, since the prosecution failed to amend the charge sheet to bring it into consistency with the evidence, the omission is fatal and prejudicial to the appellant as the charge remained unproven, Hon. DAFINA NDUMBARO Page. 3

thus giving the benefit of doubt. See Salum Rashid Chitende vs Republic [2015] TZCA 572” Further, it is my view that the fact that sodomy was conducted at the victim mother’s room and the fact that sodomy was committed to a 6-year-old child without being noticed by the parent on the 1 day when it was committed, st as per the prosecution witness, creates doubt. The position of law in the case of Cleophace Tiluganilwa vs Republic (Criminal Appeal No. 253 of 2024) [2026] TZCA 253 (5 March 2026), page 11, is to the effect that doubt created ought to be resolved in favour of the accused. That said, I set aside the sentence and conviction of the Criminal Case No. 000035740 of 2025, in the District Court of Arumeru at Arumeru , 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. 4