Alen S/O Hamis Chilolo vs Republic (Criminal Appeal No. 4916 of 2026) [2026] TZHC 3035 (8 June 2026)
Judgment
Page 1 of 19 THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 4916 OF 2026 (Originating from Criminal C ase N o. 27903 of 2025 in the District Court of Moshi at Moshi ) ALEN S/O HAMIS CHILOLO …………………… …... …...………APPELLANT VERSUS THE REPUBLIC…..…………………………………………..…..RESPONDENT JUDGEMENT 04 th May & 08 th June, 2026 MONGELLA, J. This appeal emanates from the conviction and sentence imposed by the District Court of Moshi at Moshi (hereinafter , the trial court) against the appellant. Before the trial court, the appellant was charged with two counts , being ; o ne , rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code, Cap. 16 R.E. 2022 [now R.E. 2023], and two, abducti on contrary to section 134 of the Penal Code, Cap. 16 R.E. 2022 [now R.E. 2023]. The particulars of the two counts were to the effect that, between 11.06.2023 and 20.07.2023 at Kibosho Umbwe a rea within Moshi d istrict in Kilimanjaro r egion, the accused abducted and unlawfully had carnal knowledge of a girl aged 14 years (the victim, henceforth ) .
Page 2 of 19 The trial court entered plea of not guilty following the appellant i ssuing an equivocal plea whereby he gave explanation that he did not know that the victim was aged 14 years when committing the offence. The matter thus proceeded to a full trial. The prosecution case was principally presented through PW1 , the victim . She testified that on 11 . 06 . 2023 at about 18 : 00 hours, she obtained permission from her mother (PW3) to visit her grandmother. While on her way, she met the appellant who called her to his house on the pretext that he wanted to tell her something. The victim followed the appellant to his house where by they watched television together until about 23 : 00 hours. When she expressed her intention to return home, the appellant allegedly refused to allow her to leave. Instead, the appellant removed her clothes and took her into his bedroom. There in , the appellant removed his own clothes, and while on bed, inserted his penis into her vagina and had sexual intercourse with her. She averred further that she experienced pain and bled as a result. She spent the night at the appell ant ’s house and, upon requesting to leave the following morning, the appellant allegedly refused and locked her inside the house until he returned from work later in the day whereby, he again had sexual intercours e with her that night. It was her further testimony that she remained at the appellant ’s residence for approximately one month, during which period the appellant had sexual intercourse with her repeatedly, during the night and in the morning. Sh e stated that occasionally she was
Page 3 of 19 allowed to get outside the appellant’s house whereby she would go out and return to the appellant’s house and the two continued living together . The victim further stated that on several occasions , the neighbours, as well as , her mother (P W3), visited the appellant ’s house for various reasons, but the appellant would hide her inside the house until the visitors had left. That, on 19 . 07 . 2023, one named Pascal saw her at outside the appellant’s residence . Later that night, members of the Sungusungu arrived at the appellan t ’s house and arrested both her and the appellant. PW2, a medical practitioner, testified on examining the victim on 20 . 07 . 2023 and accordingly tendered a PF3 Form , which was admitted as E xhibit P 1 . According to his findings, the victim’s vagina showed evidence of penetration by a blunt object , though no sp erms or bruises were detected during the examination. The victim was as well found not pregnant. To cement on the victim’s testimony, the prosecution presented PW4, the v illage c hairman . It w as PW4’s testimony that on 13 . 06 . 2023, the victim’s mother ( PW3 ), reported to him that her daughter had gone missing. Following the report, information regarding the missing child was reported to the police and circulated to churches and members of the public. He said further th at on 19 . 07 . 2023, one named Pascal informed him via phone call that the victim had been seen at the appellant ’s residence. Acting
Page 4 of 19 upon that information, he mobilised members of the Sungusungu and proceeded to the appellant ’s house. Upon arrival, they found the victim hiding underneath a bed in one of the rooms. According to PW4, the victim was wearing only under pant s at the time they found her . They thus arrested b oth , the victim and the appellant and took them to the village office and on the next day of 20.07.2023, t o Moshi Central police station . In his defence, the appellant gave a sworn testimony distancing himself from both c harges . Basically, he testified on his arrest and claimed the case to have been framed against him by the victim’s mother upon him demanding for his salary. He averred that on 19 . 07 . 2023, while he was at his residence resting, members of the Sungusungu together with the victim’s mother ( PW3 ), arrived at his home and arrested him. He was subsequently taken to the police station where he was informed of the allegations of rape and abduc tion involving the victim , but denied committ ing either of the offence s . The appellant further averred that he had previously worked for PW3 and a dispute arose between them after he demanded payment of his outstanding wages. He claimed that PW3 was displeased by his demand and, as a result, falsely implicated him in the present case. Upon evaluating the evidence adduced by both sides, the trial court found the appellant guilty on both counts. Consequently, th e
Page 5 of 19 appellant was convicted and sentenced to thirty (30) years imprisonment on the first count of rape and three (3) years imprisonment on the second count of abduction. In ad dition, the trial court ordered the appellant to pay compensation to the victim to the tune of TZS . 1,500,000/= . A ggrieved by the conviction and sentence, the appellant preferred this appeal to this Court, praying for the conviction to be quashed and the sentence set aside . His appeal is fronted on seven (7) grounds , as hereunder:
- The learned trial M agistrate strayed into error of law and factual analysis when she failed to note that the prosecution witnesses gave improbable evidence which was supposed to be approached with great caution as they demonstrated a clear manifest to lie in order to achieve a certain end.
- T he learned trial M agistrate strayed into error of law when she failed to note that the principles stipulated under section 127(6) of the E vidence A ct , C ap 6 R.E . 2022 were violated, as there was no strict assessment of the credibility of the evidence and the evidence no t tested for its truthfulness as required by the law.
- The learned trial M agistrate erred in law and factual analysis when she misdirected herself in crediting the
Page 6 of 19 evidence of PW1 whose evidence was absolutely immaterial and was full of doubts. 4. The lear ned trial M agistrate strayed into error of law when she restricted her determination when she failed to look at the non - compliance of the formalities under section 58 and 59 of the Criminal Procedure Act, Cap. 20 R.E. 2023 before admitting Exh. P2 , the al leged cautioned statement. 5. T he learned trial M agistrate strayed into error of law and factual analysis when she failed to note that failure to arraign in court a suspect under arrest even for a day needs to be accounted for, since the law demand that there be prompt arraignment, as the delayed arraignment of the appellant was prejudicial to him as was not cushioned with reasonable explanations, something which affected the prosecution's case. 6. The learned trial Magistrate strayed into error of law and factual analysis when she used weak, contradictory, inconsistency, incredible, unreliable and uncorroborated prosecution evidence to convict the appellant. 7. The learned trial Magistrate strayed into error of law and factual analysis when she failed to note that the charge against the appellant was not proved beyond reasonable doubts.
Page 7 of 19 This appeal was disposed of by way of written submissions. The appellant was unrepresented and opted to adopt the grounds of appeal as his submission in chief . On the other ha nd, the respondent was legally represented by Mr. Makore Maheri, learned State Attorney , who duly filed written submissions in reply to the grounds of appeal . No rejoinder was preferred by the appellant. In his reply, Mr. Maheri joined hands with the appellant by supporting the grounds of appeal . His main stance that the trial court erred in convicting the appellant based on inconsistent , improbable and insufficient evidence which did not meet the required standard of proof. Arguing jointly on ground s 1, 3, 4, 5, 6 and 7 , Mr. Maheri expounded on the reasons for supporting the appeal. First, he contended that the victim ’s conduct was improbable as though claimed to have been forcefully detained at the appellant ’s home , her own evidence proved contrary . He explained that, the victim stated to have bee n locked inside the house only once, but she stayed with the appellant from 11 th June to 19 th July 2023 freely interact ing with the appellant whereby she even performed house chor es and continued having sexual intercourse . I n the premises, i t was Mr. Maheri ’s argument that th e vict i m’s behaviour did not portray someone being under coercion . He further challenged th at there was no explanation as to why the victim did not escape, raise alarm, or seek help .
Page 8 of 19 Second , Mr. Maheri submitted that the prosecution failed to call a crucial witness named Pascal, who allegedly saw the complainant at the appellan t ’s house and triggered the arrest, and no explanation was given for his absence. According to him , this weakened the prose cution case and justified an adverse inference that such witness ’ evidence would have been unfavourable to the prosecution. Third , he pointed out material contradictions in the prosecution evidence, particularly that while the victim sai d her mother went searching for her at the appellant ’s house, PW3 (the victim’s mother) did not confirm this statement . In his view, such inconsistencies went to the root of the case and rendered the evidence unreliable. Fourth , he argued o n the delay to arraign the accused whereby he submitted that the appellant was arrested on 2 0 . 07 . 2023 , but was not brought to court until on 28 .07. 2023, which was on the eighth day and without any explanation . He argued that this violated the appellant ’s right to be produced in court within a reasonable time and prejudiced the fairness of the proceedings. Lastly , Mr. Maheri challenged the caution ed statement ( E xhibit P2), submitting that there were contradictions as to the date the appellant was received by the police . In addition, he contended that it was improper for the statement to be recorded on 2 0 . 07 . 2023 when the evidence suggest s the appellant may have been
Page 9 of 19 received and processed by the police on 2 1 . 07 . 2023. He argued that this cast s doubt on the authenticity of the caution ed statement , thus the trial court erred in relying on it. In conclusion, Mr. Maheri prayed that the conviction against the appellant on both counts be found unsafe and set aside in entirety. Having carefully considered the gro unds of appeal, the record of proceedings, the judgment of the trial court, and the submissions by Mr. Maheri, learned state attorney , I am of the view that th is appeal is cantered on whether the prosecution evidence, taken in its totality, was sufficient to establish the charges of rape and abduction beyond reasonable doubt, and whether the trial court properly evaluated th e evidence on record in accordance with the law. I n my d eliberations, I shall consider g rounds of a ppeal 1, 2, 3, 6 and 7 jointly , as they all relate to evaluation, credibility, consistency, and sufficiency of the prosecution evidence and the standard of proof. Grounds 4 and 5 shall be considered separately as they raise distinct issues relating to admissibility of the caution ed statement and alleged procedural irregularities in respect of arraignment. Starting with ground 4 of the appeal which challenges the legality and admissibility of the caut ion ed statement ( E xhibit P2) on the basis of alleged non - compliance with sections 58 and 59 of the Criminal Procedure Act , Cap 20 R.E . 2023 and procedural irregularities surrounding its recording.
Page 10 of 19 Having carefully examined the record, I concur with both parties that there are material inconsistencies regarding the circumstances under which the said statement was allegedly recorded . This is particularly as to the time the appellant was received and processed by the police. PW4, the v illage c hairman , stated that the appellant was taken to the police station on 20 . 07 . 2023. PW5, the investigating officer, on the other hand, testified that he was assigned the appellant ’s case on 21 . 07 . 2023, when he interrogated the appellant and recorded the caution ed statement on the same date. However, the said caution ed statement on record bears the date 20 . 07 . 2023. These inconsistencies, in my view, go to the root of the procedural regularity required in recording such a statement. The apparent mismatch between the recorded date of the caution ed statement and the established sequence of arrest and police handling of the appellant casts doubt as to whether the statement was made within a properly regulated custody and interview process an d within the time prescribed under the law . Such doubt inevitably affects the authenticity and reliability of the caution ed statement, rendering it unsafe to be relied upon. In my considered view, where doubt arises as to the propriety of the recording of a caution ed statement, such doubt must be resolved in favour of the accused person. In the circumstances of this case, as I am not satisfied that E xhibit P2 was properly and reliably obtained within four hours , I therefore fi nd that it was unsafe for the
Page 11 of 19 trial court to rely on the said statement. See, Charles Nanati vs. The Republic (Criminal Appeal No. 286 of 2017) [2020] TZCA 45 (6 March 2020, TANZLII). Accordingly, E xhibit P2 is hereby expunged from the record and shall not form part of the evidential material for purposes of determining the guilt of the appellant. Having expunged E xhibit P2 from the evidential record, what follows is to consider whether the remaining prosecution evidence is sufficient to sustain the convictions. The quest that n aturally leads to the determination of g rounds of a ppeal 1, 2, 3, 6 and 7, which, for reasons already stated, all relate to the evaluation, credibility, consistency, and sufficiency of the prosecution evidence , as well as , the applicable standard of proof. In determining the said grounds, I shall basically consider the prosecution case which principally rests on the testimony of PW1, the victim , which is also central to both counts. P W1 gave a detailed account of how she was taken to the appellant ’s house, the circumstances under which she remained there, and the alleged repeated acts of sexual intercourse. It should be noted that in cases of rape, the best evidence comes from the victim and the court can proceed to rely on it when satisfied that the victim is telling nothing but the truth . See, section 135 (6) of the Evidence Act, Cap. 6 R.E . 2023 ; Paul Bahati vs . Republic (Criminal Appeal No. 434 of 2023) [2026] TZCA 208 (3 March 2026 , TANZLII ) ; and Joseph Leko vs . Republic (Criminal
Page 12 of 19 Appeal No. 124 of 2013) [2013] TZCA 327 (6 December 2013 , TANZLII ) , in which it relied on the decision of Selemani Makumba v s. Republic [2006] TLR 379 . Upon careful re - evaluation of the entire evidence on record, I am unable to succumb to both parties’ submission that the prosecution case on rape is doubtful or improbable. In my considered view, the evidence adduced by the key witness, PW1, is cogent and consi stent on material particulars and sufficiently strong to establish the offence of rape beyond reasonable doubt. As observed earlier, PW1 gave a clear and direct account of how she was taken to the appellant ’s house and how the incidents of sexual intercourse occurred. PW1 ’s testimony was not shaken o n cross - examination as the appellant asked no questions. It is trite law that failure to cross examine a witness , especially on incriminating facts en tails acceptance of the facts alleged. See, Paschal Aplonal vs. The Republic (Criminal Appeal No. 403 of 2016) [2019] TZCA 356 (28 October 2019, TANZLII). The responde nt ’s argument that PW1 had opportunities to leave the appellant residence but nevertheless remained there and, at times, left and later returned. In my considered view, that circumstance alone does not render the prosecution case improbable. The conduct of a child victim cannot always be assessed by reference to how a mature adult would be expected to react in similar circumstances. A minor may respond differently
Page 13 of 19 due to immaturity, influence, dependency, fear, trust, confusion, or inability to fully appreciate the nature and consequences of the situation in which they find themselves. Consequently, the fact that PW1 did not immediately return home, raise an alarm, or seek assistance at the earliest opportunity does not, by itself, negate the prosecuti on case and render her testimony improbable. I further find that emphasis on PW1 ’s apparent willingness is legally misplaced. In an offence of statutory rape like the o ne at hand , the issue of consent is immaterial. The law does not recognize a child ’ s consent a s a defence to the charge. See , Kulwa s/o Daje vs . Republic (Criminal Appeal 345 of 2018) [2021] TZCA 524 (27 September 2021 , TANZLII ) . On the issue of penetration, PW1 gave direct evidence that she had sexual intercourse with the appellant during the period she stayed at his residence. Her testimony on this m aterial aspect remained consistent and was not shaken in cross - examination. Significantly, after she was recovered from the appellant ’s house, where she was found hidden under the bed wearing only underpants, she was subsequently examined by PW2, whose med ical findings indicated evidence of penetration. Although the medical evidence did not conclusively identify the instrument of penetration, it nevertheless supported PW1 ’s account when considered together .
Page 14 of 19 I also attach considerable weight to the fact that PW1 had not been seen by her family for a prolonged period and her disappearance had been reported. She was eventually traced and found at the appellant ’s residence. Her recovery from the appellant's house is not a neutral circumstance , rathe r, it lends support to her account that she had been staying with the appellant during the material period. I n the same line, I am not convinced by Mr. Ma heri ’ s argument that an important witness, to wit, the one who saw her, not being called affects t he prosecution case. I n the situation at hand, where the victim and the appellant were f ound inside the appellant ’ s house together, the evidence of thos e who found her therein suffices. I n this case, PW2 the villa ge ch airman , testified as among those who found the victim at the app ellant ’ s house. More importantly, immediately after being recovered, PW1 stated that she had been engaging in sexual intercourse with the appellant. That account was subsequently followed by medical findings indicating penetration. When these circumstances are considered cumulatively, meaning ; PW1 ’s disappearance for a considerable period, her being recovered from the appellant ’s residence, her account which implicat es the appellant, and the medical evidence consistent with allegation of penetration ; they form a coherent chain of evidence pointing to the guilt y of the appellant .
Page 15 of 19 In that view, I am satisfied that the trial court was entitled to rely on the evidence of PW1. The argument that PW3 did not state if she visited the appellant ’ s house while PW1 stated that PW3 visited , is considered a minor contradiction that does not go to the root of the case as to shake the prosecution evidence . See, Hango Omary Hango vs . Republic (Criminal Appeal No. 445 of 2022) [2025] TZCA 12 (3 February 2025 , TANZLII ) ; and Luziro s/o Sichone and Another vs . Republic (Criminal Appeal No. 131 of 2010) [2011] TZCA 362 (5 July 2011 , TANZLII ) . I n the latter , it was held : “… we shall remain alive to the fact that not every discrepancy or inconsistency in the witness's evidence is fatal to the case. Minor discrepancies on details or due to lapses of memory on account of passage of time should always be disregarded. It is only fundamental discrepancies going to discredit the witness which count. ” Based on the foreg oing , I am satisfied that the offence of rape was proved beyond reasonable doubt. On the second count of abduction, t he appellant was charged under section 134 of the Penal Code C ap . 16 R.E . 2022 (now R.E 2023) . The section provides that: A person who unlawfully takes an unmarried girl under the age of sixteen years out of the custody or protection of her parent or other person having lawful care or charge of her and against the will of the parent or of that person commits an offence.
Page 16 of 19 From the wording of the above provision, the essential ingredients of the offence are that , first, the complainant was an unmarried girl under the protected age of 16 years , second , she was taken or retained out of the custody or protection of her parent or lawful guardian , an d third, such taking or retention was against the will of the parent or person having lawful care over he r. Upon re - evaluating the evidence on record, I am satisfied that those ingredients were sufficiently established. The evidence of PW3 and PW4 shows that PW1 disappeared from the care of her mother for a considerable period and her whereabouts became unknown, prompting efforts to search for her. The evidence further shows that PW1 was eventually recovered from the appellant ’ s residence. The fact that she was found at the app ellant ’ s house after having been absent from her family for a prolonged period , over one month, strongly supports the prosecution case that she had been removed from the custody and protection of her parent. Again, the argument that PW1 occasionally moved a round and could have left the appellant ’ s residence does not assist the appellant in t his count either. The element of the offence under section 134 is not the willingness of the child, but the unlawful taking or retention of the child away from the lawful c ustody of her parent or guardian. Therefore, the issue is not whether PW1 appeared willing to remain with the appellant, but whether her parents consented to her removal from their custody and protection. The evidence on record clearly demonstrates that PW 3 had reported
Page 17 of 19 PW1 missing and was actively searching for her. That conduct is wholly inconsistent with parental consent. I therefore find that the prosecution established that PW1 was unlawfully kept away from her lawful guardianship and was eventually r ecovered from the appellant ’ s residence. The ingredients of the offence of abduction were accordingly proved beyond reasonable doubt against the appellant. Wit h respect to ground 5, the appellant ’ s complain t is that he was arrested on 20 . 07 . 2023 but was not taken to court until 28 . 07 . 2023, an interval of about eight (8) days, and that such delay violated the appellant ’ s right to be produced before the court within a reasonable time. There is no dispute that there was a delay b etween the date of arrest and the date of arraignment. The law requires that a person who has been arrested should be taken to court as soon as reasonably possible, and any unnecessary or unexplained delay is highly discouraged. See, Sect ion 31 of the C riminal Procedure Act . However, it is well set tled that not every delay in arraignment automatically vitiates proceedings and resulting conviction and sentence . See, Eliapenda Zephania Zakaria @ Kicheche vs. The Republic (Criminal Appeal No. 675 of 2021) [ 2024] TZCA 728 (14 August 2024 , TANZLII ) in which reference to other cases on t he same position was made, to wit; Pa ulo Machandi vs. Republic (Criminal Appeal No. 2 44 of 2019) [2022] TZCA 430 (15 July 2022, TANZLII);
Page 18 of 19 Gabriel Lucas vs. Republic (C riminal Appeal No. 557 of 2017) [2021] TZCA 7 03 (30 November 2021, TANZLII); a nd Isaya Msof e vs. Republic ( Crim inal Appeal No. 31 of 2020) [2022] TZCA 147 (25 March 2022 , TANZLII) . I n the latter, it w as held: "We agree with Ms. Mahundi that although it is not dear on what steps were taken or on what transpired after the sodomy had been revealed and reported to the school administration on 11.12.2018, the fact that the appellant was arraigned before the trial co urt on 08.03.2019, does not raise any reasonable doubt or defeat the strong evidence that was given to support the charge. The credibility o f PW1 and PW2 was not affected by the inaction on the part o f the authorities to whom the crim e in question was reported. It could have been different if there was a delay in reporting the crime. But in this case, the alleged crime was immediately reported to the school administration and the police, so we cannot blame on PW1 for the inaction by the authorities". The crucial question is therefore whether the delay occasioned prejudice to the accused person or affected the fairness of the trial process as a whole . I n the present case, although the appellant was arraigned in court after eight days, the record does not disclose any material prejudice suffered by him as a result of that delay a s to vitiate the proceedings, conviction and sentence against him . The appellant was subsequently arraigned, informed of the charges, afforded an opportunity to defend himself, and cross - examin e the prosecution witnesses. No evidence was placed
Page 19 of 19 before this Court to show that the delay compromised the voluntariness of his defence, the integrity of the evidence, or the fairness of the trial process . The refore, while I condemn any unexplained delay in arraignment as it is inconsistent with the spirit of prompt administration of justice, I find that in the circumstances of this case, the delay complained of does not vitiate the proceedings nor does it affe ct the safety of the convictio n and result ant sentence . See also , Oscar Afwilile & Geofrey Boniphace @ Mwakakima vs . Republic (Criminal Appeal No. 265 of 2024) [2026] TZCA 76 (23 February 2026 , TANZLII ) . In the final result, I find no merit in the appeal and it is hereby dismissed. T he convictions on both counts are affirmed and the sentences and compensation order imposed by the trial court are hereby upheld . Dated and delivered at Moshi on this 08 th day of Jun e, 2026. X L. M. MONGELLA JUDGE Signed by: L. M. MONGELLA