Itaely Mosse Akyoo vs Republic (Criminal Appeal No. 000027706 of 2025) [2026] TZHC 2958 (5 June 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000027706 OF 2025 ITAELY MOSSE AKYOO COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC RESPONDENT/ DEFENDANT JUDGMENT MAHIMBALI, J This appeal arises from the judgment of the District Court of Arumeru in Criminal Case No. 15941 of 2024 in which the appellant, Itaely Mosse Akyoo, was convicted of the offence of Incest by Male contrary to section 158(1)(a) and (2) of the Penal Code, Cap. 16 R.E. 2022, and sentenced to serve thirty (30) years imprisonment. The particulars of the offence alleged that on 18th April 2024 at Kitefu Village, within Arumeru District in Arusha Region, the appellant unlawfully had carnal knowledge of his own daughter, D.S. (name withheld), a girl aged ten years. The appellant denied the charge, thereby necessitating a full trial. In an effort to prove its case, the prosecution called six witnesses and tendered one exhibit, namely a PF3 Form. Page. 1

The prosecution case was that on the material date, while the victim was at home with the appellant, the latter instructed her to bring him drinking water. As she entered the house to fetch the water, the appellant allegedly grabbed her from behind, dragged her into his bedroom, pushed her onto a bed, covered her mouth with a bed sheet, removed her undergarments and sexually assaulted her. The victim testified as PW1. Her testimony was said to have been corroborated by PW4, her school teacher, and PW6, a nurse who learned of the incident during a cervical cancer vaccination exercise conducted at the victim's school. PW2, the victim's mother, testified that she was informed of the incident and subsequently reported the matter to Usa River Police Station. PW5, a police officer attached to the said station, testified on the issuance of the PF3 Form, while PW3, a medical practitioner who examined the victim, testified that the victim's genitalia showed signs consistent with penetration by a blunt object. Upon the close of the prosecution case, the trial court found that a prima facie case had been established and accordingly called upon the appellant to enter his defence. In his defence, the appellant testified on oath and denied the allegations in their entirety. He maintained that on the date of the alleged offence he was not at home but was working at Ngurdoto. His account was supported by DW2 and DW3. The appellant further challenged the prosecution evidence, contending that some witnesses testified on matters outside their direct knowledge and that the medical evidence did not conclusively implicate him. Page. 2

After evaluating the evidence, the trial court found the appellant guilty as charged, convicted him, and sentenced him to thirty years imprisonment. Aggrieved by both conviction and sentence, the appellant lodged the present appeal premised on the following grounds: (i) That the prosecution failed to prove the charge against him beyond reasonable doubt; (ii) That the prosecution evidence was contradictory, unreliable and incapable of sustaining a conviction; (Hi) That the trial court erred in law and fact by failing to appreciate the prosecution's omission to call material witnesses; and (iv) That the trial court failed to properly evaluate the defence evidence and consequently convicted him on the basis of a fabricated case. At the hearing of the appeal, the appellant appeared in person while the respondent was represented by Ms. Eunice Makala, learned State Attorney, assisted by Ms. Rose Sule, learned State Attorney. The appeal was argued orally. In support of the appeal, the appellant adopted the contents of his petition of appeal and urged this Court to allow the appeal, quash the conviction and set aside the sentence. For the respondent, Ms. Makala opposed the appeal. Addressing the first and second grounds of appeal, she submitted that the prosecution successfully established all essential ingredients of the offence of incest under section 158(1)(a) Page. 3

of the Penal Code. According to counsel, the evidence demonstrated that the appellant was the biological father of the victim, that penetration occurred, and that the victim was below eighteen years of age. Counsel argued that PW1 directly implicated the appellant, while PW3 medically confirmed penetration. Regarding age, PW2 testified that the victim was born on 2nd September 2014, making her ten years old at the time of the alleged offence. As regards the challenge to the reception of PW1's testimony, learned counsel submitted that the trial court correctly found that the witness understood the nature and significance of an oath and therefore lawfully received her evidence under oath. Concerning the alleged contradictions regarding the date of the offence, counsel argued that such discrepancies were minor and did not affect the substance of the prosecution case. On the complaint relating to failure to call material witnesses, counsel submitted that section 143 of the Evidence Act does not require any particular number of witnesses to prove a fact. She contended that the evidence adduced by PW1, PW2, PW3 and PW4 was sufficient to establish the offence. Lastly, on the complaint that the defence was not properly considered, counsel submitted that the trial court adequately evaluated the appellant's defence before rejecting it for failing to raise any reasonable doubt. I have carefully considered the grounds of appeal, the rival submissions of the parties and the entire record of the trial court. Being a first appellate court, I am duty- Page. 4

bound to re-evaluate the evidence afresh and draw my own conclusions while bearing in mind that I neither saw nor heard the witnesses testify. In my considered view, the first ground of appeal concerning whether the prosecution proved its case beyond reasonable doubt is dispositive of this appeal. The law is settled that the burden of proving a criminal charge rests upon the prosecution throughout and never shifts to the accused person. The standard required is proof beyond reasonable doubt. See Mohamed Haruna @ Mtupeni & Another v Republic, Criminal Appeal No. 25 of 2007 (CAT, unreported). In Magendo Paul and Another v Republic (1993) TLR 219, the Court of Appeal explained that: "For a case to be taken to have been proved beyond reasonable doubt , its evidence must be strong against the accused person as to leave only a remote possibility in his favour which can easily be dismissed." The offence with which the appellant was charged is created under section 158(1)(a) of the Penal Code, which provides: "Any male person who has prohibited sexual intercourse with a female person who is to his knowledge his granddaughter, daughter, sister or mother commits the offence of incest and is liable on conviction, where the female is under the age of eighteen years, to imprisonment for a term of not less than thirty years." There is no dispute that the appellant is the biological father of PW1 and that PW1 was below eighteen years of age at the material time. The critical question is whether the prosecution established beyond reasonable doubt that the appellant engaged in Page. 5

prohibited sexual intercourse with the victim. The record shows that PW1 testified under oath after the trial court satisfied itself that she understood the meaning and significance of an oath. Consequently, the complaint that her evidence was unsworn is devoid of merit. I am equally mindful of the settled position that in sexual offences the most direct evidence ordinarily comes from the victim. See Selemani Makumba v Republic (2006) TLR 379. Nonetheless, such evidence must be examined with great caution and tested against the totality of the evidence on record. Upon re-evaluating the testimony of PW1, I note that she stated that immediately after the alleged incident she reported the matter to her teacher known as Kaaya. According to her testimony, this teacher was the first person to whom she disclosed the alleged offence. In the circumstances of this case, the evidence of the said teacher was of considerable importance. Being the first recipient of the complaint, her testimony would have assisted the court in assessing the consistency, credibility and reliability of the victim's account. However, the prosecution neither called the said teacher as a witness nor offered any explanation for her absence. Instead, reliance was placed on the evidence of PW4 and PW6, who allegedly became aware of the incident several days later. A close examination of their testimonies reveals inconsistencies regarding the date on which the victim disclosed the alleged offence, thereby diminishing the probative value of their evidence. Page. 6

I am fully aware that under section 152 of the Evidence Act, no particular number of witnesses is required to prove any fact. However, where a witness is material to the unfolding of the prosecution case and no explanation is offered for the failure to call such witness, the court may draw an adverse inference. In Sadick Hussein Nyanza and Another v Republic, Criminal Appeal No. 186 of 2016 [2019] TZCA 733, the Court of Appeal observed that although no particular number of witnesses is required, failure to call an essential witness may justify the inference that such witness would have given evidence unfavourable to the prosecution. Applying that principle to the present case, I find that the unexplained failure to call the teacher Kaaya created a significant evidentiary gap. Given the pivotal role she allegedly played in receiving the first complaint, her absence from the witness stand leaves the court without important corroborative evidence that was reasonably available to the prosecution. Furthermore, the prosecution evidence, when considered as a whole, leaves several unanswered questions. For instance, there is no any good explanation offered by the victim as to why she failed to report the incidence first to the available relatives residing in the same home (DW1 and DW2 inclusive) but to PW4 and PW6 some days later. The inconsistencies and omissions identified above weaken the overall strength of the prosecution case and render it unsafe to sustain a conviction solely on the evidence available on record. Page. 7

The Court of Appeal has consistently cautioned that although the testimony of a victim in sexual offences is often central to the prosecution case, such evidence should not be accepted uncritically. In Hamis Halfan Dauda v Republic, Criminal Appeal No. 231 of 2009 (CAT, unreported), the Court emphasized that the evidence of a victim must be treated with care and caution so as to avoid the danger of convicting an innocent person. A similar position was reiterated in Abdul Mohamed Namwanga @ Madodo v Republic, Criminal Appeal No. 257 of 2020 [2022] TZCA 123. Having independently re-evaluated the entire evidence on record and the applicable law, I am not satisfied that the prosecution discharged its burden of proving the appellant's guilt beyond reasonable doubt. The doubts arising from the evidentiary deficiencies identified above must, in accordance with the law, be resolved in favour of the appellant. Accordingly, I find merit in the appeal. The appeal is hereby allowed. The conviction entered by the trial court is quashed and the sentence of thirty (30) years imprisonment is set aside. The appellant shall be released forthwith unless he is otherwise lawfully held. It is so ordered. Dated at ARUSHA this 5th of June 2026

F. H MAHIMBALI JUDGE OF THE HIGH COURT