Richard Clemence Mwanosa vs Republic (DC. CRIMINAL APPEAL NO. 22789 OF 2025) [2026] TZHC 2996 (5 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 22789 OF 2025 (Original Criminal Case No. 31032 of 2024 in the District Court of Mpwapwa at Mpwapwa) RICHARD CLEMENCE MWANOSA ............................................ APPELLANT VERSUS REPUBLIC ............................................................................... RESPONDENT JUDGMENT 29/4/2026 & 5/6/2026 MASABO, J:- The appellant herein was charged and convicted by the District Court of Mpwapwa (the trial court) for rape contrary to section 130(l)(2)( e) and 131 (1) of the Penal Code [Cap 16 R.E 2022]. It was alleged that on 18 th September, 2024, at Mbuga Village within Mpwapwa District in Dodoma Region, he unlawfully had carnal knowledge of an 11 years old girl. He was subsequently sentenced to a jail term of 30 years, a fine of TZS 500,000/=, and compensation of TZS 1,000,000/= to the victim. Aggrieved, he filed the instant appeal armed with twelve (12) grounds of appeal summarised as follows: First, the prosecution failed to prove its case beyond reasonable doubt. Second, that the trial offended the provisions of sections 9 (3), 10 (3) and 192(3) of the Criminal Procedure Act and occasioned a miscarriage of justice on the appellant. Third, the credibility of the prosecution's witnesses was questionable. Fourth, the court ought to have drawn an adverse inference against the prosecution for failure to parade as a witness one Fadhili, the person who informed PW2 about the incident, who was a material witness. Fifth, the appellant was not properly identified. Sixth, the charge was defective and unproven as it was uncertain whether the incident occurred on 18/9/2024. Seventh, the victim was examined on 22/9/2024 after Page 1 of 6

a long time had lapsed. Eighth, the inexplicable delay by PW1 to name the victim cast a doubt on her credibility. Ninth, the medical report was unreliable as it was conducted after a long time had lapsed since the date of the offence. Tenth, the medical evidence by PW3 did not prove penetration as it just stated that the victim was penetrated by a blunt object, not a penis. Eleventh, evidence as to the identification of the suspect at the crime scene was not watertight. Twelfth, the appellant's defence was not considered. The hearing of the appeal proceeded orally. The appellant appeared in person, whereas the respondent was represented by Mr. Lucas Komba, learned State Attorney. The appellant, being a layperson and unrepresented, had no submission. He simply adopted his grounds of appeal and prayed that they be allowed. Mr. Komba, for the respondent, ardently opposed and proceeded to submit in rebuttal of each ground of appeal. I have considered his submission alongside the grounds of appeal and the trial court's record. Before dealing with the grounds of appeal set out in the petition of appeal, I prefer to start with a point I raised suo motto regarding the validity of the charge sheet. The record shows that when the appellant was arraigned for the first time before the trial court on 31/10/2024, the following charge was read over to him and he was thereafter required to plead, whereby he entered a plea of not guilty. "CHARGE STATEMENT OF OFFENCE RAPE: Contrary to Section 130(1) (2) ( e) and 131 (1) of the Penal Code [Capl6 R.E 2022] PARTICULARS OF THE OFFENCE Page 2 of 6

RICHARD S/0 CLEMENCE MWANOSA on 18 th day of September, 2024 at Mbuga Village within Mpwapwa District in Dodoma Region, did have sexual intercourse with one ...................... , a girl of 11 years old." Addressing the court on the validity of this charge, Mr. Komba, learned State Attorney, submitted that the charge sheet was fatally defective for non disclosure of the name of the victim. He added that the non-disclosure left the victim unknown and the charge unproved for want of the victim's name. He summed up by praying that the proceedings of the trial court be nullified, the conviction and sentence be quashed and set aside, and the appellant be discharged. The appellant supported the submission and prayed that he be discharged. A charge sheet is vital in all criminal trials as it serves as the foundation of every criminal trial in our jurisdiction. Its importance and rationale have been underscored in countless decisions of the apex court, and there is, therefore, a plethora of authorities to which this court can avail itself for guidance. I will refer to a few. In the case of Hamis Mohamed Mtou vs Republic (Criminal Appeal 228 of 2019) [2021] TZCA 478 TANZLII, the Court of Appeal stated thus:- "...it is common understanding that the charge is a foundation of a criminal trial. It means therefore that, any court admitting it from the prosecution should satisfy itself that it is drawn in compliance with the law. Understanding the importance of the charge, the law gives direction on how it should be drawn together with its contents." Further, having reproduced sections 132 of the Criminal Procedure Act (now section 138 of the Criminal Procedure Act, Cap 20 R.E 2023, the Court held thus:- Page 3 of 6

"It can thus be gleaned from the cited provisions that, every charge should contain a statement of the specific offence, describing it in a clear language together with the particulars of the offence so as to give an accused necessary and reasonable information and a clear picture of what he is being accused of so that he can properly prepare his defence." [emphasis added]. Echoing this position in Hebron Kasigala vs Republic (Criminal Appeal No. 3 of 2020) [2021] TZCA 268 TANZLII, it held thus:- " ......... a charge or information in a criminal trial, is the foundation of any prosecution facing an accused person. A charge provides the accused a road map of what to expect from the prosecution witnesses during his trial. The accused is entitled to particulars that identify the "act, matter or thing" that is said to provide the foundation for the charge: JOHNSON V MILLER (1937) 59 CLR 467. Particulars are necessary in order to inform the accused of the case that he or she will face and allow the court to link the evidence that is given with the allegations in the charge-sheet or indictment: JOHNSON V MILLER (supra). Adequate particulars are essential to a fair trial." These authorities above rhyme well with the provision of section 138 of the Criminal Procedure Act, which states that: "Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged." In the present case, the charge sheet through which the proceedings were instituted in the trial court, as above reproduced, contains the statement of offence and particulars of the offence. Both are couched in a simple and clear language. What is missing is the name of the victim. The issue for Page 4 of 6

determination by this court should therefore be whether the omission of the name rendered the charge sheet defective. This question will not detain me. The identity of the victim is not a mere procedural formality that can be omitted without ramifications. It is an essential element of the particulars that the accused should be furnished to enable him to prepare a meaningful defence. In its absence, the accused would not know the person he is alleged to have harmed, and his ability to prepare his defence would thus be significantly impaired. In the foregoing, I am of the strong view that the omission of the victim's name rendered the particulars of the offence incomplete and the charge sheet fatally defective. I may also add that, since proof of a criminal charge entails marrying the allegations in the charge sheet and the evidence (see Charles Maiso Manyanki vs Republic (Criminal Appeal No. 671 of 2023) [2026] TZCA 90 TANZLII, non-disclosure of the victim's name means that as regards the victims of the offence, there was nothing to be proved, and the respective evidence was of no effect. That said, I nullify the entire proceedings for being predicated on a fatally defective charge. Having nullified the proceedings, the immediate question is what should follow. In resolving this question, I will be guided by the position of the Court of Appeal in Hamis Mohamed Mtou vs Republic (Criminal Appeal 228 of 2019) [2021] TZCA 478 TANZLII, where, resolving a similar issue, it held thus: "Having nullified the proceedings of the trial court, under normal! course of things we would have ordered a trial de novo. However, we would not take such a move because the charge which is the foundation of a criminal trial has been declared fatally defective. There is no charge upon which a retrial would be conducted. We find support on this stance in the Court's Page 5 of 6

decision in Paulo Kumburu v. R, Criminal Appeal No. 98 of 2016 (unreported), where it was stated that: "Since in this case the charge sheet is incurably defective, implying that it is non existent, the question of a retrial does not arise." In conclusion, we find the first ground of appeal meritorious. Having decided this ground in the affirmative, we find no need to deliberate on the remaining grounds. Consequently, we allow the appeal, quash the conviction and set aside the sentence. We further order the immediate release of the appellant Hamis Mohamed Mtou from prison unless he is held there for another lawful cause." For similar reasons, the question of retrial does not arise in the present case. Consequently, I allow the appeal, quash and set aside the conviction and sentence, and order the immediate release of the appellant unless he is otherwise held for a lawful cause. DATED and DELIVERED at DODOMA this 5 th day of June 2026 JUDGE Page 6 of 6 J.L. MASABO