Shaban Majaliwa vs Republic (Criminal Appeal No. 8686 of 2026) [2026] TZHC 2954 (5 June 2026)

Page 1 of 16 IN THE HIGH COURT OF THE UNITED RE PUBLIC OF TANZANIA (GEITA – SUB REGISTRY) AT GEITA CRIMINAL APPEAL NO. 8686 OF 2026 (Arising from the Judgement of t he District Court o f Chato In Criminal Case Number 354 of 2026) SHABAN MAJALIWA .. ………………………………………………………APPELLANT VERSUS THE REPUBLIC ………………. ………………… .. ……………...…………RESPONDENT JUDGEMENT Date of last order: 13 /0 5 /2026 Date of Judgement: 05/06/2026. MWAKAPEJE, J.: T his is a first appeal in which the appellant challenges the decision of the District Court of Chato in Criminal Case No. 354 of 2026, whereby he was convicted of the offence of rape contrary to sections 130(1), 130(2)(e) and 131(1) of the Penal Code, Cap. 16 R.E. 2023. The particulars of the offence were that, on 21 November 2025 , at Bulengahasi Village within Chato District, Geita Region, the appellant had knowledge of a 15 - year - old girl (name withheld), hereinafter referred to as “the victim”. The appellant pleaded not guilty to the charge, thereby putt ing the prosecution to strict proof. In an attempt to discharge that burden, the prosecution called six witnesses in support of its case. Briefly stated, on the material date, at about 18:00 hours, PW1, Nyanjiga Mashauri Majanjara, sent her daughter, the v ictim, to the appellant's residence to collect a radio / subwoofer . The victim (PW2)

Page 2 of 16 testified that upon her arrival, the appellant informed her that he needed to travel to Buseresere to obtain money related to the radio and requested that she accompany him. PW2 stated that they proceeded to Buseresere but found the relevant premises closed. They thereafter commenced their journey back home. According to her testimony, instead of using the usual route, the appellant led her along a different path where he sex ually assaulted her and warned her against reporting the matter. After the incident, the appellant allegedly suggested that she accompany him to his residence, but she declined and eventually returned home. Meanwhile, when the victim failed to return home at the expected time, PW1 became concerned and went to the appellant's residence in search of her. Finding neither the victim nor the appellant there, she informed PW3, the ten - cell leader, of the situation. PW3 confirmed that upon receiving the report, ef forts were made to locate the victim and ascertain her whereabouts. Later that night, at about 22:00 hours, the victim returned home and informed PW1 of the incident. PW1 and PW3 testified that they thereafter attempted to locate the appellant but were un successful. The matter was subsequently reported to the police, and the victim was issued with a PF3 Form and referred for medical examination.

Page 3 of 16 The medical evidence was tendered through PW5, Sylvester Kihila Jackson, a medical doctor at Katoro Dispensary , who testified that he examined the victim on 22 November 2025. According to his findings, the examination revealed injuries to the genital area consistent with recent trauma. T he PF3 Form was admitted in evidence as Exhibit PE1. Follo wing the report, investigations were commenced by PW6, D/SGT Jishosha. He testified that he visited the scene, prepared a sketch map, and continued efforts to trace the appellant. His investigations culminated in the appellant's arrest on 15 December 2025. The arrest was effected with the assistance of PW4, Venance Gervace Shija, the Hamlet Chairperson, who confirmed having participated in the appellant's apprehension. The sketch map prepared during the investigation was admitted in evidence as Exhibit PE2. When called upon to defend himself against the allegations, the appellant contended that they arose from a dispute between him and the victim's family over a radio entrusted to him for repair. He maintained that after the radio was repaired, a disagreement arose over payment for the repair services, leading to the fabrication of allegations against him. He further alleged that while in police custody , he was subjected to beatings and consequently made incriminating stat ements in order to save himself from further mistreatment.

Page 4 of 16 Upon evaluating the evidence adduced by both sides, the learned trial magistrate was satisfied that the prosecution had proved its case beyond reasonable doubt. The appellant was accordingly convic ted and sentenced to thirty years in prison . Aggrieved by both the conviction and sentence, the appellant has preferred the present appeal on the following grounds :

1. That the learned trial magistrate erred in law and in fact by admitting and relying on the PF3 Form and medical evidence tendered by PW5, Sylvester Kihila Jackson, without proof that the witness was a duly qualified and licensed medical practitioner as req uired by the relevant provisions of the law.
2. That the learned trial magistrate erred in law and in fact by relying on hearsay evidence allegedly adduced through PW1 and PW3 in contravention of the provisions of the Law of Evidence Act.
3. That the learned tri al magistrate erred in fact by failing to record and determine a material question raised by the appellant during cross - examination of PW2, which, according to the appellant, was relevant to testing the credibility and reliability of her testimony.
4. That th e learned trial magistrate erred in law and in fact by admitting and relying on a PF3 Form completed at Katoro Dispensary, which, according to the appellant, was outside the territorial jurisdiction of the trial court.
5. That the learned trial magistrate err ed in fact by failing to reconcile alleged inconsistencies between paragraph 6 of the Preliminary Hearing record and the testimony of PW2 regarding the circumstances of the commission of the offence.
6. That the learned trial magistrate erred in law by convic ting the appellant when the prosecution had failed to prove its case beyond reasonable doubt.

Page 5 of 16 The appeal was argued orally. The Republic was represented by Ms. Kabula Benjamin e and Ms. Pelina Maxon, both learned State Attorneys, while the appellant appeare d in person and was unrepresented. In support of the appeal, the appellant did not amplify the grounds set out in his petition. He instead prayed that the grounds be considered as filed and urged the Court to allow the appeal by quashing the conviction and setting aside the sentence. Opposing the appeal, Ms. Maxon addressed the first and third grounds of appeal. Regarding the first ground, she submitted that PW5 was duly qualified and competent to tender the medical evidence and the PF3 Form. Referring to t he proceedings, she argued that PW5 disclosed his professional qualifications, licence registration number and the validity of his practising licence. Consequently, his evidence was properly received by the trial court , and the ground lacked merit. As regar ds the third ground, the learned State Attorney submitted that the record does not show that PW2 was asked whether the appellant was circumcised. According to her, the complaint effectively challenges the correctness of the trial court record, which remains co nclusive as to what transpired during the proceedings. In support of that proposition, she relied on the decisions in Ex - d.8656 Cpl Senga s/o Idd Nyembo & Others vs Republic (Criminal Appeal No. 16 of 2018) [2020] TZCA 381 (7 August 2020), that cited Halfa ni Sudi v. Abieza Chichifi v. The

Page 6 of 16 Republic (1998) TLR 557 . She accordingly urged the Court to dismiss the ground. On her part, Ms. Benjamin e addressed the remaining grounds of appeal. Concerning the second ground, she submitted that the evidence of PW1 and PW3 was not hearsay. According to her, their testimonies merely provided corroborative evidence regarding the events reported by the victim and the subsequent steps taken after the incident was disclosed. She further argued that the conviction was primari ly based on the direct testimony of PW2, which was corroborated by other evidence of record. With respect to the fourth ground, the learned State Attorney submitted that the fact that the PF3 Form was completed at Katoro Dispensary did not affect its admis sibility. She argued that there is no legal requirement that a medical examination be conducted within the territorial jurisdiction of the court trying the case, provided the examination is otherwise lawfully conducted and relevant to the matter before the c ourt. As for the fifth ground, she submitted that no material contradiction existed between the proceedings at the preliminary hearing and the evidence adduced at trial. In her view, the victim's testimony remained consistent on the material aspects of the prosec ution case and was further supported by the medical evidence.

Page 7 of 16 Addressing the sixth ground, she contended that the prosecution discharged its burden of proof beyond reasonable doubt. She submitted that the evidence established the victim's age, penetration and the identity of the perpetrator. On age, she submitted tha t the same was proved , and she referred to the evidence of PW1 and PW2 that the victim was born on 05/01/2010 and, at the time of the offence, was 15 years old. T o reinforce her submission, she relied on Issaya Renatus vs Republic (Criminal Appeal No. 542 of 2015) [2016] TZCA 218 (29 April 2016) . On penetration, she relied on the testimony of PW2 and the medical findings of PW5. Regarding identity, she argued that the appellant was well known to the victim and that the circumstances under which the offence occurred left no possibility of mistaken identity. She further submitted that the victim reported the incident at the earliest opportunity, thereby lending credibility to her account . She bolstered her argument with the case of Marwa Wangiti Mwita and Ano ther vs Republic , (2002) TLR 36. In conclusion, learned State Attorneys urged the Court to find that none of the grounds of appeal had merit and to uphold both the conviction and sentence. In rejoinder, the appellant reiterated his earlier position and prayed that the appeal be allowed.

Page 8 of 16 Having carefully considered the record of appeal, the grounds of appeal and the rival submissions of the parties, the central issue for determination is whether the prosecution proved the charge against the ap pellant beyond reasonable doubt . The law is settled that in criminal proceedings, the prosecution bears the burden of proving its case, and the standard of proof required under section 3(2)(a) of the Evidence Act, Cap. 6 R.E. 2023, is beyond reasonable doubt. This principle has been reaffirmed in several decisio ns, including Omary Said@ Habibu & Another v Republic (Criminal Appeal No. 302 of 2014) [2015] TZCA 284 (16 February 2015), where the Court stated: "It is the principle of law that in all criminal cases, the burden of proof rests upon the prosecution to pr ove the charge against the accused person beyond reasonable doubt. The burden never shifts to the accused. What the accused has to do is to raise a doubt on the prosecution's case." The ap pellant was convicted of rape contrary to sections 130(1), 130(2)(e) and 131(1) of the Penal Code, Cap. 16 R.E. 2023. Accordingly, the prosecution was required to establish beyond reasonable doubt the age of the victim, penetration and the identity of the perpetrator. With regard to age, both PW1 and PW2 testified that the victim was born on 5 January 2010. Consequently, at the time of the incident on 21 November 2025 , she was 15 years old, as rightly submitted by Ms .

Page 9 of 16 Benjamine . The proof of age has been se ttled that it can be proved by the victim, parent, guardian, doctor or , as the case may be, a birth certificate , as stated in Issaya Renatus vs Republic (supra) , that: "We are keenly conscious of the fact that age is of great essence in establishing the offence of statutory rape under section 130(l)(2)(e), the more so, under the provision, it is a requirement that the victim must be under the age of eighteen. That being so, it is most desirable that the evidence as to proof of age be given by the victim, relative, or parent, medical practitioner or, where available, by the production of a birth certificate. We are, however, far from suggesting that proof of age must, of n ecessity, be derived from such evidence. There may be cases, in our view, where the court may infer the existence of any fact, including the age of the victim, on the authority of section 122 of TEA . " In this case , there was no challenge to this evidence during trial, and n othing has been demonstrated before this Court to cast doubt upon the fact that the victim was 15 years old at the time . I am therefore satisfied that the prosecution proved that the victim was a child within the meaning of the law. As regards penetration, the evidence of PW2 was direct, coherent and unequivocal. She narrated the circumstances under which the appellant sexually assaulted her and identified him as the person responsible. It is settled law that in sexual offence cases, the evidence of the victim is the best evidence regarding the occurrence of the offence, provided that such evidence is found to be credible and reliable , s ee

Page 10 of 16 Selemani Makumba vs Republic (Criminal Appeal No . 94 of 1999) [2006] TZCA 96 (21 August 2006) . However, the court remains under a duty to evaluate such evidence carefully in light of the surrounding circumstances and other evidence of record. See also Jovin Daud vs Republic (Criminal Appeal No. 4821 of 2020) [2024] TZCA 97 (23 February 2024), where it was observed that: “Now, even if the best evidence in sexual offences comes from the victim, the same is not free from scrutiny by the court. It should pass the usual test of its self - coherence, credibility and/or its veracity in comparison with other available evidence.” In the present case, I have found PW2's testimony to be credible and consistent on the material particulars of the offence and unshaken during cross - examination. Her account was further reinforced by her conduct immediate ly after the incident, including promptly reporting the incident and identifying the appellant as the perpetrator at the earliest opportunity. More importantly, her evidence did not stand alone. It was materially corroborated by the medical evidence of PW5, the medical practitioner, who examined her shortly after the incident and observed injuries to the genital area consistent with recent trauma. Although medical evidence is not mandatory , where available, it serves to strengthen and corroborate the victim's account.

Page 11 of 16 In the instant case, both the direct testimony of PW2 and the medical evidence of PW5 point irresistibly to the conclusion that penetratio n was proved beyond reasonable doubt. The medical findings were therefore consistent with the victim's account and lent credence to the truthfulness of her testimony. Turning to the identity of the perpetrator, the evidence on record leaves no room for mistaken identity. PW2 testified that she knew the appellant prior to the incident. On the material day, she remained in his company for a considerable period, from about 18:00 hours , when she arrived at his residence, until approximately 22:00 hours, when sh e returned home. The circumstances , therefore, involved recognition rather than the identification of a stranger . Nevertheless, I remain mindful of the caution expressed by the Court of Appeal on identification by recognition in Mwarabu Sugweja @ Kihena v Re public , Criminal Appeal No. 342 of 2022 [2025] TZCA 313 (27 March 2025), where it was observed that: "It is the position of the law that identification by recognition may be more reliable than identification of a stranger, but even when the witness is purp orting to recognize someone whom he knows, the court should always be aware that mistakes in recognition of close relatives and friends are sometimes made." Applying that caution to the present case, I find that the possibility of error was effectively exc luded. PW2 not only knew the appellant beforehand but also remained with him for several hours and was able to

Page 12 of 16 describe his attire (black jeans and a yanga jersey) . More importantly, upon returning home , she immediately named the appellant as the person who raped her. Such a prompt report significantly enhances the reliability of her testimony. In Marwa Wangiti Mwita and Another v Republic ( supra) , the Court of Appeal emphasised that: "The ability of a witness to mention a suspect at the earliest opportunity is an all - important assurance of his reliability." I therefore find that the identity of the appellant as the perpetrator was established beyond reasonable doubt. Flowing from the above analysis, I now proceed to consider the complaints of the appellant. T he 2 nd ground faults the trial court for relying on alleged hearsay evidence from PW1 and PW3. I have carefully examined their testimonies. PW1 testified regarding the circumstances under which the victim left home, her failure to return, the report made by th e victim upon returning home, and the subsequent steps taken. PW3 testified regarding the report made to him and his involvement thereafter , including the arrest of the appellant by PW4 . Neither witness purported to give direct evidence of the commission of the offence itself. Their testimonies merely explained the sequence of events following the incident and corroborated the fact that the victim made a prompt report. The conviction was not founded on their evidence alone but principally upon the direct t estimony of PW2, supported by medical evidence. I

Page 13 of 16 therefore find no merit in the complaint that the conviction was based on hearsay evidence. The appellant also criticised in the 3 rd ground that the trial court failed to record a question allegedly put to PW2 regarding whether he was circumcised. I have perused the record of proceedings and, like the learned State Attorney, I find no indication that such a question was ever asked. The law is settled that the court record is conclusive as to what transpired before the court. In Ex - d.8656 Cpl Senga s/o Idd Nyembo & Others v Republic, Criminal Appeal No. 16 of 2018 [2020] TZCA 381, the Court, relying on Halfani Sudi v Abieza Chichifi v Republic (1998) TLR 557, reaffirmed the sanctity of the court record. It was observed that: "A court record is a serious document; it should not be lightly impeached; there is always a presumption that a court record accurately represents what happened" Consequently, this Court cannot act upon matters which do not appear therein. The appellant further , on the 5 th ground, alleged contradictions between paragraph 6 of the p reliminary h earing proceedings and PW2's testimon y regarding how the offence was committed . I have carefully examined the record but find no merit in this complaint. It is also important to bear in mind that the purpose of a preliminary hearing is to expedite criminal trials by identifying matters not in dispute and narrowing

Page 14 of 16 the issues to be determined at trial. As such, the Preliminary Hearing record does not constitute evidence upon which a conviction may be founded. Any omission or irregularity therein would ordinarily affect the preliminary h earing proceedings themselves and not the evidentiary value of the testimony subsequently adduced before the trial court. That notwithstanding, the complained paragraph of the preliminary hearing illustrated how the assault was occasioned , which was consist ent with the testimony of the victim that the appellant covered her mouth and then took off her underwear, pulled up her skirt, took out his penis and forcefully inserted it into her vagina . In my opinion, considering the evidence as a whole, I am unable t o discern any material contradiction affecting the substance of the prosecution's case. This ground of appeal is therefore devoid of merit and is hereby dismissed. I now turn to the appellant's complaints under the 1 st and 4 th grounds, regarding the competency of PW5 , the admissibility of the PF3 Form and the place where it was recorded . Regarding the first limb, t he record shows that PW5 introduced himself as a medical practitioner attached to Katoro Dispensary, holding a Diploma in M edicine and a valid practising licence , with Registration No. MCT - 11966. Section 2 of the Medical, Dental and Allied Health Professionals Act, Cap. 152 R.E. 2023 defines a medical practitioner as:

Page 15 of 16 “medical practitioner” means a person holding a degree, advanced diploma, diploma or certificate in medicine or dentistry from an institution recognised by the Council, with his level of competency and registered, enrolled or enlisted to practice as such under this Act.” Also, in terms of section 26 of the said Act, PW 5 was duly qualified and competent to conduct the medical examination and tender the PF3 Form. F u rther more, n o evidence on record indicating that h is qualifications and registration were challenged or rebutted. As regards the complaint that the PF3 Form was completed outside the territorial jurisdiction of the trial court, I find no legal basis for such objection. The admissibility of medical evidence depends on its relevance and the competency of the person who prepared it, not on the location of the health facility where the examination was conducted. Since PW5 was competent and the PF3 Form was properly completed and relevant to the issues before the court, the trial court was entitled to admit and rely upon it . Accordingly, both complaints lack merit and are hereby dismissed. Having disposed of the preceding grounds, I now turn to the sixth ground of appeal, which challenges the sufficiency of the evidence. In view of my findings above, I find no merit in this ground. The evidence of PW2 was credible and consistent, and was materially corroborated by the medical evidence of PW5 as well as the surrounding circumstances testified to by PW1 and PW3. On the other hand, the appellant's defence

Page 16 of 16 was duly considered by the trial court and rightly rejected as incapable of raising any reasonable doubt in the prosecution's case. In the final analysis, I am satisfied that the prosecution proved beyond reasonable doubt all the essential ingredients of the offence charged. Con sequently, none of the grounds of appeal succeeds. Accordingly, the appeal is dismissed in its entirety. The conviction and sentence imposed by the trial court are hereby affirmed. It is so ordered. DATED at GEITA , this 05 th day of June 2026. G.V. MWAKAPEJE JUDGE Rig ht to appeal explained. G.V. MWAKAPEJE JUDGE