Eliehonami Bias Mfinanga vs Republic (Criminal Appeal No. 000002239 of 2026) [2026] TZHC 2753 (29 May 2026)

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA AT ARUSHA CRIMINAL APPEAL NO. 000002239 OF 2026 ELIEHONAMI BIAS MFINANGA COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC RESPONDENT/ DEFENDANT JUDGMENT MAHIMBALI, J This appeal arises from the conviction and sentence of the Appellant by the District Court of Arusha at Arusha, wherein he was found guilty of the offence of rape contrary to Sections 130(1)(2)(e) and 131(1) of the Penal Code [Cap 16 R.E. 2022] and sentenced to life imprisonment. Aggrieved by both conviction and sentence, the Appellant lodged this appeal challenging the findings of the trial court on several grounds, which I now proceed to determine. At the hearing of the appeal, the Appellant prayed that his written submissions and grounds of appeal be adopted as his argument. In essence, he contended that the prosecution failed to prove the case beyond reasonable doubt. He raised complaints relating to alleged discrepancies in the names of the Page. 1

accused person, contradictions in the prosecution evidence, failure to call material witnesses, improper evaluation of his defence, delay in arraignment contrary to procedural safeguards, and that the sentence imposed was harsh and excessive in the circumstances of the case. On the other hand, Ms. Eunice Makalla, learned Senior State Attorney, appeared for the Respondent and opposed the appeal in its entirety. She submitted that the prosecution had proved all the essential ingredients of the offence of rape, namely penetration, the age of the victim, and the identity of the Appellant beyond reasonable doubt. She further submitted that the alleged contradictions were minor and did not go to the root of the prosecution case, that the trial court properly evaluated the entire evidence including the defence case, and that the sentence imposed was lawful and mandatory under Section 131(1) of the Penal Code. In determining this appeal, I am mindful of the settled position of law that a first appellate court is duty bound to re-evaluate and re-analyse the entire evidence on record and arrive at its own independent conclusion, while bearing in mind that it did not have the advantage of seeing or hearing the witnesses testify. This principle has been consistently stated in numerous authorities, including Pandya v Republic [1957] EA 336 and Okeno v Republic [1972] EA 32. The offence of rape under Section 130(1)(2)(e) of the Penal Code, as read together with Section 131(1), in cases involving a child victim, requires the

prosecution to establish beyond reasonable doubt three essential ingredients, namely: proof of penetration, proof of the age of the victim, and proof of the identity of the perpetrator. Where the victim is under ten years of age, the law prescribes a mandatory sentence of life imprisonment upon conviction. On the first ingredient, penetration, the victim (PW3), a child of tender age of four years, testified in a straightforward manner that the Appellant, whom she knew as "Uncle Kipara," sexually assaulted her inside a school bus. The law recognises that in cases involving child victims, the court must exercise caution but is equally entitled to act on such evidence where it is credible and corroborated. In the present case, the testimony of PW3 was not only consistent but was also materially corroborated by the medical evidence of PW4, a medical officer, who found injuries and discharge consistent with sexual penetration. It is settled law that corroboration, while desirable, is not a strict legal requirement in sexual offences, particularly where the evidence of a child victim is found to be truthful and credible. The Court of Appeal has previously held in Mohamed Said v Republic [1996] TLR 364 that the evidence of a child of tender years, if believed and supported by surrounding circumstances, can be sufficient to found a conviction. In the present case, I am fully satisfied that the trial court properly found that penetration was proved beyond reasonable doubt. sag Page. 3

On the issue of the age of the victim, PW1, the grandmother of the complainant, testified that the victim was four years old at the material time. This evidence was not challenged in any material respect during cross- examination. It is trite that age in sexual offence cases may be proved by oral testimony of a close relative where documentary evidence is unavailable, provided such evidence is credible and uncontroverted. I therefore find that the prosecution sufficiently proved the age of the victim. With regard to identification of the Appellant, the evidence shows that the victim knew him well as "Uncle Kipara," being the driver of the school bus she regularly used. It is further on record that the Appellant admitted being the driver of the said bus. The principle governing identification evidence, as stated in Waziri Amani v Republic [1980] TLR 250, requires caution to avoid mistaken identity. However, where the identification is by a witness who is familiar with the accused person, the risk of error is significantly reduced. In the present case, the identification was by recognition rather than a fleeting encounter, and I am satisfied that the Appellant was properly identified. On the complaint regarding discrepancies in names, the Appellant argued that the charge sheet referred to him as Elihonami Yasi Mfinanga @ Uncle Kipara. The record shows that he did not dispute this identity during trial proceedings. It is a well-established principle under Section 251 of the Criminal Procedure Act that proceedings shall not be invalidated by reason of any variance or

defect in the charge which does not occasion a failure of justice. I find that the alleged discrepancy was immaterial and did not occasion any prejudice. Regarding alleged contradictions in the prosecution evidence, it is trite that minor inconsistencies which do not affect the substance of the prosecution case are not fatal. Courts have consistently held that human recollection is not perfect and some inconsistencies are to be expected. What is important is whether the inconsistencies go to the root of the prosecution case. In Nyerere Nyague v Republic, Criminal Appeal No. 67 of 2010, it was held that only material contradictions which create doubt in the prosecution case are fatal. In the present case, the alleged contradictions were minor and did not weaken the prosecution case. On the issue of failure to call material witnesses, the Appellant contended that not all persons who could have testified were called. The law is clear that the prosecution is not required to call a multiplicity of witnesses to prove its case. Section 152 of the Evidence Act provides that no particular number of witnesses is required to prove a fact. What matters is the quality, not quantity, of evidence. The prosecution called material witnesses, including the victim, her guardian, and the medical officer. I therefore find no merit in this complaint. On the issue of delay in arraignment, the Appellant argued that he was not produced before court within the constitutional 24-hour requirement. While such delay may amount to a violation of procedural rights, it does not

automatically nullify a conviction unless prejudice is shown. The Court of Appeal in Kelvin Lembris v Republic, Criminal Appeal No. 70 of 2024, reaffirmed that such irregularity may entitle an accused to appropriate remedy but does not vitiate proceedings. No prejudice was demonstrated in this case. On the evaluation of the defence, the Appellant merely denied the allegations. The trial court considered his defence but found it unconvincing when weighed against the strong prosecution evidence. It is a well-established principle that a mere denial, without more, cannot dislodge credible and corroborated prosecution evidence. Finally, on sentence, Section 131(1) of the Penal Code prescribes a mandatory sentence of life imprisonment where the victim is a child under ten years. The trial court had no discretion once conviction was entered. The sentence imposed was therefore lawful. In the final analysis, having carefully re-evaluated the entire evidence on record and the applicable law, I am satisfied that the prosecution proved its case beyond reasonable doubt. The conviction was safe and the sentence was properly imposed in accordance with the law. Accordingly, this appeal is devoid of merit. It is hereby dismissed in its entirety. The conviction and sentence of life imprisonment are accordingly upheld.

Dated at ARUSHA this 29th of May 2026 F. H MAHIMBALI JUDGE OF THE HIGH COURT