IN THE COURT OF APPEAL OF TANZANIA

AT MUSOMA
( CORAM: LILA. J.A.. KENTE. J.A.. And MGONYA. J.A.^
CRIMINAL APPEAL NO. 500 OF 2020
MAHUTI CHACHA MARWA........................................................... APPELLANT
VERSUS
THE REPUBLIC.......................................................................RESPONDENT
(Appeal from the Judgment of the High Court of Tanzania,
at Musoma)
fKahvoza. J.1
dated the 4th day of September, 2020
in
Criminal Appeal No. 75 of 2020

JUDGMENT OF THE COURT

3rd & 15th July, 2024

MGONYA. J.A.:

Mahuti Chacha @ Marwa, the appellant herein, was prosecuted for

rape in the District Court of Serengeti at Serengeti. He was then convicted

as charged and sentenced to a term of 30 years' imprisonment and

ordered to compensate the victim a total sum of TShs. 5,000,000/= (Five

Million Shillings). His first appeal to the High Court was unsuccessful. Still

aggrieved, he is before the Court to challenge the impugned decision.

Before the trial court, the appellant's case was predicated upon the

allegation that, on 27th day of January, 2019 at Nyiboko Village within the
District of Serengeti in Mara Region, he had carnal knowledge of a girl

aged 16 years old, who shall be referred to as the victim or PW2 in order

to conceal her identity. The appellant denied any involvement in

committing the offence charged, hence the full trial against him.

At the trial court, the prosecution presented five witnesses. The

victim (PW2) testified to the effect that, on 27th January, 2019 at Nyiboko

Village, the appellant threatened her with a knife, pulled her in the bush

and raped her. PW1, the victim's mother, Theresia Chacha testified to have

taken the victim to Borenga Police Station after she was informed of the

incident by the victim when she returned home on the following morning.

Later after obtaining the PF3, she took the victim to Nyiboko dispensary for

medical examination. At the dispensary, Yohana Emmanuel, a Clinical

Officer at Nyiboko Dispensary (PW3) examined the victim and found that

there was clotted blood inside her vagina and bruises on labia minora. It

was PW3's finding that the victim was raped as there was penetration of a

male organ "penis". Thereafter, he filled the examination report (exhibit

PE. 2). PW4 was WP 7277 DC Anastazia who investigated the case and

arraigned the appellant in court after she had prepared the charge sheet.

PW5, WP 5665 DC Sijali testified to have recorded the statement of one

Bachuta Maro @ Nyakiwalo; and tendered his statement on the allegation

that the said witness was not found.

The appellant, in his defence, denied committing the offence, stating

that the case against him was fabricated; and that he and the victim had

agreed to marry.

As alluded to above, the appellant was found guilty by the trial court.

He was convicted and sentenced as stated above.

Again, as we have indicated earlier, the appellant's first appeal to the

High Court of Tanzania at Musoma (Kahyoza, J.) was dismissed. The High

Court upheld the trial court's findings as well as the impugned conviction

and sentence. It is worth noting that, the first appellate court, expunged

Exhibit PE. 2, the PF3, as it was not read out before the court as the law

requires. The court also expunged the statement of Bachuta Maro @

Nyakiwalo which was improperly admitted in evidence.

In his efforts to protest his innocence, the appellant has filed before

this Court a memorandum of appeal with five grounds. However, since

the 2nd and 3rd grounds are directed to the two expunged exhibits as seen

above, only three grounds remain for determination. Therefore, the instant

appeal is predicated on three main complaints to wit:

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 1. That the tria l and the first appellate courts erred in law to convict
and sentence the appellant by holding that the appellant raped
the victim using a knife, as the appellant was not able to do two
things a t the same tim e, that is raping and holding a knife;

2. That the tria l and the firs t appellate courts erred in law and fact to
convict and sentence the appellant as the judgm ent delivered by
the tria l court was unreasoned and on the other hand, was upheld
by the first appellate court which actually is against the principles
o f naturalju stice; and

3. That both courts below erred in law and fact fo r convicting and
sentencing the appellant w ithout giving sufficient consideration
and w eight to the defence adduced by the appellant.

When the appeal was called for hearing, the appellant appeared in

person unrepresented, whereas, Mr. Tawabu Yahya Issa and Mr. Isihaka

Ibrahim Mohamed both learned State Attorneys, appeared for the

respondent, Republic.

Being invited to enjoy his right to begin, the appellant prayed the

Republic to submit and later make a rejoinder to their submissions.

Submitting on the first ground, Mr. Issa referred the Court to page

12 of the record of appeal particularly on PW2's (the victim) testimony,

that on the fateful date, PW2 on her way to visit her aunt one Chausiku

Magoigwa around 19:00 hours, she met the appellant who threatened to
stab her with a knife if she screamed. He then took her into the bushes

and after he undressed her, he went on having sexual intercourse with her

by force, thus he raped her. Further, during the act, the appellant told the

victim not to scream and that if she did, he would stub her with a knife.

Then after he had accomplished his mission, he released her.

From the above testimony by PW2, it was the learned State

Attorney's assertion that, the appellant's claim that it was not possible for

him to rape the victim while holding the knife threatening her, is

unfounded. It was his stance that, by referring to PW2's testimony that

she was threatened by the appellant with a knife, it was not meant that

during the entire act, the appellant was holding a knife threatening the

victim. It was the learned State Attorney's conclusion that this ground is

both misconceived and meritless.

As the appellant had nothing to rejoin apart from pleading the court

to release him, we prefer to determine this ground straight away.

As far as the first ground of grievance is concerned, we agree with

the respondent's counsel's views that the complaint has no merit. The

reason for our stance is from the record of this appeal, particularly PW2's

testimony. The record is very clear that PW2 said that the appellant

threatened to stub PW2 if she raised an alarm. Moreover, PW2 in her

testimony did not state anywhere that during the act, the appellant was all

the time holding the knife threatening her. Given the circumstances, we

have failed to trace the basis of the appellant's ground. We therefore

declare the ground baseless.

Moving to the second ground of appeal that the first appellate court

upheld the trial court's judgement which was unreasoned, it was the

learned State Attorney's brief observation that, both the trial and the first

appellate courts' judgments were reasoned. That before reaching their

decisions both courts gave reasons as to why they found that the

prosecution case was proved beyond reasonable doubt. He thus prayed

this ground to be considered as meritless.

In determining this ground, the issue before us is whether, the lower

courts' judgements were unreasoned. We are aware that it is the legal

requirement under section 312 (1) of the Criminal Procedure Act (the

CPA), that every judgment must contain the point or points for

determination, the decision thereon and the reasons for the decision. See

the case of Abubakar I. H. Kilongo & Another v. Republic, Criminal

Appeal No. 230 of 2021 (unreported); where it was stated that:

"Determ ination o f the dispute is reached by the

Court after a thorough evaluation and consideration
 o f the p a rtie s' evidence tendered a t the tria l court
in relation to the applicable law, and disclosing the
reason fo r the decision and the conclusion
thereon."

Likewise in the case of Amirali Ismail v. Regina, 1 T.L.R. 370, Aberneth,

J., made some observations on the requirements of the judgment. He said:

"A good judgm ent is dear, system atic and straight

forward. Every judgm ent should state the facts o f
the case, establish each fact by reference to the
particular evidence by which it is supported; and it
should give sufficiently and p lain ly the reasons
which ju stify the fin d in g ..."

See also the case of Josephat Joseph v. Republic, Criminal Appeal No.

558 of 2017 (unreported).

In the instant case, after going through the impugned decisions of

both trial and first appellate courts, we are satisfied that the trial

Magistrate gave reasons for the decision. Referring to page 51 of the

record of appeal, it was the trial Magistrate's finding that, the victim was

indeed raped by the appellant. Giving his reasons for the above finding,

the learned trial Magistrate articulated that the evidence revealed that, the

appellantwas well known to the victim and that she was able tomention

him asher offender shortly after the incident; of which the trial court
found as guarantee of the reliability of the victim's testimony. The other

reason for the trial court's decision was the failure of the appellant to cross

examine the victim at all; which implies that the appellant agreed on what

the victim had testified against him.

From the above, it is our firm observation that, the appellant's

grievances that both lower courts' decisions were unreasoned and against

the principles of natural justice are unfounded. Consequently, we cannot

fault the first appellate court's decision on the basis that no reasons were

given for the decision. In the event therefore, we find the appellant's

second ground of appeal baseless and we dismiss it.

As to the third and last ground that both trial and appellate courts

convicted and sentenced the appellant without giving sufficient

consideration and weight to the defence evidence adduced by him, the

learned State Attorney referred us to page 72 of the record of appeal,

where the appellate Judge considered the appellant's ground of appeal on

this complaint. It was the learned counsel's view that, the appellant's

defence was considered but the same did not shake the prosecution's

case. To support his stance, he referred us to the case of Sabas

Kuziriwa Versys v. Republic, Criminal Appeal No. 40 of 2019. He thus

prayed the Court to declare the ground meritless.

s
 Having examined the record of appeal, we concur with the learned

State Attorney that, it is on the record of appeal that both in the trial and

first appellate courts, the appellant's defence was considered and the

appellate Judge found that the same did not cast any doubt on the

prosecution's case.

It is a cardinal principle of law that all parties have the right to be

heard and their cases be considered for evaluation before the decision.

See the case of Abbas Sherally & Another v. Abdul Sultan Haji

Mohamed Faza Iboy, Civil Application No. 33 of 2002, and Director of

Public Prosecutions v. Rajab Mjema Ramadhani, (Criminal Appeal

No. 223 of 2020), [2023] TZCA 45 (23rd February 2023) TanzUI where in

the latter case we held that:

"Time w ithout number, the Court has consistently

insisted on the need to guard against contravention
o f the rig h t to be heard (audi alteram partem ) in
adjudicating the rights o f parties. It is a rule against
a person being condemned unheard. Any decision
arrived at, w ithout a party getting an adequate
opportunity to be heard is a n u llity even if the same
decision would have been arrived a t had the
affected party been heard."

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 From the record of the appeal, we are satisfied that both prosecution

and defence sides were given equal chances to prosecute and defend their

cases. At the trial court, the appellant was given his right to enter his

defence, where he denied to commit the offence saying that the case

against him was fabricated. In addition, the appellant told the trial court

that he and the victim had agreed to marry. Whereas, during cross

examination he informed the court that he did not know the age of the

victim.

As far as this ground of complaint is concerned, we make reference

to pages 51 and 52 of the record of appeal, where it is revealed that the

trial Magistrate explicitly considered what was testified by the appellant in

his defence and finally concluded that, since the appellant did not cross

examine the victim at all, that means he admitted the truth of her

testimony against him. From all the above, the trial Magistrate upon being

satisfied, held the appellant responsible that indeed he committed the

offence charged.

Likewise, going through the record of appeal at page 72, we find

that this ground of complaint was determined by the first appellate court

and finally concluded that the ground was meritless as the appellant's

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defence was considered by the lower court. Having the same view, we also

dismiss this ground of appeal for being unfounded.

Despite our ruling that all the appellant's three grounds of appeal are

meritless, in the course of hearing the instant appeal, it came to our

knowledge that in the entire record of appeal, there is no any proof of the

victim's age. When probed by the Court on this issue, the learned State

Attorney conceded to the Court's observation that during the hearing of

the case before the trial court, the victim's age was not established.

We are aware that, the age of the victim is of great essence in

establishing the offence of statutory rape under section 130 (1) (2) (e) of

the Penal Code. Therefore, the establishment of the victim's age is of

extremely importance before conviction and further sentence. In law, the

victim's age can be proved by either the victim herself, both of her parents

or at least any one of them, a guardian and by birth certificate. See -

Issaya Renatus v. Republic, Criminal Appeal No. 542 of 2015, Marko

Bernard v. Republic, Criminal Appeal No. 329 of 2018, Jafari s/o Musa

v. DPP, Criminal Appeal No. 234 of 2019 and Andrea Francis v.

Republic, Criminal Appeal No. 173 of 2014 (all unreported). In the last

cited case, the victim who was alleged to be 16 years of age like the one in

this case, no witness testified about her age, hence the Court held that:

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 "The evidence in a tria l m ust disclose the person's
age, as it were. In other words, in a case such as
th is one where the victim 's age is the determ ining
factor in establishing the offence, evidence m ust be
p ositively la id out to disclose the age o f the victim .
Under norm al circum stances, evidence relating to
the victim 's age would be expected to come from
any or either o f the follow ing: The victim , both o f
her parents or a t least one o f them, a guardian, a
birth certificate, etc."

In this case, amongst the prosecution's witnesses, PW1 was the

victim's mother and PW3, was the clinical officer who examined the victim.

Both of them were proper and legal persons to establish the victim's age.

However, none of them did establish PW2's age.

Notably, it is on record of this appeal that, during the hearing before

being sworn, PW2 declared her age to be 16 years old. Furthermore, the

charge sheet revealed that the victim's age was 16 years old. However, by

referring to what was held by this Court in Andrea Francis v. Republic

(supra), it is the position of the law that, the victim's declaration of her age

before being sworn; and particulars indicated in a charge sheet is not

enough proof of victim's age for the court to base on the conviction and

sentence. In that case it was held:

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 "i/7 this case, the particulars o f offence in the
charge sheet indicated that PW1 was 16 years old.
When she testified on I4 h February 2006, the tria l
Principal D istrict M agistrate, before putting her on
oath also indicated that she was aged 16 years.
With respect, it is trite law that the citation in a
charge sheet relating to the age o f an accused
person is not evidence. Likewise, the citation b y a
M agistrate regarding the age o f a witness before
giving evidence is not evidence o f that person's
age."

In this case, the appellant was charged with statutory rape contrary

to section 130 (1) and (2) (e) and 131 (1) of the Penal Code and

sentenced to serve 30 years' imprisonment. That being the case, after

ascertaining that the victim's age was not proved, the appellant's

conviction for statutory rape was not proved.

Trite law is to the effect that in sexual offences where only two

persons are usually involved, the testimony of the complainant is mostly

crucial but must be scrutinized cautiously. See Selemani Hassani v.

Republic, (Criminal Appeal No. 203 2021) [2022] TZCA 127 (22nd March

2022) TanzLII. That being the case, taking into consideration the

circumstances of this appeal, this Court finds that the victim's testimony

IB
should not be taken as a gospel truth, in a sense that the courts must

warn themselves that, before entering conviction, the prosecution

eliminates all the possible doubt. Early reporting by the victim of a crime to

a person whom he/she first comes across is taken to add credence on her

truthfulness. See the cases of Marwa Wangiti Mwita and Another v.

Republic [2002] T.L.R. 39, Jaribu Abdallah v. Republic [2003] T.L.R.

271 and Makende Simon v. Republic, Criminal Appeal 412 of

2017(unreported). In the last case, it was held that:

"It is a cardinal principle that the ab ility to m ention

the suspect a t the earliest opportunity tim e is o f
utm ost im portance as it proves re lia b ility o f the
w itness."

Unfortunately, in this case, Bachuta Maro Nyakiwalo and Pili Saiga,

whom the victim claimed to have met immediately after the rape incident

and reported the incident, did not testify.

It is on record that on the alleged date of incident the victim left

their home at 16:00 hrs going to her aunt one Chausiku Magoigwa. On her

way at 19:00 hours, she met the appellant who ravished her. Also, it was

testified that after the incident, the victim met one Bachuta Maro

Nyakiwalo whom she informed on what had befallen her. Further, the

victim claimed to have gone to the house of Pili Saiga, a member to their
church to salvage herself that night. While there, she also told the latter on

what had happened to her. The victim then was accommodated that night

as it was already late and unsafe to return home.

As it can be recalled, before the trial court, the prosecutor informed

the court that it was difficult to procure the said Bachuta although it was

not stated as to what caused the failure to trace him to testify. Similarly,

Pili Saiga whom the victim stated that she met soon after the incident and

who accommodated her for the whole night, nothing was stated to

account for the failure to summon her. These were both material

witnesses to corroborate the victim's testimony. It was stated by this Court

in Director of Public Prosecutions v. Sharif s/o Mohamed @

Athumani and Six Others, Criminal Appeal No. 74 of 2016 (unreported)

that:

"...a m aterial witness is a person who has

inform ation or knowledge o f the subject m atter
which is significant enough to affect the outcome o f
a tria l. "

In this case, no one witnessed the appellant ravishing PW2. Pili Saiga

was a material witness who could have informed the court what PW2

reported to her immediately after the alleged incident and what was the

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victim's physical state at the time she met her immediately after the

ordeal.

It is settled law that, the prosecution is under a prim a facie duty to

call those witnesses who, from their connection with the transaction in

question, are in a position to testify on material facts. If such witnesses

are within reach but are not called without sufficient reason stated, the

court may draw an adverse inference to the prosecution's case. See; Azizi

Abdalla v. Republic, [1991] T.L.R. 71, Wambura Marwa Wambura v.

Republic, Criminal Appeal No. 115 of 2019 and Priva Constantine @

Shirima v. Republic, Criminal Appeal No. 437 of 2020 (both unreported)

to mention the few.

Flowing from the above established legal principles, this Court finds

that failure of the prosecution to summon both Bachuta Marwa @

Nyakiwalo and Pilly Saiga, without any sufficient reasons, casts doubt with

the possibility that they could have given evidence contrary to the

prosecution's case. Hence there are doubts that, prosecution case was

proved to the required standards.

It is from the above observations in totality, that we allow the

appellant's appeal, quash his conviction and set aside the custodial

16
sentence imposed on him. We proceed to order his immediate release

from prison forthwith, unless held for some other lawful cause.

DATED at MUSOMA this 12th day of July, 2024.

S. A. LILA
JUSTICE OF APPEAL

P. M. KENTE
JUSTICE OF APPEAL

L. E. MGONYA
JUSTICE OF APPEAL

The Judgment delivered this 15th day of July, 2024 in the presence of

the appellant who appeared in person and Ms. Beatrice Timothy Mgumba,

learned State Attorney for the respondent/Republic, is hereby certified as a

true copy of the original.

J. J. KAMALA
DEPUTY REGISTRAR
COURT OF APPEAL

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