IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA

(CORAM: MWAMBEGELE. J.A.. MWANDAMBO. 3.A.. And MASHAKA. J.A/1

CRIMINAL APPEAL NO. 96 OF 2019

ELIAS MWANGOKA @ KINGLOLI.............................................. APPELLANT

VERSUS

THE REPUBLIC.................... ..............................................RESPONDENT

(Appeal from the decision of the High Court of Tanzania,

at Mbeya)
(Nawembe. J.T

dated the 26th day of November, 2018

in
Criminal Appeal No. 103 of 2018

JUDGMENT OF THE COURT

26th November, 2021 & 17th February, 202

MWANDAMBO. 3.A.:

The facts from which this appeal has arisen present an unusual

and sad story. Before the Resident Magistrate's court of Mbeya at

Mbeya, the appellant stood charged with rape of a four-year girl

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

16 R.E 2002]. The particulars of the charge alleged that the appellant

committed the offence on 30/04/2006 at a village called Muhwela within

Mbarali District, Mbeya Region. We shall be referring to the victim of the

offence as LC or PW1 in this judgment.

The appellant and Agnes Mwakisyala (CW1) were husband and

wife. It turned out that at the time the duo got married, CW1 had a two
months' child girl born from Christopher Mbeyela (PW3). That child was

none other than LC who remained in the custody of her mother and the

appellant; a stepfather. The prosecution case at the trial was that on

30/04/2006 morning hours, the appellant allegedly had sexual

intercourse with LC at their home inserting his penis into her vagina

from behind an act which was claimed to have been facilitated by CW1

allegedly holding the victim's legs. The case for the prosecution goes

further that after the incident, the appellant and CW1 took LC to a place

called Usangu to a witchdoctor who prescribed some medicine which he

applied to the victim's vagina. Two days later, CW1 requested the

assistance of Neri Ngonya (PW2), a neighbour who had indicated to be

going to Mbeya town to take along with her LC to her father (PW3) for

medical treatment as she was said to be sick. Apparently, both CW1 and

PW2 had a child each with PW3.

It was not disputed that before handing over LC to PW2, CW1

wrapped LC's private parts with a locally made diaper commonly known

as kibwende to inhibit her uncontrolled urination. Acting on the request,

PW2 took LC to PW3 who in turn took LC to his mother, Atatugela

Kyando (PW4). Whilst under PW4's care, LC exhibited some unusual and

disquieting conduct that is; uncontrolled urination and excretion. This

prompted PW4 inspecting LC's private parts which revealed dilated

vagina suggesting that LC had been penetrated which necessitated

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taking her to Meta Hospital in Mbeya city for medical examination after

obtaining a PF3 from the police. At the hospital, Dr. Cosmas Chrisentus

Chacha (PW7) examined LCs vagina and anus. Upon examination, PW7

posted his findings in a PF3 showing that LC had lost her virginity which

suggested that she had been penetrated. The PF3 was admitted in

evidence as exhibit PI. Earlier on, No. WP 3026 D/Cpl Mary Barnabas

(PW6) who had been instructed to investigate the case had also

inspected the victim's private parts and formed an opinion based on her

judgment being an adult woman that she had been raped. All the same,

the appellant was not arrested until four years later, on 17/09/2010 to

be exact, at the instance of PW3 and his uncle; Bise Sanga (PW5) with

the assistance of an anonymous person. In his defence, the appellant

denied the allegations by the prosecution.

The trial court formulated two points for determination of the

case, to wit; whether there was penetration and whether the

prosecution proved its case to the standard required in criminal cases. It

(the trial court) determined both of them affirmatively upon being

satisfied with the evidence of PW1 and PW7 as well as exhibit PI

showing that there was indeed penetration into PWl's vagina. Similarly,

guided by the principle that the best evidence in sexual offences must

come from the victim underscored in Selemani Makumba v. R [2006]

T.L.R 379, the trial court found no difficulty in finding that the evidence
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of PW1, proved that it was the appellant and no other person who

committed the offence. The appellant's defence was that his arrest

related to a revenge by PW3 from whom he snatched CW1 and made

her a wife. He claimed that his confession that he raped LC was a result

of torture with threat of being killed. The trial court rejected the

appellant's evidence in defence as weightless and incapable of displacing

the prosecution evidence. It convicted the appellant as charged followed

by a mandatory life sentence in prison.

The appellant's appeal to the first appellate court was

unsuccessful. The High Court (Ngwembe, J.) concurred with the findings

of fact by the trial court and dismissed the appellant's appeal predicated

on 13 grounds of appeal. Nevertheless, the first appellate court took the

view that determination of the appeal turned on two main complaints

namely: whether there was failure to conduct a voire dire test as

required by the law and whether the case for the prosecution was

proved beyond reasonable doubt.

The instant appeal is predicated on nine grounds plus three

additional grounds upon a supplementary memorandum of appeal

lodged a few days prior to the hearing of the appeal. However, we are

constrained to dispose a few aspects on the grounds of appeal due to

the fact that some of them do not qualify for the purpose of the

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determination of this appeal. Ms. Sara Annesius, learned State Attorney

who appeared with Mr. Saraji Iboru, learned Principal State Attorney,

and Baraka Mgaya, learned State Attorney who appeared for the

respondent Republic at the hearing of the appeal, singled out grounds

four and six in the memorandum of appeal. The essence of the

appellant's complaint in the two grounds is that the two courts below

erred in concurring on findings of fact based on the evidence of PW1

who was allegedly tutored to lie against the appellant.

We respectfully agree because the two grounds are based on

factual complaints which should have been addressed by the first

appellate court. It is trite under section 6 (7) (a) of the Appellate

Jurisdiction Act [Cap 141 R.E. 2019] (the AJA), that generally, the

jurisdiction of this Court in second appeals such as this one is limited to

determining appeals raising points of law only. The three grounds do not

raise any issue of law for the Court's determination in a second appeal

as it were. Similarly, the complaint against the reception and reliance on

the evidence of relative witnesses never featured before the first

appellate court neither does it raise an issue of law say; competence of

the relative witnesses. Since it is settled law that all persons except

those prohibited by the law are competent to testify as witnesses, the

complaint falls short of qualifying as ground premised on a point of law

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for which the Court has jurisdiction to determine in a second appeal in

terms of section 6(7)(a) of the AJA.

The law is so settled that it may not be necessary to cite any

authority in this regard but if any will be required, the following will be

sufficient, to wit; Mohamed Musero v. R. [1993] T.L.R 290,

Selemani S/o Mussa @ Vitus v, R. Criminal Appeal No. 7 of 2019,

Florence Athanas @ Ali and Emmanuel Mwanandenje v. R.

Criminal Appeal No. 438 of 2016 and Festo Domician v. R. Criminal

Appeal No. 447 of 2016 (all unreported). Consequently, since grounds

four and six in the memorandum of appeal and ground two in the

supplementary memorandum of appeal have failed to meet the

jurisdictional threshold in terms of section 6(7) (a) of the AJA, we

decline to entertain them.

Having discarded the three grounds and upon our close scrutiny of

the remaining grounds in both memoranda of appeal, the appeal turns

for determination on the complaints faulting the first appellate court for

sustaining the appellant's conviction on the following abridged grounds:

1. PW1 was an incompetent witness whose evidence was wrongly

relied upon because she did not know the meaning of oath;
2. the evidence of PW2 and PW6 was contradictory;
3. wrongful reliance on the evidence of PW7 and PF3 (Exhibit PI)
in proving penetration;

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 4. delayed arrest of the appellant not connected with the charged
offence;
5. wrongful reliance on the evidence of PW3, PW4 and PW5 who
had interest to serve in the case;
6. failure to consider defence evidence;
7. trial court's failure to explain to the appellant the substance of
the charge in a language he understands; and,
8. the case against the appellant was not proved beyond
reasonable doubt;

The appellant appeared in person, unrepresented, at the hearing

of the appeal. Being a lay person, he had nothing in elaboration of his

grounds which he adopted, urging the Court to consider them as

sufficient to allow the appeal. Having done so, he let the respondent

Republic respond to his grounds reserving his right to re-join should

such need arise. As alluded to earlier, Mr. Saraji Iboru learned Principal

State Attorney appeared resisting the appeal assisted by Mr. Baraka

Mgaya and Ms. Sarah Annesius, both learned State Attorneys.

Mr. Baraka Mgaya kick-started the process in response to the

appellant's grounds of appeal. He argued abridged ground one

comprising two main aspects, that is to say; competence of PW1 and

her credibility. The appellant attacks the first appellate court for

sustaining conviction and sentence entered by the trial court based on

the unsworn evidence of PW1; a tender age witness who did not

understand the meaning of oath. Mr. Mgaya conceded that since PW1
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gave an unsworn testimony, her evidence could not be relied upon

without corroboration on the authority of the Court's decision in Nguza

Viking @ Babu Seya and 3 others v. R, Criminal Appeal No. 56 of

2005 (unreported). Placing reliance on that decision, Mr. Mgaya argued

that PWl's evidence on penetration was corroborated by her

grandmother PW4, who inspected her after PW3 had sent the victim to

her. He argued further that ultimately, PW4 took PW1 to Meta Hospital

at which PW7 examined her and concluded that PWl's vagina had

indeed been penetrated. Even though the contents of exhibit PI in

which PW7 posted his findings were not read out upon being cleared for

admission, Mr. Mgaya argued that PWl's oral evidence remained intact

relying on our decision in the Director of Public Prosecutions v.

Emanuel Erasto Kibwana & 2 others, Criminal Appeal No. 576 of

2015 (unreported). Similarly, the learned State Attorney pointed out that

PW6 had also inspected the victim and formed an opinion that her

vagina was penetrated.

Having examined the evidence on record, we have no lurking in

holding, as we do, that the complaints in the first abridged ground are

baseless. We do so being alive to the fact that we are sitting on a

second appeal in which the Court has a very limited room to interfere

with the concurrent findings of fact of the trial and the first appellate

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courts unless such findings are a result of misapprehension, misdirection

or non-direction of the evidence resulting into miscarriage of justice.

It is plain from the record of appeal that the trial court and the

first appellate court concurred on the finding that although PW1 gave an

unsworn testimony, her evidence was reliable having been corroborated

by other pieces of evidence. In doing so, the first appellate court played

its role of evaluating the evidence on record guided by the well-

established principle in Selemani Makumba v. R. [2006] T.L.R 379;

true evidence in sexual offences has to come from the victim.

Consistent with that principle, the learned first appellate judge agreed

with the trial court that PWl's evidence was reliable and truthful despite

being received without an oath. The first appellate court arrived at that

conclusion upon being satisfied by PWl's statement during voir dire

examination showing that she understood the duty of speaking the truth

as against telling lies. Consequently, we find no merit in any of the

complaints subject of the first abridged ground and dismiss them.

Ground two faults the first appellate court for failing to hold that

there was contradiction in the evidence of PW2 and PW6. According to

the appellant, the contradiction relates to the condition in which PW1

was in the hands of PW2 when she took her to PW3 showing that PW1

was talking whilst PW6 stated that she was not able to talk and thus
unable to record a statement from her. Despite the fact that this ground

was not canvassed before the first appellate court, Mr. Mgaya addressed

the Court. According to Mr. Mgaya, ground two was premised on the

credibility of PW1 in narrating the episode to her father (PW3) but failing

to do so to PW6; a police officer. All the same, Mr. Mgaya argued that

the ground was baseless because PW1 was quite consistent on what

befell her at the behest of the appellant who she regarded as her

biological father. The learned State Attorney placed his reliance on our

decision in Mawazo Anyandwile Mwaikwaja v. R, Criminal Appeal

No. 455 of 2017 (unreported), for the proposition that apart from

demeanour, credibility of a witness may be determined by coherence in

his testimony and that of other witnesses. It was Mr. Mgaya's argument

that since credibility was the domain of the trial court which found PW1

credible which finding was supported by the first appellate court after

the re-evaluation of the evidence on record, the Court cannot interfere

with the concurrent factual findings of the two courts below.

We respectfully agree with Mr. Mgaya for two reasons. One, as

we stated in Goodluck Kyando v. R [2006] T.L.R. 363, each witness is

entitled to credence and to be believed by the trial court unless there

are good reasons to the contrary. Two, it is trite that credibility is the

domain of a trial court which has the opportunity of observing and

hearing a witness in a witness box. See for instance: Ali Abdallah

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Rajab v. Saada Abdallah Rajabu [1994] T.L.R. 132. As pointed out

earlier, the trial court found PW1 as a credible witness. It is thus not

open for this Court to interfere with that finding, the more so when that

finding was sustained by the first appellate court after its re-evaluation

of the evidence on record. Consequently, ground two stands dismissed

which takes us to a discussion on the appellant's complaint in abridged

ground three.

The appellant's complaint in this ground is that his conviction was

grounded on the trial court's reliance on the PF3 (exhibit PI) whose

contents were not read out upon being cleared for admission. Mr.

Mgaya readily conceded that exhibit PI was wrongly relied upon in

proving penetration. He thus invited us to expunge it from the record.

However, he maintained that the expungement of exhibit PI will have

no adverse impact on the oral evidence of PW7 who examined PW1

placing reliance on our decision in The Director of Public

Prosecutions v. Emmanuel Erasto Kibwana & 2 others. Criminal

Appeal No. 576 of 2015 (unreported).

We agree with Mr. Mgaya on the irregularity in relying on exhibit

PI. Accordingly, we cannot, but expunge the exhibit as we hereby do,

guided by our previous decisions in similar circumstances, notably;

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Robinson Mwanjisi & 3 others v. R. [2003] T.L.R. 218 and many

others we need not mention here.

Be it as it may as submitted by the learned State Attorney, and

guided by our decision in The DPP v. Emmanuel Erasto Kibwana &

2 Others (supra), the expungement of exhibit PI from the record has

no adverse effect on PW7's oral evidence on the basis of which the

contents of exhibit PI were prepared. That evidence remains intact

proving penetration into PWl's vagina. Accordingly, ground three in the

abridged grounds of appeal is allowed to the extent indicated which

takes us to ground four in the truncated grounds.

Essentially, the appellant raises an issue against the reception of

and reliance on the evidence of PW3, PW4 and PW5 who were all

relatives allegedly with interest to serve. Ms. Annesius urged us to

dismiss this ground because it is not legally founded. We respectfully

agree with her because relatives are competent witnesses to testify and

they are entitled to credence if not prohibited by the Evidence Act [Cap.

6 R.E.2002]. The only exception is where there is evidence that the

relative witnesses conspired to scheme a plot to promote an untruthful

story in line with our decisions in Mustapha Ramadhani Kihiyo v. R.

[2006] T.L.R. 323 and Festo Mgimwa v. R, Criminal Appeal No. 378 of

2016 (unreported) referred in Jaspini s/o Daniel @ Sikazwe v. The

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Director of Public Prosecutions, Criminal Appeal No. 519 of 2019

(also unreported). There is no suggestion that PW3, PW4 and PW5 who

were relatives schemed an untruthful story in this appeal and thus this

complaint fails.

Next, Ms. Annesius addressed the Court on ground four whereby

the appellant complains against his delayed arrest. Essentially, the

appellant suggests that his arrest four years after the incident was not in

connection with the offence he was charged and convicted by the trial

court and sustained by the first appellate court. Whilst conceding that

there was a delay in arresting the appellant, Ms. Annesius pointed out

that there was evidence from PW5 proving that the appellant's

whereabouts were unknown as, after the commission of the offence he

had disappeared from his village to an unknown place.

We need not be detained by this ground. First, as lamented by the

first appellate court at page 86 of the record of appeal, the case was

poorly investigated by the police in Mbeya District after the incident was

reported to it on 05/05/2006. It is not hard to deduce from PW6; the

investigating police officer, that there was an inaction in pursuing the

culprit partly because the incident took place outside the jurisdiction of

Mbeya District Police administration and partly due to absence of PW6

attending a three months' training in Moshi. According to PW5, the

police told them that they could not arrest the culprit outside their

jurisdiction. It is for this reason, PW5 and his nephew (PW3), had to

travel to Inyala Police station where the police acted on their complaint

by providing a motor vehicle to trace the culprit at Muhwela village

accompanied with three police officers but in vain, for the appellant took

to his heels upon seeing a police car. It is also on record that since the

appellant disappeared to an unknown place, his arrest four years later

was a result of the efforts deployed by PW5 through an anonymous

person who reported his whereabouts by phone which turned out to be

true hence, his arrest at Mbarali after abandoning his home. The

appellant did not assail the evidence on the place of his arrest in

September, 2010. Accordingly, we find no merit in the appellant's

complaint in ground four and dismiss it.

Last in the list of the respondent's legal team was Mr. Iboru who

addressed the Court on grounds six, seven and eight in the truncated

grounds of appeal. Ground six faults the first appellate court allegedly

for failure to consider the defence evidence. Mr. Iboru urged us to

dismiss this ground for being baseless placing reliance on page 82 of the

record of appeal showing that the appellant's defence was considered

but rejected. Apparently, this complaint was raised before the first

appellate court as one of the grounds of appeal but that court rejected

it. As alluded to earlier on, the learned first appellate judge was alive to
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the role of a first appellate court of re-evaluating the evidence on record

and making its own conclusions. The record shows that the first

appellate court re-evaluated the evidence for the prosecution in two

aspects; one, proof of penetration and two; whether it was the appellant

who had sexual intercourse with the victim PW1. Afterwards, the learned

first appellate judge considered the defence and found it too weak to

shake the prosecution evidence which proved the case beyond

reasonable doubt. In the upshot, we find no merit in this ground and

dismiss it.

The appellant's complaint in ground seven relates to the trial

court's alleged failure to explain to him the charge in the language he

understands as a result of which he was prejudiced in his trial. Mr. Iboru

argued that this ground is baseless and we respectfully agree with him.

It is clear from page 3 of the record of appeal that the charge was

read and explained to the appellant who replied: ’feio kweli (not true)"

resulting into the trial court entering a plea of not guilty. Subsequently,

the charge was again read and explained to the appellant at the

preliminary hearing during which he made a similar response; "si kweli

(not true)" In our view, pleading "not true" to the charge must be

taken to be in response to something which was understood to the

appellant. The fact this has never been a complaint before the first

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appellate court speaks loudly that the complaint is, but an afterthought.

At any rate, we find it difficult to make head or tail of this complaint in a

case in which he pleaded not guilty to the charge followed by a trial in

which he was given opportunity to cross examine witnesses for the

prosecution and gave evidence in defence. It would have been a

different thing altogether had the trial court convicted the appellant on a

plea of guilty. Considering that this was not the case, we dismiss the

complaint being satisfied that it was raised as an afterthought as rightly

submitted by the learned Principal State Attorney.

Finally, on ground eight dedicated to the issue whether the case

against the appellant was proved to the required standard. Mr. Iboru

argued that on the basis of the submissions made by his colleagues, the

case against the appellant was proved to the hilt warranting an order

dismissing the appeal. The appellant contended in rejoinder that the

case was poorly investigated to find out whether he committed the

offence in collaboration with his wife. He contended further that the

case was fabricated by PW3 in retaliation for taking the mother of PW1

from him.

From the evidence on record, it is beyond controversy that the two

courts below rightly concurred in finding that the prosecution proved its

case against the appellant to the standard required in criminal cases.

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Considering that the case involved rape of a girl below 18 years of age,

the prosecution was bound to prove two aspects namely; penetration by

a male sexual organ into PW1 and whether it was the appellant and no

other person who was responsible for that act. It is plain from the

record that penetration was sufficiently proved by PW1 and corroborated

by the oral medical evidence of PW7 who examined her. Besides, PW4

and PW6 who examined PW1 at different times said as much that PWl's

vagina was unusually enlarged which suggested penetration. As to who

was responsible for the penetration, both courts below concurred in

their findings that it was the appellant who did the act in collaboration

with his wife; the mother of the victim.

It is settled law that a second appellate courts as this one should

not lightly interfere with the concurrent findings of fact by the two

courts below except where it is evident that such concurrent findings of

fact, were a result of misapprehension, misdirection or non- direction of

the evidence or omission to consider available evidence. We have

reiterated this position in the Court's previous decisions including our

recent one in Asajile Henry Katule & Fredy John Mwashuya v. R.,

Criminal Appeal No. 30 of 2019 (unreported) in which we referred to

Felix s/o Kichele and Another v. R. Criminal Appeal No. 159 of 2005,

Julius Josephat v. R. Criminal Appeal No. 03 of 2017 and Juma Mzee

v. R. Criminal Appeal No. 19 of 2017 (all unreported). There being no

suggestion that the concurrent findings of fact were a result of

misapprehension, misdirection or non-direction of the evidence

occasioning miscarriage of justice, the Court cannot interfere with the

findings that the case against the appellant was proved beyond

reasonable doubt with the result that ground seven is devoid of merit. It

stands dismissed.

In the light of the foregoing, we dismiss the appeal for lack of

merit.

DATED at DAR ES SALAAM this 4th day of February, 2022.

J. C. M. MWAMBEGELE
JUSTICE OF APPEAL

L. J. S. MWANDAMBO
JUSTICE OF APPEAL

L. L. MASHAKA
JUSTICE OF APPEAL
This Judgment delivered on 17th day of February, 2022 in the

presence of the appellant in person via video conference from Ruanda

Central Prison, and Ms. Nancy Mushumbusi, learned State Attorney for

the respondent/Republic, is hereby certified as a true copy of the

original

D. R. LYIMO
PUTY REGISTRAR
OURT OF APPEAL
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