Mkohi Gagiri Matiko Vs Republic Criminal Appeal No

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: LEVIRA. J.A. MASOUD. 3.A. And NANGELA. J.A.^ CRIMINAL APPEAL NO. 288 OF 2022 MKOHI GAGIRI @ MATIKO....................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (Mtulva, 3 .) dated the 18th day of February, 2022 in D.C Criminal Appeal No. 105 of 2021 JUDGMENT OF THE COURT 21st & 25th March 2025 NANGELA. J.A.: In the District Court of Serengeti, at Mugumu in Mara region, the appellant, MKOHI GAGIRI @ MATIKO, was charged with the offence of rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E. 2019. The alleged incident took place at Bochugu Village in Serengeti District on the 3rd day of August 2020 and the victim was a girl aged 16 years old. On the date of his arraignment in court, the appellant denied the charge. At the hearing, the prosecution summoned four witnesses. These were the VICTIM (PW1), SURERI MARWA (PW2), ALBERT s/o KASANGA @ MNALIMI (PW3) and WP 8651 PC LEAH (PW4). 1 According to PW1, the whole incident unfolded when, on the 3rd of August 2020 at around 8:00am, the appellant came to her home. Her mother, PW2, was out for her daily errands, leaving PW1 and her young brother, aged 2, at home. Upon arrival, the appellant enquired about the whereabouts of PW2 and, being informed that she had gone to sell charcoal in town, the appellant turned on PW1 on the pretext that PWl's mother had refused to have sex with him. Although PW1 yelled for help, the appellant managed to rape her. PW1 was left in her tears and agony until PW2 arrived home at around 16:00 hrs, when PW1 broke the news to her. PW2 examined PW1 and reported to the Police. PW4 issued PW2 with a PF3 (exhibit PEI) for PW1 to be medically examined. PW3 examined PW1 and established that she had been ravished. The appellant was later arrested and charged with rape. At his trial, the appellant offered a sworn testimony in defence, testifying as DW1. Although he admitted having visited PW l's home on the fateful date at 8:00 am, he denied having committed the alleged act of rape. Instead, he contended that PW2 had framed him up because he owed her money and that, when he went to ask for his money, PW1 had responded rudely to him. That, when he wanted to beat her, PW1 ran away and raised an alarm, whereof the appellant had to leave. Having heard both parties' testimonies, the District Court found the appellant guilty of rape, convicted him, and sentenced him to 30 years imprisonment. Aggrieved by his conviction and sentence, he appealed to the High Court of Tanzania at Musoma. However, his appeal was unsuccessful since, on the 18th day of February, 2022, the High Court (Mtulya, J.,) upheld the findings of the District Court and dismissed the appeal in its entirety. Relentlessly, however, the appellant has come to this Court on second appeal, seeking to overturn his conviction and sentence. The appellant raised six grounds of appeal in his initial memorandum of appeal, which was filed in this court on the 13th of July, 2023. For reasons which we shall shortly disclose, we will not reproduce those grounds here. However, on the 7th of March, 2025, the applicant, through the services of AFREXIMA Law Chambers, filed, under rule 73 (1) of the Court Appeal Rules, 2009 (as amended), a supplementary memorandum of appeal with two grounds of appeal, to wit, that: 1. The prosecution case against the appellant was not proved beyond reasonable doubt 2. That■the trial court erred in law and fact to convict the appellant without considering his defence. When this appeal came up for hearing, Mr. Geofrey Muroba, a learned advocate from AFREXIMA Law Chambers, appeared for the 3 appellant. The appellant was also present in Court. On the other hand, Ms. Monica Hokororo, a learned Principal State Attorney represented the respondent Republic. We invited Mr. Muroba to address the Court. In his address, he abandoned the initial six grounds of appeal filed by the appellant. He only chose to concentrate on the two supplementary grounds of appeal, which we earlier listed herein above. Submitting in support of the first ground, Mr. Muroba contended that the prosecution had not proven its case to the necessary standard. He assailed the testimonies of PW1, PW2, and PW3, arguing that, while on pages 16-18 of the record of appeal, PW1 is quoted to have testified that, upon being raped, there was bleeding and saw fluids like flu coming out of her private parts, neither PW2 nor PW3, who examined her later, saw such blood. Instead, as Mr. Muroba submitted, PW2 testified to having only seen bruises and sperm and that, upon taking her to the hospital, what PW3 saw were sperm and that PW1 was no longer a virgin. Mr. Muroba submitted that, since PW1 did not take a bath, one would have expected PW2 and PW3 to also see the alleged blood from her private parts, given that PW1 alleged to have bled for a while after being raped. He submitted further that the victim did not, as well, specify where the raping incident took place - whether it was on bed or on the ground. Relying on the case of Seleman Makumba vs. Republic [2006] T.L.R. 376, he contended that since the evidence of a victim of rape is crucial, PW1 ought to have sufficiently provided explanations concerning the incident and if there is any doubt, the same must be used in favour of the appellant. He argued that there were still questions about PWl's testimony, even if PW3 testified that there was penetration. Consequently, he urged this Court to find that the prosecution case was not proved to the required standard and allow the first ground of appeal. As regards the second ground of appeal, Mr. Muroba argued that the courts below did not consider the appellant's defence as disclosed on page 31 of the record of appeal. He contended that, even if on page 70 of the record of appeal it is shown that the first appellate court noted that the defence offered by the appellant did not raise doubts to the prosecution case, still such observation was not correct. Since the appellant had brought up a point about his disagreement with PW2 and was subsequently taken into custody two days later, Mr. Muroba asserted that his defence was far stronger than the prosecution's. He contended that the case against the appellant was, therefore, fabricated. Based on that submission, he urged the Court to allow the second ground as well. In her submission, however, Ms. Hokororo stance was that the respondent Republic was opposing this appeal. She contended that the case was sufficiently proved beyond reasonable doubt. According to Ms. Hokororo, the testimonies of PW1, PW2, PW3, and that of PW4 provide a consistent and coherent account of the incident. Referring the Court to page 17 of the record of appeal, Ms. Hokororo submitted that PW1 was clear regarding how the appellant came to PW l's home and what he did to her. Accordingly, and based on the case of Seleman Makumba (supra), she submitted that PW l's testimony was solid since she also immediately reported the incident to PW2, and there was no mistaken identity. She submitted that PW2 had to examine her daughter, reported the matter to the Police, and later proceeded to the hospital, where she had been issued a PF3 by PW4, whereafter PW3 examined PW1, confirming that she was raped. According to Ms. Hokororo, even if the incident took place at 8.00am and PW1 reported it at 16:00hrs, given that a rape incident is highly degrading to the dignity of the victim, the delay by PW1 to report it until when PW2 returned home was immaterial. Submitting on ground two, Ms. Hokororo told this Court that the appellant's defence was rightly considered and that his concern regarding there being a dispute, was an afterthought because it was not raised by him during his cross-examination and that is why it was rejected by the first appellate court. He urged this Court to, as well, dismiss the second ground of appeal. In a brief rejoinder, Mr. Muroba reiterated his main submission adding that there was no need for the appellant to have cross-examined the witnesses about the dispute he had with PW2 because he had a right to defend himself, which he rightly used. He ended up imploring the Court to allow the appeal. We have considered the grounds of appeal, reviewed the record of appeal and the submissions made by the learned counsel for the appellant as well as the learned Principal State Attorney. In our view, the main question is whether this appeal has any merit given that, the gist of the appellant's concern is that the charge was not proved beyond reasonable doubt. Essentially, in a case involving statutory rape (i.e., rape of a minor), the law is very clear that, what the prosecution is duty bound to establish is only two things namely: one, the age of the victim and, two, that, there was penetration of a male genital organ (penis) into the victim's genital organ (vagina). The question as to consent is out of place. See the cases of George Claud Kasanda vs. DPP, 2017 [TZCA] 376 (27 March 2020); and Issaya Renatus vs. Republic, 2016 [TZCA] 542 (29 April 2016). In the present appeal, Mr. Muroba has urged us to make a finding that the charge levelled against the appellant was not proved to the required standard. That concern by the appellant, formed his first ground of appeal. His submission in support of that point was hinged on the fact that, while PW1 was quoted as saying that she did bleed when she was being raped, PW2 and PW3 did not testify anywhere to have witnessed blood discharges from the victim's private parts. He belaboured to argue that, since the victim (PW1) had not taken a bath when she was examined by PW2 and later PW3, then, the two witnesses should have as well testified to have seen the alleged bleeding. To the contrary, according to him, what PW2 and PW3 saw were only bruises and sperms, all of which made PW3 to conclude erroneously that the victim was raped for she was no longer found to be a virgin. In some way, what Mr. Muroba's submission seems to insinuate is an argument that the testimonies of PW1, PW2, and PW3 are contradictory, and for that matter creates doubts which affect the prosecution case. Unfortunately, we are unable to agree with Mr. Muroba's line of thinking and argument. First, as we intimated earlier herein, in proving the offence of rape committed against a minor what needs to be established is the age of the victim and whether there was penetration (it being an act done by the accused person). In the present appeal before us, therefore, the focus should then be on whether the two elements were proved by the prosecution or not. In her submission, Ms. Hokororo's contended that the prosecution proved its case, meaning that, the two elements were indeed established by the prosecution. Were they? Was the age of the victim established and if so by who? We note that in the case of Issaya Renatus vs. Republic, 2015 [TZCA] 542 (29 April 2016) (TANZLII), this Court was of the view that, where an alleged offence of rape is anchored under section 130 (1) (2) (e) of the Penal Code, proof of age of the victim is of great essence, and such proof may be established either by the victim herself, a relative, parents, a medical practitioner or, where available, by the production of a birth certificate. Turning to this present appeal, the age factor was resolved by the victim herself who, on page 16, lines 17-18 of the record of appeal, is recorded to have testified that she was 16 years old, having been born in 2004 and completed her primary school in 2020. Second, having established the age factor, the next factor which demanded proof was whether the victim's female sexual organ had been penetrated by the appellant's male organ. The evidence on the record of appeal does also establish that point. Essentially, the victim (PW1) is on record to have recounted what happened to her on the fateful date and who did it. Her account is from page 17, lines 5-19. On that part of the record of appeal, PW1 is recorded to have testified as follows: " / remember on J d August, 2020 at about 08:00hours, I and may brother... were at home, accused person came knocked the door, I invited him and gave the chair. He asked me where my mother was. I answered him that she went to town... Then he stood up...I was sweeping/ cleaning inside... he told me that "mama yako nilimuomba mapenzi akakataa akajifanya mjanja wakati baba yako alitembea na mke wangu kwa miaka miwili lazima nilipize kwako". He pushed me down put his hand on my mouth another hand used to undress/remove my underwear (tight and pants). "Aiipandisha sketi yangu juu". Laid on my body, he remove (sic) his trouser (sic), he put his penis in my vagina "Aiiingiza uume wake ukeni mwangu". I felt pain, raised an alarm for help but he continued to press in, blood flew down and saw fluid like flew (sic) in my vagina after he removed his penis." (Emphasis added). In several cases, this Court has held that the true evidence of rape comes from the victim. See the cases of Selemani Makumba (supra), 10 Yusufu s/o Molo vs. Republic, 2019 [T7CA] 343 (30 September 2019) (TANZLII); Onyango vs. Republic, 2016 [TZCA] (18 October 2016); and Mawazo Anyandwile Mwaikwaja vs. DPP, 2017 [TZCA] 455 (3 April 2020), to mention but a few. We are mindful, however, that the position stated in Seleman Makumba (supra) and the cited cases above is not a hard and fast rule since each case needs to be assessed based on the circumstances and its own facts. However, as it may be noted in the above excerpt derived from the record of this appeal, PW1 established that the appellant had visited their house on the fateful date at around 8:00 am, found that her mother had gone out for her daily errands, grabbed and raped PW1. In essence, once believed, the testimony of PW1 could have been sufficient on its own to establish that she was raped by PW1 given that, the appellant himself did not dispute that he visited PW l's home. On page 32 of the record of appeal, he is quoted in defence stating as follows: "It is true I went to the victim's house that day to ask her about my money which I owed her, meet her daughter/victim cleaning/sweeping outside. She to/d me that her mother wasn't around." We are, indeed, mindful that such admission by the appellant does not, on its own, mean that he was accepting to have committed the offence. In fact, he denied having committed the offence. Even so, when considered in the context of what PW1 stated in her testimony, it does strengthen the prosecution case as a relevant fact. According to Section 9 of the Evidence Act, Cap. 6 R.E. 2022, a fact showing that a person had an opportunity to cause the fact in issue becomes a relevant and admissible fact. In our view, having noted that PW2 was absent at home, the appellant seized that opportunity to commit the offence. That fact seems to be well connected to the fact in issue, i.e., that PW1 was raped by the appellant. Besides, the appellant's admission does show as well that there was no doubt as to his identity in terms of what PW1 informed PW2 upon her return to her home at 16:00hrs, that, the appellant had raped her. It is also worth noting that, the testimony of PW1 was not a standalone testimony. It was corroborated by PW2 who, having been informed by PW1 whom she found in tears agonizing her ordeal, she inspected her private parts, did observe bruises and whitish fluids therein, reported the matter to the Police, and having been issued with a PF3, took PW1 to the hospital where PW3 examined and prepared a report (exhibit PEI). According to exhibit PEI, which is found on page 36-37 of the record of appeal, PW3 established to have found sperms in PW l's vagina, with laceration of the labia as well as lack of hymen, and all these led to a conclusion that PW1 was indeed penetrated and was no longer a virgin. Essentially, it is inconceivable for us to hold that the prosecution failed to prove its case beyond a reasonable doubt in light of the testimony of PW1, PW2, PW3, and exhibit PEI, as well as the fact that PW1 reported to PW2 shortly after eight hours after the incident, naming the appellant as the culprit. Additionally, the appellant does not contest that he visited the victim's home on the relevant date, eliminating any doubt about his identity. In our view, therefore, the prosecution proved the charge levelled against the appellant beyond reasonable doubt. What Mr. Muroba may have perceived as contradictions in the testimonies of PW1, PW2 and PW3 as regards the inability of PW2 and PW3 to establish that they also found blood in PW l's vagina, is immaterial and cannot be a basis upon which the alleged offence of rape was to be proved. The first ground of appeal is therefore devoid of merit. We reject it. The second ground of appeal was to the effect that the appellant's defence was not considered by the first appellate court. In his submission, Mr. Muroba did admit that, looking at page 70 of the record of appeal, the first appellate court did consider the appellant's defence. His concern, however, was that the appellant's defence was weightier than that of the prosecution since the appellant had raised the issue of there being a dispute between him and PW2 over the money claims he had owed PW2. He surmised, therefore, that the case against the appellant should have been seen to have been a framed-up case. With tremendous respect, however, we cannot tally our reasoning with that of Mr. Muroba's submission as to the second ground of appeal. In our view, Ms. Hokororo is right to have argued that what the appellant said in his defence regarding monies he owed PW2 and that he was being framed up was nothing but an afterthought. The reason for such a position is not farfetched. As it may be observed from the record of this appeal, when PW1 and PW2 testified, the appellant did not raise any issue of money owed to PW2 by him by way of cross-examination. He only came to raise it in his defence. The legal position on failure to cross-examine, is as stated by this Court in the case of Damian Ruhele vs Republic, 2007 [TZCA] 501 (2 March 2012) (TANZLII), where we observed that: - "It is trite iaw that failure to cross-examine a witness on an important matter ordinarily implies the acceptance o f the truth o f the witness evidence. " See also this Court's decisions in George Maili Kemboge vs. Republic, 2014 [TZCA] 327 (30 October 2014) (TANZLII); Issa Hasani Uki vs. Republic, 2017 [TZCA] 129 (10 May 2018) (TANZLII) and Medson Manga vs. Republic, 2019 [TZCA] 259 (3 May 2021), cementing that position. In view of all that, we are of a settled conclusion 14 that ground two of the grounds of appeal is also devoid of merit. It is hereby rejected. Having rejected both grounds of appeal, it follows that this appeal lacks substance. We hereby dismiss it. The appellant is to continue serving his sentence of thirty (30) years imprisonment as imposed on him by the trial court. Order accordingly. DATED at MUSOMA this 25th day of March, 2025. M. C. LEVIRA, JUSTICE OF APPEAL B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 25th day of March, 2025 in the presence of the Appellant in person via Video link from Musoma District Prison and Mr. Jonas Samwel Kivuyo, learned State Attorney for the respondent/Republic, is here by certifiedas a true copy of the original. E. GSlRANGtJ ENIOR DEPUTY REGISTRAR COURT OF APPEAL