CR

IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA (CORAM: NDIKA. 3.A.. MWAMPASHI. J.A. And RUMANYIKA. J J U CRIMINAL APPEAL NO. 675 OF 2021 ELIAPENDA ZEPHANIA ZAKARIA @ KICHECHE.......................... APPELLANT

VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Robert, J.^ dated the 29th day of October, 2021 in Criminal Appeal No. 118 of 2020

JUDGMENT OF THE COURT 5th & 14th August, 2024 MWAMPASHI, J.A: The appellant, Eliapenda Zephania Zakaria @ Kicheche, was charged before the Resident Magistrates' Court of Arusha at Arusha (the trial Court) with the offence of rape contrary to sections 130(1) (2)(a) and 131(1), both of the Penal Code [Cap 16 R.E 2002, now R.E. 2022] (the Code). After a full trial, he was found guilty, duly convicted and sentenced to thirty years' imprisonment. His first appeal against both the conviction and sentence to the High Court vide Criminal Appeal No. 118 of 2020, was dismissed hence, the instant second appeal. i It was alleged by the prosecution that, on 28.01.2019, at Mlangarini area within the District of Arumeru in Arusha Region, the appellant had carnal knowledge of a lady, who, for the sake of hiding her identity, will hereinafter be referred to as "the victim" or "PW1", without her consent. To prove the case against the appellant, a total of five witnesses were fielded by the prosecution and the appellant was a sole witness in his defence. Briefly, the prosecution evidence on which the appellant's conviction was based, goes as follows: At around 22:00 hours, PW1 was on her way back home to Mlangarini when someone who had been hiding under a tree alongside the road, invaded her from behind and took hold of her by the neck. A tussle between the two ensued and when PW1 managed to turn

around, she identified the invader to be Eliapenda Zephania alias Kicheche (appellant). The appellant subdued PW1 and fell her down. At that point, one youth going by the name of Kimirei joined the appellant, took hold of her and covered her mouth to stop her from screaming while the appellant penetrated his penis into her vagina. After the appellant had finished ravishing her, Kimirei took his turn. PW1 managed to scream and she raised an alarm while mentioning the names of the appellant and Kimirei. It was when the appellant was on top of PW1 performing his second round, after Kimirei had finished, when a man who had a torch came to her rescue. The man called other people and together they took her home. PW1 did later report the case to the police and went to Tengeru Hospital for medical examination. PW1 also testified that the incident took more than 10 minutes and further that she managed to identify the appellant and his colleague because she used to know them before the incident and the scene was illuminated by electric bulbs from the neighbouring houses. The man who came to PWl's rescue was Saimon Karao (PW2), whose testimony was to the effect that, he was awakened from sleep by screams from someone seeking help and mentioning names of Kimirei and Kicheche. He picked his torch and a stick and when he got at the scene, he found PW1, the appellant and Kimirei who were not

strangers to him. He also saw the appellant on top of PW1 while Kimirei was covering PWl's mouth. The light at the scene was not intensive such that he had to use his torch. PW2 encountered some resistance from the appellant and Kimirei but he managed to chase them away. Suspecting that PW1 was moribund, PW2 went to fetch the ten-cell leader who came with his wife and together they took PW1 to her home. 3 The ten-cell leader happened to be one Juma Bakari (PW3) who supported PW2's evidence by testifying that PW2 reported the incident to him and named the appellant and Kimirei as the two men who had raped PW1. When he got at the scene, he found PW1 naked and bleeding. PW4 was the case investigation officer E. 547 D/Cpl. Gabriel of Usa River Police Station whose testimony, among other things, was to the effect that he visited the scene of crime and observed that, along the road, 9 to 10 paces from the scene, there were houses with electric bulbs illuminating the scene of crime. The last witness was a medical doctor William Eliud Malick (PW5) from Meru District Hospital who testified that on 30.01.2012 he was at Tengeru Hospital where he attended PW1 who had allegedly been raped. He observed that PW1 had bruises in her vagina suggesting that she had been penetrated by a blunt object. PW5 tendered a PF3 containing his findings and observations as Exhibit PI. In his defence

evidence, the appellant denied to have committed the offence in question. He explained that he was arrested at Mlangarini Catholic Church by militiamen on 29.01.2019 at around 14:00 hours and was taken to Chekereni Police Station where he was remanded in custody till on 07.02.2019 when he was shifted to Usa River Police Station. He Stayed at Usa River Police Station until on 01.03.2019 when he was arraigned before the trial Court facing the rape charge. The appellant did also challenge PWl's identification of the culprits if the source of light was 15 paces from the scene of crime. He also wondered why PW1 was medically examined on 30.01.2019 if rape was committed against her on 28.01.2019. Based on the prosecution evidence, particularly from the testimony of PW1, PW2, and PW5, the trial Court found that the charge against the appellant had been proved to the hilt. As alluded to above, the appellant was then convicted and sentenced to 30 years' imprisonment and when he appealed to the High Court, his appeal was dismissed in its entirety hence, the instant appeal. In support of his appeal, the appellant has raised a total of eight (8) grounds of grievance contained in two memoranda of appeal. The substantive memorandum of appeal which was filed on 15.07.2022 comprises six grounds of complaint while the supplementary memorandum of appeal filed on 01.08.2624, has two grounds.

Having been revealed from the trial court's original record that the appellant was sworn before giving his defence evidence, the 1st ground of complaint in the supplementary memorandum of appeal which was to the effect that 5 the appellant was not sworn when giving his defence evidence, was abandoned by the appellant. In our considered view, the remaining seven grounds of appeal raises the following four complaints: one, that there was unjustified delay in arraigning the appellant contrary to section 32 (1) of the CPA; two, that the charge was defective; three, that section 192 (2), (3) and (4) of the Criminal Procedure Act [Cap. 20 R.E. 2022] (the CPA), was not complied with; and four, that the case against the appellant was not proved to the hilt as the prosecution evidence was contradictory, unreliable, incredible and the condition prevailing at the scene of crime was not favourable for positive identification of the appellant. At the hearing of the appeal, whereas the appellant appeared in person unrepresented, the respondent Republic had the services of Mses. Naomi Mollel, Grace Madikenya and Eunice Makala, all learned Senior State Attorneys. When given the floor, the appellant adopted his grounds of appeal and urged the Court to consider his written submissions, which he also sought to adopt. Without further ado, on the basis of his written submissions and grounds of

appeal, he prayed for the Court to allow the appeal. 6 In his written submissions, the appellant argued that the charge was defective because while according to the particulars of the offence, the offence was allegedly committed by Eliapenda Zephania Zakaria @ Kicheche, the evidence, particularly from PW1 and PW2, is to the effect that the offence was committed by two persons namely; Kicheche and Kimirei. Qting the cases of Thabit Bakari v. Republic (Criminal Appeal No. 73 of 2019) [2021] TZCA 259 (17 June 2021; TanzLII) and Tumaini Frank Abraham v. Republic (Criminal Appeal No. 40 of 2020) [2023] TZCA 1746 (1 August 2023; TanzLII), he insisted that the charge was fatally defective. It was also argued in the written submissions that the case against the appellant was not proved to the required standard. It was contended that while the record shows that the appellant was arrested on 29.01.2019 he was not arraigned before the trial court until on 01.03.2019. The delay in arraigning the appellant raised a reasonable doubt as it could not certainly be said that the offence was committed by the appellant, it was argued. Having expressed her stance that she was not in support of the appeal, Ms. Mollel submitted on ground 1 of appeal that, while it is true that there was a delay of about 31 days in arraigning the appellant contrary to section 32 (1) of the CPA which requires that an

accused person has to be brought before the court within 24 hours after his arrest, the delay, in the instant case, did not prejudice the appellant. She further argued that under the circumstances of this case, the delay did not vitiate the trial and the conviction. Moreover, it was contended by Ms. Mollel that the complaint is an afterthought because the appellant did not raise such a complaint before the High Court. With regard to ground 2 of the appeal, Ms. Mollel submitted that the charge was not defective. She contended that apart from the fact that the charge was framed in accordance with section 135 of the CPA, it contained the statement of the offence of rape and the particulars of the offence as it is required by section 132 of the CPA. As for ground 3 of the appeal, it was contended by Ms. Mollel that section 192 (2), (3) and (4) of the CPA was complied with. She referred us to pages 4 and 5 of the record of appeal, where the proceedings regarding the preliminary hearing are contained and argued that the appellant's complaint in that regard is baseless. She insisted that the record shows that the appellant understood the nature and purpose of the preliminary hearing because he disputed all the facts except his personal particulars and he also appended his signature. Regarding ground 4 of the appeal, Ms. Mollel argued that the case against the appellant was proved

beyond reasonable doubt and that the prosecution evidence was not contradictory, unreliable or incredible. She expounded that PWl's evidence that the appellant had sexual intercourse with her without her consent was supported by the evidence from PW2 which is to the effect that he found the appellant on top of PW1 while one Kimirei was assisting by holding PW1 down and covering her mouth to stop her from screaming. It was submitted that the evidence that PW1 was penetrated came not only from PW1 but also from PW5. She also contended that the appellant was positively identified at the scene of crime not only by the victim (PW1) but also by PW2. Ms. Mollel contended that the scene of crime was illuminated by electric bulbs from the neighbouring houses and also from PW2's torch. Moreover, the incident took more than 10 minutes, the appellant was not a stranger to PW1 and PW2 and he was immediately named to PW3. It was thus, prayed by Ms. Mollel that the appeal be dismissed for being devoid of merit. In his brief rejoinder, the appellant insisted that he was unjustifiably remanded in custody for 31 days before being arraigned in court. He thus, prayed for his appeal to be allowed on the basis of the grounds of appeal raised. 9 On our part, beginning with the complaint that there was an unexplained delay in arraigning the appellant, we firstly take note, as it was also conceded by

Ms. Mollel, that if we go with the appellant's story that he was arrested on 29.01.2019, there was a delay of about 31 days to arraign him. There is no explanation and it is also not known what transpired between 29.01.2019, after the arrest of the appellant to 01.03.2019, when he was brought before the trial Court. Section 32 (1) of the CPA requires that, where any person has been taken into custody for an offence other than an offence punishable with death, such a person should be brought before an appropriate court within twenty-four hours after he was so taken into custody. However, having noted the delay, the arising crucial issue for our determination is whether, under the circumstances of this case, the delay vitiated the trial and the resultant conviction and sentence. Generally, delay in arraigning an accused person does not vitiate the trial and the resultant conviction and sentence. See- Paulo Machandi v. Republic (Criminal Appeal No. 244 of 2019) [2022] TZCA 430 (15 July 2022; TanzLII), Gabriel Lucas v. Republic (Criminal Appeal No. 557 of 2017) [2021] TZCA 703 (30 November 2021; TanzLII) and Isaya Msofe v. Republic (Criminal Appeal No. 31 of 2020) [2022] TZCA 147 (25 March 2022; TanzLII). In Paulo Machandi (supra) where the appellant had complained that he had been detained for about nine (9) months before being arraigned, the Court observed that: "...the law

requires a person detained in custody to be brought before the court as soon as practicable. The question as to how soon is soon depends oh the circumstances of each case and in our considered view, it cannot be answered with certainty in the current case where delay in arraigning the appellant was neither raised during preliminary hearing nor at the trial. We agree with Ms. Mathayo that the appellant's complaint in this ground did not vitiate trial proceedings because the trial was conducted accordingly from the moment he was arraigned". Furthermore, in Isaya Msofe (supra) where the offence committed against a student was timely reported to the school administration and to the police but the arraignment of the accused person was delayed, the Court stated that: "We agree with Ms. Mahundi that although it is not dear on what steps were taken or on what transpired after the sodomy had been revealed and reported to the school administration on 11.12.2018, the fact that the appellant was arraigned before the trial court on 08.03.2019, li does not raise any reasonable doubt or defeat the strong evidence that was given to support the charge. The credibility o f PW1 and PW2 was not affected by the inaction on the part o f the authorities to whom the crim^e in question was reported. It could have been different if there was a delay in reporting the crime. Butin this case, the alleged

crime was immediately reported to the school administration and the police, so we cannot blame on PW1 for the inaction by the authorities". i ! • • Again, in Daktari Jumanne v„ Republic (Criminal Appeal No. 602 of 2021) [2023] TZCA 18020 (28 December 2023;TanzLII) where there was a delay of 17|days in arraigning the appellant, the Court observed that: "In the case at hand, the records are silent as to what made the appellant be arraigned about 17 days after he was arrested, despite learned State Attorney's submission that, delay was caused by process of investigations o f the offence. We have seriously examined the record o f appeal, it is our finding that, despite delay to arraign the appellant, did not vitiate the trial. Thus/this ground lack merit". Guided by the above position of the law, we find that the delay in arraigning the appellant in the instant case, did not vitiate the trial and the resultant conviction. It is also our considered view that/the complaint 12 of delay in arraignment of the appellant raised at this stage, is misplaced. We have no material facts to deal with such a complaint. The complaint ought to have been raised before the trial court which was in better position to investigate it. It was even not raised before the High Court. It is also our considered view that, delay in arraigning an accused person, if (established, might constitute a cause in a

claim of damages for curtailment of personal liberty but not for the same to be raised as a ground of appeal in invalidating the trial. We thus find that ground 1 of the appeal baseless and dismiss it accordingly. Ground 2 of the appeal regarding the complaint that the charge was defective, is based on the contention that the charge and the evidence were at variance. That, while in the particulars of the offence it was alleged that the offence was committed by one Eliapenda Zephania Zakaria @ Kicheche, the evidence from PW1 and PW2 was to the effect that the offence was committed by Kicheche and Kimirei. This complaint should not detain us at all. There was no such a variance as complained by the appellant. The record clearly shows that in her testimony PW1 identified the appellant by the name of Eliapenda Zephania famously known as Kicheche. On his part, as it was for the PW1, PW3 told the trial court that he used to know the appellant as Eliapenda Zephania whose 13 famous name is Kicheche. There was thus, no variance between the evidence and the charge and as rightly submitted by Ms. Mollel, the charge sheet was properly drawn in terms of section 135 of the CPA and the charge sufficiently contained a statement of the offence and necessary particulars giving reasonable information as to the nature of the offence charged as required by section 132 of the CPA. At this point, we

should also remark that the appellant cannot be heard denying the fact that he also goes by the nickname of Kicheche. In the preliminary hearing, the only matter admitted by the appellant is that his name is as stated in the charge sheet, that is, Eliapenda Zephania Zakaria @ Kicheche. Ground 2 of the appeal lacks merit. The complaint underground 3 regarding the compliance with section 192 (2), (3) and (4) of the CPA is also devoid of merit. As argued by Ms. Mollel, based on the trial court's proceedings appearing at pages 4 and 5 of the record of appeal, it cannot be asserted that the preliminary hearing was not conducted in terms of section 192 of the CPA. Apart from promoting a fair trial, the main purpose of preliminary hearing is to expedite trials such that any fact or document admitted or agreed in that exercise, does not need to be formally proved because once it is admitted or agreed, it is deemed to have been duly proved. In that exercise, the 14 nature and purpose of the preliminary hearing is explained to an accused person and most importantly, matters not in dispute are ascertained. Further, a memorandum of matters agreed is prepared and the same is explained to the accused person and signed by him or his advocate, if any, as well as by the Public Prosecutor. In the instant case, it is indicated in the relevant proceedings, that the appellant disputed all the facts

but his personal particulars and he appended his signature to that effect At the end of the said proceedings, there is an indication by the trial court magistrate that, section 192 of the CPA has been complied with. The complaint that section 192 of the CPA was not complied with is thus unsubstantiated and ground 3 of the appeal fails. It is also our firm finding that ground 4 of appeal, which is to the effect that, the prosecution evidence is contradictory, unreliable or incredible, and further that the appellant was not positively identified at the scene of crime, is baseless. First of all, the appellant has not demonstrated or explained in what respect the prosecution evidence is contradictory or why the same is unreliable and incredible. As also rightly argued by Ms. Mollel, our examination of the evidence on record show that PW1 gave credible evidence on the ordeal she was subjected to and that she was carnally known against her will by the appellant. PWl's testimony was 15 corroborated by PW2, PW3 and PW5. PWl's credibility was in no way shaken and the appellant's defence raised no reasonable doubt in the prosecution's case against him. With regard to the complaint that the appellant was not positively identified at the scene of crime, we find it apposite to begin with restating the settled law that, evidence of visual identification is of the weakest kind. For the court

to act and rely on such evidence, it must be satisfied that all possibilities of mistaken identity have been eliminated and that the evidence is absolutely watertight. In the landmark case of Waziri Amani v Republic [1980] T.L.R. 250, the Court made the following observations regarding this kind of evidence: "... evidence o f visual identification, as Courts in East Africa and England have warned in a number o f cases; is of the weakest kind and most unreliable. It follows therefore, that no court should act on evidence o f visual identification unless all possibilities o f mistaken identity are eliminated and the court is fully satisfied that the evidence before it is absolutely watertight" It is also settled that, before the court can act on visual identification evidence, it must satisfy itself that the conditions for a proper identification were favourable. In the case of Alfredy Kwezi @ 16 Alfonce v. Republic, Criminal Appeal No. 216 of 2021 (unreported) the Court stated that: "...before a court can found conviction basing on visual identification, such evidence must be watertight so as to remove the possibility o f honesty but mistaken identity. In such cases the court is required to consider, among others, the following matters; one, the time the witness had the accused under observation; two, the distance at which he observed him, three, the conditions in which such

observation occurred, for instance whether it was day time or night time, whether there was good or poor lighting at the scene; four, whether the witness knew or had seen the accused before or not; and five, all factors on identification considered, it should be also be plain that were any material impediment or discrepancies affecting the correct identification o f the accused person by the witness". Guided by the above stated guidelines and mindful of the fact that the factors listed are not exhaustive but are dependent on each particular case, and further that the guidelines must not be accumulatively met for visual identification evidence to be relied upon, we are of a settled view that, in the instant case, the appellant was positively identified at the scene of crime not only by PW1 but also by PW2. As the appellant was 17 not a stranger to PW1 and PW2, the identification was therefore by recognition which is much easier and more reliable than identification of a stranger. Further, the incident took more than 10 minutes and PW1 had the observation of the appellant at zero distance. Moreover, the scene of crime was illuminated by electric bulbs from the neighbouring houses. We are mindful of the fact that according to PW2, the light was not intensive so that he had to supplement it with his torch. However, since the issue of light intensity is subjective, we are convinced

that, considering that the appellant was not a stranger to her, the distance and the time she had him under observation, the light from electric bulbs, on her part, was enough for her to positively identify the appellant. It should also be borne in mind that, PW1 was heard by PW2 screaming and naming the appellant by his name. As alluded to above, with the aid of the light from the electric bulbs and his torch, PW2 did also identify the appellant. The appellant was also named by PW1 and PW2 to PW3 at the earliest possible opportunity. It is for the above reasons that we find that, under the circumstances of this case, the identification evidence of the appellant by PW1 and PW2 was absolutely watertight. The appellant was positively identified at the scene of crime. 18 As earlier intimated, for the above reasons, ground 4 of appeal fails. There was sufficient evidence to prove that the appellant had sexual intercourse with PW1 without her consent. The case against the appellant was thus, proved to the hilt. In the event, this appeal fails and is hereby dismissed in its entirety. DATED at ARUSHA this 13th day of August, 2024. G. A. M. NDIKA

JUSTICE OF APPEAL A. M. MWAMPASHI

JUSTICE OF APPEAL S. M. RUMANYIKA

JUSTICE OF APPEAL The Judgment delivered this 14th day of August, 2024 in the presence of the Appellant in person and Mr. Philbert Msuya, learned State Attorney for the Respondent/Republic is hereby certified as a true copy of the original. 19