KIURE JUDGEMENT

IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI ( CORAM: MWANDAMBO. J.A.. KIHWELO. 3.A. And MGEYEKWA. J.A.^ CRIMINAL APPEAL NO. 152 OF 2022 KIURE ERNEST MZAVA......................................................... APPELLANT

VERSUS THE REPUBLIC.................................................................. RESPONDENT [Appeal from the Judgment of the High Court of Tanzania at Moshi] fMutunai, J.^ dated the 17th day of February, 2022 in Criminal Appeal No. 60 of 2021

JUDGMENT OF THE COURT 21st & 26th March, 2025 MGEYEKWA. 3.A. The appellant, Kiure Ernest Mzava stood trial at the District Court of Mwanga at Mwanga for rape contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 (the Penal Code). It was alleged that on 8th July, 2019 about 16:00 hrs at Kighare Village within the District of Mwanga within Kilimanjaro Region, the appellant had carnal knowledge of a girl aged 15 years. To conceal the girl's identity, we shall henceforth refer to her as the "complainant" or by her trial codename "PW1". The prosecution case tended to show PW1 was a grade seven pupil. She testified that the troubling incident took place on 8th July 2019, while she was gathering grass for the animals. PW1 recounted that abruptly the appellant pushed her from behind, causing her to fall to the ground. Owing to her hearing impairment, the complainant did not hear the appellant approaching. According to PW l's testimony, the appellant seemingly unsatisfied with merely pushing her, proceeded to grab her while threatening to kill her should she raise an alarm. After coercing her into submission, he removed her pants and inserted his manhood into her vagina. Having satisfied his lust, he ordered her to wash herself in the nearby flowing stream while he ran away. PW1 identified the appellant since the incident occurred during a broad daylight, and the

appellant was a well-known electrician within their village. After the incident, PW1 trudged back home where she encountered Paulina. She confided with Paulina about the traumatic experience she had just gone through. Paulina, in turn, informed Ruth Mshana (PW2), the complainant's guardian and a teacher with whom PW1 resided. More evidence came from PW2, who testified that on the fateful day, upon her arrival from Dar es Salaam, she found the victim and her housemaid, Paulina. PW2 recalled that the complainant informed her that she was raped on July 8th, 2019 while collecting grass at the school farm. The complainant expressed fear and disclosed the incident to PW2's husband due to her fear of retaliation. PW2 testified that the complainant said that before the appellant satisfied his desires, he covered her mouth and threatened to kill her if she would scream. Following this, PW2 took the matter to the Head Teacher and the Village Executive Officer (the VEO, both interrogated the complainant. On 16th August, 2008, the incident was formally reported to the police. WP 7433 Detective Corporal Schola (PW3) testified that on 17th July 2019, she was assigned to investigate the case of rape which occurred on 8th July 2019. She stated that she issued a PF3, and PW1 was subsequently taken to the hospital. PW3 recalled coming across a PF3 in the case file which indicated that PW1

was not raped. The PF3 was issued on 16th July, 2019 and the appellant was arrested on 23rd December 2019. The appellant denied all the allegations, claiming the case was fabricated due to grudges with the VEO. He raised a defence of alibi, stating that on the fateful day, he left for Usangi at 09:00 AM and returned by 6:00 PM. While he acknowledged knowing the complainant, he denied any involvement in the crime. He further recalled on 15th July 2019, he received a letter from the VEO about the rape incident and was arrested in December 2019. To support his alibi, he called his co-worker Rashid Abdi (DW2), who testified that on the fateful day, they were working together on electrical repairs at Usangi Secondary School. The trial court was convinced by the version of the prosecution witnesses. Accordingly, the appellant's defence evidence was rejected leading to his conviction and a sentence of thirty (30) years imprisonment. The High Court, on the first appeal, upheld the trial court's findings, concluding that they were based on soundly evaluated evidence. Consequently, the first appellate court dismissed the appeal and affirmed the conviction and sentence. This has led to the present appeal in which, the appellant seeks to demonstrate his innocence. The appeal is predicated on five grounds of complaint which may be paraphrased as follows; one, that, the charge of

statutory rape was not proved to the required standard, two, that, the first appellate court improperly shifted the burden of proof, three, that, failure to summon the medical doctor who was a material witness, four, that, the lower courts relied on weak, contradictory, inconsistent, and wholly unreliable prosecution evidence, and five, that, the charge was not proved beyond reasonable doubt. At the hearing of the appeal, the appellant was self­ represented, whereas the respondent Republic appeared through Mses. Rose Sulle and Agatha Pima, learned Senior State Attorneys assisted by Ms. Wanda Msafiri, learned State Attorney. However, in arguing against the appeal, it was Ms. Pima who took charge. She stoutly resisted the appeal. In his oral argument, the appellant outrightly urged the Court to consider his grounds of appeal and let the respondent Republic submit in response while reserving his right to rejoin afterward, should that need arise. In her submission, Ms. Pima argued the second, third and fourth grounds independently and then canvassed the first and fifth grounds conjointly. We now turn to determine the grounds of appeal in the same manner as presented and argued by the learned Senior State Attorney. Before delving into the merits of the appeal, it is important to emphasize that this is a second appeal. Under section 6 (7) of the Appellate Jurisdiction Act, Cap. 141

RE 2019, our mandate is to address matters of law, not of fact. However, as held in Director of Public Prosecutions v. Jaffari Mfaume Kawawa [1981] TLR 149, and subsequent decision, this Court is empowered to intervene where there has been a misapprehension of the evidence, misdirection, non-direction, a miscarriage of justice, or a breach of law or established practice. Starting with the second ground, the appellant contended that the first appellate court erroneously shifted the burden of proof onto him, requiring him to prove the alleged grudges with the Village Executive Officer (VEO). In reply to the appellant's assertions, Ms. Pima argued that the alleged grudges between the appellant and the VEO had no relevance to the case at hand because the VEO was not a party to the case. She further argued that the existence of such grudges, even if true did not impact the prosecution's case. Ms. Pima referred us to page 87 of the record of appeal and argued that the High Court judgment did not suggest that the burden of proof was shifted to the appellant. Instead it found that the appellant's defence was insufficiently explained and did not undermine the prosecution's case. She urged us to dismiss this ground. We have reviewed the record of appeal, particularly the findings of the learned first appellate Judge on page 87 of the record of appeal. We reproduce the relevant part for

clarity hereunder: "He alleged that the case had been fabricated against him since he had grudges with the village leaders accusing him o f being on the opposition. Unfortunately, there is no evidence to prove the same. The appellant neither elaborated on the alleged grudges nor challenged the victim 's credibility as to why she would have fabricated such serious claim s against h im ." The record speaks for itself in this matter. The appellant's complaint rests on three points, none of which hold merit. First, the appellant sought to suggest he was framed citing a grudge with the VEO who was not a party to the case. This claim of being framed is unsupported by evidence. Second, during cross- examination, the appellant admitted that he had no issues with PW1 which significantly undermines his own defence, and third, the appellant failed to establish any link between the alleged grudges and the complainant. Therefore, we hasten to state that the appellant's claims appear to be a self-serving fabrication, unsupported by corroborative evidence, and fail to raise any reasonable doubt about his involvement. The lack of supporting evidence further undermined the credibility of his defence. See Selemani Hassani v. Republic, [2022] TZCA 127 (22 March 2022) TanzLII. Turning to the third ground of appeal, the appellant contended that both the trial court and the first appellate

court erred by failing to address the absence of the medical doctor who was a material witness. In response, Ms. Pima argued that section 143 of the Evidence Act, Cap. 6 (the TEA), does not require any specific number of witnesses to prove a fact. She further asserted that failure to call the doctor did not undermine the prosecution's case. She relied on our decision in Masalu Kayeye v. Republic, [2020] TZCA 302 (17 June 2020) TanzLII to support her position, urging that the appellant's complaint be dismissed. We agree with the submission of the learned Senior State Attorney that failure to call the doctor who examined the complainant did not create a fundamental gap in the prosecution's case. It is well established that offences of a moral nature are often committed in secrecy making the victim's testimony and thus, true evidence has come from them. Medical doctors when called to testify offer expert opinions rather than factual testimony. While such opinions can provide valuable scientific information, courts are not bound to accept them when sufficient evidence is available to support a conclusion. This principle was illustrated in Edward Nzabuga v. Republic [2010] TZCA 364 (24 November 2010) TanzLII. In the instant case, we find no such uncertainty that would necessitate reliance on expert testimony to corroborate PW1. The prosecution's case, supported by the victim's

direct testimony was sufficient to establish the facts without the need for the medical doctor's input. Therefore, we find the complaint in the second ground of appeal wanting in substance and dismiss it. On ground four, the appellant faulted the trial court in convicting him based on weak, tenuous, contradictory, inconsistent, incredible, and unreliable testimony from the prosecution witnesses. In response, Ms. Pima maintained that the evidence presented by the prosecution was credible and free from any significant discrepancies. At the Court's prompting, Ms. Pima conceded that there were some contradictions between the testimonies of PW1 and PW2. PW1 testified that she stayed with her mother while PW2 claimed to be PW l's teacher. Pointing another contradiction, Ms. Pima submitted that the appellant threatened her not to raise an alarm whereas PW2 testified that the appellant had threatened her and silenced her by closing her mouth. However, Ms. Pima argued that the contradictions did not go to the root of the case. As such, she urged us to dismiss this ground. We agree with Ms. Pima that there were indeed some contradictions between the testimonies of PW1 and PW2, particularly regarding what transpired when PW1 encountered the appellant who was staying with the complainant at the time of the incident. The question, then, is whether the discrepancies go to the root of the

case. It is important to know that contradictions whether from a single witness or among multiple witnesses are an inherent part of many cases and cannot be entirely avoided. See Dickson Elia Nsamba Shapwata & Another v. Republic [2008] TZCA 17 (30 May, 2008) TanzLII, this Court held: "In evaluating discrepancies, contradictions, and om issions, it is undesirable fo r a court to p ick out sentences and consider them in isolation from the re st o f the statem ents. The court has to decide whether the inconsistencies and contradictions are only m inor or whether they go to the root o f the m atter." Similarly, in John Gilikola v. Republic, Criminal Appeal No. 31 of 1999 (unreported), the Court emphasized that: "Due to the fra ilty o f human mem ory and if the contradictions or discrepancies in issue are on details, the Court m ay overlook such contradictions or discrepancies. " Having reviewed the evidence by PW1 and PW2 in light of the above-cited authorities, we think that the contradictions in the instant case are minor and did not go to the root of the case. Moreover, we find that the said contradictions and inconsistence do not diminish the credibility or reliability of PW1 and PW2's testimonies. As such, we hold that their testimonies remain intact despite the minor inconsistencies. Therefore, the appellant's fourth ground of appeal is without merit and is hereby

dismissed. In grounds one and five, the appellant is challenging the prosecution for failure to prove the case beyond reasonable doubt. In response, Ms. Pima began by laying out the ingredients of statutory rape the appellant faced which was predicated on sections 130 (1), (2) (e) and 131 (1), (3) of the Penal Code. She was alive that the prosecution had to establish vaginal penetration of the complainant, her age indicating her incapacity to consent to sexual intercourse and that the perpetrator of the sexual act was the appellant. The learned Senior State Attorney submitted that based on the evidence of the prosecution witnesses, it was sufficiently proven that the complainant was fifteen (15) years and that the appellant was the ravisher. She referred us to the case of Selemani Makumba v. Republic, [2006] T. L. R 379 for the proposition that in a sexual molestation case, true evidence must come from the complainant. She exemplified that PW1 narrated how the appellant inserted his male organ in her vagina. She added that the complainant was sure that it was the appellant who raped her because she identified and named him as a person who worked as an electrician and they resided in the same village. In her conclusion, Ms. Pima implored us to dismiss the appeal in its entirety. We go along with Ms. Pima that in proving the offence of statutory rape the appellant faced,

predicted on sections 130 (1), (2) (e) and 131 (1) of the Penal Code. The prosecution had to establish the following: one, the age of the complainant, two, that there was vaginal penetration of the complainant and three, that the perpetrator of the sexual act was the appellant. Having reviewed the prosecution testimonies of PW1 and PW2 and in light of the concurrent findings of the courts below we hold without demur that the appellant's conviction was based upon soundly evaluated evidence. At first, it is undisputed that the complainant's age at the time of the sexual act was within the ambit of a child under the age of 18 years. It was undoubted that the complainant was 15 years when the incident occurred on 8th July, 2019. Moreover, the evidence linking the appellant with the commission of the offence of rape came from PW1. As alluded to above, it is apparent that PW1 described the whole process beginning with the time the appellant attacked her in the farm. The appellant forcefully undressed her underpart then he inserted his manhood in her vagina. Therefore, we hold that the prosecution evidence sufficiently established that there was vaginal penetration by a blunt object. More so, the complainant identified and named the perpetrator whom she had known before the offence. This fact was also acknowledged by the appellant in his defence where he admitted to being familiar

with the victim. For the aforesaid reasons, we find and hold that in the circumstances of this case, we cannot fault the concurrent findings by the lower courts which made a meticulous assessment of the credibility of the complainant. We are therefore in agreement with the trial and the first appellate court's assessment that PW1 was a credible and reliable witness. That said, we find all five grounds of complaint without substance. We dismiss them all. In the final analysis, we find the appeal devoid of merit and hereby dismiss it in its entirety. DATED at MOSHI this 26th day of March, 2025. L. J. S. MWANDAMBO

JUSTICE OF APPEAL P. F. KIHWELO

JUSTICE OF APPEAL A. Z. MGEYEKWA

JUSTICE OF APPEAL Judgment delivered this 26th day of March, 2025 in the presence of the Appellant in person and Ms. Emelda Mushi, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. /,' u )) A% \ V\ f I Ag. DEPUTY REGISTRAR ,/ / / 'V 7/ f COURT OF APPEAL / 77