Masatu Webiro Nyamtenge Kitogoti Vs

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: JUMA, CJ.. MASOUD. J.A. And NANGELA. J.A.l CRIMINAL APPEAL NO. 284 OF 2022 MASATU WEBIRO MKIRYA @ NYAMTENGE KITOGOTI.... APPELLANT VERSUS THE REPUBLIC......................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Musoma) (M tulyaJJ dated the 22ndday of February, 2022 in D.C Criminal Appeal No. 193 of 2020 JUDGMENT OF THE COURT 12th & 17th March 2025 NANGELA, J.A.: Before the District Court of Bunda, at Bunda in Mara region, the appellant MASATU WEBIRO MKIRYA @ NYAMTENGE KITOGOTE stood charged with the offences of rape contrary to sections 130 (1) (2) (e) and 131 (1) and unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code, Cap. 16 R.E. 2019. The alleged incidents took place at Nyag'aranga Village in Bunda District on the 5th day of July 2020 and the victim was a standard five girl aged 13 years old. During the trial, the prosecution summoned five witnesses. These were Dr. James Allan (PW1), Kihengu Ngambalieku (PW2), John Mriho (PW3) MG (PW4) and Gishanga Nyachuma (PW5). The appellant fended for himself as DW1. Although the appellant denied the charges, the trial court was satisfied that the prosecution side had proved its case beyond reasonable doubt. Consequently, it found him guilty and sentenced him to concurrent 30-year prison terms for each offence. In addition, he was to receive six strokes of the cane for the second count of unnatural offence and pay TZS 500,000 to the victim as compensation. Dissatisfied with the trial court's conviction and sentences, he filed an appeal with the Tanzanian High Court in Musoma. But on February 22, 2022, the Tanzanian High Court (Mtulya, J.) dismissed his appeal for lack of merit. The appellant has, therefore, filed this second appeal with this Court, raising six grounds of appeal, which we need not list here for obvious reasons. When the hearing of this appeal commenced, the appellant appeared himself, unrepresented. On the other hand, Ms. Shose Naiman and Ms. Wampumbulya Shani, learned Senior State Attorneys, represented the respondent Republic. When invited to address the Court, the appellant requested that the respondent Republic speak first so that he could rejoin after hearing the respondent Republic's arguments regarding his grounds of appeal. We granted his wish and invited Ms. Shani to address us. Although Ms. Shani supported the concurrent findings of the two lower courts, she expressed her concern that the appellant's sentence for the second count of unnatural offence violated section 154 (2) of the Penal Code. She submitted on grounds 1 and 4 of the appeal concerning the competence of PW1 who examined the victim, the reliability of testimonies of PW2 and PW3 and whether the contents of exhibit PEI were made known to the appellant. In her submission, Ms. Shani implored this Court to rule that grounds 1, 3 and 4 of the appeal are without merit and ought to be dismissed because PW1 was competent enough to examine the victim and tender exhibit PEI. To bolster her position, she relied on the decision of this Court in the case of Alfred Pasalima Msumba vs. Director of Public Prosecutions, 2022 [TZCA] 104 (September 2024) TANZLII. She equally contended that PW2 and PW3 were reliable witnesses and, that, unlike what the appellant seems to assert, page 10 of the record of appeal shows that, having endorsed exhibit PEI, the trial court read out its contents in court. 3 Concerning grounds 2 of the appeal, Ms. Shani urged this Court to disregard it as well. The gist of ground 2 of the appeal is the appellant's concern that the requirements of section 127 (2) of the Evidence Act, Cap.6 R.E 2019 were not complied with. However, Ms. Shani argued that the trial court fully complied with the requirements of section 127 (2) of the Evidence Act, Cap. 6 R.E. 2019. In her view, based on the testimonies of the medical doctor (PW1), the exhibit PI, and the testimony of the victim (PW4) there was sufficient evidence to support the charges of rape and unnatural offence. To bolster her submission, she relied on the cases Wambura Kiginga vs. Republic, 2018 [TZCA] (13 May 2022) TANZLII, arguing that the best evidence in sexual offences is that of the victim. When this Court drew her attention to the testimony of PW1 on pages 9 of the record of appeal (lines 14-16) and page 10 (line 7) read together with exhibit PEI, paragraph (iii), to see whether what PW1 stated there raised reasonable doubts regarding proof of the second count, her response was solid that, since it was the victim who complained to have been sodomized, then PWl's testimony was correct. Concerning proof of the victim's age, Ms. Shani submitted based on the testimonies of the victim, PW2 and PW1, that there was adequate proof that the victim was aged 13 years old given that such witnesses were competent people to attest to the age of the victim. To support he position, reliance was placed on the case of Makende Simon vs. Republic, 2017 [TZCA] 531 (25 August 2022) TANZUI. Finally, she called upon this Court to dismiss grounds 5 and 6 of appeal arguing that the prosecution case was proved beyond reasonable doubt. In essence, grounds 5 and 6 of the appeal may be paraphrased to mean that the appellant is concerned that the charges levelled against him were not proved to the required standards. However, in her submission, Ms. Shani refuted the appellant's concerns arguing that the case was proved to the required standards. She submitted that, although the appellant's defence raised concerns over land dispute, such issues were not raised during cross-examination and, hence, were afterthoughts. She found support in the case of Nyerere Nyague vs. Republic, 2010 [TZCA] 67 (21 May 2012) TANZUI. Concerning the appropriateness of the sentence meted upon the appellant in respect of the second count of unnatural offence, the learned Senior State Attorney submitted that, although the respondent Republic did not raise it as a cross-appeal, based on the decision of this Court in the case of Wambura Kiginga (supra), justice demands this Court to consider the interests of both parties to the case before it. On that account, it was her submission that, since the victim was below the age of 18 years, the appropriate sentence ought to have been the one provided for under section 154 (2) of the Penal Code, which is life imprisonment. Consequently, she invited this Court to dismiss this appeal and, in terms of section 4 (2) of the Appellate Jurisdiction Act, revise the consecutive order and sentence in respect of the second count, and in lieu thereof, enhance the appellant's sentence to life imprisonment. She referred the Court to its previous decision in the case of Tafifu Hassan @ Gumbe vs. Republic, 2017 [TZCA] 436 (27 August 2021) TANZLII. Having heard the respondent Republic's submission, the appellant addressed this Court imploring to receive and consider his grounds of appeal as they are. He briefly added that, firstly, PW1 did not come out clearly that what he observed from the victim's private parts were semen or not. Secondly, he contended that PW4 was his own daughter, and that he was only being framed up because he refused to sell a parcel of land belonging to his late mother to PW5. Finally, he urged this Court to find merit in his appeal, quash both the conviction and sentences imposed on him by the trial court and release him from prison. We have carefully considered the rival submissions and closely reviewed the record of appeal. We are mindful of the principle that this being a second appeal, the powers of this Court to interfere with the concurrent findings of the lower courts on matters of fact, are constrained. However, if the lower courts misapprehended the evidence or that there is a misdirection or non-direction on the essential principle of law, nothing can stop this Court from interfering with such concurrent findings of the lower courts. See the cases of Director of Public Prosecution vs. Jaffari Mfaume Kawawa [1981] T.L.R 149, Materu Leison & J Foya vs. R. Sospeter [1988] T.L.R 102 and Mohamed Said vs. Republic, 2017 [TZCA] 145 (23 August 2019) TANZLII. Coming to the appeal at hand, although it appears straightforward, it has its own intricacies under which lies the following issues: (1) whether the two courts below carefully and appropriately evaluated the whole evidence including its attendant circumstances, and (2) since it is the duty of the prosecution to prove its case beyond reasonable doubts, whether, taking the whole circumstances surrounding the case, it can be said with confidence that the prosecution discharged that burden. As we embark on the journey of responding to the issues we have raised, we are also mindful of what this Court stated in the case of Amos s/o Alexander @ Marwa vs. Republic, 2019 [TZCA] 513 (29 October 2021) TANZLII. In that case, we held that an appellate court is expected to address the grounds of appeal before it, not in the way they might have been listed in the memorandum of appeal, but as it may find convenient. We shall, therefore, weave our discussion of the grounds of appeal within the fabric of the issues we framed as guides to our thinking. To start with, although we value the persuasive arguments made by the learned Senior State Attorney, it is a fundamental legal requirement that the trial court must carefully assess all evidence, including that of the accused person, before rendering a verdict on the guilt or innocence of the accused. Our decision in the case of Emmanuel Aloyce Daffa vs. Republic, 2021 [TZCA] 131 (7 June 2021) TANZLII, is quite instructive on that. The rationale for doing so is premised on the principle of presumption of innocence in favour of an accused in a criminal case, which is a basic constitutional guarantee. If a trial court is to rule in favour of the prosecution side, that principle obliges the prosecution side to establish, beyond reasonable doubt, the accused guilt. However, for the trial court to arrive at such a conclusion or otherwise, it must carefully and properly evaluate and sanitize the evidence presented before it. That process is sacred and requires sobriety of mind and soul because it is at the heart of justice dispensation. Properly done it provides the trial court with a magnifying lens to see whether there are reasonable doubts affecting the prosecution case or not. If there be any, the principle that every reasonable doubt as to the guilt of the accused entitles him to an acquittal will immediately set in. But if hastily or erroneously done it has the potential to blind the decision maker thereby occasioning a miscarriage of justice. Flowing from that realisation, and having reviewed this record of appeal, we posed the first issue regarding whether the two courts below did their best in evaluating the evidence put for and against the allegations. What we can decipher from grounds 1 and 4 of the memorandum of appeal is that the appellant laments about deficiency of the prosecution evidence. In her submission, however, the learned Senior State Attorney for the respondent Republic contented that the evidence was sufficient and watertight. With respect, we hold a different view especially when such evidence is evaluated in a juxtaposed manner with what the appellant offered in defence, and other material circumstances surrounding the case before the trial court. First, when learned Senior State Attorney was offering her submission, we drew her attention to pages 9 of the record of appeal (lines 14-17) and page 10 (line 6) read together with exhibit PEI, paragraph (iii) (at page 25 of the record of appeal). In those parts of the record of appeal, the following is observed starting from page 9, lines 15- 18 in respect of PWl's testimony when he examined PW4 (the victim). "On her anus there were things like water but dried. There were no blood or bruises. Perhaps there were semen. I called a laboratorian ... to do high vaginalswab. Then the examination revealedthat there were no semens (sic) but percels (sic) and apitherial cells..." Then, on page 10 (line 6) of the record of appeal, PW1 further testified in chief and stated as follows: "I was not certain if she was sodomized". Further, on page 25 of the record of the appeal, there we found the PF-3 that PW1 filled and tendered in Court as exhibit PI. As correctly submitted by the learned Senior State Attorney, exhibit PI was properly admitted, and its contents were made known to the appellant. This means ground 3 of the appeal is baseless. However, our concern was on Part II items (iii) of exhibit PI where PW1 recorded the following post examination observations: "Per anus, normal anal verge with dry secretions around the anus, no bleeding or laceration at the anus/' In her response to the questions we posed to her in respect of the above observations vis-a-vis the testimony of the victim, the learned Senior State Attorney was of the view that what matters in sexual offence cases is the testimony of the victim which is the best evidence and, that since she was the one who complained to have been sodomized, then that was sufficient evidence. Essentially, we are firmly aware of that position as held by this Court and exhibited in several cases such as Abasi Ramadhani vs. Republic, (1969) HCD 226; Selemani Makumba vs. Republic, [2006] T.L.R 379 and Yohana Said @ Bwire vs. Republic, 2018 [TZCA] 202 (5 February 2021) TANZLII, to mention but a few. In the context of the present appeal, however, the facts are materially different since the credibility of PW4, as we shall explain later in this judgement, was not properly assessed. In our considered view, the observations we made in respect of the testimony of PW-1 and exhibit PI vis-a-vis that of PW4 and DW1, creates doubts in the prosecution case regarding whether the offence under section 154 (1) of the Penal Code was proved beyond reasonable doubt. Since any doubt must be decided in favour of the appellant, we hold that that offence was not sufficiently proved. Consequently, grounds 1, and 6 of the appellant's appeal have substance in as far as the second count of unnatural offence is concerned. But what about the first count about rape? Whereas the learned Senior State Attorney urged us to make a finding that the same was proved beyond reasonable doubt, we also have some reservations which flow from the same analytical framework we chose to adopt in this appeal. We have made it clear that, in arriving at the conclusion of any case, a trial court is bound to consider the entire scope of the evidence before it and the context under which the case is based. This is important since no one case is like the other in all fours. Our concern in this present appeal, is the coherence of PW3's testimony when considered in relation with that of other witnesses, including that of the appellant. See the case of Shabani Daudi vs The Republic, [2000] [TZCA] 28 (11 March 2004) TANZLII. In our view, if the testimony of PW3 is assessed in the context of the whole evidence (including the appellant's testimony) and the circumstances surrounding the case, there arises certain fundamental issues that create more questions than answers, hence a basis for entertaining reasonable doubts. First, as page 22 of the record of appeal would show, the appellant, testifying as DW1 disclosed the time when he was arrested and what 12 transpired shortly afterwards. For clarity, we find it necessary to reproduce what he stated under oath before the trial court, starting from lines 3-9: "I was arrested and locked to (sic) Mugeta Police cell. A t 11 am a sub-village leader and Gishanga [Pw-5] came at the post. The sub-leaders (sic) asked me to sign so as this matter can (sic) come to an end. I said "Siwezi kuuza shamba la mama (i.e., I cannot sell my mother's farm). He said "chamoto utakiona"(i.e, you w ill test the fires). At 12.00 am they came with Kihengwe and Mwangi Gishanga, insisting that "chamoto nitakiona nimekataa kuweka Saini"(i.e., I w ill test the fires for having refused to sign). That "watanibambika ubakaji" (i.e., they w ill fabricate a rape case on me). I stayed into (sic) lock-up from 6/7/2020 to 11/7/2020. On 11/7/20201 was brought to Bunda Police station up 14/7/2020...[They] are fabricating this case to take my farms after the deadi o fmy mother..." In her submission, the learned Senior State Attorney submitted that what the appellant stated in his defence was not worth considering because the matters raised there in ought to have raised them during cross-examination of the prosecution witnesses. We took note of that 13 submission. However, as we have stated herein each case needs to be heard based on its circumstances and the circumstances of this case would not have warranted a total rejection of the appellant's testimony. As it may be noted, from the record of appeal, the appellant was arrested on 6/7/2020 and was in Police custody till 14/7/2020 without being arraigned before a court of law. This period was a delay of more than one week. In the case of Duma Ilindilo Pangalas vs. Republic, 2021 [TZCA] 476 (25 February 2022) TANZLII, this Court, while considering the effect of delay to bring a culprit to justice, noted that, such unexplained delay is material and must be taken into account by the trial court given the requirement that an accused person should as far as practicable be charged within reasonable time. What is reasonable time is gauged depending on the circumstances of each case. In the present appeal, for instance, since the case that gave rise to it involved sexual assault against a minor, the culprit ought to have been brought to justice immediately to have the matter heard and determined as swiftly as practicable. The worst part of the case, however, was that, despite there being such a delay to prosecute, (from 6th July to 14th July 2020), nowhere in the record of appeal shows that the prosecution offered any explanation why the delay was occasioned. That 14 further leaves a room to entertain doubts regarding what was being hatched behind the scenes. Additionally, the investigator of the alleged rape incident, who could have offered explanations to clear the air was not called as a witness. It is unfortunate that that skipped the attention of the lower courts. In Wambura Marwa Wambura vs. Republic, 2019 [TZCA] 115 (14 July 2022) TANZUI, this Court, citing the case of Azizi Abdallah vs. Republic [1991] T.L.R 71 was of the view that: "The general and well-known rule Is that the prosecutoris undera prima facie duty to call those witnesses who, from their connection with the transaction in question, are able to testify on materialfacts. I f those witnesses are within reach but are not called without sufficient reason being shown, die court may draw adverse inference to the prosecution." Since the investigator in the present appeal ought to have been called to testify but he was not, we are inclined to find that such a failure to call him/her to testify leaves us with no option but to draw a negative inference on the prosecution, a fact which tends to bolster the concerns raised by the appellant in his defence and question the credibility of the prosecution case. 15 But aside from the above, we also noted a second anomaly in respect of this case. On page 1 of the record of this appeal, for instance, is a copy of the charge sheet which bears the two counts of rape and unnatural offence. The charge sheet is dated 7thof October 2020 while the PF3 (exhibit PI) was dated 6th of July 2020. This means the appellant, apart from being arrested on 6th of July 2020, was in custody up to 7th of October 2020, this being a period of three months without being formally charged. We note also that the offences which he was facing were bailable offences, but the record of appeal is silent why, for a period of three months, he was not brought to court. Was he out on police bail or was he being held on custody to coerce him sign the deed of sale of her mother's land as he claimed in his defence testimony? As we stated herein above, had the investigator been called to testify he/she could have responded to all those questions. Considering all those doubts and concerns, can it be safe to say that the prosecution case was proved beyond reasonable doubt? In the case of Mohamed Said vs. Republic, 2017 [TZCA] 145 (23 August 2019) TANZLII, this Court, held that: 16 "In reviewing rape cases,.... the testimony of the complainant must be scrutinized with extreme caution; and... [the] credibility of the complainant becomes the single most important issue. "(Emphasis added). In the present appeal, we are of the view that the lower courts did not take heed to the advice given in Mohamed Said's case (supra). As such, the testimony of PW4 was neither scrutinized with the necessary caution nor was her credibility tested adequately, as required by section 127 (6) of the Evidence Ac. Based on all such failures, we find that the appellant's concerns that he was being framed up by among others PW3 and PW5, gained strengths, and cast reasonable doubt on the entire prosecution case. As night follows the day, where reasonable doubts are entertained, the benefits should go to the accused. This means that the offence of rape was as well not proved beyond reasonable doubts as the appellant was entitled to benefits of doubt. In the final analysis and based on the totality of what we have stated hereabove, we uphold ground 6 of the appeal, allow this appeal, quash the appellant's conviction, set aside the sentences imposed on him 17 by the trial court and order for his immediate release from custody forthwith unless otherwise lawfully held. Order accordingly. DATED at MUSOMA this 14th day of March, 2025. I. H. JUMA CHIEF JUSTICE B. S. MASOUD JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL The Judgment delivered this 17th 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 hereby certified as a true copy of the E. G.YlRANGU ^ SENIOR DEPUTY REGISTRAR COURT OF APPEAL 18