MAKOYE JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY)

AT MWANZA CRIMINAL APPEAL NO. 1342 OF 2025 (Arising from Criminal Case No. 22882 of 2024 in the Kwimba District Court at Ngudu) NICHOLAUS JAMES MAKOYE…………………………………………….APPELLANT

VERSUS THE REPUBLIC…………………………………………………………….RESPONDENT

JUDGMENT 17th & 24th March, 2025 KAMANA, J. On 17th March 2025, this court quashed and set aside the conviction of rape and the sentence meted out against the appellant who was convicted of rape contrary to section 130(1)(a) and 131 of the Penal Code, Cap. 16 [RE.2022]. It reserved its reasons for the decision which are now given. When the appeal came for a hearing, the court invited Ms. Stella Minja, learned State Attorney, to address whether the victim, a woman of 19 years old, mentioned the appellant at the earliest opportunity she had and if such failure vitiates her credibility or otherwise. Ms. Minja argued that the victim who reported the incident to the village leader testified that she told the village leader that she did not know who raped her. Likewise, her mother who also testified stated before the 1 trial court that her daughter told her in the presence of the village leader that she did not know who raped her. In the circumstances, Ms. Minja held the view that the victim’s failure to mention the accused at the earliest opportunity puts her credibility into question. She implored this court to allow the appeal and set the appellant free. Law is trite that the ability of the witness to name the accused at the earliest possible time assures her credibility. Likewise, the inability of the witness to name the accused person at the earliest possible time puts a prudent

court to question the credibility of the witness. See: Ajili Ajili @ Ismail v. Republic, Criminal Appeal No. 505 of 2016-CAT (Unreported). Since Nicholaus James Makoye, the appellant, was not mentioned or described by the victim at the earliest opportunity especially when she reported the incident to the village leader and to her mother and since she did not state whether she was threatened in any way to the extent of refraining from mentioning the appellant, this court found the victim incredible. It was for that reason, the appeal was allowed. DATED at MWANZA this 24th of March, 2025.

KS KAMANA

JUDGE 2