CRIMINAL APPEAL NO

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA fCORAM: MKUYE, J.A.. KITUSI. J.A.. And ISSA. J.A.l CRIMINAL APPEAL NO. 654 OF 2020 RASHIDI RAJABU AMILY......................................................APPELLANT

VERSUS REPUBLIC...................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) fMaevekwa, 3.) dated the 13thday of November, 2020 in Criminal Appeal No. 145 of 2020

JUDGMENT OF THE COURT 9th & 20th August, 2024 KITUSI. J.A.: The appellant was charged with and convicted of statutory rape under sections 130 (1) (2) (e) and 131 of the Penal Code allegedly^for having had sexual intercourse with a 12 year - old girl (PW2). The prosecution's main line was that the appellant who lived near PW2's parents had a water well at his residence and he allegedly used it as an allurement to entice PW2 to go to his house under the guise of drawing water from it. When PW2 got at the appellant's residence, he allegedly seized her and had sex with her. i There was also evidence from PW1, the mother of PW2 that she got back home to find her younger son all by himself, and upon inquiry as to PW2's whereabouts, the boy told her that she had gone to the appellant's house. PW l's apprehension and fear got the best of her so she hurried to the appellant's house and demanded to know where her daughter was. The appellant is said to have got out of the house while zipping up his trousers and disputed PW l's suspicion that PW2 was there. But, alas, while this was going on, PW2 bolted out from the appellant's bedroom and ran away. PW1 raised alarm and had the appellant apprehended and turned over to the law enforcement authorities. PW2 confirmed her mother's story by testifying that the appellant had sex with her before PW1 appeared suddenly and surprised the

two. Medical evidence by Israel Awesso (PW4) who examined PW2 on the same date further supported the prosecution's contention. There will later be arguments for and against the credibility of the medical evidence on the basis of contradiction as to the time of the medical examination. In defence, the appellant denied committing the alleged rape and gave his own account of what transpired. He said that it is true that he has a water well at his residence from which he had repeatedly forbidden PW2 to draw water. On the particular date, PW2 drew water from the well disregarding the appellant's instructions not to. When PW2 went for the second time, the appellant gave her whipping as a punishment for her disobedience. The appellant's case is that this case is a concoction for the reason that he canned PW2 and also for an alleged existence of a land dispute between him and PW1. The trial Court evaluated the evidence and made a finding that PW2 and PW4 proved penetration into the private parts of the victim who was, according to PW1 aged 12 years. It concluded that the appellant's version of the matter was but an afterthought which did not cast doubt in the prosecution case. Hence the conviction. There was also evidence that PW2's slipper was found abandoned in the appellant's room when she escaped. We shall not pay attention to this piece of evidence because during the hearing of

this appeal Mr. Castuce Clemence Ndamugoba, learned Principal State Attorney for the respondent Republic conceded that it had been wrongly introduced into the evidence. We have been asked to expunge the search and seizure certificate that led into the discovery of that slipper and we do expunge both. 3 The appellant's attempt at the High Court to offset that decision crumped, hence this second appeal. He appeared in person armed with 6 grounds of appeal in the original memorandum of appeal and 13 grounds in the supplementary memorandum of appeal. He did not, however, elaborate on any of those grounds because even after he had heard Mr. Ndamugoda submit against the appeal, he merely prayed that the Court be pleased to allow the said appeal on the basis of the grounds of appeal. To begin with, grounds 2 and 3 of the supplementary memorandum of appeal faulting the two courts below for attaching evidential value to the search and seizure, have been conceded as already shown, so we need not waste time deliberating on them further. Then there are grounds of appeal that are clearly misconceived and are evidently drawn by a lay hand. We shall deal with them next. The first is a complaint that the charge was drawn in violation of the governing provisions of section 135 of the CPA. This has been raised in grounds 4 and 10 of the supplementary memorandum. We agree with the learned

Principal State Attorney that there is nothing wrong with the charge. The second is an alleged improper conduct of Preliminary hearing which features in ground 5 of the supplementary memorandum of appeal. Here we also agree with Mr. Ndamugoba and add that only when conviction is based on facts agreed during the preliminary hearing may the impropriety of that proceeding be fatal. In a number of cases we have maintained the position that preliminary hearing is rather an administrative provision for accelerating trials and reducing costs by calling only those witnesses who are relevant. See Ipyana Mwambete v. Republic Criminal Appeal No. 145 of 2021 [2024] TZCA 559 (15 July 2024) and Ibrahim Eston v. Republic Criminal Appeal No. 75 of 2021 [2024] TZCA 516 (5 July 2024). The third is the complaint in ground 6 of the supplementary memorandum alleging non- compliance with section 210 (3) of the CPA in recording the victim's evidence. The complaint is that the trial magistrate did not sign at the bottom after reading the evidence to PW2. This again, is untrue and another misconceived complaint because the record bears out that the learned trial magistrate signed as required. The fourth complaint is an alleged non- compliance with sections 9 (3) and 10 (3) of the CPA. Mr. Ndamugoba's submissions dismissed the complaint in relation to violation of section 10 (3) of CPA because, he

submitted, it has nothing to do with the trial, it being relevant in investigation only. We agree with the learned Principal State Attorney. In relation to violation of section 9(3) of the CPA, Mr. Ndamugoba submitted that the complaint ought to have been raised during trial. That provision obliges the prosecution to supply the accused with the complaint's statement. We agree with Mr. Ndamugoba that the complaint is belated and an afterthought. Besides, in our view, there is no prejudice that has been established regard being had on the appellant's active participation in the trial. The fifth is ground 8 under which the complaint is lack of legal representation. We agree with Mr. Ndamugoba again that the court did, not in anyway, deny the appellant to exercise that right if he had wished to. In view of the above discussion, we dismiss ground 2,3,4,5,6,7, 8 and 10 of the supplementary memorandum for being misconceived. With respect, we agree with the learned Principal State Attorney and dismiss those grounds. The learned Principal State Attorney also prayed that we also dismiss grounds 1,4, 5 and 6 of the original memorandum of appeal as well as grounds 9,11, 12 and 13 of the supplementary memorandum of appeal for being new grounds. We have pronounced ourselves too often on the principle that grounds not earlier raised at the first appellate court should not be raised before us.

We do not intend to overkill by citing the countless authorities on this. We shall, for the reason that grounds 1, 4 and 5 of the original memorandum of appeal and grounds 9, 11, 12 and 13 of the supplementary memorandum of appeal are new and factual, ignored them. These grounds did not feature in the petition of appeal found at page 49 of the record of appeal which raised only three grounds of appeal. Apart from being new, ground 13 could not make any sense to us and Mr. Ndamugoba expressed a similar concern. Since it is somehow vulgar, we take no pleasure in referring to its contents. Suffice to say that ground 13 of the supplementary memorandum is both new and misconceived, not deserving our attention. Mr. Ndamugoba addressed grounds 2 which questions the credibility of PW2 and PW1 and ground 3 challenging the PF3. About the alleged lack of credibility of PW2 and her mother PW1, Mr. Ndamugoba submitted that every witness is entitled to credence except where there is reason for considering otherwise. He pointed out that there is nothing in the testimony of PW2 that would justify us concluding otherwise than that she is a credible witness. Similarly the same arguments apply in relation to PW1. Mr. Ndamugoba added that the appellant was caught almost red handed, anyway. With respect, we agree with Mr. Ndamugoba that we have no basis for interfering with the concurrent finding

of the two courts below on the credibility of PW2 and PW1. In our view, the appellant's defence raising the issue of bad blood with PW2's family, is an afterthought because he did not put that hypothesis across to PW1 and PW2 at the time of their testimonies, for them to deny or confirm it. We dismiss ground 2 for those reasons. As for the PF3, an aspect we had earlier identified as being a fertile area for competing arguments, Mr. Ndamugoba conceded that the date cited in the PF3 and that which was testified to by PW4 are different, the PF3 showing that medical examination was performed at 5 PM and PW4 testifying that he attended the victim at 23 hours. The learned Principal State Attorney suggested that it could be just another slip of the pen and invited us to ignore the variance as inconsequential. Mr. Ndamugoba also suggested that medical evidence is not all that there is in a rape case, as there is other evidence. To resolve this complaint, we wish to express the fact that we cannot pretend that we are unaware of common mistakes made by those who are not native English speakers, and it is our finding that the error referred to in this ground of appeal is a slip resulting from such common mistakes. It does not affect the credibility of the medical examination as adduced by PW4. We dismiss this ground even as we agree with Mr. Ndamugoba that rape could be proved without medical evidence if there is other sufficient evidence to prove the offence. And there indeed, was. Consequently, this appeal is dismissed in its entirety. DATED at MWANZA this 19th day of August, 2024. R. K. MKUYE

JUSTICE OF APPEAL I. P. KITUSI

JUSTICE OF APPEAL A. A. ISSA

JUSTICE OF APPEAL The Judgment delivered this 20th day of August, 2024 in the presence of Appellant in person and Ms. Brenda Mayalla, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. 9