20101007 TZHC Mtwara3

IN THE COURT OF APPEAL OF TANZANIA

ATMTWARA (CORAM: MBAROUK, J.A, BWANA, J.A. AND MASSATI, J.A.) CRIMINAL APPEAL NO. 488 OF 2007 YASIN! ALLY MEMBO ....................................... APPELLANT

VERSUS THE REPUBLIC ............................................. RESPONDENT (Appeal from the conviction and sentence of the High Court of Tanzania at Mtwara) (Mjemmas, J.) dated the 17th day of August, 2007 in Criminal Appeal No. 20 of 2007

JUDGMENT OF THE COURT 7 & 8 October, 2010 MBAROUK, J.A.: In the District Court of Kilwa at Masako, the appellant, Yasini Ally Membo, was charged with the offence of rape contrary to sections 130 and 131 of the Penal Code Cap 16 as amended by sections 5 and 6 of the Sexual Offences (Special Provisions) Act No. 4 of 1998. He was convicted and sentenced to thirty (30) years 1 imprisonment. Aggrieved, the appellant filed an appeal to the High Court Mtwara (Mjemmas, J.) where it was dismissed. In the move to prove his innocence, he has filed this second appeal. A brief account of the facts giving rise to the case is as follows, that on 26/8/2000, the appellant visited the house of Hamida Salumu (PW1) at around 9.00 p.m and asked for fire. PWl went outside while dressed in "kitenge" and took some fire in a coconut shell and gave it to the appellant. Instead of receiving it, the appellant held PW1's hand· and dragged her outside. PWl was kicked and fell down, her "kitenge" was taken off and then raped by the appellant. She said, she could not shout or raise an alarm, because the appellant threatened her with a knife. PWl struggled with the appellant until she got a chance to run away. She immediately reported the incident to Yahaya Said Majombe (PW2) then to Said Machande Ndela (PW3) and later to the Village Executive Officer (VEO) who referred her to the police and then to Njinjo

Health Centre where she was medically examined and treated. 2 The appellant denied to have committed the offence. He claimed that on the alleged day he was at home digging his shamba, thereafter at about 8.00 p.m he was arrested and then sent to court. His defence was supported by his wife (DW2). In this appeal, the appellant appeared in person, whereas the respondent Republic was represented by Mr. Peter Ndjike and Ismail Manjoti, the learned State Attorneys. The appellant filed a memorandum of appeal containing seven grounds of complaint, with addition of two other grounds. However, the nine grounds of appeal are narrowed down to the following:- (1) Whether the appellant was properly identified at the scene of crime. (2) Whether the prosecution witnesses were credible. (3) Presence of contradictions. ( 4) The irregularity found in PF3. 3 At the hearing, the appellant had nothing to add apart from what have been stated in his memorandum of appeal. On his part, Mr. Ndjike strongly supported the conviction and sentence imposed upon the appellant. On the issue of identification, Mr. Ndjike submitted that, the appellant was known to PWl as a village mate. He said, PWl testified that the appellant on that day asked for fire which means, he talked with PWl. Mr. Ndjike said, that clearly shows that PWl identified the appellant that night. He added that, the conduct of the appellant

to run away from the scene of crime was an indication that he felt guilty conscious. It is our considered opinion that, the chain of events as found in the record shows that the appellant was sufficiently identified. PWl's testimony shows how the appellant went at her house at 9.00 p.m and gave her fish to cook for him. Also, how the appellant asked on whether PWl's husband travelled. Having got an answer that PWl's husband has travelled, the appellant went again and asked for fire, but when he was 4 provided with that fire he requested, he dragged away PW1 outside her house and raped her. Under those circumstances, We are of the opinion that the close proximity between the appellant and PW1 was close enough for him to be identified. Furthermore, being a village mate also contributed to alleviate the element of mistaken identity. In the event, we are of the considered opinion that the ground of appeal on the issue of identification is without merit. As on the issue of the credibility of witnesses, Mr. Ndjike was of the view that the trial court and the first appellate court were in a better position to assess the credibility of the prosecution witnesses. Hence, he urged us to find this ground of appeal with no merit. We on our part, having found no misdirections or non- directions from the findings of fact in the two courts below, we are constrained not to interfere with such

findings of fact of the lower courts. See, the decision of this Court in the case of OPP 5 v. Jaffari Mfaume Kawawa (1980) TLR 146. In the event, we find the ground of appeal on the issue of credibility of witnesses with no merit. As on the issue of contradictions, Mr. Ndjike simply submitted that there are no contradictions which have appeared from the testimonies of the prosecution witnesses. Generally, the appellant has failed to show how PW1's testimony contradicted with other prosecutions evidence. It is not sufficient simply to say that PW1's testimony was contradictory. The appellant was supposed to show how PW1's testimony was contradictory to other witnesses. Having not shown such contradictions, we are of the opinion that this ground of appeal too has no merits. As on the ground of appeal concerning the irregularity found in the PF3 on the issue of dates, Mr. Ndjike agreed that, it is true that the incident happened on 26th August, 2000 and 6 the PF3 was written on 21 st October, 2000. However, he said, as far as the record shows that the Doctor (PW4) examined PWl on 27th August, 2000, hence no problem arose. Mr. Ndjike urged us to find that as far as section 240 (3) of the Criminal Procedure Act (CPA) has been complied with, hence this ground of appeal is with no merit. It is true that, the incident of PWl being raped happened on 26/8/2000, however as the Doctor

(PW4) testified, he examined PWl on 27/8/2000, which is just next day or morning. We think, there is no effect which could have affected the result found by the Doctor even if the PF3 was written on 21/10/2000. Furthermore, as far as section 240 (3) of the CPA has been complied with, we are on the opinion that this ground has no merit too. Lastly, Mr. Ndjike brought to our attention that the sentence imposed to the appellant was contrary to the 7 provisions of section 131 (1) of the Penal Code. He submitted that, the said provision imposes a sentence of imprisonment for life or not less than thirty years with corporal punishment and order of compensation. In support of his argument he cited to us the decision of this Court in the case of Elias Juma v R, Criminal Appeal No 133 of 2005 (unreported) where the Court invoked Section 4 (2) of the Appellate Jurisdiction Act and revised the sentence by imposing 12 strokes and compensation order of shs.100,000/=. Mr. Ndjike urged us to impose the proper sentence as directed by the law. The appellant had nothing much to submit on this issue of the illegality of sentence imposed to him. There is not doubt that section 131 ( 1) of the Penal Code was not complied with by the trial court when it imposed the sentence to the appellant. The only sentence imposed by the trial court and upheld by the High Court was a thirty (30)

years imprisonment. 8 • Section 131 (1) of the Penal Code provides as follows: •~ny person who commits rape is, except in the cases provided for in the renumbered subsection (2) liable to be punished with imprisonment for life, and in any case for imprisonment of not less than thirty years with corporal punishment, with a fine, and shall in addition be ordered to pay compensation of an amount determined by court, to the person in respect of whom the offence was committed or the injuries caused to such person." (Emphasis added). As shown hereinabove, in the instant case, the trial court only imposed a thirty (30) years imprisonment sentence without corporal punishment and compensation. To that extent, we agree with Mr. Ndjike that the sentence imposed to 9 the appellant was illegal. In the event, we invoke our revisional powers conferred upon us under section 4(2) of the Appellate Jurisdiction Act and order the trial court to legally impose a sentence as directed by section 131 (1) of the Penal Code. Compensation has to be offered to PW1 for the injuries she sustained, to which, we think the trial court will be in a better position to assess it. We so order. DATED at MTWARA this ih day of October, 2010 M.S. MBAROUK

JUSTICE OF APPEAL SJ. BWANA

JUSTICE OF APPEAL f 1 . -4( S.A. MASSATI 4 o - . o~ JUSTICE OF APPEAL "-" tl!' ' · ,· .'.~ ' . . ,.•·~ ·· that this is a true copy of the original. \\ \ M.

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