IN THE COURT OF APPEAL OF TANZANIA

AT MBEYA
( CORAM: SEHEL J.A.. KITUSI. J.A. And MAIGE. J.A.l

CRIMINAL APPEAL NO. 145 OF 2021

IPYANA MWAMBETE............................................................... APPELLANT

VERSUS
THE REPUBLIC....................................................................RESPONDENT
(Appeal from the Decision of the High Court of Tanzania at Mbeya)
fUtamwa, J.)
dated 15th day of February, 2021
in
DC. Criminal Appeal No. 103 of 2020

JUDGMENT OF THE COURT

10th & 15th July, 2024

KITUSI, J.A.:

This appeal arises from the appellant's conviction and sentence for

statutory rape, by the District Court of Kyela which was upheld by the

High Court on first appeal. The charge was laid under section 130 (1), (2)

(e) and 131 (1) of the Penal Code, it being alleged that the appellant had

carnal knowledge of a 4-year-old girl on 8th September, 2019 at Ipinda

area within Kyela District. The little girl testified as PW1 and to protect her

modesty, we shall maintain reference to her as such.

 She testified that on the fateful day she was near the culprit's

residence with her peers Asteria and Eva. The culprit whom she identified

as Ipyana or Baba Pati, the appellant, called the three girls in the house

in his room then he undressed the girls and had sex with them in turns.

He threatened the girls with death if they would dare divulge the escapade

to their mothers.

However, the girls were soon to violate these instructions for, PW1

disclosed the ordeal to her mother PW2. PW2 stated that it was not PW1

who informed her about it but a woman known as Wema. According to

PW2, Wema told her to accompany her to Mama Casto's place which they

did. On arriving there, the two women found the three girls weeping and

upon enquiry by PW2 the girls, Eva in particular, told her that Ipyana or

Baba Pati, the appellant had raped them. Going by PW2's version, this

conversation was being held at the veranda of a house in which the

appellant lived. He was allegedly inside the house when this was taking

place.

The women took the girls to a neighbour's house from where they

enlisted the assistance of the ten-cell leader. When PW4, the ten-cell

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leader went to the homestead of one Angumbwike (PW l's father), he

found the appellant and the girls as well as their mothers.

We pause to observe that the above sequence hardly makes sense

to us. It is difficult to precisely place where exactly were PW1 and PW2.

There is the version of PW2 that they were at the house of a neighbour,

and yet there is the version of PW4 who said he found them at

Angumbwike's homestead. It is also not clear as to which house the

appellant lived in. Is it the house where PW2 and Wema moved to and

found the girls at the veranda? If that is so, then PW4's version that he

went to Angumbwike house and found the girls adds to the confusion.

All this aside, PW2 and PW4 testified that the appellant confessed

and pleaded with them to refrain from taking legal steps against him.

However, this plea would not deter PW2 from reporting the matter to the

police immediately and a PF3 was issued authorising PW l's medical

examination. She was examined by a medical practitioner (PW5) who

observed a perforated hymen and concluded that a blunt object had

penetrated into the girl's vagina. PW5 had intended to go further and

make sperm analysis but did not do so because the sexual intercourse
had taken place more than 48 hours before the examination. This thread

of evidence will later attract considerable arguments from both sides.

The appellant's defence was that the girls gave rehearsed evidence

to implicate him after being instructed by their parents. He also said that

at the time of the alleged rape, he was doing his chores, preparing husks

for his pigs when Angumbwike, PW l's father, turned up and demanded

that he goes with him to his home. The appellant obliged, but on the way,

he passed by his home and told his wife (DW2) that he was going with

Angumbwike upon his request. DW2 affirmed that she had been with the

appellant throughout the day, so she was surprised when someone

informed her minutes later that he was being held for committing rape.

In her testimony, DW2 wondered about the probability of a person raping

three girls almost simultaneously, and also how practical it would be for

the victim to be able to walk to the police station shortly after.

The trial court found the appellant guilty and convicted him, guided

by the principle that true evidence in sexual offences is that of the victim.

The High Court also passed off PW1 as a credible witness who could not

mistake the appellant for anybody else, he being a neighbour. Further,

that there was no dispute regarding PW1 being of the age of 4 years,

according to PW2.

The appellant was sentenced to life imprisonment. As indicated

earlier, he appeals against that conviction and sentence.

Through Mr. Kamru Habibu Msonde learned advocate, the appellant

raised five grounds of appeal but abandoned the third ground. We shall

address the first and fifth grounds of appeal at once. They are that: -

1. 'That\ the appellate Judge erred in law for nullifying only the

proceedings relating preliminary hearing and leave the rest of the

proceedings intact

5. That, the appellate Judge erred in law and in ruling that the

Appellant was afforded a fair trial"

Mr. Msonde submitted that the preliminary hearing was improperly

conducted by the trial court. He pointed out that this complaint was raised

before the High Court which agreed with the appellant that the procedure

under section 192 of the Criminal Procedure Act (CPA) was flouted

because nowhere was a memorandum of undisputed matters prepared.

This appeal faults the High Court's conclusion nullifying only the

proceedings of the preliminary hearing leaving the others intact. The

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learned advocate criticized the learned High Court Judge for not doing

what this Court did in Efraim Lutambi v. Republic [200] T.L.R. 65,

wherein the entire proceedings were held to be null. After all, argued the

learned counsel, the Judge was bound by that decision and should have

applied it.

Ms. Veronica Mtafya learned State Attorney who was being assisted

by Mr. Dominick Mushi also learned State Attorney representing the

respondent, cited another decision of the Court, that is, Jovin Daud v.

Republic, Criminal Appeal No. 481 of 2020 [2020] TZCA 97 (23 February,

2024) TANZLII for the principle that an improperly conducted preliminary

hearing does not vitiate the whole proceedings. She also distinguished

Efraim Lutambi (supra) from this case, pointing out that in the former

case, the conviction had resulted from matters that the appellant had

allegedly admitted during the improperly conducted preliminary hearing.

Regarding the fifth ground of appeal alleging that the appellant was

not given a fair trial, Mr. Msonde submitted that the appellant faced three

similar charges of statutory rape with different alleged victims. To the

learned counsel, it is an aspect of violation of the principle of fair trial that

all three cases were placed before the same magistrate, because the
evidence was invariably the same and the learned trial magistrate was

likely to be prejudiced. He supported his argument with the case of

Charles Mayunga @Chizi v. Republic, Criminal Appeal No. 493 of

2015 [2017] TZCA 132 (24 August, 2017) TANZLII. In response, Ms.

Mtafya submitted that there is no law that prohibits one magistrate to try

more than one case involving the same accused. She further submitted

that the appellant was given a fair trial because he understood the charge,

listened to prosecution witnesses testifying and cross-examined them,

and lastly, he mounted his defence. The learned State Attorney prayed

for the dismissal of the first and fifth grounds of appeal.

Mr. Msonde prayed that if we uphold him on the first ground, we

should order a retrial. We were taken aback by this line of argument

because a retrial would not, in our view, be in the best interests of the

appellant. However, for the reasons to follow shortly, we hold the first

and fifth grounds of appeal unmeritorious and dismiss them.

Preliminary Hearing is mostly meant to enable a trial magistrate

identify matters that are not in dispute so as not to call witnesses on those

facts, with the view of accelerating trial and reducing unnecessary costs.
This is what the learned Judge of the High Court correctly stated before

he dismissed that complaint.

We have consistently turned down invitations to nullify proceedings

simply because of errors in the conduct of preliminary hearing and we

stand by what we said in the case of Jovin Daud (supra). See also the

case of The Director of Public Prosecutions v. Lengai Ole Sabaya

& 2 Others, Criminal Appeal No. 231 of 2022 [2023] TZCA 17853 (17

November, 2023).

As for the issue of fair trial, we agree with Ms. Mtafya that the case

of Charles Mayunga (supra) is not relevant to the instant case. Whereas

in that case the appellant had requested the trial magistrate's recusal on

apprehension of bias, in this case, the appellant was asked by Hon. A. S.

Njau, RM who had taken over from Hon. J. C. Msafiri, RM upon his

transfer, whether he was comfortable to proceed, and the appellant opted

to proceed. In our view, unfairness of trial must be real as opposed to

imaginary. We agree with the learned High Court Judge who discussed

this issue at length cautioning against unsubstantiated fear of bias. In this

case, the appellant has not substantiated the complaint of unfair trial. This

ground of appeal is dismissed.

 Next for our consideration is the fourth ground of appeal alleging

that the two courts below did not consider the defence case. Mr. Msonde

faulted the trial court for making findings without considering the defence

case, and the High Court for abdicating its duty to conduct a rehearing.

He cited Abel Masikiti v. Republic, Criminal Appeal No. 24 of 2015

[2015] TZCA 219 (21 August, 2015) TANZLII.

Ms. Mtafya submitted that the trial court considered the evidence of

the appellant, referring us to pages 31 - 35 of the record.

In our view, it is one thing for the court to reject the defence which

courts do every other day, and it is quite another thing not to consider it.

In this case not only did the court pronounce itself on the appellant's

testimony denying the alleged rape, but made observations and findings

regarding DW3 who had stated that it was improbable for a person to

have carnal knowledge of three girls at a time. Whether the finding of the

court was wrong, is a different matter altogether, but it cannot be faulted

for not considering the defence case. We agree with Ms. Mtafya that the

defence case was considered and dismiss the fourth ground of appeal.

We shall now consider the second ground of appeal, whether the

case was proved beyond reasonable doubt which, we think, should have

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been argued last. Mr. Kasonde pointed out some discrepancies in the

testimonies of PW1, PW2 and PW5 and submitted that the offence was

not proved beyond reasonable doubt because of those doubts. He

elaborated by submitting, for instance, that the evidence is not clear as

to who informed PW2 about the rape; was it PW1 or Wema? The learned

advocate referred to another discrepancy, that is, the date and time of

the alleged rape, questioning that if it was on 8th September, 2019 as per

charge sheet and PW1, why did PW5 testify that when he examined PW1

on 8th September, 2019, 48 hours had lapsed from the time of the

intercourse?

In response, Ms. Mtafya underlined the principle that the best

evidence comes from the victim of sexual offence whose evidence in this

case was supported by PW2 and PW4, and that the appellant confessed

before them.

This matter has troubled us a bit so, we need to interrogate a few

aspects. In view of the tender age of PW1, we take the evidence of the

medical practitioner to be critical. Corollary to that, if we believe the doctor

that a blunt object penetrated into PW l's vagina, we must also take his

word that it occurred 48 hours before 8th September, 2019. We cannot,

in our view, choose to believe only one part of PW5's evidence and

disbelieve the other. As earlier intimated, we are also disturbed by the

locations. Where was the rape committed? Where did the victim go

immediately after it; was it at Mama Oscar's place or at a house in which

the appellant was, or still at Angumbwike's house.

There are no concurrent findings of the above facts by the two

courts below so we shall make our own findings. To begin with the medical

evidence, we are satisfied that by stating that rape took place 48 hours

prior to 8th September, 2019, it damaged the prosecution case a great

deal. The prosecution could have rectified any error in his testimony

during re-examination as suggested by Mr. Msonde in his submissions,

but did not. Secondly, the question that was posed by DW2 as to the

possibility of a girl of 4 years being able to walk immediately after the

rape, was not adequately addressed or at all. Then, it would appear that

the appellant raised an alibi that was supported by DW2. This piece of

evidence did not receive the attention it deserved.

All these are doubts which should have been addressed and

resolved in favour of the appellant. Therefore, we find merit in the second

ground of appeal, and hold that the offence was not proved beyond

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reasonable doubt. This suffices to dispose of the appeal and allow it. We

quash the conviction and set aside the sentence. We order the appellant's

release immediately if his continued incarceration is not for another lawful

cause.

DATED at MBEYA this 13th day of July, 2024

B. M. A. SEHEL
JUSTICE OF APPEAL

I. P. KITUSI
JUSTICE OF APPEAL

I. J. MAIGE
JUSTICE OF APPEAL

Judgment delivered this 15th day of July, 2024 in the presence of

the appellant in person and Mr. Yussuf Aboud, Senior State Attorney

assisted by Mr. George Ngwembe, learned State Attorney for the

Respondent/Republic, is hereby certified as a true copy of the original.

J. E. FOVO
EPUTY REGISTRAR
COURT OF APPEAL

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