George Maili Kemboge Vs Republic (Criminal Appeal 327 of 2013) 2014 TZCA 203 (30 October 2014)

IN THE COURT OF APPEAL OF TANZANIA
AT MWANZA
fCORAM: MSOFFE, J. A., ORIYO. J. A., And MMILLA, J. A. )
CRIMINAL APPEAL NO. 327 OF 2013
GEORGE MAI LI KEMBOGE............................................................ APPELLANT
VERSUS
THE REPUBLIC..........................................................................RESPONDENT
(Appeal from the decision of the High Court of Tanzania

at Mwanza)
(Bukuku, 3.^
dated 13th day of September, 2013

in
Criminal Appeal No. 85 of 2012
JUDGMENT OF THE COURT

28th & 30th October, 2014
ORIYO, 3.A.:
The appellant is seeking to challenge the conviction for Rape entered
against him by the District Court of Tarime District at Tarime and the
sentence of thirty (30) years imprisonment and twelve (12) strokes of the
cane imposed as a result. On his first appeal to the High Court, the trial
court decision was affirmed, hence this second appeal to this Court.
The brief uncontroverted facts that led to the conviction and
sentence of the appellant mainly came from the evidence of PW2, the
victim and PW1, her mother and subsequently corroborated by the

appellant, (DW1). PW2 was aged sixteen years, a class 5 student, residing
with her parents. Sometimes in February 2006, she disappeared from her
parents' home and her whereabouts were unknown for about two weeks.
Subsequently information reached PW1 that PW2 was staying at the house
of DW1, a village mate, as husband and wife. PW1 took the necessary
steps by collecting PW2 back home and notified the village chairman. The
matter was subsequently reported to the police and PW1 was referred to
hospital for medical examination.
In his defence, the appellant did not dispute the evidence of PW1
and PW2. In his brief evidence in chief, at page 4 of the record, he
stated
"I agree with the evidence o f the prosecution
witnesses, that I agreed with the girl that I would
marry her. We had agreed to meet on 14/2/2006
so that we could go to start life as wife and
husband. We had agreed to meet at 9:00 p.m. at
her home where I had to go for her. I went and
took her to my home where we started living as
2
wife and husband for two weeks. During this time
we had sexual intercourse too. That's ail".
At the hearing, the appellant was unrepresented, he appeared in
person. The respondent Republic was represented by Mr. Lameck
Merumba, learned State Attorney. The respondent Republic supported
both the conviction and sentence.
The appellant raised three (3) grounds of appeal in his memorandum
of appeal which may be summarized as follows:-
1. Absence of documentary proof (birth certificate) on the age of PW2.
2. Failure to establish lack of parental consent from PW1.
3. Failure to determine the case on merit after evaluation of the entire
evidence on record.
Understandably, the appellant, being a layman preferred the learned
State Attorney to make submissions first while he reserved his right of
reply thereafter, if necessary. The respondent Republic supported the
conviction and sentence imposed on the appellant. Mr. Merumba,
submitted that the uncontroverted age of PW2 was sixteen years, in terms
of the testimonies of PW1 and PW2 and of the one part and that of DW1 of
the other part, in his evidence in chief. He stated that it is apparent from
the record that DW1 was in agreement and was satisfied that the age of
PW2 was sixteen years, as he neither objected nor cross-examined PW1
and PW2 on that aspect. He further submitted that failure to cross-
examine on a fact, that fact is taken as true. He referred to the case of
Damian Ruhele v R Criminal Appeal No. 501 of 2007 (unreported) in
support.
Concerning the age of PW2, we agree with the learned State
Attorney that she was sixteen years old at the time of commission of the
offence as testified by PW1, PW2 and corroborated by the testimony of
DW1 in defence. The legal position on failure to cross-examine, is as was
stated by the Court in the case of Damian Ruhele {supra), where the
Court observed:-
"It is trite iaw that failure to cross-examine a
witness on an important matter ordinarily implies
the acceptance o f the truth o f the witness
evidence."
See also this Court's decision in Athanas Kibogoyo v R Criminal Appeal
No. 88 of 1992 (unreported).

In the present case, at the trial, as already stated, DW1 agreed in his
evidence in chief that PW2 was sixteen years of age. On cross-
examination by the prosecutor, however, he shifted his earlier stand and
stated that PW2 informed him that she was eighteen (18) years old.
However, the legal position is that as it was stated by the Court in the case
of Salu Sosoma vs R Criminal Appeal No. 32 of 2006 (unreported), where
the father of the victim had testified as to the victim's age and the Court
observed
"...the evidence o f Marko Luboia, PW2, the father o f
the victim, was cogent to ground a conviction.
...That evidence was not challenged. We are
mindful o f the fact that a parent is better
positioned to know the age of his child.
(Emphasis ours.)
In our view, be that as it may, once it was established that PW2 was
sixteen years of age, this was statutory rape and the provisions of section
130 of the Penal Code, Cap 16, R.E 2002, as amended by section 5 of the
5
(Sexual Offences) Special Provisions Act, (SOSPA), were rightly invoked by
the trial court.
As for grounds 2 and 3 of appeal, the learned State attorney
submitted that since they raise issues not raised and decided by the first
appellate court, this Court has no jurisdiction to determine them. He
referred us to the case of Sadick Marwa Kisase v R Criminal Appeal No.
83 of 2012 (unreported) where this Court stated:-
"The Court has repeatedly held that matters not
raised in the first appeal court cannot be raised in a
second appellate court."
Further, relying on the Court's earlier decision in the case of Ramadhani
Mohamed v R Criminal Appeal No. 112 of 2006 (unreported) it was held:-
"We take it to be settled law, which we are not
inclined to depart from, that this Court will only look
into matters which came up in the lower court and
were decided; not on matters which were not raised
nor decided by neither the trial court nor the High
Court on appeal."
See also Richard Mgaya @ Sikubali Mgaya v R Criminal Appeal No. 335
of 2008 (unreported).
In the event and on the basis of the settled legal position
demonstrated by the Court, grounds 2 and 3 having been raised for the
first time in a second appeal are not legally before us for determination and
therefore lack merit.
In conclusion, this appeal fails in its entirety. We dismiss it. The
appellant is to continue serving the sentence of thirty (30) years
imprisonment with twelve strokes of the cane as imposed by the trial court.
DATED at MWANZA this 30th day of October, 2014.
J. H. MSOFFE
JUSTICE OF APPEAL
K. K. ORIYO
JUSTICE OF APPEAL
B. M. MMILLA
JUSTICE OF APPEAL
I certify that this is a true copy of the oriqinal.

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IN THE COURT OF APPEAL OF TANZANIA

fCORAM: MSOFFE, J. A., ORIYO. J. A., And MMILLA, J. A. )

CRIMINAL APPEAL NO. 327 OF 2013

GEORGE MAI LI KEMBOGE............................................................ APPELLANT

(Appeal from the decision of the High Court of Tanzania

dated 13th day of September, 2013

JUDGMENT OF THE COURT

The appellant is seeking to challenge the conviction for Rape entered

The brief uncontroverted facts that led to the conviction and

victim and PW1, her mother and subsequently corroborated by the

hospital for medical examination.

and PW2. In his brief evidence in chief, at page 4 of the record, he

"I agree with the evidence o f the prosecution

witnesses, that I agreed with the girl that I would

marry her. We had agreed to meet on 14/2/2006

so that we could go to start life as wife and

husband. We had agreed to meet at 9:00 p.m. at

her home where I had to go for her. I went and

took her to my home where we started living as

we had sexual intercourse too. That's ail".

At the hearing, the appellant was unrepresented, he appeared in

person. The respondent Republic was represented by Mr. Lameck

Merumba, learned State Attorney. The respondent Republic supported

both the conviction and sentence.

The appellant raised three (3) grounds of appeal in his memorandum

of appeal which may be summarized as follows:-

1. Absence of documentary proof (birth certificate) on the age of PW2.

2. Failure to establish lack of parental consent from PW1.

3. Failure to determine the case on merit after evaluation of the entire

Understandably, the appellant, being a layman preferred the learned

State Attorney to make submissions first while he reserved his right of

reply thereafter, if necessary. The respondent Republic supported the

conviction and sentence imposed on the appellant. Mr. Merumba,

PW2 was sixteen years, as he neither objected nor cross-examined PW1

and PW2 on that aspect. He further submitted that failure to cross-

examine on a fact, that fact is taken as true. He referred to the case of

Damian Ruhele v R Criminal Appeal No. 501 of 2007 (unreported) in

Concerning the age of PW2, we agree with the learned State

offence as testified by PW1, PW2 and corroborated by the testimony of

DW1 in defence. The legal position on failure to cross-examine, is as was

"It is trite iaw that failure to cross-examine a

witness on an important matter ordinarily implies

the acceptance o f the truth o f the witness

See also this Court's decision in Athanas Kibogoyo v R Criminal Appeal

No. 88 of 1992 (unreported).

evidence in chief that PW2 was sixteen years of age. On cross-

examination by the prosecutor, however, he shifted his earlier stand and

of Salu Sosoma vs R Criminal Appeal No. 32 of 2006 (unreported), where

"...the evidence o f Marko Luboia, PW2, the father o f

the victim, was cogent to ground a conviction.

...That evidence was not challenged. We are

mindful o f the fact that a parent is better

positioned to know the age of his child.

the trial court.

As for grounds 2 and 3 of appeal, the learned State attorney

appellate court, this Court has no jurisdiction to determine them. He

referred us to the case of Sadick Marwa Kisase v R Criminal Appeal No.

83 of 2012 (unreported) where this Court stated:-

"The Court has repeatedly held that matters not