Charles Andondile Mwamsiku Vs Republic (Criminal Appeal No 142 of 2021) 2024 TZCA 566 (16 July 2024)
Charles Andondile Mwamsiku Vs Republic (Criminal Appeal No 142 of 2021) 2024 TZCA 566 (16 July 2024)
Charles Andondile Mwamsiku Vs Republic (Criminal Appeal No 142 of 2021) 2024 TZCA 566 (16 July 2024)
AT MBEYA
VERSUS
THE REPUBLIC..........................................................................RESPONDENT
at Mbeya)
(Mwakatobe, Ext. Jur.)
ISMAIL, J.A.;
(PW1), his accuser, in a trial, the conclusion of which found him guilty and
ordered to spend the rest of his life in prison. At trial, the appellant was
accused of incest by males, contrary to the provisions of section 158 (1) (a)
of the Penal Code. The allegation is that the offence was alleged to have
been committed between the year 2015 and December, 2017 at Ndembela
village within Rungwe District in Mbeya Region. The sex indulgence was
against the appellant's own daughter who, at the time of testifying in court,
arraigned and tried convicted and sentenced him to life imprisonment. His
attempt to reverse the decision fell through when the Court of Resident
Brief facts of the case are gathered from the record of appeal which
informs that, between 2015 and 2018, the victim was living with the
Mbeya City, courtesy of her aunt, who decided to stay with her after she
realized that the victim was not getting the best attention at her family home.
While in Mbeya, PW1 was enrolled at Ikulu Primary School where she also
to speak out and learn to understand and overcome problems that stifle their
alleged to have broken silence, when she chose to narrate her ordeal to
PW4. It is then, that she informed PW4 that the appellant had molested her.
PW1 alleged that the appellant would sneak into PWl's shared room, pick
her up to his bedroom or, in some cases, to the kitchen, where he would
take down his clothes, undress PW1 and have carnal knowledge of her. This
persisted for about three years. At some point in the difficult spell, PW1
shared her tribulations with her sister, ABC, the latter of whom said that she
was also a victim of appellant's animalistic behaviour. PW1 said that she
carried this pain for all the years, not to divulge to anyone else for fear of
reprisal, alleging that the appellant was a cruel person who was capable of
anything.
welfare office. The latter brought it to the attention of DCpl. Geoffrey, PW2,
the case that saw the appellant plead not guilty to the charge. Seven
witnesses testified during trial, four for the prosecution and three for the
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defence. Besides the victim herself and the police investigator, there was
Health Centre who examined PW1. His observation was that the victim's
genitalia lost its virginity while her anus had loose sphincter muscles, an
indication that she had had both vaginal and anal sex. This was included in
the alleged wrong doing. His defence, though, counted for nothing as the
trial magistrate found that it was of a measle effect to the prosecution's case.
In the end, the learned trial magistrate found that the prosecution had done
the trial court's findings. The appellant's nine-point petition of appeal did
nothing to convince her that the trial court's reasoning was erroneous. In
the end, the appeal was dismissed in its entirety. The appellant did not
appellant just before the hearing kicked off. For reasons that will be clear in
the course of this judgment, we shall not reproduce the grounds of appeal.
Hearing of the appeal pitted the appellant, who fended for himself,
Attorney who was assisted by Mr. Davis Msanga, learned State Attorney.
When invited to address the Court on the appeal, the appellant implored the
Court to let the respondent's counsel fire the first shot while reserving his
Ms. Kasambala began with what has become the familiar preambular
statement among the state counsel to the effect that she did not support the
appeal. She, instead, informed the Court that she supported the concurrent
findings of the lower courts that held the appellant liable for the offence he
was charged with. Midway through her submission, and after probing by the
Court, she made a dramatic change of stance. She supported the appeal and
did do by punching a few holes in the concurrent findings of the lower courts.
Ms. Kasambala premised her new position on what she considered to
be credibility issues that marred the prosecution's case. She argued that, the
case for the prosecution was built on the testimony of PW1, the prosecutrix,
and corroborated by the testimony of PW3, the clinical officer who examined
her, and PW4, the person PW1 shared her story with. Whereas PW3 testified
that her medical examination revealed that PW1 was also carnally known
against the order of nature, PW1, the victim herself, was inclined to secrecy
or reticent about a more gruesome of the sexual abuses i.e. sodomy. The
learned Senior State Attorney submitted that, given the variance in the
testimony between PW1 and PW3, and on the strength of the defence
guilt was predicated, was suspect and that the benefit of the highlighted
The other loose link in PWl's factual account that drew Ms.
Kasambala's criticism was the contention by PW1 that the appellant used to
take her from the bedroom that she shared with her siblings without their
knowledge, and that during the sexual act, there was a torch that lit the
room and enabled her to identify the appellant. Ms. Kasambala's submission
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is that there was no clarity on where the sexual act happened and who held
that, apart from PWl's bare assertion that she was scared of the appellant,
there was no indication in the testimony that the appellant issued any threats
that would justify the victim's buttoned-up style which she maintained for
three years. There was also, in the learned counsel's contention, a cloud of
uncertainty on the reason for PWl's relocation to Mbeya and the timing of
was laden with irreconcilable shortfalls that justify allowing the appeal.
are called upon to address is whether guilt of the appellant was proved.
and large, built on what the two lower courts considered to be a credible
atrocious acts. This is the testimony that swayed the concurrent findings of
guilt made by the two lower courts. Ostensibly, this testimony proved all the
ingredients of the offence as provided for under section 158 (1) (a) of the
Penal Code, as PW1 proved that she was a daughter of the appellant, that
she was carnally known by the appellant and that, with respect to the
position of the law, a household principle in our view, that, the testimony of
a victim of the sexual acts may be relied upon to ground a conviction without
any need for corroboration, provided that the credibility of such evidence
has been assessed and found to be foolproof. This is the import of section
127 (6) of the Evidence Act. We are not abstracted, either, that matters
relating to demeanor of the witness are the preserve of the trial court. This
testifies. The second appellate court, that this Court is, can move in and re
evaluate the credibility of the witness and make its own conclusion. This is
done in the course of examining the findings of the appellate court - see;
is whether PWl's testimony carries with it the level of credibility and weight
stated in the just cited decisions. Ms. Kasambala is not convinced that it
T.L.R. 379, and Goodluck Kyando v. Republic [2006] T.L.R. 367. While
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serious exception to what we consider to be an abhorrent obsession by some
forgetting that the appellant and the rest of what constitutes the defence
witnesses are witnesses who must also be entitled to credence, and that
they too are entitled to belief. In the case of Seiemani Makumba (supra),
the victim's factual account and his credibility being nothing short of
done by the lower courts, is bred out of the question as to whether PWl's
testimony was credible. Ms. Kasambala has answered this question in the
will serve to cement our view. One, levelling allegations that she was raped
while omitting that a graver abuse of being carnally known against the order
of nature, the fact which was testified on by PW3. Two, a disproportionately
large time lapse in having the matter reported to law enforcement agencies
or to any person who would help in bringing the appellant to account. As Ms.
Kasambala argued, the victim's lethargic conduct was not caused by any
threats of reprisal as the appellant issued none to her. This conduct is not
without adverse consequence as the settled position is that such delay has
& 4 Others v. Republic, Criminal Appeal No. 172 of 2022 [2023] TZCA
Jaribu Abdallah v. Republic, Criminal Appeal No. 220 of 1994 and Marwa
Wangiti & Another v. Republic [2002] T.L.R. 39, and held as follows:
We are afraid, this is what has become of the PWl's testimony. Her
deafening silence that has lasted for a whopping three years casts a serious
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whirlwind of doubts that we can hardly cast a blind eye on. It takes a toll on
cast serious doubts about the credibility of the prosecution's case. This is
are doubts which are heightened by the potency of the defence testimony
and Ms. Kasambala has refused to go along with, and we think she is justified
in her decision.
victim's sibling, Ivon, who is also alleged to have suffered the brunt of the
the familiar script, coined around section 143 of the Evidence Act, that no
section 143 is, our aspersions are cast on the application of it by the
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take the view that Ivon's day in Court would assist the trial in confirming or
dispelling the contention that the appellant was a sex pest who had turned
against his own girls. It would also quash the contention by the appellant
who stated in his testimony that Ivon, along with other children, denied that
they were carnally known by the appellant. We hold that the unexplained
We also have a small matter regarding the manner in which the learned
was, in our view, formidable and asked a few questions on the solidity and
scrutiny which would justify her finding. With respect, the fleeting treatment
family squabbles between the appellant and his in laws the latter of whom
were alleged to have accused the appellant of superstitiously killing his wives
was a step out of the ordinary and unfortunate. The overlooked testimony
(DW2), the hamlet chair (DW3), and the neighbour (DW4). The totality of
this testimony is what convinced the trial court and hold that the allegation
of molesting the appellant's other children was untrue, hence the decision to
re-admit the appellant to bail. We firmly believe that had this defence
same possessed what it takes to raise serious doubts in the prosecution case.
Our disquiet resides in the general attitude exhibited in the course of the
play second fiddle to the extraneous matters. In what was markedly an act
of denial of the appellant's right to be heard, the learned trial magistrate
went far overboard and issued unsolicited orders that were so confounding,
by cancelling the appellant's bail after hearing the victim's (PW4) evidence,
indulgence. As if that was not grave enough, after conviction, passage of the
sentence and explanation of the parties' right of appeal, the learned trial
understand in whose interest was this order, or the purpose that it intended
to achieve. Astonishingly, this order passed unscathed when the 1st appellate
court determined the appeal. While we are not oblivious of the fact that this
order dies with the reversal of the impugned decision, we thought we should
In the upshot of all this, we find that the appellant has presented a
credible case that supports the appeal and bring merit to it, and we allow it.
Consequently, we quash the conviction, set aside the sentence and the
subsequent order made thereof. We further make an order that the appellant
be immediately set free unless held for some other lawful cause.
B. M. A. SEHEL
JUSTICE OF APPEAL
I. P. KITUSI
JUSTICE OF APPEAL
M. K. ISMAIL
JUSTICE OF APPEAL
Judgment delivered this 16th day of July, 2024 in the presence of the
Appellant in person and Ms. Prosista Paul, Senior State Attorney for the