IN THE COURTOF APPEALOF TANZANIA

ATIRINGA

(CORAM: MUNUO, l.A., LUANDA, l.A., And MlASIRI, l.A.)

CRIMINAL APPEALNO. 294 OF 2009

(Appeal from the decision of the High Court of Tanzania

at Songea)

dated the 31st day of May, 2000

in
Criminal Appeal No. 16 of 2000

JUDGMENT OF THE COURT

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In the District Court of Songea District, the appellant, George

Ndumbaro was charged with the offence of burglary contrary to section

294 (1) (2) and the offence of rape contrary to section 130 (1) (2) (a) of

the Penal Code Cap 16, R.E. 2002 as amended by the Sexual Offences

Special Provisions Act (Act NO.4 of 1998) and was sentenced to a term of
30 years imprisonment and twelve (12) strokes and an order for

compensation on the offence of rape. He was found not gUilty of the

offence of burglary. Being aggrieved with the decision of the District Court,

the Appellant appealed to the High Court against both conviction and

sentence. The appellant's appeal was not successful. His appeal was

summarily rejected by Mackanja, J, under the provisions of section 364 (1)

(c) of the Criminal ProcedureAct 1985, hence this second appeal.

The appellant listed six (6) grounds of appeal in his memorandum

of appeal. In our view, grounds one (1) and two (2) raise important legal

issues.The said grounds are summarized as follows:-

1. The High Court Judge erred in law in relying on

the evidence of PW1.

2. The learned High Court Judge erred in law

when he summarily rejected the appeal without
taking into consideration the evidence on
record.

The remaining grounds of appeal were to the effect that there was no

sufficient evidence to ground his conviction and that the prosecution

eVidence, taken as a whole, did not prove the case against him beyond

reasonable doubt.

At the hearing of the appeal the appellant appeared in person and

was unrepresented. The Republic was represented by Mr. Josephat

Mkizungo, learned State Attorney.

The background to this case is as under: PW1 Mary Mhagama, the

complainant in this case filed a complaint to the police that she was raped

by the appellant. On the material date at around 01:00 hours while she

was asleep someone broke into her dwelling house, flung the door open,

forced himself upon her, and raped her. She raised an alarm and PW2,

Memirot Banda, her neighbor responded. She testified that it was the

appellant who did it. She claimed to have recognized him as he was her

neighbour and used to visit her grandson. PW1 stated that she was able to

identify him through the light of fire burning in her house and also the

moonlight outside. PW2 testified that upon responding to the alarm, he

found the appellant lying down a few paces outside her house at her

banana plantation. He saw the appellant running away. He was able to

identify him becausethere was moonlight and he also knew the appellant.
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 In his defence, the appellant denied any involvement in the alleged

rape of PW1.

The appellant adopted his memorandum of appeal as part of his

submission and had little to add by way of elaboration. Mr. Mkizungo did

not support the conviction of the appellant. He submitted that the

prosecution did not prove the case against the appellant beyond

reasonable doubt. He stated further that the only evidence against the

appellant was that of PWl and PW2. There were inconsistencies in their

evidence. Whereas PWl stated that the incident took place indoors, PW2

testified that he found PWl lying outside the house in her banana

plantation and he saw the appellant running away from the scene. Both

relied on the moonlight, however the intensity of the light was not

defined. PWl also relied on the light from the fire burning in her house but

the intensity of the said light was not given.

The crucial issue to be determined is whether or not PWl was raped

and whether or not it was the appellant who committed the rape. The only

evidence linking the appellant with the offence is that of PWl and PW2.
The trial Court did not address itself on the issue of identification. The

incident took place at night and the intensity and the source of light was

questionable. In our view PW1 and PW2's identification of the appellant

was not clear cut given the sequence of events and the source of light.

Hence the conditions laid down in Waziri Amani v Republic[1995] TLR

250 were not met. See also Raymond Francis v Republic [1994]TLR

100.

There were also inconsistenciesand contradictions in the evidence of

PW1 and PW2 which was not taken into account. We are inclined to agree

with the submissions made by the learned State Attorney that the

inconsistencies and contradictions of the prosecution witnesses, PW1 and

PW2, left questions unanswered, thus creating doubts as to whether the

prosecution side proved its case beyond reasonabledoubt. See Mohamed

Said Matula v R(1995) TLR 3 and John Gilikola v Republic, Criminal

Appeal No. 31 of 1999 CA (unreported). We think that those lingering

doubts in the prosecution case should have been resolved in favour of the

appellant.
 On appeal to the High Court, the learned High Court Judge summarily

rejected the appellant's appeal. The appellant complained bitterly against

the summary rejection lamenting that the High Court Judge did not give

any reasons for doing so. Given the evidence on record we are of the

view that the said complaint was justified, as the High Court did not

properly exercise the said powers. The High Court should have examined,

analysed and decided the case upon the issues raised. The appellant is

charged with rape which is a serious offence and which carries a stiff

penalty of 30 years imprisonment.

In the case of Idd Kondo v. Republic, Criminal Appeal No. 46

of 1998 (unreported), this Court considered the applicability of Section

364 (1) (c) of the Criminal Procedure Act, 1985 and came to the conclusion

that the powers under this section have to be exercised sparingly and with

great circumspection. It was stated thus :-

"1. The Section does not require reasons to be given when dismissing
an appeal summarily. However, it is highly desirable to do so.
 2. It is imperative that before invoking the powers of
summary dismissal a Judge or a Magistrate should read
thoroughly the record of appeal and the memorandum of
appeal and should indicate that he/she has done so in the
order summarily dismissing the appeal.

3. An appeal may only be summarily dismissed if the grounds

are that the conviction is against the weight of evidence or
that the sentence is excessive.

4. Where important or complicated questions of fact and/or

law are involved or where the sentence is severe the court
should not summarily dismiss an appeal but should hear it

5. Where there is a ground of appeal which does not

challenge the weight of evidence or allege that the
sentence is excessive, the court should not summarily
dismiss the appeal but should hear it even if that ground
appears to have little merit'~

See Karioki 5/0 Gachohi v. R. (1950) 17 EACA 141; Lighton 5/0

Mundeke5ye v. R. (1951) EACA 309 and Mulakh Raj Mahan v. R.

(1954) 21 EACA383.

We have no doubts in our minds that in this particular appeal, the

order for summary rejection was not justified. If the learned Judge had

carefully read the record of the proceedings as he should have done, he

7
would have given the opportunity to the appellant to be heard on merit.

The appropriate action for us to take would be to quash and set aside the

decision of the High Court and to have the matter remitted to the High

Court to hear the appeal on merit. However in the light of the decision of

this Court in Idd Kondo (supra) we deem it proper to finalise the appeal

in order to avoid miscarriage of justice. See Amani Mwangunule v

Republic, Criminal Appeal No. 26 of 2004 CA (unreported). In the light of

the eVidence on record, the appellant ought not to have been convicted

and the appeal ought to have been allowed. For the foregoing reasons, we

hold that the Appellant's conviction was not proper.

In the event, and in the exercise of our revisional jurisdiction under

Section 4 (2) of the Appellate Jurisdiction Act, 1979, we accordingly allow

the appeal, quash the conviction, set aside the sentence. We order the

appellant's immediate release from prison unless he has been otherwise

lawfully detained. It is so ordered.

DATED at IRINGA this 22nd day of June, 2011.

 E. N. MUNUO
JUSTICE OF APPEAL

B. M. LUANDA
JUSTICE OF APPEAL

S. MJASIRI
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

C:_--..L~ ..

J.S. MGETIA
DEPUTY REGISTRAR
COURT OF APPEAL