Jumanne Mzanje vs The Republic, Criminal appeal No 601 of 2021

THIS CASE WAS RAISED AN ISSUE ON WHETHER PENETRATION IS INGRIDIENTS FOR RAPE??? Ms. Gwaltu couid not let Mr. Haule’s attack on the Extra-Judicial statement  (exhibit PE3) go unchallenged. As for it not being a confession, she argued that  the words that “niiikuwa sijamalizd that is V was yet to finish it upf connoted  that the appellant had penetrated the victim although he was yet to quinch his  sexual desire. She insisted that, in law, penetration however slight, is sufficient  penetration referring to the case of Tabu Sita vs Republic, Criminal Appeal 

No. 297 of 2019 (unreported). 

For the second limb, she took the Court to page 48 which was exhibit PE3 and tried to relate it with the Chief Justice’s Guidelines 

as listed down at pages 16 and 17 of the copy of the Court’s decision in the case 

of Tabu Sita vs Republic (supra) in which she said, Guideline (iv) is complied  with in paragraph 5 of the extra-judicial statement, Guideline No. (v) and (vi) are complied with in paragraphs 5 and 8 of the exhibit PE3. In her view, all the  Guidelines were abided to by PW5 in recording exhibit PE3.

Rejoining, Mr Haule, first, reiterated his earlier submissions. He then  insisted that THE VICTIM’ who testified as PW2 is an unknown person. He also argued that PW1 is not reliable because he did not post noticing sperms in the PF3 (exhibit PEI) as he claimed when testifying. As for the victim’s evidence, he urged the Court not to take the same as gospel truth but should be examined properly by the Court. He, lastly, maintained his stance on the invalidity of the 

extra-judicial statement (exhibit PE3) for want of compliance with all the Chief justice’s guidelines.

In view of the arguments by Mr. Haule that the true victim of the incident (XY) did not testify, we find this to be a crucial issue calling for our determination before embarking on the determination of other grounds of appeal. Mr. Haule and Ms Gwaltu differed on who ‘THE VICTIM’ was. The record is vivid that PW2 was referred to as ‘THE VICTIM’. Mr. Haule contended that such witness is an unknown person and did not refer to the victim referred to in the charge and if she is the one, then there was variance between the charge and evidence in 

respect of the name of the victim of rape, while Ms. Gwaltu maintained that she 

was the one and no variance existed. 

We think Mr. Haule’s contention has no 

merit. As was rightly argued by Ms. Gwaltu there was no mention of any other victim throughout the proceedings and judgments of both the trial court an even the first appellate court. Both courts entertained no doubt on who was the victim in the instant case other than Salome Shauri @ Magumbila. We entirely agree with her.

 The charge indicated that the victim was 15 years and rape was committed at Muhanza street in Lamaiti village on 19/9/2020 and PW2 who testified as THE VICTIM’ explained that she was 15 years on 7/10/2020 and a 

student at Lamaiti. PW3 who said was the biological mother of the XY gave similar evidence. That meant PW3 was referring to PW2 or ‘THE VICTIM’ Like the learned State Attorney, we are of the firm view that by writing PW2 as THE VICTIM’, the trial magistrate referred to no other person other than the victim named in the charge, that is XY.

Court had this to say:

We have, with sober minds, examined the evidence on record. PW2 was unequivocal that the appellant met her in the bush while looking for firewood and the appellant looking for a goat, grabbed her, fell her down and raped her by penetrating his penis into her vagina causing her suffer pains. To exhibit her 

reliability, she instantly reported the matter to PW3, her mother and other steps were taken including being taken to hospital where she was examined by PW1. 

Her evidence was consistent, truthful, credible and strong. PW1 supported 

PW2’s evidence that he noticed sperms in her genital parts signifying being 

penetrated. Consistent with the Court’s holding in the case of Selemani

Makumba v. Republic (supra), that true evidence of rape has to come from 

the victim, as properly submitted by Ms. Gwaltu, the prosecution evidence 

established beyond certainty that PW2 was raped and the appellant is the 

person who molested her as was charged and we agree with her that the two 

courts bellow correctly held so. 

The evidence is not only consistent but also coherent. We therefore see no justification to interfere with the findings of the lower courts. This complaint also fails.

For the foregoing reasons, the appeal against conviction fails. The appeal 

against sentence succeeds and we quash and set it aside. For a reason stated 

above, we order his immediate release from prison.