Denis Joseph @ Saa Moja vs Republic (Criminal Appeal No. 121 of 2021) [2023] TZCA 104 (13 March 2023)

In the case of Denis Joseph @ Saa Moja versus The Republic, the appellant, Denis Joseph, was charged with the offences of rape and unnatural offence, contrary to sections 130 (1) (2) (e) and 131 (1), and section 154 (1) (a) of the Penal Code [CAP 16 R.E. 2002] respectively. The offences were committed against a minor, a ten-year-old girl referred to as 'DKM' for her protection.

The appellant appealed against his conviction and sentence by the District Court of Mkuranga, which was upheld by the High Court of Tanzania. The appellant then approached the Court of Appeal, raising four main issues: the charge was not proved beyond reasonable doubt; the particulars of the offence were at variance with the evidence of PW2; the trial court contravened the provisions of section 234 (2) of the Criminal Procedure Act following substitution of the charge; and the prosecution evidence was contradictory.

The Court of Appeal found no merit in the appellant's grounds of appeal. It held that the prosecution had proved its case beyond reasonable doubt, with the victim's testimony being corroborated by medical evidence. The court also found no variance between the particulars of the offence and the evidence of PW2, and no significant contradictions in the prosecution's evidence.

Regarding the appellant's claim that the trial court contravened section 234 (2) of the Criminal Procedure Act, the Court of Appeal found that while the trial court did not fully address the appellant's right to recall witnesses after the charge was substituted, this omission did not prejudice the appellant and thus did not constitute a misapplication of the law.

However, the Court of Appeal did find an error in the sentence meted out for the second count of unnatural offence. According to section 154 (2) of the Penal Code, the appellant should have been sentenced to life imprisonment, given that the victim was under eighteen years of age. The court therefore revised the sentence from thirty years to life imprisonment.