Omary Rashid @ Milanzi vs Republic (Criminal Appeal 298 of 2021) [2023] TZCA 167 (31 March 2023)

The case in question is a criminal appeal involving Omary Rashid @ Milanzi, the appellant, and The Republic, the respondent. The appellant was charged with two counts: rape, contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, and impregnating a school girl, contrary to a non-existent section 60 (1) K of the Education (Imposition of Penalties to a Person who Marry or Impregnate a School Girl) as published in Government Notice No. 265 of 2004 (sic, the correct year is 2003) made under the Education Act, No. 25/1978. The victim was a 15-year-old schoolgirl.

The main facts of the case revolve around the appellant's sexual encounters with the underage victim, which resulted in her pregnancy. The appellant was found guilty on both counts and sentenced to thirty years imprisonment on each count, to run concurrently. The appellant appealed to the High Court, but his appeal was unsuccessful, leading to this second appeal.

The main issues discussed in the case were the proof of the victim's age, the proof of penetration, and the identification of the appellant as the perpetrator. The court also discussed the irregularities in the trial court's decision, particularly the charge under a non-existent law.

The Court of Appeal found that the age of the victim was sufficiently proved by the doctor who examined her. The court also found that the victim's testimony, along with the DNA test results, sufficiently proved penetration and identified the appellant as the perpetrator.

However, the court found an error in law in the second count. The appellant was charged under a non-existent law, which contravened section 135 (1) of the Criminal Procedure Act. This was deemed a fatal irregularity, leading to the quashing of the conviction and setting aside the sentence on the second count.