Elly Msalilwa vs Republic (Criminal Appeal No. 265 of 2021) [2023] TZCA 17991 (14 December 2023)

Elly Msalilwa, the appellant, was charged with an unnatural offence contrary to section 154 (1) of the Penal Code in the District Court of Mufindi at Mafinga. The prosecution alleged that on 24th August 2014, the appellant had sex against the order of nature with a 17-year-old boy, referred to as 'EM' or 'PW2'. The appellant was convicted and sentenced to life imprisonment. His appeal to the High Court was dismissed, leading to a second appeal.

The prosecution's case was built on the testimonies of five witnesses, including the victim, a teacher who was informed of the incident, a police officer who investigated the matter, a medical doctor who examined the victim, and another witness who supported the teacher's narration. The appellant, in his defense, denied the charges and claimed he was tortured into confessing the crime.

The trial court found the victim to be a reliable witness and corroborated his evidence with the appellant's written confession and cautioned statement. The appellant's defense was rejected as lies, and he was convicted and sentenced to life imprisonment. The appellant appealed to the High Court, but his appeal was rejected.

In his second appeal to the Court of Appeal, the appellant raised six grounds of appeal. However, the court found that not all the grounds of appeal were considered by the first appellate court. The court agreed with the appellant and the respondent's attorney that the first appellate court erred by not considering all grounds of appeal. As a result, the Court of Appeal invoked its revisional powers under section 4(2) of the Appellate Jurisdiction Act, Cap. 141 (the AJA), to nullify the proceedings and judgment of the first appellate Court and remit the case file to the High Court for rehearing.