Kanaku Kidari vs Republic (Criminal Appeal 326 of 2021) [2023] TZCA 223 (4 May 2023)

Case summary

This is a criminal appeal in the Court of Appeal of Tanzania at Dodoma. The appellant, Kanaku Kidari, was appealing against a decision made by the Court of Resident Magistrate of Dodoma Extended Jurisdiction, which had dismissed his initial appeal against a decision made by the District Court of Kondoa.

Kidari was charged with the offence of incest by males, contrary to section 158 (1) (a) of the Penal Code [CAP 16 R.E. 2019]. The particulars of the offence were that on 13th June, 2020, Kidari had sexual intercourse with his 13-year-old sister, referred to as 'FK' to protect her identity. Kidari denied the charge but was convicted and sentenced to thirty years imprisonment.

The prosecution's case was built on the evidence of seven witnesses and one documentary exhibit. The key facts were that Kidari and the victim were siblings sharing a father but different mothers. On the day of the incident, Kidari forced the victim into the bush and had sexual intercourse with her. The victim reported the incident to her grandmother, who found blood in her vagina. The incident was reported to the police and the victim was examined by a doctor who confirmed that there was penetration.

Kidari's defence was that he was at his aunt's home on the day of the incident and that the allegations were framed due to a land dispute between him and the victim's mother. The court found that the prosecution's case was proved beyond reasonable doubt and dismissed Kidari's appeal.

The court discussed several points of law, including the requirement for the prosecution to prove the particulars of the offence, the credibility of family members as witnesses, and the need for the victim's evidence in a sexual offence to be corroborated. The court found no error in law. The court's reasons for dismissing the appeal included the credibility of the victim's evidence, the corroboration of her evidence by other witnesses, and the lack of a credible defence from Kidari.

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