Court name
Court of Appeal of Tanzania

Rashid S Kaniki vs Republic () [1993] TZCA 30 (08 November 1993);

Law report citations
1993 TLR 258 (TZCA)
Media neutral citation
[1993] TZCA 30

G Lubuva, J.A., delivered the following considered judgment of the Court:
Before the High Court of Tanzania, at Moshi, (N M Mushi J) the appellant was convicted of the offence of defilement of a girl below the age of fourteen years contrary to s 136(1) of the Penal Code. H He was sentenced to ten years imprisonment. Initially, the appellant was charged with the offence of incest by male contrary to s 158(1) of the Penal code as a first count and the charge of defilement contrary to s 136(1) of the Penal Code in the alternative. At the end of the trial, the appellant was I convicted of the offence of

defiling a girl under the age of fourteen years. He has now appealed to this Court against the A sentence of ten years of imprisonment.
The facts are brief but unpalatable and are, on the whole undisputed. The incident took place on 21 April 1988 at a place called Shanty Town within the outskirts of the Municipality of Moshi. The victim of this unsavoury episode is one Mwamvita d/o Rashidi (PW4) who was at the time of the incident B nine years of age. At the time of the trial (1991) she had reached the age of thirteen years. In 1976, the appellant got married to Asia Zuberi (PW2). In 1978 he (appellant) again started living with Christina Sarwat (PW1) in a separate house from that of Asia Zuberi (PW2) (not a legal marriage). C By that time, Christina Sarwart had a child of her own with another person. This is the victim of this ugly sexual incident, Mwamvita Rashidi (PW4). The appellant was therefore a foster father to Mwamvia (PW4) who was staying with her grandmother, the mother of appellant in the said area of Shanty Town in Moshi. On the day of incident (21 April 1988) the appellant upon visiting his mother's D house, found Mwamvita in the company of two other children - Edward (PW3) and Rashidi who was not called in at the trial to give evidence. The appellant instructed Edward (PW3) and the other child Rashidi to go out of the house to attend to some shamba work nearby. Mwamvita Rashidi was therefore left behind alone with the appellant to clean up the servant's quarters. It was during this E time that the appellant sexually assaulted Mwamvita Rashidi. Edward, (PW3) who was with Ramadhani at a nearby shamba on hearing Mwamvita crying, rushed to see what was happening. He (PW3) saw the appellant in the kitchen holding on to Mwamvita's mouth. F
Thereafter, the matter was reported to Asia Zuberi (PW2) and Christina Sarwart (PW1) the wives of the appellant. To both PW1 and PW2 Mwamvita narrated in detail all that the appellant had done to G her. The child victim of the incident Mwamvita (PW4) was taken to the hospital by PW1 for medical examination. In the normal manner in such cases, PF3 was issued as a basis of medical investigation. The police took up the case for investigation which finally resulted in the prosecution of the appellant who was as explained earlier, convicted and sentenced to ten years imprisonment. At H the start of the trial, Mr Itemba, Learned Counsel was assigned to defend the appellant. However for some reason, in the course of the trial the appellant showed lack of confidence in Mr Itemba. Consequently another Counsel Mr A M Shayo, Learned Advocate was assigned to defend the appellant throughout the trial. I

A The appellant's line of defence at the trial was denial of the offence. He claimed that all the witnesses particularly his wives PW1 and PW2 were all out to fabricate evidence in order to fix him (appellant). The Trial Judge rejected this defence rightly so in our opinion. This was a case whose B determination depended on the credibility and acceptance of the evidence of the witnesses. In our view, the Trial Judge quite properly and thoroughly analysed the evidence of the witnesses which he accepted as truthful. As a result the appellant was convicted of the offence of defiling a girl below the age of fourteen years contrary to s 136(1) of the Penal Code.
C His appeal to this Court is against sentence only. In the course of hearing the appeal and as already indicated, the appellant persistently raised arguments against the conviction. He alleged that the witnesses particularly PW1 and PW2 his wives had conspired to frame him. Likewise he claimed D that Mwambita (PW4) the victim of the sexual assault and Edward (PW3) were all taught by PW1 and PW2 to frame him. He insisted that there was no evidence that Mwamvita (PW4) was sexually assaulted as no PF3 was tendered at the trial. The appellant further asserted that he had intended to call witnesses who were not called to give evidence in support of his defence. He finally pleaded with E this Court to be lenient with him as the sentence of ten years is excessive. There was credible evidence of an unusual conduct on the part of the appellant who disappeared soon after this incident as the appellant was coming from the hospital in the company of his wife Asia Zuberi (PW2) where F PW4, Mwamvita had been taken for medical examination. According to PW2, during the time when the appellant was in hiding, she (PW2) received a letter from the appellant in which he wrote:
`Mimi naishi porini angalia watoto.'
G The appellant denied having disappeared or written such a letter. We are in agreement with the learned Trial Judge that it is incomprehensible that all these witnesses particularly his wives should fabricate evidence against the appellant. However the Court again reminded the appellant that he had H been allowed to come to this Court on the question of sentence only. This being an Appellate Court, matters of credibility of the witnesses are primarily the domain of the Trial Court which has the advantage of assessing the demeanour of the witnesses and evaluating the credibility of such I evidence. This Court will not readily interfere with the decision of the Trial Court on such an issue.

For the Republic Mrs Sumari learned State Attorney supported the conviction and sentence. She A submitted that though this was not an appeal against conviction but as the appellant had argued at length on conviction, she urges that the conviction was properly founded. She countered that there was abundance of credible evidence which was believed by the Trial Judge. The learned State B Attorney wondered why all these witnesses, PW1, PW2, PW3 and PW4 should all conspire to frame a case of this kind against the appellant. As the appeal on the conviction was without merit, it should be dismissed in its entirety, the learned State Attorney contended. The non-availability at the trial of the PF3 regarding the medical examination of PW4, did not in any way vitiate or weaken the C prosecution case. Mrs Sumari, learned State Attorney further submitted. It was Mrs Sumari's conclusion that in the circumstances of the case, the sentence imposed against the appellant cannot be faulted, it was lawful and not excessive for such a shameful act. D
Though indeed as rightly pointed out by Mrs Sumari, the learned State Attorney: this was not an appeal against conviction, on the evidence on record and the persistent argument of the appeal before us by the appellant, the appeal against conviction is, in our view, without any merit. We are E satisfied that there was paucity of evidence of PW1 and PW2, the wives of the appellant which was fully supported by the evidence of the child victim of the sexual assault (PW4) and Edward (PW3). We find it highly incredible that both the wives of the appellant (PW1 and PW2) and the children F (PW4 and PW3) should all conspire to fabricate evidence against him. Even granted that PW4 was not the child of the appellant as the appellant would want this Court to believe, that in our considered view, is no reason for her (PW4) to frame a case of this nature against him. The record bears no evidence of a bad relationship between the appellant and the two wives, a version which the G appellant vainly tried to canvass at the hearing of the appeal. We do not accept that. Though we could glean from the evidence that the victim child of the sexual assault (PW4) was experienced in sexual intercourse for the reasons advanced by the Prosecution (at page 19 of the record) that the H PF3 which had been handed over to the police could not be traced and the fact that PW4 had been told by the appellant to take a wash, we are convinced like the learned Trial Judge that Mwamvita (PW4) was sexually assaulted. Furthermore, we are also satisfied that the learned Trial Judge was justified in his finding that it was the appellant who defiled Mwamvita I

A (PW4). The conviction though not a ground of appeal to this Court, can hardly be faulted in these circumstances.
On the sentence in the circumstances of the case, there can be no doubt that this was a serious and shameful act of sexual abuse against a child of tender age. As the learned Trial Judge rightly B remarked, it is an offence that calls for severe punishment. PW4, a child of tender age must in our view have suffered traumatic psychological and mental torture at the very thought of her foster father involving himself with her in this manner. At the hearing of this appeal, the appellant advanced no reasons to show either that the sentence was unlawful or manifestly excessive. Having listened to C the appellant's plea for leniency with great sympathy we see no reason to depart from the old time established principle of criminal justice in matters of sentence on appeal. That it is a trite principle that before a Court of Appeal can interfere with the Trial Court's sentence, the appeal court must be D satisfied that either the sentence imposed was manifestly excessive or that the Trial Court ignored an important matter or circumstance which ought to have been considered while passing the sentence or that the sentence imposed was wrong in principle. In this appeal, we are with respect in E agreement with the contention of the learned State Attorney that all the relevant circumstances of the case were duly considered by the learned Trial Judge when deciding the sentence. We see no reason for interfering with the sentence which in our view cannot be said to be excessive or unlawful.
F For these reasons the appeal against sentence is accordingly dismissed.

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