Father acquitted after appeal court finds flaws in daughter’s rape case

Arusha. The Court of Appeal has acquitted a father who was sentenced to 30 years in prison, a fine of Sh100,000 and six lashes for allegedly raping his 13-year-old daughter.

The father, a resident of Majengo Kibaigwa in the Kongwa district of the Dodoma region, was accused of raping his daughter between December 13 and 16, 2021.

This is his second appeal after the High Court in Dodoma dismissed the first one and upheld the sentence on June 22, 2023.

The decision by the Court of Appeal was delivered on March 28, 2025, by three judges: Rehema Mkuye, Lucia Kairo and Gerson Mdemu, who sat in Dodoma.

After reviewing the grounds for appeal, the judges concluded that the charge was not proven beyond reasonable doubt, noting discrepancies between the charge and the evidence presented.

One of the key pieces of evidence was the victim’s testimony, which did not support the charge and was found to be unreliable. While she initially told the police that she had been raped, during her court testimony, she claimed to have been both raped and sodomised.

Grounds for appeal

The father was initially brought before the Kongwa District Court facing a charge of rape under section 130 (1) (2) (e) of the Penal Code. He was accused of raping his daughter, whose identity was concealed and referred to as GHK in the court records.

It was alleged that on the day of the incident, the father, while at his office, called GHK, who was at home, asking her to come to his office to assist him with some work.

While on her way, it was claimed that she met two young men, including her father, on the Mroma road. The father took her phone and ordered her to follow him.

GHK complied, and they went to the house, where the father undressed her, disrobed himself, and then raped her. It was also alleged that GHK was menstruating at the time, and her father also sodomised her before locking her in the room, where he allegedly continued to abuse her repeatedly.

The incident was later reported to the police, and GHK was taken to Kibaigwa Health Centre, where the fifth witness, Pius Gumbo, conducted a medical examination and found injuries to her private parts, leading to the father’s arrest.

Despite confessing to the crime during questioning, the father later denied the offence in court. The Kongwa District Court considered the evidence provided by GHK and found the father guilty.

First appeal

In the first appeal, the High Court dismissed the father’s appeal, confirming that the charge had been proven beyond reasonable doubt. The court upheld the conviction and sentence, rejecting the argument that the evidence was insufficient.

Second appeal

During the second appeal, the father presented 12 grounds for challenging the decision, with no legal representation. The prosecution was represented by two senior state attorneys led by Patricia Mkina. Some of the key grounds for appeal included the claim that the judge had erred in upholding the district court’s decision, as the prosecution had failed to prove the charge beyond reasonable doubt.

The father argued that the two courts had failed to recognise errors in the charge sheet, which suggested that the crime was rape, even though GHK had stated in court that she had been both raped and sodomised.

Other grounds included claims that the judge had erroneously supported the district court’s decision without considering that the magistrate had convicted the father despite the preliminary hearing being conducted in violation of section 192 (3) of the Criminal Procedure Act (CPA), rendering the case and the judgement invalid.

Additionally, the appeal pointed out that the two courts had failed to properly apply section 10(3) of the CPA, leading to contradictions in the testimony provided by the victim and the fifth witness.

Judges’ decision

Judge Mdemu addressed the issue of discrepancies between the charge and the evidence, noting that while the charge was rape, the doctor who examined the victim did not mention whether the examination included the anus.

“Throughout the entire proceedings, the record is silent on whether the charge was amended by section 234 (1) of the CPA. The charge of rape was not proven because the prosecution failed to meet its burden of proving the case beyond reasonable doubt,” the judge stated.

He referred to Criminal Appeal No. 736 of 2023, Ladislaus Baltazar Kalaba v. The Republic, which clarified that the charge is the foundation of the case and that the prosecution is responsible for providing evidence to support it.

Any discrepancy between the charge and the evidence damages the prosecution’s case. Judge Mdemu further pointed out that the victim’s testimony should not have been relied upon for a conviction due to inconsistencies between what she reported to the police and her court testimony. 

She claimed to have been both raped and sodomised in court, while the police report indicated that she had only been raped.

Additionally, the fifth witness did not mention any examination of the anus, which added to the inconsistencies in the case.

Ultimately, Judge Mdemu concluded that the prosecution had failed to prove the case beyond reasonable doubt. 

He stated that the lower courts had not properly considered the discrepancies in the evidence.

“We allow the appeal, quash the conviction for rape, and order the appellant’s release unless he is held for any other lawful reason,” Judge Mdemu said.