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tI.a~ 00 •. 1l4.Q
'.tit t OF 1tfE'NOS l'o
IN THE HIGH COURT OF TANZANIA :I'!:.ti ~ ~'l: ~

(OAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM
APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 84 OF 2004
(Original Cr. Case No.555/2003 Kisutu RM's Court)

1. NGUZA VICKING @ }
BABU SEA }
2. PAPII 5/0 NGUZA } APPELLANTS
3. NGUZA MBANGU }
4. FRANCIS 5/0 NGUZA}
VERSUS

The four appellants, Nguza s/o Vicking @ Babu Sea, Papii s/o
Nguza, Nguza s/o Mbangu and Francis s/o Nguza were charged tried
and convicted for ten counts of rape contrary to section 130 (2) (e)
"
and 131 A (1) of the Penal Code as repealed and replaced by
sections 5 and 7 of the Sexual Offences Special Provisions Act No.4 of
1998 (commonly referred to as SOSPAand hereinafter to be referred
as such) and eleven counts of unnatural offences contrary to section
154 (1) of the Penal Code as repe,aledand replaced by section 16 of
SOSPA. They were sentenced to life imprisonment. Each of the
appellants was also ordered to pay a compensation of Tanzania
shillings two million to each of the ten complainants. They are
dissatisfied and have appealed to this court against both conviction
and sentence. They are also challenging the order of compensation.
 In this court, as in the court below, they were represented by
Herbert H. Nyange of Nyange & Co. Advocates. The learned counsel
','
filed a petition of appeal containing 25 grounds. As will be
demonstrated shortly, he argued some of the grounds separately,
others he argued together and others, he abandoned. The
respondent Republic was represented in this court by Mr. Masara,
learned Senior State Attorney who was assisted by Mr. Mganga,
learned State Attorney.

It was alleged that the appellants, jointly and together on

divers days unknown, between the months of April 2003 and 8th day
of October 2003 did have carnal knowledge and/or carnal_knowledge
against the laws of nature on ten girls aged between six and eight
years who were pupils at Mashujaa Primary School, Kinondoni District
in Oar es Salaam.

The facts of the case are not very complicated. Although it was
alleged that the offences were committed since April of 2003, it was
not until on 8/10/03 that the blood chilling discovery began to unfold.
Candy David Mwaivaji (PW1) lived at Sinza Palestina with her
husband, her son, a house girl called Selina John and Gift Kapwapwa,
(PW2) a daughter of her sister in law. PW2 was a class one pupil at
Mashujaa Primary School, in Sinza, Oar es Salaam. On this day at
8.30 pm. PWl was in her room with PW2 and her son. She felt a
foul smell coming from PW2 and told her to go and have a bath. Still
the smell did not end. As she was tired she decided to deal with this
matter on the following day and went to sleep. In the morning of
9/10/03, when PW2 had already gone to school, PW1 asked Selina as
to why there was foul smell coming from PW2. Selina narrated that
she once saw PW2 with Sh.200/= and on asking her she said she
got the money from Babu Sea and on asking who is Babu Sea, Selina
said it was Nguza, the musician. This raised her"suspicion. She
waited for PW2 to came, from school. When the latter came, PW1
asked her as to why Babu Sea would give her money. And on
promising that she would not beat her, PW2 narrated what turned
out to be a very explosive discovery.

She said one day as she was going to school, Babu Sea who
was latter identified to be the 1st appellant called her, asked her
where she lived and with whom. He then asked her if she was being
"
given school money, to which she replied that it was not daily. The
1st appellant is alleged to have given her chewing gum and promised
that he would be giving her money. Then one day as she was going
home from school, the 1st appellant called her, gave her a soda, took
her into his room, told her to close her eyes, tied her with a black
peace of cloth over her eyes, undressed her, applied an ointment in
her private parts and raped her. During the process the 1st appellant
also told her to suck his penis, which she did.

She was not alone. She told PW2 that she had gone to the 1st
appellant's house with her friends whom she mentioned. After she
had been told this sad story, PW1 did a visual examination of PW2's
private parts and found fresh blood and pus oozing there from. Her
immediate reaction was to take PW2to hospital where she was
turned down and told that this was a police case. At around 8.00
pm. of the same date 9/10/03 she reported to Urafiki Police Station,
was given a PF3with which she took PW2 to Mwananyamala Hospital
after being referred there from Magomeni Hospital. Examinations
revealed that PW2 was infected with gonorrhea. She was treated.

On the following day (10/10/03) PW1 went to see the

authorities at the school where PW2 was attending and explained the
story as told by her. She requested PW2'sclass teacher to assist find
the truth about the other children mentioned by PW2. On 11/10/03
PW1 went to police to return the PF3 given to her before and then,
with the assistance of her house girl she went to show the police the
home of the 1st appellant. Latter that Saturday, PW1 left with PW2
when the latter went on identifying the houses of her friends who
had been subjected to the same sexual acts, starting with Alisia
Lungino (PW3). This exercise spiralled to the ten (lb) complainants.
As the 1st appellant and his three children were mentioned as the
perpetrators, they were all arrested and charged, together with one
Sigirinda w/o Ligomboka, who was acquitted.

The appellants, severally and together relied on the defence of

alibi, after complying with the provisions of section 194 (4) of the
Criminal Procedure Act 1985, which says:-
"Where an accused person intends to rely upon
an alibi in his defence, he shall give to the court
and the prosecution notice of his intention to rely
on such defence before the hearing of the case. "
The notice above mentioned is couched in the following language:-
"TAKE NOTICE that on the 1st day of November
2003 when this case shall be called for hearing
and/or any date subsequent thereto to which
hearing may be adjourned the Counsel for the
accused persons shall pray to be on record that
the accused persons intend to rely on the
defence of an alibi (sic). "

Whether this notice was adequate shall be considered latter in this

judgment. Suffice it to say that it was the defence of all the
appellants that the acts complained of could not be committed in
House No.607 Sinza "B" Dar es Salaam (hereinafter referred to as
"607" only) because that house was always perpetually with people
during the alleged times. The first appellant said in defence that he
plays music with Achico Band which does its practices at 607 from
Monday to Friday. He said he does not live in 607. The 2nd appellant
said he plays music with F.M. Academia which does its daily practices
at Chezndemba Club. The 3rd appellant said he is the band leader of
F.M. Academia and would also be at daily practices at Chezndemba
Club. The 2nd appellant also told the Court of his travels in the
regions between August and October of 2003 and how he, with other
companions used the car belonging to the 3rd appellant. It appeared
common ground that practices at the bands would commence around
8 am. to noon, have a short break and then practice from 3 to 6 pm
from Monday to Thursdays and to about midday on Fridays as they
would be preparing to perform to mark weekends. The 4th appellant
told the court that as a student he would be at school always and
would not possibly be at 607 during the alleged tim,es as he left for
school in the morning and came back in the evening.
 The entire case could stand, or fall, on credibility of witnesses,
corroboration and identification. The trial Principal Resident
Magistrate found the ten star witnesses credible and believed their
testimonies. She also found credence in the evidence of Dr. Petronila
Ngulai (PW20) and PW1. She therefore convicted the appellants as
charged and acquitted the 5th accused.

In my opinion, this was not a very difficult trial. It was made

so by the temperaments of learned Counsel, who pushed the trial
magistrate to nearly breaking point. There were complaints of bias,
refusal to summon witnesses, rejection of some evidence and even
refusal and/or deliberate failure to record some of the evidence! I
have carefully gone through the typed transcripts and the
handwritten proceedings, I have not been satisfied that the
accusations are justified. I will comment further on this when dealing
with the last two grounds of appeal.

The petition of appeal was filed on 30th June 2004 together

with a letter, addressed to the Registrar with nine annexures
,. which
referred to various letters written to the court of Resident Magistrate
in respect of these proceedings. I do not think that was proper.
Matters which were not tested in the lower court cannot form part of
the record. Be that as it may, I have gone through all the letters and
documents. They all allege an iron fisted stance on the trial
magistrate against the appellants and their counsel. They do not
allege serious procedurals irregularities. A magistrate is a human
being capable of losing temper sometimes. A trial magistrate can
sometimes be moody. All that is not condoned by the process of the
administration of justice but it is to be expected. When it happens,
such that it does not please counselor his clients it cannot be basis
for alleging bias against the trial magistrate. The learned counsel
','
should leave wisdom to prevail, submit himself to the authority of the
Court and let proceedings move on. I say no more on this.

In dealing with the grounds of appeal filed, I will start with

ground number 9 which says:-
"The trial court erred in not conducting
voire dire as by law required. N

Counsel for appellants argued, with a lot of force, that the failure by
the trial Principal Resident Magistrate to conduct voire dire
examination on the ten young victims vitiated the proceedings. He
referred the Court to a string of cases: Dhahiri Aly v R. [19891
TLR 27; Gabriel slo Maholi v R (1960) E.A. 159; Nyasani slo
Bichawa v R [1958] E.A 90 and James Bandoma v R. Criminal
Appeal No.93 of 1999 C.A. Mbeya Registry (unreported).

The learned Senior State attorney for the respondent argued

with equal force to the effect that voire dire was conducted whereby
the trial magistrate recorded her findings. But even if it is found that
voire dire was not conducted to the required standard, that should
not vitiate proceedings. This is because of SOSPAwhich amended
section 127 of the Evidence Act. Mr. Masara went on to tell the court
being capable of losing temper sometimes. A trial magistrate can
sometimes be moody. All that is not condoned by the process of the
administration of justice but it is to be expected. When it happens,
such that it does not please counselor his clients it cannot be basis
for alleging bias against the trial magistrate. The learned counsel
,.
should leave wisdom to prevail, submit himself to the authority of the
Court and let proceedings move on. I say no more on this.

In dealing with the grounds of appeal filed, I will start with

ground number 9 which says:-
'The trial court erred in not conducting
voire dire as by law required. II

Counsel for appellants argued, with a lot of force, that the failure by
the trial Principal Resident Magistrate to conduct voire dire
examination on the ten young victims vitiated the proceedings. He
referred the Court to a string of cases: Dhahiri Aly v R. [19891.
TLR 27; Gabriel s/o Maholi v R (1960) E.A. 159; Nyasani s/o
Bichawa v R [19581 E.A 90 and James Bandoma v R. Criminal
Appeal No.93 of 1999 C.A. Mbeya Registry (unreported).

The learned Senior State attorney for the respondent argued

with equal force to the effect that voire dire was conducted whereby
the trial magistrate recorded her findings. But even if it is found that
voire dire was not conducted to the required standard, that should
not vitiate proceedings. This is because of SOSPAwhich amended
section 127 of the Evidence Act. Mr. Masarawent on to tell the court
 that even before the amendment of section 127, where voire dire is
found not to have been done, the evidence of the witness is treated
as normal evidence. This was the final finding on the issue in the
Bandoma case. The leaned Senior State Attorney also referred the
court to the most recent case of Deemay Daati, Hawa Durbai and
Nada Daati v Republic Criminal appeal No.80 of 1994 C.A.
Arusha Registry (unreported). He concluded by saying that if it is
found that no voire dire examination was conducted;' the evidence of
the ten young girls will be just lowered to require corroboration but
not to vitiate the proceedings. He said on the strength of the case of
• Athumani AU Maumba v R. criminal Appeal No.95 of 1989
(unreported) there was a lot of corroboration evidence from other
witnesses.

Voire dire examination is governed by section 127 (2) of the

EvidenceAct which has this to say:-
"
"127(2) where in any criminal cause or matter any child
of tender years is called as a witness does not in the
opinion of the court, understand the nature of an oath
his evidence may be received though not given upon oath
or affirmation, if in the opinion of the court, to be
recorded in the proceedings he is possessed of sufficient
intelligence to justify the reception of his eVidence, and
understand the duty of speaking the truth. "

What does this mean? It is settled, through case law, that section
127(2) requires the proceedings of the voire dire examination be
recorded. All the question and all the answers thereto must be
recorded. This settled principle of law is to be found in the Daati
case (supra) where, on 5th day of October 2004, the Court of Appeal
said:
 "We also agree that it is apparent the trial
magistrate did not comply with the provisions
of section 127(1) (sic) of the Evidence Act;
1967. From the record at page 20 of the
proceedings it is apparent that when PW2
was called on to testify, it is indicated:
''Examined and satisfied the court that can
give a sworn evident;· sworn and states"
Section 127(1) (sic) of the Evidence Act, 1967
provides to the effect that in a Criminal case
where a child of tender years is called as
witness does not; in the opinion of the court
understand the nature of an oath,. his evidence
may be received,. though not given upon oath
or affirmation if in the opinion of the court
to be recorded in the proceedings - he is
possessed of sufficient intelligence ... "

In the present case, what took place before any of the ten young
victims gave evidence is not very different with what took place in
Daati. For example before PW2 (7 years) gave her testimony, this is
what transpired:-
"Court: Cross examine her (sic) to know if
she knows the difference between the
truth and lies and oath

Court: After interrogating/Examining the child

I have found out that she knows the
difference between the truth and lies but
does not how about oath so her evidence
is taken without oath in camera. "

And before 8 year old Alisia Lungino (PW3) gave her evidence, the
learned Principal Resident Magistrate recorded as follows:
"Court: Holds voire dire,. and is satisfied that
she knows the difference between the
truth and lies and what is to swear,. She
is sworn"
 What was recorded before the 7 year old Rehema Mgweno (PW5)
gave her evidence is this:
"Court: I have conducted voire dire and conclude
that she knows the difference between the
truth and lies but not oath. Evidence unsworn. N

The rest of the child witnesses are not any different. The voire dire,
if any was conducted in the same style. This is what the courts have
repeatedly held to be improper and to equate it with no voire dire at
all. The reason for this is not far to get. The conclusions of the trial
magistrate recorded after a voire dire examination may be challenged
• with success. This is what happened in the Bandoma case. In that
case (supra) their Lordships made reference to the case of Hemed v
&J19871 TLR117 where the opinion of the judge was successfully
challenged in the Court of Appeal of Tanzania which held that the
opinion was not reasonably open to him. Mroso, J.A. went on to say:
\\The Court of Appeal was able to came to that
conclusion because it looked at the record of the
voire dire examination and noted that although
the child was in Std.III he was unable to tell the
court the names of his parents and was not even
aware that his sister had died. Therefore his
'. evidence should not have been taken. N

On the foregoing, I agree with counsel for appellants that the

provisions of section 127 (2) were breached as no voire dire
examination was conducted on Julieth Mkore 8 years (PW8) Isabela
Angonwile (PW9) 8 years, Yasinta Mbele, 8 years (PW11) Dei Jaffari
7 years (PW13) Ageneta Sia Wendeline 6 years (PW14) Amina
Shomari 7 years (PW15) and the other three witnesses mentioned
above.
 What is the effect of that lapse? This is what I now turn to. I
can trace the development of the law on voire dire examination from
the case of Gabriel Maholi (supra) where, Sir Alastair Forbes, VP
had this to say at page 161:-
"In the instant case the learnedjudge satisfied
himself that the child tendered as a witness
was sufficiently intelligent to give evidence/ but
did not so far as appears from the record satisfy
himself that the child understood the difference
between truth and falsehood Such an omission
could be fatal to a conviction in a case where the

'. child's evidences is vital. "

This position was repeated twenty nine years latter in the case of
Dhahiri Aly (supra) where Mushi, J. quoted from the East African
case of Nyasami slo Bichawa v R. [19581 E.A. 90 and
concluded:
''In this case/ the proceedings do not show
that the learned trial magistrate complied
with the mandatory provisions of the law
with the result that the evidence of PW2
Asha was wrongly admitted and acted upon. "

And nine years after Dhahiri the case of James Bandoma (supra)
was decided. The court seemed to say that where no voire dire
examination is conducted the evidence is treated like any unsworn
evidence of a child of tender years and would, as a matter of practice
require corroboration. Bandoma did not say the trial is vitiated nor
that the evidence so tendered becomes worthless.

The answer to the question I posed is to be found in the Daati

case (supra) where the Court of Appeal, Lubuva, J.A. had this to say:
 ''It is settled law that the omission to conduct
voire dire examination of a child of tender
years brings such evidence to the level of
unsworn evidence of a child which required
corroboration. "

But with SOSPA,the requirement of corroboration is now no longer

as necessary as it used to be. Section 127 has been amended by
adding sub section 7 which has this to say:
"Notwithstanding the preceding
provisions of this section where in
criminal proceedings involving sexual
offence the only independent evidence
is that of a child of tender years or of a
victim of the sexual offence, the court
shall receive the evidence and may after
assessing the credibility of the evidence
of the child of tender years or, as the case
may be of the victim of sexual offence on
its own merits, notwithstanding that such
evidence is not corroborated, proceed to
convict, if for reasons to be recorded in the
proceedings the court is satisfied that th~.
child of tender years or the victim of the
sexual offence is telling nothing but the truth. "

Therefore, whereas I agree that there was no voire dire as

known to law, the proceedings were not vitiated. This ground of
appeal therefore fails.

Ground of appeal number one complains of the trial

magistrate's failure to consider that house 607 was never at anyone
','
time conducive to sexual offences being committed therein as it was
never vacant. Counsel for the appellant traversed through the
evidence of the defence witnesses and concluded that these
 witnesses had established that 607 was always and every time with
people. He referred the court to the evidence of OW6, OW7, DW8,
DW9, DW11, and defence witness number 18. The evidence of these
witnesses taken together is to the effect that Achico Band musicians
were holding their practices there and that the mother of 1st
appellant, one Bernadeta Kaji, a step son of 1st appellant one Francis
Elombee and a house girl one Furaha Lesi were staying there. The
1st appellant shifted from 607 in 1999 in obedience of his late wife's
wishes and went to live at Sinza kwa Remi with one Farida Abdu
(DW10) at the house of one Hadija Saidi @ Mama Kumekucha. It
• was not also seriously controverted that the 2nd appellant, like most
musicians of his generation changed bands frequently. He started
his music carrier with Achico Band, then went to Diamond Sounds ,
then FM Academia, then to F.M. International, then Beta Musica,
then to TOT and at the time of his arrest he was back at F.M.
Academia and was living at Makumbusho House NO.111 with a
person he called his wife to be, one Mariam Othman Bongi (OW13).
The 2nd appellant told the court that he was arrested at 607 when he
had just come from Arusha. The 3rd appellant lived"at Sinza C in a
• house of one Emanuel Peleka Moyo (OWll) with his fiancee one
Mirey Mbombo where according to OW11 he shifted out in
September 2003. It would appear he went to live at Sinza Block E
No. 374 in a house belonging to one Salama Alan Masawe (DW18).
The 4th appellant lived in 607 but as a school boy, it was the case for
the defence that he could not have been at that house during the
alleged times.
 The Republic's position was that the presence of such other
people in 607 could not stop the alleged offences being committed.
Moreover, 607 had two doors leading to the outside such that one
entering through the hind door does not have to pass through the
','

veranda. This, Mr. Masara said, was also observed by the court
when it visited the locus in quo. He argued further that the musical
exercises was a version of the appellants never witnessed by Ass.
Superintendent Joseph Shilingi (PW22) who was the lead
investigating officer in the case. Finally the respondents asked this
court to consider the evidence of the victims, who said once they
were found in 607 by woman and beaten.

I think this ground of appeal should not detain us long. The

answers would be found once we come to deal with the credibility of
the prosecution witnesses. But as said by the respondents, taking
into account the set up of the house as observed by the trial Principal
Resident Magistrate when she visited the locus in quo, it was not
impossible for such offences to take place even when other people
were there. The house is not made up of a single room nor a single
-~ • entrance. The other people around, if they were there at all, would
not be in every room at every time. The possibility to commit sexual
"
crimes was there. I am of the settled opinion that this ground of
appeal must also be dismissed. I so do.

The 2nd ground of appeal complains about the trial magistrate

failure to consider the appellants' defence of alibi. I laid down the
nature of the alibi when I was giving a summary of the defence case
earlier in this judgment. I have also delt with it when giving the
appellants' version of where they lived. Did the learned Principal
Resident Magistrate fail to consider this defence? This is what I shall
now endeavour to answer.

As said earlier, a notice under section 194 (1) of CPA had been
given. This provision was inserted in the law for a purpose. It was
not an embellishment. The purpose was to give 8ue time to the
prosecution to gather evidence, if any, in rebuttal. Although there
was a notice of the alibi, I am of the considered opinion that it was
not adequate. The respondents did not complain about it, but that
cannot stop this court from making this observation. My reading of
sub section 4, 5, and 6 of section 194 of the Criminal Procedure Act
gives me the impression that it is not enough just to say the defence
will rely on an alibi without giving the particulars of such alibi. Such
failure will result in the provisions of section 194 (6) to be invoked.
The subsection has this to say:-
"If the accused raises a defence of alibi without
having first furnished the particulars of the
alibi to the court or to the prosecution pursuant
to this section, the court may in its discretion,
accord no weight of any kind to the defence. "

Having said that, let me now give out a brief of what the respondents
are saying.

The learned Senior State attorney took the' view that the
evidence taken as a whole does not make it impossible for the
appellants to be at 607. All the appellants were arrested there and
an attempt to say that the appellants could not meet there has no
basis. The 1st and 3rd appellants lived in the vicinity of 607. Although
 the 3rd appellant said he lived with DW9, and the latter said they
were always together which is humanly impossible, there was
possibility for the 3rd appellant to be alone. The alibi of the 2nd
appellant is very weak, he said. learned Senior State Attorney said
the evidence of OW25 did not assist to explain that the 2nd appellant
could not be at 607. As to a notebook tendered by OW25 the
respondents say its acceptance as exh. 04 was wrong on the
strength of the case of Ezekia v R. [19721 E.A. 427. The
respondents concluded by saying that the evidence'on behalf of 2nd
appellant does not exclude his being at 607 in Oar es Salaam at most
J • of the times.

I think a defence of alib~ like any other defence can be rejected

in three ways. First, by considering it against all the evidence on
record and rejecting it, secondly by believing the evidence for the
prosecution and thirdly by considering the totality of the evidence
and making a finding that such defence is not open to the accused
','
persons. If the defence, like in this case, say the appellants could
not have been at 607, but the prosecution leads evidence to show
that the appellants actually met Mr. X at 607 and the court believes
the prosecution, this has the effect of rejecting the defence of alibI:
Although the court may not say so in open terms, the defence will be
somewhere at the back of the mind of the magistrate, or judge. If
the court believes the case for the prosecution without legal or
factual justification, that would be failure to consider the defence of
alibi if it had been fronted, and a higher court may interfere. In
order that I may answer the complaints under ground 2 properly. I
will turn to grounds ten and eleven of the petition of appeal.
 The two grounds of appeal are framed as follows:
"10. The trial court erred in not finding that
the prosecution evidence was falsified.

11. The trial court having correctly found the

children S evidence on the S:h accused as
being hazy and that it was outweighed
by the defence case thus correctly disbelieving
it erred in not discrediting their evidence
as unworthy of belief. "

Arguing these grounds, learned counsel for appellants attacked the

,\ . failure of Dei Jaffari (PW13) to show the toilet where they used to be
washed after the sexual acts. He attacked the cOf)flicting dates of
the arrests as given. He attacked the evidence of PCSamwel (PW23)
in saying that he went to the house of 1st appellant in company of
one Selina John who was not called to testify. He attacked the
evidence of PWl and PW2 in relation to the evidence of PW20 who
said PW2 was not sexually assaulted. The learned counsel also did
complain about the fact that whereas PW5 said she was sexually
assaulted and that PW6 supported this in her testimony, PW20 said
there was no sexual act committed on PW5. There was also a
.' complaint from learned counsel for the defence on the failure to have
an independent witness when a search was conducted at 607.

It did not end there. Learned counsel for the appellants also
complained about the evidence of the children as regards to the 5th
accused who was acquitted. The children who testified, or some of
them told the court that the 5th accused taught them English, an
allegation denied by all the teachers. Counsel then asked, if the
children lied to court against the 5th accused why not
,.
lie against the
appellants? Learned counsel for the appellants made reference to
the cases of Mathias Timothy v R. [19841 TLR 86 and Musa v
&.1.1970] HCD 278 as authority to what a court should do when
there is falsified evidence. He prayed to the court to discredit the
evidence of the children against the appellants as the- lower court had
done in respect of the 5th accused.

The respondents say that was not so. Mr. Masara was
emphatic that the evidence for the prosecution against the appellants
was credible and it remained so even after very vigorous and
rigorous cross examination from the defence counsels. He said
failure by PW3 to show the toilet could be a result of a genuine lapse
and not falsification. PW13 lead the court through the rooms
"
shOWingall areas. A person can forget something especially a young
child of 7 years. The learned Senior State Attorney referred me to
the case of Evarist Kachembeho v R. (19781 LRT 70 to show
that forgetting does not mean lack of knowledge. On the statement
of PW.1, there had been complaints from the appellants' counsel that
it was not know when it was taken and could therefore, be a falsified
one. The respondents said according to the evidence of Dt. Station
Sgt Gervas, (DW31) he recorded the statement on 11/10/03.

Responding to the submission that whereas PWl said PW2 was

found infected with gonorrhea, the doctor found no infection, the
learned Senior State Attorney said the date of the 1st examination
with PW1 present was 10/10/03 but PW20 did examine PW2 on
22/10/03 when the infection could have been treated. He concluded
by saying there is enough explanation for that finding by the doctor
 and not falsification. On the lack of an independent witness during
the search at 607, the respondents said there was one, Mr. Mnzava,
and that there was no requirement that he be a ten call leader like in
the single party era.

The acquittal of the 5th accused was not because the

prosecution witnesses had lied but because there wa,s no evidence of
active participation by her. The respondents say that there was no
contradiction that the 5th accused taught in class 1. The only
contradiction was on teaching English. She was charged on aiding
"I,' • and abetting the commission of an offence and under the law in the
case of Makokoi Chandema v. Hassan Mtete CA Mbeya
Criminal Appeal No.143 of 1999 (unreported) she could not be
convicted. The evidence regarding the non-teaching of English
cannot make all the rest of the evidence as fabricated. The
respondents made reference to the Tomothy case as well.

The learned Senior State Attorney replied further that although

there was a lot of submissions by learned counsel for appellants on
• falsification, there was no statement as to who would falsify the
evidence against the appellants and why. There was no explanation
as to why 10 children should lie against the appellants. One of the
appellants (3rd appellant) said he was framed because he was
famous. The respondents said there were other famous musicians,
-'I'

even more famous, but they are never framed, let alone by 10
victims who told such ghastly stories about the appellants. After the
incidence was discovered, some of the children were removed from
 the school to other schools. The Senior State Attorney prayed that
the two grounds be dismissed.

The trial Principal Resident Magistrate analysed the case for the
defence and the prosecution. With respect, I think she went too
much into the small contradictions on the case for the defence. The
law on burden of proof has been long settled. Contradictions cannot
form the basis of a conviction. For as it was stated in the case of
Jonas Nkizo v. R [1992] TLR 213 by my senior brother the late
,-
Mr. Justice Katiti:
"while the trial magistrate has to look at the
whole evidence in answering the issue of gUilt,
such evidence must be there first - including
evidence against the accused, adduced by the
prosecution which is supposed to prove the
case beyond reasonable doubt. "

However, this appears not to have disturbed her mind to a level of

shifting the burden of proof. She turned to the case for the
prosecution. After an indepth analysis of the evidence adduced by
each of the ten victims, she was certain in her mind that they were

f· telling the truth. For example when dealing with the evidence of
PWll, the learned Senior Resident Magistrate said:
''Although Gift forgot to mention Yasinta
again in her evidence/ Yasinta did when
she was narrating how she convinced
Gift (PW) Alisia (PW3) Juliet PW8) Isabela
(PW9) and Dei (PW13) to accompany
her to the first accused 607. This omission
to me is not fatal in that the substance i.e
identification is the key contrary to the'-
defence submissions
 Yasinta (PW1) explained what happened
after classes which was the second time
dUring the same day on their way home. ,_
The first accused got hold of her while the
other male accused caught the rest of her
friends Gilt Alisia/ Julie~ Isabela and Dei
taking them to his room at 607.

After they were undressed they were

oiled their private part~ and sexes (sic)
both infront and the anus. Some were
placed on the mattress on the bed and
others on a mattress on the floor. She
was put on the mattress on the floor.
This peace of evidence is repeated by all
the victims. She could tell the subsequeflt
sexes who had sex with her because she
said when they went there the second
and the other times they were not blind
folded. So she identified the four male
accused who sexed her. She was more
particular in saying that the first accused
was the one who told her the names
of the second to forth accused person as
his children.

Yasinta like her companions was paid

money by the first accused after the sex.
The first time she was paid 200/- and left.
Almost all the victims testified to have been
paid after the sex. I have already demonstrated
above when analyzing the evidence of Gift.
Rehema (PW5) was paid also 200/= Juliet
400/= Isabela 300/= Aza 200/= Del Amina
and Sia did not mention the money that they
were paid. Yasinta described what was in
that room in 607.' word robe~ and money
drawers (madroo ya hela) tallying with
other victims. "
 And when she was dealing with the testimony of PW13, the Principal
Resident Magistrate said, in part:
"Like the others she recounted the period when
they were ambushed and beaten in the room in 607
the stick wa 'inianzi." Then there were a knock at
the door. He dressed up. This lady said "Why am
I hearing sounds of children crying! "She saw us and
beat us with a stick.

She concurred with the others that she was taken by

her friends to 607. "Our friends whose name I have
forgotten told me ''lets go to collect money." True
she like the others was paid money after the sex and
as she said "I went there several times" (she was
still crying) I felt pain. I didn't tell anybody as he used
to tell us not to tell anybody as he would kill us or take
us to police. (still sobbing)."

And again when dealing with the evidence of PW12, the PRM said:
:~'

"To show that Aza was psychologically affected by

the repeated sex ordeal when she narrated the ordeal
she is shedding tears and could (sic) talk and we had
to pause from time to time for her to cool down. This
indicated that she was not telling lies. "

The evidence of the rest of the star witnesses for the prosecution
• was treated the same.

The Learned Principal Resident Magistrate then turned to the

evidence of PW20 in respect of the ten complainants. This was also
the medical evidence in respect of each one of them. As this
evidence was used to assess the credibility of the witnesses, I cannot
avoid being a little long. PW20 examined the victims and prepared a
report by filling in the relevant parts of the PF.III for each child.
 The 1st and 2nd counts against the four appellants charged them
for rape and unnatural offences against Aza Hassan (PW12) she was
examined by PW20. The medical report (Exh.P3) showed she was
found with foul smell, vaginal discharge, the hymen was torn, anal
sphincter was lax. PW20 concluded that PW12 had been raped and
sodomized.

PWS had testified that she went to the 1st clppellants house
whereby he put his penis (mdudu) inside her vagina and her anus
and on instructions sucked his penis and licked some piles breaking
, them open. PW20's report (Exh.PS)showed no signs of sexual abuse
as the hymen was intact and the anal sphincter was normal.

Alisia Longino (PW3) was the subject of counts 5 and 6. She

had testified to have been taken to the 1st appellant by PW11 to get
money. She did go and was "sexed" both per vagina and per anus
'I'

st
and the 1 appellant had oral sex with her. Her guardian Aisha
Mrutu (PW4) examined her and noticed her vagina and anus had
blood stains and pus. She also had a found smell. Clinical
• examination by PW20 (Exh.P1) showed perianal old bruises and a lax
anal sphincter. The hymen was intact. The doctor concluded that
the anus was perforated.

Isabela Angonile (PW9) was the subject of counts seven and

eight. She testified to have been raped and sodomized. Her mother
Mary Chitumbi (PW10) examined her on 11/10/03 and according to
her evidence, found her vagina wide with evidence of Semen. The
doctors report (Exh.P6) showed she had a torn hymen and old
 •••••• 5 u

perianal bruises. She (PW20) concluded that PW9 had been sexually
"
abused.

PW20also examined PW8, the subject of counts ten and eleven

concerning all the appellants. Like her friends she testified that
PW11 took her to the 1st appellant after school where the four
appellants had raped and sodomized her. This happened for three
days consecutively. Her mother PW7 supported her version as on
visual examination she found the vagina and anus wide with foul
smell. The doctors report (Exh.P4) found a torn h,ymen and a lax
• anal sphincter and concluded that PW8 had been sexually abused.

Counts twelve and thirteen were in respect of PW13. This is

the girl who led the trial court through the rooms when it visited the
locus in quo. Brigita Kamenya (PW16) an old lady of 51 years
examined her and found foul smell coming from the vagina. PW20
examined this victim and made a report (Exh.P9) which said that
there was foul smell, vaginal discharge, hyperemic hymen, the anal
sphincter was intact. She concluded that PW13 had been sexually
• abused.

Counts 14, 15 and 17 were in reference to PW2. She is the

nucleus of this case. Her guardian PW1, was the first to detect foul
smell from PW2. She was inquisitive, pressed on until PW2 made the
horrific revelations which triggered the investigation that lead to the
appellants being charged. PW1 had noted pus and fresh blood from
the vagina of PW2. The doctor's examination showed that the
).
 ...,..'

hymen was intact, but there were clinical features of sodomy. She
concluded in her report (Exh.P2) that her anal was perforated.

The subject of counts 18 and 19 was PW11:' She was also

examined by PW20 who reported in Exh. PlO that the hymen was
torn, there were old healed perianal bruises and the anal sphincter
was lax. PW20 concluded that she was raped and sodomized. The
story was not very different in respect of PW15, one Amina Shomari
who was the subject of counts 20 and 21. The medical report made
by PW20 (Exh.7) was to the effect that the hymen was torn and the
• anal sphincter was lax. She concluded that the child (PW15) had
been raped and sodomized.

The last two counts, 22 and 23 were in respect of Agneta Sia

(PW14) she had been visually examined by her guardian Lilian
Mbawala (PW19) who noted nothing abnormal whereas the doctor
(PW20) vide Exh.P8 found and reported that clinically PW14 had a
torn hymen, had vaginal discharge and lax anal sphincter. She
concluded that the girl had been raped and sodomized.

Again, the trial court delt with the evidence of PW15 in relation
to the allegation by the defence that this case was a frame up. After
analyZingthe evidence of this girl she concluded.
liThe transferring of this witness to another
school waters down the defence thesis that
the parents and guardians of the victims
framed up the accused. Why would Amina s
parent set up the accused by using Amina and
then have the trouble of also disturbing Amina s
studies?
In the examination in chief of this witness, she is recorded to have

said:
"I am in school Mbagala. I used to go to
school in Sinza Mashujaa class lA. I have
been transferred to Mbagala by my mother
because I have "tabia mbaya" my mother,.told
me I have bad habits with Babu Seyer/Sea
(she cries profusely) Babu Sayer/Sea sexed me
and put his penis infront and behind (she is still
crying very much) in Sinza I live with my aunt.
Babu Seya/Sea times at Sinza infront of our
school. I used to escort his son Zizel to drink
water. Babu Sayer/Sea pulled me then and took
me into his room. I saw oil in the room. He then
told me to suck his penis I did. He oiled me. He
then put me on the bed and put his penis in my
vagina. He did the same in my ass "

The fact of PW15 being transferred to another school was therefore

borne by the evidence on record and could be used to ground an
opinion.

The trial magistrate, as stated above, spent a lot of time

considering the case for the defence. She analyzed the story of each
and every appellant. As stated earlier, the 1st appellant testified that
he did not live at 607. The 2nd appellant called in OW12 (Mariam
Songi), Edward Masawe (OW13) Ruge Mutahaba (OW13) and DW2S.
All the defence regarding this appellant was considered. The learned
PRM also analyzed the defence fronted by the 3rd appellant and the
th
4 appellant noting various contradictions at material areas. The trial
magistrate does not appear to have made a specific finding that the
defence of alibi was not, on the evidence as a whole, available to the
 r
appellants. To me, this was not fatal to the proceedings because
,i
; I
~. I

after considering the defence she went on to examine the case for
the prosecution and believed that the ten victims were telling the
I'
1~ ,
'iJ

truth when she said:-

"The counsel submitted that the children

were not free witness (sic) I assessed these
witnesses and found them credible. The
victims gave evidence of the sex from time
to time. There are medical exhibits PF.11'1.
I have demonstrated that even those whose
medical evidence did not reveal the signs of
being raped they were indeed raped both
anus and vagina and had oral sex. //

Was the learned Principal Resident Magistrate justified to came to

that conclusion?

I have run through the findings of the trial magistrate regarding

the violation on the ten children. She had the advantage of seeing
','
these witnesses and assessing their demeanour and the demeanour
of PW20 and was satisfied that they were credible. In the case of
11 Jumanne slo Bugingo and Another vs. R. (C.A Mwanza)
Criminal Appeal No.137 of 2002 (unreported). The Court of
Appeal, KAJI, J.A. quoted from the case of Ali Abdallah Rajab v.
Saada Abdallah Rajabu and others [1994] TLR 132 where the
court had held:
"Where the decision of a court is wholly based
on the credibility of the witnesse~ then it,/s the
trial court which is better placed to asses~ their
credibility than an appellate court which merely
reads the transcripts of the record. //
r
The Court went on the quote from another case of Omar Ahmed v.
R119831 TLR 52when it had held. ,.
"The trial court's finding as to credibility of
witnesses is usually binding on an appeal court
unless there are circumstances on the record
which call for a reassessment of their credibility. "

This has been the law on the issue of credibility. This court is bound
by it. And having gone through the record, I am persuaded that the
trial Principal Resident Magistrate findings on the credibility of the ten
star witnesses was justified.

,.
The medical doctor, PW20 is a specialist pediatric surgeon. By
her qualifications, she is very senior. She examined all the victims on
22/10/03. She gave a report on every child as found correct by the
trial magistrate. during cross examination by Mr. Ringia, learned
advocate who was assisting Mr. Nyange, she said:
"My expect knowledge a child whose hymen
was torn can walk and do everything, she can
get pain but a week or so the pain subsides. "

She concluded by saying:

"There are smells which are typical on
vaginal discharge. You can tell if the foul
smell is infection or cancer. In the above
children the foul smell was from infection
from unsafe sexual contact. Blunt weapons
pennies (sic) test tube or "vidole" I zeroed
in on pennies (sic) or vidole. I am sure
hundred % that these were done by fingures
or pennies (sic). It is not true that a banana
is blunt but it is sharp. In my report I didn't
say pennies (sic) or fingure but blunt weapon. "
 She was believed by the learned trial magistrate that she was a
witness of truth. I have no reasons to fault the opinion of the
magistrate on this witness.

,-
On the acquittal of the 5th accused person which was a subject
of ground 11 of the petition I do not think that the complaint is
justified. It is not strange for a person to be acquitted from a group
of charged persons. Evidence can be uncertain about one person
and very certain about the other. The fact that the children were not
certain, or were outright wrong as to what the 5th accused taught
• does not make them unreliable all through. I would agree with the
respondents that a person can forget which does not mean he does
not know. In the case of Mathias Timothy v R. (19841 TLR 86
the late Lugakingira, J (as he then was), quoting Musa v. R [19701
HCD R.278 said:
I:.. the rejection
of part of the testimony of a
witness does not necessarily make his whole
testimony suspect or discredited. "

The evidence can be discredited only when there is a glaring

I' falsehood against one of the accused persons. In the case of
Timothy, the court went on:-
'Tn my vie~ where the issue is one of false
eVidence, the falsehood has to be considered
in weighing the evidence as a whole, and where
the falsehood is glaring and fundamental its effect
is utterly to destroy confidence in the witness a/together,
unless there is other independent evidence to
corroborate the witness. "
The PRMdid not find falsehoods in the evidence of the ten children in
respectof the 5th accused. The evidence looked as a whole justifies
the position taken by her. She found the evidence of the children as
against the 5th accused as hazy: which, to me, is different from
saying that the evidence was a pack of lies. On the reasons I have
given. I find that this evidence could not effect the evidence against
the four appellants. ,.

In conclusion, for the reasons I have given. I find that grounds

2, 10, and 11 are not genuine complaints and hereby dismiss them.

Grounds four, five and six were argued together. These

grounds centre on the issue of penetration. They are inter twined.
They say as follows:
"4. The trial court erred in absence of evidence to
hold that a penis that does not erect can
penetrate a female genital organ or anus.

5. The trial court erred in view of medical evidence

to find that the complainants were penetrated.

6. The trial court erred in absence of a description

of the penis to find that it was in fact the penis
that penetrated the complaints."

Learned counsel for appellants relied on the evidence of DW1 and

OW11. (I think be meant DW10) the latter, a close friend of the 1st
appellant who told the court that they tried to get medical help but
did not manage. Counsel also insisted that as there was no
description of the penis of each of the appellants, which according to
him, was necessary, the charges could not stand. He also touched
 ~Iml
,

on the evidences of PW20 where it said some of the children were

not penetrated.

The learned Senior State Attorney in reply submitted that on

the evidence available, the 1st appellant and his children raped the
ten children. He said in charges of rape, you do not require an erect
penis or a rapture of the hymen to prove the offence. He referred
the court to The Digest of Criminal Law, Evidence and
Procedure, 1993 Edition at Page 187. The Senior State Attorney
also pointed to contradictions on the testimony of the 1st appellant
• and DWIO regarding the duration of the erecting problem. He then
run through the evidence of PW20 in the same way the trial
magistrate did as is shown when I was dealing with ground number
ten, and concluded:
liThe totality of all these exhibits evidence
is that the children were penetrated by the
appel/ants and that finding some of them
with intact hymen cannot remove the fact
that they were penetrated. "

And dealing with ground 6 of the appeal, he answered that that was
not a requirement of the law. It was enough for the children to say
that they were raped.

The trial Principal Resident Magistrate deIt with the issue of a

malfunctioning penis of the 1st appellant at great detail. She related
this fact, if true, to the law under SOSPA. At the end of the day, she
rejected that line of defence by saying:
,.
liThe first accused person said his erection
capacity was going down as time goes by. That
 -,.'
f
did not mean that within the range of the crime
he was completely malfunctioning. Even if he
wa~ he could still penetrate slightly and that is
why some of the victims above did not suffer
vaginal and anus injuries under William"
Kt. Becks."

In dealing with the evidence of PW20 regarding the findings that

some of the children had intact hymen, the trial magistrate relied on
a book by William W. Beck, Jr. Obstetrics and Gynecology, "The
National Medical Sciences for Independent Study at Page
244 and concluded that "penetration by a penis through elastic
hymen may occur without laceration."

Let me start with ground six I agree with the learned Senior
State Attorney that it is not a requirement of the law in proving rape
for the victim to give a description of the penis that penetrated her.
The reason is simple. Every normal male human being (or mammal
for that matter) has only one penis. When a victim is raped and she
succeedsto give a description of the person who penetrated her, that
is enough to prove the offence against that individual. This ground
t of appeal is a hoax and I dismiss it.

Ground of appeal number five. The medical evidence relied on

by the prosecution at the trial came from PW20 and the exhibits she
tendered after examining the children. She was cross examined by
the defence. She said, inter alia that according to her experience,
children who are sexually abused may not show signs of abuse. I
have gone through the evidence of the ten children. Only Rehema
Mgweno (PW5) was found to be normal, that is the hymen was not
 torn and the anal sphincter was normal. However, there is the

evidence of PW6 who said:

I'] interrogated
her (PW5) in the presence of
Mama Gift. My daughter admitted that they
were going to Babu Sayer/Sea taken there by
Yasinta where they would be raped and
sodomized and given money. I checked her
private parts and noted her vagina was enlarged
too big."

On this aspect, the evidence of PWS went thus:

"Yasinta told me, 'let us go there after school"
I asked her "where to? "She said "To Babu
• Sayer/Sea to drink water. I took her and Babu
Sayer/Sea told Yasinta "Go and get other children
"She brought Gift, Juliet, Alisia, Tabia and Dei.
Babu Sayer/Sea took us to his house. There
was a mattress on the wall and on the bed He
put me on the bed He put his penis (mdudu)
inside me and in my buttocks. He told me to
suck his penis while he sucked my breasts.
I did He told me not to tell
anybody else he would cut my nose and
mouth and take me to police. I felt great
pain. "

The medical evidence was and cannot be all conclusive. That the
hymen was not torn and the anus appeared normal cannot, I my
view, displace the cogent evidence of PWS and PW6. The
respondents also referred me to the Digest of Criminpl Law, Evidence
and Procedure (supra). In the case of R v. Nicholls (1847) GLTOS
179; 2 Cox CC 182 where it was held:
"Where a prisoner was indicated of carnally
knOWing a child under ten years of age, the
capital charge will be supported by the
evidence of entering the body, without proof
 of perfect and absolute penetration and the
absence or presence of any hymen is not
conclusive either way."

And in the case of R. v. Wyles (1839) 3 JP 196 it was stated:

"In a case of rape/ if there has been penetration
the jury ought to convict of the capital offence/
even though the penetration has not proceeded
to rapture the hymen.

The development of our law has not been different. The new section
130 of the Penal Code as provided in 505PA has this to say in sub-
section 4:-
"130(4) For purposes of proving the offence of
rape -

(a) penetration however slight is

sufficient to constitute the sexual
intercourse necessary to the
offence. "

The case of Fundi Omari v R. [19721 HCD 9S·'·which was also

quoted by the learned Principal ResidentMagistrate is relevant on the
position that a tear of the hymen is not the only conclusive evidence
• to prove rape.

What is more is this. The medical evidence so much elevated

under ground five would only apply to one out of the ten victims. So
seriously speaking, I do not understand what learned counsel for
appellants means when he makes that complaint. The finding by the
c)'

trial court on the fact that the complainants were, on the evidence
available, penetrated was well grounded. I find no merit in ground
five of the appeal and dismiss it.
 On ground four, there was a lot of noise made regarding the
potency or otherwise of the 1st appellant. There was an allegation, in
the lower court that the trial court refused to give permission to the
first appellant to be examined. All taken together boils down to one
question. Did the 1st appellant commit the acts of rape alleged
against the ten complainants or any of them? I have explained
above how the trial court delt with this line of defence. I have no
reasons to differ. The first appellant was the principal actor in the
whole horrifying and callous scheme against 'near af1.ge1s'
at a period
• of the very foundation of their lives. He is a father of several children
including the other three appellants. His wife died in 1998 and in
2001 he started living with DW10. On the issue of impotency, she
had this to say:
"In 2002 the 1st accused had problems with
is penis. We started well sexually and at the
end of 2002 December I discovered that he
was not performing properly sexually. "

:','

eventually landed on one Dr. Yogoro of Muhimbili. This doctor told

her to see him at Tumaini Hospital Upanga. She was with the first
appellant who however did not enter to see this Dr. Yogoro.

The first appellant gave his defence on 9/3/04 and said it was
about three years since impotency set in which would mean from
around the beginning of 2001. Impotency is a traumatic and
stigmatic occurrence. And for a couple living together, one would
 expect the dates not to differ too much. The trial magistrate delt
with this and concluded that it was not true and even if it was true, it
did not matter. She said:
"Even if the first accused could not
have full erection there being the
slightest penetration was sufficient
to prove rape as per law established.
The victims proved that the first
accused put his penis into their
vaginas (sic) and anus and they
sucked his penis. "

What the trial PRMwas saying is that the defence of impotence was
• inconsistent with the credible and believable evidence of the victims.
With respect I think the PRMwas justified to come to' that conclusion.

All the complainants mention the 1st appellant as the person

calling them, manly through PWll. This is what they are recorded to
have said in part; beginning with PW2:-
"One day Yasinta who is my friend
in same class told me 'let us go to Sabu
Sayer/Sea to be given money but you would
see what will be done to you' I went with
Yasinta on our way to school to Sabu
Seya/Sea in the morning. " ,.

And a little latter in her testimony she says:

"On the following day on our way to
school Sabu Seya/Sea saw us and said
"Watoto Wazuri njooni nikawanunulie
soda" I was with others Aza, Alisia,
Rehema, Juliet and Sizel. .... We entered
his room and he covered our faces with
back cloth. .. "

Then there is PW3 who had the following to say in part:-

r
''I know the accused in the dock with
his children but I don't know their names
Babu Seya/Sea is the 1st one. They used
open and know Babu Sayer/Sea.
Our friend called Yasinta told us to follow
her to go to a Babu who gives money
('anagawa fedha~ .
We went to Babu SeyajSea. Yasinta
closed the door of Babu Seya 5 sitting
room. Babu Seya held our hands. He
took us to the room. He undressed us.
He covered our faces with black peaces
of cloth. He placed me on the bed with
others. Those who didn't fit would be
placed on the mattress on the floor. "

Rehema Mgweno (PW5) has been quoted earlier in this judgment.

Juliet Mhavili (PW8) told the following story in part:
"My friends in school Gift, Rehema, De~
Amina, Sia, Tabia and Alisia. We are in '
same class 1A. We used to play together.
One day we were passing at the school
ground. Three men and one lady came to
take us. The boys are in class 1B and the
girl is in class 1A. I do not how the names
of the three boys above. The name of the
girl is Yasinta. I was with Gift, Alisia, De~
Rehema, Sia, Amina, and they took us to
Babu SeyajSea ('walitukamata~. Babu
Sayer/Sea house is very close to the school.
It was at 11.00 am when we came from class.
We found Babu Sayer/Sea, Papii and two
other children of Babu Sayer/Sea. Babu'"
Sayer/Sea took us to his room undressed
us and our pants and made us lie on the bed.
Oiled our vagina and his penis and he put the
same in my vagina. He sucked our breasts.
He oiled our vaginas and buttocks. He had
sex with us in the vagina and buttocks. .. II
r
I
/ Then there is the evidence of Isabella Angomwile (PW9) who said:
"When we arrived at Babu Sayer/Sea/Babu
Sayer/Sea tied our faces with black cloth
and he undressed us inside his house. He
then oiled in our private parts. Babu Sayer/Sea
oiled me. Babu Sayer/Sea had sex with me in
my vagina and latter in my buttocks. I felt pain.
I didn't do anything although I felt pain.
He Babu Sayer/sea also put is penis in my
mouth "

st
Yasinta Mbele (PWll) has the following to say regarding the 1
appellant:
"They undressed us and tied our faces
with black cloth. It was the first accused
who tied my face. The first accused put his
penis into my vagina after he oiled my
private parts infront and behind .
One day Nguza while I went to buy a pencil
near our school in a shop/ he told me to go
and call my friends. I called Gift Juliet
Alisia/ Isabela and Dei. I found them playing
in our school compound I told them ''Lets
go to one Babu called Nguza who dishes out
money. ... " They asked me the name. I told
them the first accused's name. "

Aza Hassan (PW12) said, inter alia:-

"I know the accused in the dock. The
first accused is Babu Sayer/Sea. I know
the rest of the male accused by face but
they were doing bad things (walikuwa
wananifanya~................................ ~asinta
tied our faces. Babu Sayer/Sea undressed me.
He oiled my private part and others and he had
sex with us (anatufanyia tabia mbaya~. Then
he turned us from behind and oiled us and had
sex from behind ... "
Then there is the 7 year old Dei Jafari (PW13). Her part of the
~'

evidence is as follows:
One day he covered my face and
l~ ••

undressed me. He told us to suck his

penis and would give us money. Then
there was a knock at the door. He
dressed up. "

Ageneta Sia Wendeline is recorded to be 6 years. She testified as

PW14. She said in part:
"One day after school we were taken
by the first accused Babu Sayer/Sea
and took us to his house. He told us
to suck his (first accused pennies (sic)
oiled our private parts and put his
pennies (sic) in our private parts infront
and behind He told us to lick his breasts ... "

As to Amina Shomari, (PW15) I did quote her statement when I was

dealing with grounds 10 and 11 above.

From the above quoted extracts, it is evident that the 1st

appellant was at the centre stage of the happenings in 607. The
complainants were subjected to very long cross examinations by the
defence, after long examination by the prosecution. I have not been
able to see anywhere, where the issue of non-erection of the 1st
appellants penis was put to these witnesses. This issue camF
surface very strongly when PW20 took the witness box. Nch
child was made to answer on this issue which was
highlighted by learned counsel for appellants.
 The learned Principal Resident Magistrate appears to conclude
that it did not matter whether the 1st appellant could generate an
erection or not. I think that was not proper. There was an issue
before her. She should have made a finding on it.,· This being the
first appellate court, I am justified to reassessthe evidence and make
my own conclusions. On the eVidence,I find that the defence by the
1st appellant that he could not erect was manufactured. On the
evidence of the victims, and failure by the counsel for appellants to
bring this issue in cross-examination, I am bound to find that the 1st
appellant's erection capabilities were in order. On the foregoing, I
f find no merit in ground of appeal number four and hereby dismiss it.

Ground of appeal number seven complains that the trial court

erred in finding that the appellants and 607 Sinza Palestine were
properly identified. Learned counsel for appellants opened his line of
arguments by complaining that this Selina who was housemaid of
PWl was not called to testify though she is alleged to have taken
PWl to 607. He said it was not any of the children who identified the
house. He said there was a contradiction between the evidence of
f PW23 and the other witnesses, the former saying PW2 showed the
house while the others, like PWl said it was Selina who identified the
house. Learned Counsel also complained as to the date the 1st
appellant was arrested in that whereas PW23and PW2 said it was on
9/10/03 the evidence of DW6, DW7, DWll and DW18 who said on
that day Achico band did perform at Lion Hotel and the 1st appellant
was there.
I
Counsel for appellants also complained on the evidence of
PW2, which was recorded by DW23. He said in that statement PW2
said she knew the suspects by name. But if they were not there,
what did PW2 use? He answered this by saying PW2 must have
been using another source. Learned counsel also did complain on
whether there was an identification parade or not. H~ concluded that
there was none in law.

On the identification of the appellants, learned counsel said it

was not possible to identify the appellants as the victims were being
tied with cloth and undergoing traumatic experiences. In those
circumstances, he said, an identification parade was required and
necessary. To underscore his point, he referred the court to the
evidence of PW21where she had said:
"l saw the 4 men accused at police station. they were
tied with handcuffs at police being put in a motor vehicle.
Amina and other children were there. "

He referred the court to the case of Moses Charles Deo v R.

f1987] TLR 134 to underscore the necessity of an identification
parade in this case.

The Senior State Attorney for the respondents answered that

he agreed with learned counsel for appellants on that identification is
important and that the case of Waziri Amani v. R ri980] TLR 250
is the authority on visual identification. But, he said, Waziri Amani
deals with a situation where there are difficulties in identification.
The learned Senior State Attorney said in this case the victims knew
the appellants by name and appearances, the house was near their
 school, the rape acts were not done once and victims were given big
G, soda and money. These were not difficult conditions to require an
identification parade. As the acts were done during the day, and the
black clothes were not always tried on the victims faces, there would
be no need for a parade.

On 607 he said the explanation and evidence did not exclude

the possibility that PW2 knew the house. He said learned counsel for
;"

appellants is reading too much on the line that the police were taken
to 607 by the 'sister' of PW2. The latter may as well have know 607.
PW2 gave evidence for two days at the end of which she was very
tired. He said it is not true to say the victims never knew 607
because even the trial court was lead by PW13 when it visited the
locus in quo. He concluded by saying there was no need for
identification parade, and 607 was properly identified.

The learned trial Principal Resident Magistrate delt with the

issue of identification at great length and detail. She concluded that
the victims had ample time and opportunity to identify the appellants.
• At one stage in her judgment, she said:
"More identification of the accused
persons and the room in 607 in connection
with the sex can be seen when the victims
recounted of what was done to them as
horrendous. They testified of the sex both
in the vagina and anu~ the oral se;v even
licking the anus like was done by Gift. Even
when she was testifying I could note her'
expression of reality of feeling nauseated.

At another stage she had this to say:-

 ''Nyange submitted that the victims
were blind folded and so they could
not identify the accused persons. As
shown above the sex took place more
than once"

And again:
"Naturally the first accused would not
cover the faces of the victims outside
his house lest it brings eye brows and
the children could have felt suspicious
then. So/ Gift reply to cross examination
that the black peaces of clothes were tied
on their faces when they entered the
house appears logical. .. // ,.
As to the identification of 607, the trial magistrate used the evidence
of PW22and concluded:-
"Therefore it is the victims who testified
in who (sic) pointed the 607 to this
witness and that had no relevance with
the identifies of the accused persons who
were seen at the police station under
hand cuffs as submitted by Nyange. To
the contra~ they identified 607 as the house
where they were sexed I do not agree with
Nyanges submission that Gift and Candy
knew 607 because she was taken there by
Selina. I say so in lies (sic) of the reliable
testimony of ASP Shilling. "

I would at once say that I agree with the observation of the

learned Principal Resident Magistrate. I also agree with what the
respondents said that there was a lot of ground for proper
identification by the victims of both 607 and the appellants such that
no identification parade was required. To sum it all, I am of the
considered view that to bring the issue of identification as a defence
was a token resistance. Many of the victims who testified said those
hideous acts were done in a long spell of time. For example PWl
wrote a statement and narrated what PW2to told her:
"Akaniambia kuwa kitendo hicho hakuanza
siku hiyo ni muda mrefu na huwa anafanya
mara kwa mara na kupewa hela Sh.200/:::;;
hadi Sh.400/= walimaliza kufanywa huwa
anawanawisha"

The acts were done during the day. The victims would be given
money, soda and chewing gum. The house is next to the school the
victims attended. There is a shop where the victims would also buy
school requirements which was very close to the house. The cloth on
the face was not tied every time and throughout. The reason for
tying the victims with a cloth on the face would be conjecture, but
may be it was one of the ways to reduce shock on the victims.

In Waziri Amani the Court of Appeal of Tanzania laid down

questions to be asked in disputed identity of a suspect when it said:-
"We woulct for example expect to
find on record question such as the
following posed and resolved by him
(judge): the time the witness had the
accused under observation the distance
at which he observed him/ the condition
in which such observation occurrect for
instance/ whether it was day or night time/
whether there was good or poor lighting
at the scene/ and further whether the
witness knew or had seen the accused
before or not. "

As can be noted, all the conditions of identification were met more

than reasonably in this case. In Moses Charles Deo (supra) the
Court of Appeal had this to say:
 l~n extra -judicial parade proceeding
is not substantive evidence, it is only
admitted for collateral purposes, in the
majority of cases, it serves to corroborate
the dock identification of an accused by
a witness in terms of section 166 of the
Evidence Act 1967. "

To mer this means an identification parade is not a requirement in

every case. I agree with the respondents that this is one of such
cases where it was not necessary to hold one. The identification of
the appellants and the house - 607r was more than adequate. With
respect the trial court was justified to hold so. This ground of appeal
also fails and is dismissed.

Ground No.8 of the petition is a complaint relating to the

evidence of PW24 who went to arrest the 2ndr 3rd and 4th appellants.
It was the complaint of learned counsel that PW24 said he was
shown a table where sex used to be done whereas the victims had all
along said sex was done on a bed and on a mattress on the flow. He
invited this court to treat the evidence of PW24 as coached.

The respondents submitted that there is no one of the victims

who said sex was done on the table. The learned Senior State
Attorney said according to PW2 there was a table in that room where
there was kept some petroleum jelly which was us~d to oil private
parts before rape but she was raped on the bed. The restr PW3r
PW5r PW8, PW9r PW11r and PW15 said they were either raped on a
bed or on a mattress on the floor. PW12r 13 AND 14 were not asked
this question as they were crying. Moreoverr he saidr actually PW24
 I never said victims were raped on a table. He said he saw a table but

I didn't say sex took place thereon.

I think this ground of appeal is short. During his evidence in

chief, PW24said:-
"The children victims showed me the
room where the alleged rape took place.
The room was to the right it had a bed
with a mattress and mattress leaned on
the wall where clothes were hanged The
children victims had said that the sex was
done on a bed and on a mattress on the
floor so that's why we went inside to see
these things."

During cross examination he said he saw a table "in that house

where the alleged crime was taking place." This means a table was
in the house not crimes taking place on the table. Latter on he said:
"All the children victims told me that
they were sexed on the table. I said
I saw a table but didn't say that the sex
took place on the table. I was told" "

Taking the evidence as a whole, and taking into account what this
• witness said during examination in chief, this issue of sex done on
the table was non existent. Indeed, if PW24 was told so, it was
hearsay. The consistence of the victims was that sex was done on a
bed and on a mattress on the floor. This ground of appeal must also
fail. I dismiss it.

Ground 12 and 13 were argued together. Learned Counsel for

the appellant argued with a lot of force that the 4th appellant, being
under 18 years of age should have been tried separately under the
provisions of section 28 of SOSPA. He should also have been tried in
camera. Moreover, he complained that although this trial was
supposed to be held in camera, it was not in fact so,"as one Detective
Stn Sgt Sabbas, not a guard, not an investigator, was allowed in the
trial room.

In reply the Senior state Attorney said section 28 of SOSPAwas

amending Section 3 Cap 13. (The Children and Young Persons Act)
SOSPAdid not amend the definition of child in Cap 13, therefore, the
law has not been changed in substance. The new section 28 of
SOSPA did not start with the words "Notwithstanding",. meaning that
all other section have been left intact, and if a change in the main Act
was envisaged, then the definition of child should have also been
repealed. Therefore, a child remains a child under the ruling law,
that is Cap 13. As this trial was in camera, it was proper.

On Sgt Sabbas the Senior the Senior State Attorney said in

Tanzania, there is no law regulating trials in camera. So even if
Sabbas was there, which they deny, the trial could not be vitiated.
They denied that Sgt Sabbas was there to coach" witnesses as a
coached witness cannot stand such rigorous cross examination. The
emotions displayed by the victims is not something to be taught, he
concluded.

Section 28 of SOSPA amended section 3 of Cap 13 by adding

sub-section 5 which says:

"Where a child of less than 18years of

 age is a witness, a victim an accused or
a co-accused in a case involving a sexual
offence, the child shall be tried in camera
and separately from the adult co-accused
or the evidence of the child shall be
adduced in proceedings conducted
in camera. " (emphasis mine).

Section 3(1) of Cap 13 has this to say:

'~ district court when hearing a
charge a child or a young person
shall if practicable, unless the child
or young person is charged jointly with
any other person not being a child or
young person, sit in a different building
or room from that in which the ordinary
sittings of the court are held. "

Cap 13 defines a child to mean a person under the ','age of 12 years.

But I do not think the definition of child under Cap 13 would find
room in sub section 5 because in the latter, it clearly talks of a child
of less than 18 years. Moreover, section 3(1) talks of hearing of any
charge against a child or young person whereas section 3(5) refers to
sexual offences. In my considered opinion, I think the key words in

, section 3(5) which deal with this case are those which say \\or the
evidence of the child shall be adduced in proceedings
conducted in camera." The framers, in their wisdom saw the
difficulties of haVing two parallel trials where a child is charged
together with adults like in this case. So, they inserted a safety
catch, as it were. I do not see anything wrong with the trial the
subject of this appeal. Ground 12 has no merits. I dismiss it.
 As to the issue of Detective Sgt Sabbas,who was the subject of
ground 13 of the petition of appeal I would immediately agree with
the Senior State Attorney. That this trial was conducted in camera
is without question. That we have no law regulating trials in camera
is also a fact. A trial in camera would be one where generally the
public is shut out. The presence of one individual or two for purpose
other than causing disturbance would, in my view, not vitiate the
'I'

trial. The allegation by the appellants that Sabbas was there to

coach witnesses is far fetched and is outright rejected. This ground
has no merits and is accordingly dismissed.

Ground 14 of the petition of appeal says:

liThe trial court erred in lowering the
standard of proof for the prosecution
and in raising that of the defence. "

Learned Counsel for appellants referred the court,. to the case of

Maruzuku Hamisi v. R [1997] TLR 1 in supporting his assertion.
He argued further that the defence witnesses were enough to raise a
reasonable doubt and in fact the appellants raised more than
reasonable doubt in their defences. He wondered why they were
convicted.
The respondents said the prosecution does not have to prove
the case beyond a shadow of doubt but beyond reasonable doubt, a
level they attained in this case. He referred the court to the case of
Chandrakant Joshubhai Patel v. R. Criminal Appeal No.13 of
1998 (unreported) to underscore his point and prayed that this
ground be dismissed.
 As I said earlier, I went through the record. The trial
magistrate analyzed the evidence at great detail, at the end of which
she accepted the prosecution case and rejected the defence. She
believed the evidence of the victims, the doctor (PW20) the
investigator (PW22) the person who made the first discovery (PW1)
and gave her reasons for such belief. It is not every defence that
should raise a doubt. A defence must be viewed against the
evidence as a whole. In the case of Maruzuku Hamisi v. R.
referred above, it was stated, when quoting Hassan Madenge V. R
','
Criminal Appeal No. 50 of 1987 (unreported).
• '~n accused's story does not have to
be believed. He is only required to
raise a reasonable doubt that is to sa)!,
his explanation must be within the
compass of the possible in human terms.

Maruzuku did not say that every defence shall raise a reasonable
doubt. The explanation must be viewed against all the evidence as a
whole and within the compassof the possible in the circumstance.

In the Patel's case, (supra) the Court of Appeal, Makame, J.A.

had this to say inter alia:-
'~s this court said in Magendo Paul
and Another v. R [1993} TLR 2, 9, quoting
Lord Denning's view in Miller v. Minister of
Pensions 1947 2 All £R. 372, also quoted
by the learned trial judge in the instant
case, remote possibilities in favour of the
accused cannot be allowed to benefit him.
If we may add, fanciful possibilities are
limitless, and it would be disastrous for the
administration of Criminal justice if they were
permitted to displace solid evidence or
 dislodge irresistible inferences."

This is the position of the law. The learned trial magistrate did not in
my opinion, depart from the law on burden of prooL This ground is
hereby dismissed.

Ground 15-20 were argued together because they very much

relate to each other. They all revolve on an allegation of bias on part
of the trial court against the appellants, such that they were not
accorded a fair trial. He listed areas of bias in the following order.
1. Appellants were denied statements of
would be witnesses.

2. Statements were only given after

examination in chief thus denying
appellant adequate preparation.

3. The denial of the court for the

appellants to undergo medical
treatment was improper.

4. An email written by DW22 occasioned

failure of justice.

5. Appellants were denied calling police

witnesses, in contravention of section
166 of the evidenceAct and section
34 B thereof which denied the appellants'
opportunity to impeach the evidence of
the victims.

In support of his complaints, counsel for appellants referred the court

to a string of authorities including R. V Albert Amour [19851 TLR
20, Tumaini v. R. [1972] E.A 441, Diede slo Odyek v R.
[1962] E.A494, Kioko v. R. (1971) HCD 307.
 The respondents countered these complaints by saying that the
proceedings do not show any bias as the trial magistrate tried her
best to accord the appellants a fair hearing. Under complaint (1)
above Mr. Masara said the law under section 9 of the Criminal
Procedure Act as amended by Act NO.9 of 2002 only requires that,
the statement of the complainant who reported the case to the police
be given. In this case it was PW1whose statement was the only one
to be supplied.

As to the denial of the appellants being examined, the

respondents said that the issue before the trial court was not the
lengh of the male organs of the appellants and as to whether they
suffered from venereal diseases. Therefore refusal,,' for them to be
examined did not prejudice the appellants. And on the email, there
is no evidence that the email influenced the trial magistrate, and the
person who tendered it was not the recipient. Moreover, TAMWA is a
pressure group and no one can limit communication among
themselves. So, the respondents submitted that the email did not
occasionany injustice to the appellants.

On the denial to call the police officers who recorded the

victim's statements learned Senior State Attorney said that the
recorder of a statement under police investigations is not the owner
thereof. the owner is the person whose statement is being recorded.
If the appellants thought there were problems with the statements,
the victims had to answer. Under Section 34 of the Evidence act, the
writer of a statement can be called to testify only if the author was
not found. Therefore the trial magistrate was not in error to refuse
the recording police officers to be called. This is without prejudice to
the fact that infact some police officers gave evidence after being
called by the defence.

The law on bias was well stated in the Tumaini case (supra). In
that case, the late Mwakasendo,Ag. J (as he then was/said:
"It is of course a well settled principle
of law that before an appellate court
can nullify a judgment on the ground of
bias, there must be proved, to the
satisfaction of the court that there was in
the case such a real likelihood of bias
as would be sufficient to vitiate the
proceedings or adjudication. As to what real
likelihood of bias will suffice in this regard,
one has to be guided by common sense and
by certain legal principles which the courts
have from time to time laid down as appl{cable
in this type of case. "

And he also quoted from Ro Vo Justices of Queen's court [19081

loR 285, 294 where it was held:
"By 'bias' I understand a real likelihood
of an operative prejudice, whether
conscious or unconscious. There must in
my opinion be reasonable evidence to
satisfy us that there was real likelihood of
bias. I do not think that the mere vague
suspicion of whimsical, capricious and
unreasonable people should be made a ,.
standard to regulate our action here. It
might be a different matter if suspicion
rested on reasonable grounds - was
reasonably generated but certainly mere
 flimsy, elusive, morbid suspicion should
not be permitted to form a ground of "
decision. "

Being guided by the principles in Tumaini can we say there

was bias on the part of the Principal Resident Magistrate so as to
vitiate the lower court's proceedings? This is my answer. Criminal
trials are governed by the Criminal Procedure Act and the Evidence
Act. In my opinion, giving what the other side thinks is an unfair
"
decision does not, of itself exhibit bias. In criminal trials, applications
and objections are raised and rulings are given either way rightly or
wrongly. It would be na'ive for a party, against whom a ruling is
given, to complain that there is bias. As it was said by the learned
Senior State Attorney, there are objective answers for every
complaint.

Starting with paragraph 5 of the complaints as tabulated above,

I agree with the respondents that the statements were made by the
victims and recorded by police officers. Any contradiction could
therefore be extracted from the children victims. I do not think this
was a genuine complaint. On the email, I do not see how the email
could be attributed to the trial magistrate. This was released by a
pressure group for their own reasons very independent of the trial
magistrate. I do not see how it could be linked to her.

Refusalto have the appellants' sexual organs examined did not

in my view prejudice them. The appellants had desired to use the
evidence from their examination to discredit the evidence of the
victims. These girls had been subjected to long cross-examination
from learned counsel. The issue of the size and lengh of the male
organs does not appear to have been the focus of such cross-
examinations. I do not therefore see any bias on such decision from
the trial magistrate. Under paragraph two of the appellants
complaint, I do not see what was wrong in the court giving the
statements of the witnesses to the defence after examination in
chief. If they had thought they needed time to study the documents,
they should have sought for an adjournment.

The appellants complaint that they were denied statements of

"
would be witnesses was well answered by the respondents. With
respect, I am of the view that the respondents are correct. Section
9(3) of the Criminal Procedure Act was amended by Act NO.9 of
2002. Now that section reads as follows:
"Where, in pursuance of any information
given under this section proceedings are
instituted in a magistrate's court, the
magistrate sha/~ if the person giving the
information has been named as a witness,
cause a copy of the information and of
any statement made by him under sub- "
section 3 of section 10, to be furnished to
the accused. "

So the statement the appellants were entitled was that of PWl who
actually triggered the investigation leading to these proceedings.
They have not specifically zeroed down on this statement. I cannot
put words in their mouth.
 On the foregoing, I am not persuaded that the trial magistrate
was biased in these proceedings. Bias is an issue of evidence. I do
not see any evidence, from the record, that would make me agree
with what the appellants are alleging. I do not think that the
complaints under grounds 15 to 20 were proved. I dismiss them.

Now to ground number 21. The learned counsel for the

appellants framed this ground as follows:
liThe trial court erred in not believing
the appel/ant's version which had only
to raise a doubt and which was not disproved
, by evidence in reply as per section 232 of
the criminal procedure Act. "

Arguing this ground of appeal, Mr. Nyange revisited the arguments

he had advanced when arguing ground fourteen of the petition of
"
appeal. He pressed further that the appellants had written
statements at the police which were not different from the story they
gave in court. It was therefore unfair to rule their testimonies in
court as an after thought, more so as the prosecution did not move
to impeach the appellant's statements given at the police station.
Secondly, Mr. Nyange said when an accused person is questioning a
witness or giving evidence of character, under section 232 of the
CPA,the court can give the other side room to disprove by bringing
evidence to the contrary. The prosecution did not ask the court to
bring contrary evidence. Mr. Nyange'sarguments were in relation of
1st appellant's assertion that he does not erect. Still the prosecution
did not bring any doctor to disprove this version.
 In reply, Mr. Masara said the prosecution did satisfy the
standard of proof required in criminal trials. Under section 232 of
CPA evidence in reply can only be brought if there is a matter not
covered by the prosecution but brought in by the defence. In that
situation the prosecution can then counter it. In this case there was
no such need as the prosecution case remained unshaken. On the
appellants statements, Mr. Masara said there was no evidence that
the appellants gave statements at police station.

I delt with the issue of burden of proof when dealing with

ground 14 and concluded that the trial magistrate did not shift the
burden of proof to the appellants. So, I will not be long here.
Section 232 of the Criminal ProcedureAct says:
ITf the accused person shall have
examined any witness or given any
evidence other than as to his general
character, the court may grant leave to the
prosecutor to give or adduce evidence
in reply." (underlining supplied)

The word used here is "may" meaning that it is not mandatory..

With respect, I would agree with the learned Senior State Attorney
that this can be done only if there is need. If the prosecution thinks
that their case is intact even after such evidence has bee given by
the accused person, why should they bother? Can they be accused
of not doing what they are not obliged to do? I think not. I am
satisfied, on the above reasons that this ground has no merit. I
dismiss ground twenty one. ,.
 In ground number 22, the learned counsel for the appellants
complained submitting that it was wrong for the 4th .,~ppellant,a first
offender child to be sentenced to life imprisonment. He submitted
further that since, according to him, the 4th appellant was not
properly tried, he was not properly convicted and sentenced.

The respondents said the 4th appellant was sentenced under

section 131(3) of the Penal Code as amended by section 6 of SOSPA.
They prayed for the dismissal of this ground as well.

• To answer this ground of appeal, I will go to the provisions of

the law, Section 6 of SOSPArepealed and replaced Section 131 of the
Penal Code. The provisions that concern us here are subsection 2
and 3 of the new section 131. They have this to say:
"131(2) Notwithstanding the provisions of
any law where the offence is committed by
a boy who is of the age of eighteen years
or less, he shall-

(a) if a first offender be sentenced to corporal

punishment only;
(b)
(c)

131(3) Notwithstanding the preceding

provisions of this section whoever commits
an offence of rape to a girl under the age
of ten years shall on conviction be
sentenced to life imprisonment. "

All the victims in this case were under the age of 8 years. This
ground of appeal cannot detain us further. I dismiss it as well.
 In ground number 23 to which I now turn, Mr. Nyange, learned
counsel, argued that the law requires that evidence should be
adduced before compensation is ordered. And there must be
evidence to show that compensation was justifiable. Although the
','
court, has discretion, an important factor is to see if the appellants
can pay. He said the compensation ordered was excessive.

The respondents argued, in effect that the order for

compensation is discretionary. But, they said, the victims were
young children whose life may have been ruined for ever. The
• compensation of shillings two million is not excessive in the
circumstances. They referred the court to the case of Swalehe
Ndungajilungu v. R Court of Appeal (Mwanza) Criminal
Appeal No.84 of 2002 (unreported) and concluded that in the
circumstances, the compensation ordered was not excessive.

This ground has given me anxious moments but at the end of

the day, I have decided not to disturb the order of compensation for
the reasons given by the court of Appeal in Ndungajilungu (supra).
,-I In the circumstances of this case, I do not think the sentence was
manifestly excessive. In the circumstancesof this case, the order of
compensation may appear inadequate, but I do not think that it is
manifestly so. The order of compensation was not based on wrong
principle nor did the trial magistrate overlook a material factor. And
finally the order of compensation is not illegal. Taking all these
consideration together, I see no reasonsto interfere.
 Ground of appeal number 24 and 25 were argued together.
They are rather strange. They place serious allegations at the door
of the trial Principal Resident Magistrate. For the record, I think it is
in the best interest if I reproduced these two grounds in extenso:-
"24. The record does not contain a whole
and true account of what transpired in
the proceedings including complaints,
objections and statements of counsel
for the appel/ants and the appel/ants
themselves hence the written
complaints.

25. The record does not contain a whole

and true account of answers given
by the prosecution witnesses in the
course of cross examination. //

Counselfor appellants argued generally and invited the court to look

into the record, but did not tell the court as against what other
record. He prayed that this court looks into his complaints and gives
gUidance.
Mr. Nyange then concluded his submissions by pointing out
what he thought were areas that needed the court's attention. He
pointed to what he thought were areas of contradiction. He
complained as to why some of who he thought were material
witnesses were not called by the prosecution. He also complained to
the failure of some of the victims to identify the 1st appellant i.e.
PW14. He also again traveled through the issue of identification
,-
and
said there was no description of the appellants before they were
brought to court. He concluded by saying that this case was full of
lies and the appellants were not properly convicted.
 ','
Mr. Mganga, learned state attorney who was assisting Mr.
Masara replied on the last two grounds and on the conclusion. He
invited the court to look at the record and see what it reflects and if
it finds that the record reflects what transpired during the trial, these
two grounds be dismissed. If any discrepancies are found, these
should be weighed to see if they occasionedan injustice.

On whether a court on appeal can impeach credibility of a

witness in the lower court, he said as credibility is·,·amatter of the
demeanor of a witness testifying, the trial court is best placed. He
, cited the case of Adnventina Alexanda v. R Criminal appeal
No.134 of 2002 (Court of Appeal at Mwanza - unreported), and
concluded that the witnesses for the prosecution were credible. On
the issue of impeachment, he said, a witness can be impeached
against a statement he made only when he is still in court, under the
provisions of sections 154 and 164 of the EvidenceAct. Therefore, it
was not proper to complain that witnesses statements were not
admitted as they had already left court. He cited the Odyek case
(supra). Mr. Mganga submitted also that it was improper for counsel
for appellants to cross examine the police witnesses without leave of
the court and the police officers were not competent to tender the
statements of the victims as that would offend section 34B of the
Evidence Act. These statements under the preceding section could
only be tendered by the police if the victims had not been called to
testify.

Mr. Mganga argued further that the duty of the prosecution and
the defence is to assist the court to reach a just decision and not to
 get a conviction or acquittal at any cost. He cited Mohamed
Katindi and Another v. R [1986] TLR 134 in support. On the
complaint that no specific date was mentioned when the alleged
offences were committed the state attorney said the issue would be
whether lack of date would cause an appeal be allowed. He said it
was the case for the prosecution that the offence took place between
April and October. He concluded by saying that the case for the
prosecution was proved beyond reasonabledoubt, that the appeal be
dismissed, the sentence be confirmed and varied to include strokes of
the cane.

As I said before, the last two grounds of appeal are abnormal.

No wonder, learned counsel for the appellants merely alleges. He
has not given this court any reference. How can this court know that
the record it has is not a true reflection of what transpired in court?
Our way of recording evidence and all court proceedings is by long
hand. We do not have tape recorders that would record everything
including loud laughters. The authentic record is the court record
that consists of the evidence and any admitted exhibits. In criminal
• trials, it will start with the charge sheet. Counselfo I" , appellants does
not show this court what was left, and why. He does not tell the
court which answers by the prosecution witnesses were left
unrecorded. This would help the court to see if the appellants were
prejudiced.

Not everything said by witnesses should be recorded. Not all

objections raised should be recorded. The court records what it
thinks is material to the justice of the case. If counsel thinks the
judge or magistrate has not recorded what they think is important,
he should request the judge or magistrate to record it. This record of
appeal does not contain all and everything that was said- the court
does separate the rice from the chaff and retain the. former. I have
gone through the record of the trial court. I do not see evidence of
the allegation under ground 24 and 25. The proceedings, as I said
earlier were charged and may be, a little turbulent. These things
should not be condoned, but they do happen when sometimes
counsel and the court are carried away by emotions.

As long as our mode of taking evidence remains as it is, there

is nothing that this court can do but say the court record remains the
only authentic record where anything can be extracted from. That is
the official document. Impeaching its authenticity will require more
than mere assertions. Learned counsel should endeavor and use his
legal knowledge to make sure that what he thinks should be on
record is put on record. The presumption is that what is on record is
there with the knowledge of all parties. I have mostly repeated what
I said at the beginning of this judgment because the complaints in
annexure A - H appear to have been made the subject under the last
two grounds of appeal.

I said the letters and all those documents are not properly
before this court. But as I said before, going through them they do
not support the allegations in grounds 24 and 25. Annexure B
complains of non compliance with section 210 (3) of the Criminal
 Procedure Act. This was not made a ground of appeal. Some of the
evidence was not read over to the witnesses, like PW1, PW4, PW7
and PW10. The other witnesses' evidence was read over to them,
like PW16, PW17 and PW18. The evidence of the victims was not
read over to them because of their age. I am not persuaded that
this prejudiced the appellants. Annexure C, D, E and F are complaints
of the way the proceedings were being conducted. They do not
"
allege non writing of proceedings but what they term as unfair
rulings. The trial magistrate delt with the incidence of counsel for the
appellants writing administrative letters whenever a ruling was given
• against him and said inter alia:-
"He rushed to his office/ and wrote a
long letter to the administration. He
reproduced what he thought was the
correct version of the evidence (critic)
by disclosing the gist of the case held
in camera in an open letter. .
............................ His furry had misled "
him to forget his noble duties as an officer
of the court who owed a duty to his client
the fourth accused person. I stand corrected
that it is my considered opinion that the
proper recourse to correct proceeding is not
through the administration. Proper application
should be made to the court for consideration
so that both parties to the proceedings may
have a fair hearing before a determination
of the application ..... " (emphasis supplied)

I think the trial magistrate approached the situation well. Court

"
proceedings cannot be corrected administratively.
 The allegations in grounds 24 and 25, although appear very
serious are not supported by the record. I find no merit in the two
grounds of appeal and dismiss them.

The concluding part of learned counsel for appellants address

to this court was merely a wrap up of all the grounds together. As I
said earlier, the issue of demeanor if best tested by the trial court.
There is a host of authorities on this as refereed to when I was
dealing with grounds ten and eleven. I will say no more on this. I
"
covered the issue of refusal to summon the police detectives when I
• dell with grounds fifteen to twenty. I need not go into it again.

The general complaint that counsel for appellants were denied

the calling of police witnesses who recorded statements of the
victims has been deIt with. Suffice it to say that I agree with Mr
Mganga as to the duty of counsel in any trial. In the Katindi case
(supra) the High Court, (the late Lugakingira, J, as he then was) said:
lilt is the obligation of a defence "
counsel, both in duty to his client and
as an officer of the coutt to indicate in
~~ cross-examination the theme of his client's
defence so as to give the prosecution an
opportunity to deal with that theme. For
to withhold the position of the defence and
thereby take the prosecution and the court
by surprise does, to my mind, portray a poor
appreciation of the meaning and purpose of
any trial. "

Had learned counsel for appellants conducted their "defence well as

stated above, the complaints would not have arisen.
 Lastly I will say this. When dealing with ground nine I
concluded that no proper voire dire examination was conducted but
said the evidence of the victims could not be disregarded. It is to be
treated as normal unsworn testimony. The trial magistrate believed
the testimony of each of the 10 victims. She believed the
corroborating evidence of all the witnesses including PW20. She was
entitled to act on the evidence on record to ground a conviction of
the appellants. That there were some contradictions in the evidence
of the victims was delt by the trial magistrate when she cited the
case of Hamisi Abdallah v. Sakiru Seengi (1978~ TLR NO.4 and
said:
''1n this instant case/ the testified (sic) children were
raped by the male accused persons
in (sic) more than one occasion over a
period of out six months. As said ear/ie0
the key material witnesses are females
(sic) of tender age. That being so/ it
would be less than just (sic) to expect them
to remember all facts/ dates and time of the
occurrences of incidents of similar character
over a period of such time. //
,.
Normal differences in witnesses testimonies are a healthy attitude.
Photocopy evidence should signify suspicion. I do not therefore think
the contradictions pointed out by learned counsel for the appellants
go to the root as to make this court interfere.

I will now comment on the way the appellants were convicted.

In convicting the appellants the learned trial magistrate said:
''1find that the prosecution has
established its case beyond all
 reasonable doubt. I accordingly find
them all guilty as charged and convict
them forthwith. "

I think it was important for the trial magistrate to say clearly that she
was finding them guilty of each count as charge,d. This would
remove any ambiguity on the exercise of convicting.

The respondents also prayed for enhancement of sentence to

include corporal punishment. The appellants were sentenced under
section 131(1) (3) of the Penal Code as amended by SOSPA. I think
the evidence as adduced fits the definition of gang rape contrary to
Section 131A, under which the appellants were charged. I substitute
the section under which the appellants should have been sentenced
accordingly. On corporal punishment, I think the respondents are
misinterpreting the law. Corporal punishment, in my opinion only
comes is when a sentence of less than life imprisonment is imposed
under section 131 (1) of the Penal Code as amended by SOSPA.
Besides no cross appeal against sentence was filed to give the
appellants room to reply. The sentence is therefore left undisturbed.

But for the few interferences as indicated, this appeal stands

dismissed in its entirety.

T. B. Mihayo
JUDGE
12.01.05
27/01/05
Coram: T. B. Mihayo, J.
For Appellants: Matambo
For Respondent: Masara ass. by Mrs Mushi
Appellants: Present.
Judgment read in open Court this 2ih day of January, 2005.

T. B. Mihayo
JUDGE
27/1/2005.

I certify that this is a true copy of the original.

S. A. Lila
DISTRICT REGISTRAR

7/3/2005