THE UNITED REPUBLIC OF TANZANIA

JUDICIARY
IN THE HIGH COURT OF TANZANIA
AT MBEYA
CRIMINAL APPEAL NO. 143 OF 2019

(Original from Criminal Case No, 48 of 2019, in the District Court

of Chunya District, at Chunya)

CHILU S/O MHUNDU......................................................APPELLANT

VERSUS
THE REPUBLIC.............................................................RESPONDENT

JUDGEMENT

23. 03 & 08/06/2021.

UTAMWA, J:
In this first appeal, the appellant, Chilu s/o Mhundu, challenged the
judgment (impugned judgment) of the District Court of Chunya District, at
Chunya, (the trial court) in Criminal Case No. 48 of 2019. Before the trial
court, the appellant stood charged with the offence of rape contrary to
sections 130 (1), (2) (e) and 131 (1) of the Penal Code, Cap. 16 R.E. 2002
(Now R.E. 2019). It was alleged in the particulars of the offence that, on
the 3rd day of March, 2018, at Matundasi Village within Chunya District of
Mbeya Region, the appellant did have carnal knowledge of one NN (a

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branded name for protecting the dignity of the complainant), a school girl
of 13 years old.
The appellant pleaded not guilty to the charge. However, at the end
of the trial, he was convicted and sentenced to serve in prison for thirty
years and to compensate the victim of the crime at the tune of Tanzanian
shillings 1,000, 000/=.
Aggrieved by the conviction, sentence and the compensation order,
the appellant preferred this appeal. His petition of appeal had a total of
eight grounds of appeal couched in a layman's language. They can
however, be condensed to only two grounds as follows:
1. That, the trial court erred in law and facts in convicting,
sentencing and ordering the appellant to pay compensation to the
complainant though the prosecution had failed to prove the
charge against him beyond reasonable doubts.
2. That, the trial court erred in law and facts in not considering the
defence case.
Indeed, the rest of the grounds of appeal were mere complaints against
the prosecution evidence aimed at supporting the above improvised first
ground of appeal. Now, owing to the above listed grounds of appeal, the
appellant urged this court to allow the appeal, quash the conviction and set
aside the sentence.
When the appeal was called upon for an oral hearing through a
virtual court link, the appellant appeared without any legal representation.
He had nothing to add to his petition of appeal. On the other side, the
respondent was represented by Ms. Prosista Paul, learned State Attorney.

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 During the hearing of the appeal, the learned State Attorney partly
supported the appeal and partly objected it. In doing so she contended
that, she partly supported the appeal on the grounds that, the appellant's
complaint against the evidence of the complainant was genuine. The
complainant was aged 13 years and the complainant complained that, her
evidence was taken without any prior voire Pretest. Though the voire dire
test was based on an outdated law, the fact that her evidence was wrongly
taken is supported by the current law. The current law provides that, a
child of tender age (i. e. below the age of 14 years) has to make a promise
that she will tell the truth to the court, and not lies. He/she has to do so
before giving evidence. This is in accordance to section 127(2) of the
Evidence Act, Cap. 6 R. E. 2019 as amended by section 26 of Act No. 4 of
2016.
The learned State Attorney further contended that, the complainant
in the matter at hand testified on oath and without making any promise
though she was 13 years old at the time of her testimony (i. e. 23rd May,
2018). Her testimony was taken when the amendments of the law
mentioned above were in force. According to her, any child of tender age
has to make the promise before giving evidence. He/she makes it even
where he/she takes oath or makes the affirmation. Now, since the
complainant testified on oath, but without making the promise, her
evidence was wrongly taken. She supported the contention by citing the
decision of the Court of Appeal of Tanzania (the CAT) in the case of
Godfrey Wilson v. Republic, Criminal Appeal No. 168 of 2018, CAT
at Bukoba (unreported).

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 The learned State Attorney did not wish to argue on the other
complaints of the appellant and the other ground of appeal. Nonetheless,
she prayed for this court to order for a retrial since there was sufficient
evidence against the appellant save for the erroneous reception of the
complainant's evidence.
In his rejoinder submissions, the appellant did not concede to the
prayer for the retrial. She based his contention on the fact that, the trial
court did not do justice to him.
I will now test the first ground of appeal. In my settled view, it is
compelling to firstly test the undisputed complaint by the appellant on the
manner the evidence of the complainant was taken before testing other
complaints in support of the first ground of appeal. If need will arise, I will
also test the rest of the complaints and the second ground of appeal. This
approach is based on the ground that, the deliberation regarding the
manner of taking the complainant's evidence may lead to a determination
of the first ground of appeal and dispose of the entire appeal in case the
complaint by the appellant will be upheld.
Indeed, the parties essentially agree that the evidence of the
complainant was erroneously taken by the trial court. However, they base
their views on different reasons. The appellant complained that the error
occasioned by the trial court was due to the fact that the voire dire test
was not conducted before she could testify. On her part, the learned State
Attorney contended that, the error was due to the fact that the
complainant did not make the promise to tell the truth and not lies to the
court before she testified.

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 Despite the fact that the parties are in consensus, I must decide the
matter according to law since this is the first obligation of courts of this
land. The issue has thus, been reduced to whether or not the
complainant's evidence was erroneously received. In my view, I agree with
the learned State Attorney that, the voire dire test no longer applies to
children of tender age following the amendments effected by Act No. 4 of
2016 to section 127(2) of the Evidence Act. Again, I agree with her that,
the complainant in the case at hand was 13 years at the time of her
testimony as per the evidence on record. She was thus, a child of tender
age. The provisions currently read thus, and I will quote them for the sake
of a readymade reference:
"A child of tender age may give evidence without taking an oath or
making an affirmation but shall, before giving evidence, promise to tell the
truth to the court and not to tell any lies."

While I agree with the learned State Attorney that a witness of tender age
has a duty to make the promise mentioned above, I do not agree with her
that the law requires such witness to make the promise even where he/she
takes the oath or makes the affirmation. Indeed, the learned State
Attorney suggested that a single child of tender age must be subjected to
both processes, i. e. taking the oath or making the affirmation and making
the promise at the same time. I am not in favour of this procedure which I
may brand, for purposes of smooth discussion in this ruling, the
unnecessary "double-processes" procedure.
In my settled opinion, a child of tender age is required to make the
promise only when the court finds that she does not understand the
meaning of oath or affirmation. In other words, if the court finds that

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he/she understands the meaning of oath or affirmation, he/she takes the
oath or make the affirmation and proceeds to give evidence without
making the promise. For smooth discussion in this ruling, I will call this
envisaged procedure as the "alternative-processes" procedure. I do so
because, the child of tender age may make the promise as an alternative
to the taking of oath or making the affirmation. This "alternative­
processes" procedure is differentiated from the "double-processes"
procedure advocated for by the learned State Attorney.
My above highlighted view in favour of the "alternative-processes"
procedure is based on the following reasons: that, as a general rule, every
witness testifying in court is required to take an oath or make affirmation
before giving evidence, subject to certain provisions of the law; see the
requirement under the Oaths and Statutory Declarations Act, Cap. 34 R.E
2019, especially sections 3, 4(a) and the proviso thereto. In criminal
proceedings section 198(1) of the Criminal Procedure Act, Cap. 20 R.E
2019 also underscores the general rule. It follows thus, that, section
127(2) of the Evidence Act, is among the provisions of law which create an
exception to the general rule mentioned above. This means that, if a child
of tender age understands the meaning of oath or affirmation, he/she
testifies like any other witness who is obliged to take oath or make
affirmation as per the general rule. However, if he/she does not
understand the meaning of oath or affirmation, he/she only makes the
promise before testifying as an exception under section 127(2) of the
Evidence Act. It follows thus, that, the "double-processes" procedure

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envisaged by the learned State Attorney is a serious misconception of the
law, which sober courts of this land are not expected to commit.
I understand that, the learned State Attorney purportedly based her
view in favour of the "double-processes" procedure mentioned above on
the Godfrey case (supra). In my view, however, she might have
misconstrued that precedent. I had the opportunity of reading the typed
version of that precedent which construed section 127(2) of the Evidence
Act. Indeed, it supported the stance I have highlighted above. At page 11
for example, the CAT observed that, and I quote the pertinent paragraph
for ease of reference:
"To our understanding, the above cited provision as amended, provides
for two conditions. One, it allows the child of a tender age to give
evidence without oath or affirmation. Two, before giving evidence,
such child is mandatorily required to promise to tell the truth to
the court and not to tell lies." (Bold emphasis is provided).

My settled opinion is that, the bold phrase "...before giving evidence, such
child is mandatorily required to promise to tell the truth to the court and not
to tell lies" in the above quoted paragraph, refers to a child of tender age

who is allowed by the law to give evidence without oath or making

affirmation. That bold phrase does make reference to a child of tender age
who can take oath or make affirmation as per the general rule highlighted
above.
Furthermore, the CAT in deciding the Godfrey case (supra) followed
its previous decision in the case of Msiba Leonard Mchere Kumwaga v.
Republic, Criminal Appeal No. 550 of 2015 (unreported). In this
precedent, the CAT considered the provisions of section 127(2) of the
Evidence Act and observed thus:

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 "Currently, a child of tender age may give evidence without taking oath or
making affirmation provided he/she promises to tell the truth and not to
tell lies."
On my part, I take this just quoted paragraph as instructing that, due to
the contemporary law, making the promise to tell the truth and not to tell
lies is only the condition precedent for taking the testimony of a child who,
according to the trial court, has to give evidence without taking oath or
making affirmation and not otherwise.
I further understand that, the learned State Attorney might have
been impressed by some observations of the CAT at page 13 of the
Godfrey case (supra) which apparently indicated that a child of tender
age is obliged to make the promise before giving evidence. However, in my
view, such observation was involved in the discussions by the CAT in
relation to that particular case in which the trial magistrate was supposed
to require the child witness to make the promise, but the magistrate did
not do so. I do not thus, take that the Ratio Desidendi in the Godfrey
case (supra) was in favour of the "double-processes" procedure advocated
for by the learned State Attorney for the respondent in the present case.
Indeed, the CAT in other occasions, also advocated for the
"alternative-processes" procedure and not the "double-processes"
procedure. In the case of Issa Salum Nambaluka v. Republic,
Criminal Appeal No. 272 of 2018, CAT at Mtwara (unreported) for
instance, where reference was also made to the Godfrey case (supra),
the CAT observed, in interpreting the same section 127(2) of the Evidence
Act at page 10-12 of the typed version of its Judgment as follows:
"From the plain meaning of the provisions of sub-section (2) of s. 127 of
the Evidence Act which has been reproduced above, a child of tender age
may give evidence after taking oath or making affirmation or without oath

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 or affirmation. This is because the section is couched in permissive terms
as regards the manner in which a child witness may give evidence. In the
situation where a child witness is to give evidence without oath
or affirmation, he or she must make a promise to tell the truth
and undertake not to tell lies....It is for this reason that in the case of
Geoffrey Wilson v. Republic, Criminal Appeal No. 168 of 2018
(unreported), we stated that, where a witness is a child of tender age, a
trial court should at the foremost, ask few pertinent questions so as to
determine whether or not the child witness understands the nature of
oath. If he replies in the affirmative then he or she can proceed to
give evidence on oath or affirmation depending on the religion
professed by such child witness. If such child does not
understand the nature of oath, he or she should, before giving
evidence, be required to promise to tell the truth and not to tell
lies...In the case at hand, PW1 gave her evidence on affirmation. The
record does not reflect that she understood the nature of oath. As stated
above, under the current position of the law, if the child witness
does not understand the nature of oath, she or he can still give
evidence without taking oath or making an affirmation but must
promise to tell the truth and not to tell lies." (Bold emphasis is
mine).
As if the above guidance was not enough, the CAT in the case of Shaibu
Nalinga v. Republic, Criminal Appeal No. 34 of 2019, CAT at
Mtwara (unreported) made the same emphasis while making reference to
and approving the position it had taken in its various previous decisions
including the Godfrey case (supra) and the Issa case (cited above). The
CAT observed in construing the same provisions of section 127(2) of the
Evidence Act, at page 7 of its judgment thus:
"According to this provision, where the court is satisfied that a child
of tender age is incapable of giving evidence on oath or
affirmation, it should make him promise to tell the truth to court
and not to tell lies. Some of the Court's decisions which have
interpreted this provision are: Godfrey Wilson v. R (supra), Msiba
Leonard Mchere Kumwaga v. R, Criminal Appeal No. 550 of 2015,
Hamisi Issa v. R, Criminal Appeal No. 274 of 2018 and Issa Salum
Nambaluka v. R, Criminal Appeal No. 272 of 2018 (all unreported).
(Bold emphasis was added)."

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In my settled opinion therefore, all the precedents cited above and the
quoted paragraphs herein above do not favour the "double-processes"
procedure envisaged by the learned State Attorney. Instead, they underline
the "alternative-processes" discussed above.
The contemporary law on the evidence of a child of tender age can
therefore, be summarised thus: though the general rule highlighted above
requires every witness to take an oath or make an affirmation before giving
evidence, section 127(2) of the Evidence Act as construed by the
precedents of the CAT just cited above, sets an exception to the general
rules as follows:

a) That, a child of tender age can give evidence with or without oath or
affirmation.
b)The trial judge or magistrate has to ask the child witness such
simplified and pertinent questions which need not be exhaustive
depending on the circumstances of the case. This is for purposes of
determining whether or not the child witness understands the nature
of oath or affirmation. The questions may relate to his/her age, the
religion he professes, whether he/she understands the nature of oath
and whether or not he/she promises to tell the truth and not lies to
the court. If he/she replies in the affirmative, then he/she can
proceed to give evidence on oath or affirmation depending on the
religion he/she professes. However, if he/she does not understand
the nature of oath, he/she should, before giving evidence, be
required to make a promise to tell the truth and not lies to the court.

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 c) Upon the child making the promise, the same must be recorded
before the evidence is taken (see especially the Godfrey case (cited
above) and the Shaibu case (supra).

In the case at hand however, the proceedings of the trial court indicate
that, when the complainant appeared before the trial court for her
testimony, the trial magistrate recorded thus:

"I have carefully and kindly examined the victim of this case and be of the
settled opinion that, though she is of tender age, but knows the nature of
oath as such, she will take oath."

The record however, does not show that, probing questions mentioned
above were actually asked by the trial court to the complainant to
determine whether she understood the nature of oath. This was against
the legal guidance marked b) hereinabove. In fact, I am of the view that,
according to the legal requirements listed above, even the probing
questions to the child witness need to be recorded by a trial court. This is
because, court record must represent all important events that transpired
in court for indicating that the law has been followed and so that an
appellate court can satisfy itself, in case of an appeal, that the law was in
fact, complied with; see the holding by the CAT in the case of Misango
Shantel v. Republic, Criminal appeal No. 250 of 2007, CAT at
Tabora (unreported). Showing the probing questions would have also
assist this court, in the matter at hand, to determine whether or not the
trial court was justified in finding that the complainant understood the
meaning of oath.

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 Owing to the reasons just shown above, it is clear that there was no
transparency before the trial court in determining the competence of the
complainant as a witness. This was against the law since the law guides
that, transparency and justice are inseparable; see the case of Gilbert
Nzunda v. Watson Salale, (PC) Civil Appeal No. 29 of 1997, High
Court of Tanzania (HCT), at Mbeya (unreported).

Due to the reasons adduced above, I find the omissions committed

by the trial court as fatal to the trial under discussion. It is more so
because, the omission was related to the complainant (PW.l) as the victim
of the said rape and whose evidence substantially influenced the trial court
in convicting the appellant. The law also guides that, the best evidence in
sexual offences comes from the victim; see the decision by the CAT in the
case of Seleman Makumba v. Republic [2006] TLR. 379. This was
also the holding by the same CAT in the case of Jaffary Ndabita @
Nkolanigwa v. Republic, Criminal Appeal No. 270 of 2016, CAT at
Tabora (unreported).
Owing to the above discussions, it cannot be said that the evidence
of the complainant in the case at hand was received in accordance with the
mandatory provisions of section 127(2) of the Evidence Act. I therefore,
though for distinct reasons from those adduced by the parties, answer the
issue posed above affirmatively that, the trial court actually, erroneously
took the evidence of the complainant. Such evidence is thus, liable to be
expunged from the record, and I accordingly expunge it.
I have also considered the prayer made by the learned State attorney
for the respondent on the retrial. The law clearly makes a guidance on the

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conditions for ordering or for refraining from ordering a retrial. The CAT in
the case of Kaunguza s/o Machemba v. Republic, Criminal Appeal
No. 157B of 2013, at Tabora (unreported at page 8 of the typed version
of the Judgment) following the case of Fatehali Manji v. R [1966] EA
343 guided thus, and I quote it for an expedient reference;
"...in General a retrial will be ordered only when the original trial was illegal or
defective; it will not be ordered where the conviction is set aside because of
insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps
in its evidence at the first trial; even where a conviction is vitiated by a mistake of the
trial court for which the prosecution is not to blame, it does not necessarily follow that
a retrial should be ordered; each case must depend on its particular facts and its
circumstances and an order for retrial should only be made where the interests of
justice require it, and should not be ordered where it is likely to cause an injustice to
the accused person..."

In the matter at hand, I have considered the fact that the appellant has
served his imprisonment sentence for only two years and nine months
since he was convicted and sentenced on the 27th August, 2021. This is a
small portion of the sentence of thirty years imprisonment that was
imposed to the appellant.
The record also indicates that, there is tangible evidence against the
appellant, especially from the complainant herself, save for the improper
reception of her evidence. It is on record for instance that, the complainant
told the trial court that the appellant took her from her village to another
village. On the way, they passed night in bushes and he had sexual
intercourse with her. He went on repeating the same act while they were in
that other village. The PW. 4, Mazuya Halawa (sibling of the complainant)
also testified in court that she was with the complainant at the time when
the appellant took her away. She saw him taking her away and she
reported the incidence to their father.
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 Moreover, PW. 3 (Dr. Pascal Loychi), the medical practitioner who
examined the complainant testified that, upon examining her, he
discovered that her vagina discharged semen, her hymen had ben
perforated and she was thus, penetrated. He felt the PF. 3 showing such
facts and tendered it in evidence as exhibit P. E 1. The evidence in the PF.
3 and that of PW. 2 (Nh'onge Mashishanga, the father of the complainant)
showed that the complainant was only 13 years old.
I have also considered the stance of the law that, the best evidence
in sexual offences comes from the victim of the offence as observed
earlier. The interests of justice thus, demands for a retrial as proposed by
the learned State Attorney and not for an acquittal as suggested by the
appellant. It is more so considering the seriousness of the offence at issue
which fetches a serious sentence, the minimum of which is 30 years
imprisonment.
Due to the above reasons and the findings I have made, I find it
unnecessary to test the merits of the grounds of appeal. This is because,
the findings are legally capable of disposing of the entire appeal at hand.
I consequently, make the following orders; I nullify and quash the
proceedings of the trial court and the conviction against the appellant. I
also set aside its impugned judgment, the sentence imposed against the
appellant and the compensation order. The appellant shall be retried
immediately before another magistrate of competent jurisdiction if the
Republic believes that there is still evidence to prove the charge after the
lapse of time of two years and nine months mentioned above. The retrial
shall commence in not more than two months from the date hereof to

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avoid delays. The appellant shall remain in prison custody as a remand­
prisoner and not as a convicted-prisoner pending the commencement of
the retrial. In case the appellant will be convicted after the retrial, the
period he erroneously served in prison for the nullified and discarded trial
shall be deducted from the sentence that will be imposed upon him. It is so

08/06/2021.
CORAM; JHK. Utamwa, J.
Appellant: present physically in court.
For Respondent: Mr. Baraka Mgaya (State Attorney).
BC; Ms. Gaudensia, RMA.

Court: Judgement delivered in the presence of the appellant in person and

Mr. Baraka Mgaya, learned State Attorney for the respondent/Republic, in
court this 8th June, 2021. '

JHKrUTAMWA.
JUDGED
08/06/2021.

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