IN THE COURT OF APPEAL OF TANZANIA

AT ARUSHA

(CORAM: SEHEL, J.A., KIHWELO. 3.A. And KHAMIS, J.A.l

CRIMINAL APPEAL NO. 313 OF 2021

PUSINDAWA LOSILO.................................................. ............. APPELLANT

VERSUS

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

(Appeal from the decision of the Court of Resident Magistrate at Arusha

at Arusha)
(Mahumbuqa, SRM-Ext. Jur.)

dated the 17th day of May, 2021

in
Extended Jurisdiction Criminai Appeal No. 29 of 2020

JUDGMENT OF THE COURT

11th & 18th March, 2024

SEHEL 3.A.:

In the District Court of Monduli at Monduli, the appellant,

Pusindawa Losilo, was charged with two counts. The first count

concerned the offence of rape contrary to section 130 (1) (2) (e) and

131 (1) of the Penal Code. It was particularized that, on 20th September,

2017, at Einguki within Monduli District in Arusha Region, the appellant

had carnal knowledge of a girl of sixteen (16) years old.

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 The second count was on the offence of impregnating a primary

school girl contrary to section 60 A of the Education Act as amended by

section 22 of the Written Laws (Miscellaneous Amendment) Act, No. 2 of

2016. It was alleged that in the same date, month and year, the

appellant impregnated a school girl aged 16 years of M.P.S school. For

the purpose of this judgment, we shall refer the girl as "the victim" or

"PW1" in order to disguise her identity.

The appellant denied the charge. Thus, a full trial ensued whereby

the prosecution called a total of four witnesses. The prosecution case

was also built upon three exhibits, namely; the PF3 (exhibit PI), the

victim's baptism certificate (exhibit P2) and a school attendance register

(exhibit P3).

The first prosecution witness was the victim (PW1). Her evidence

was to the effect that, on 20th September, 2018, she went to E forest for

herding the family cattle. At the forest, she met the appellant who used

to be her lover. They hang out together till evening. While there, the

appellant tried to seduce her but she denied. On their way back, the

appellant started to caress her which led her to fall down. The appellant

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quickly laid on top of her and forced himself into her. After he was done,

he gave her TZS. 5,000.00 in exchange for sex and they parted ways.

After a while, PW1 noticed that she missed her period for two months

but remained quite until when she was examined at school and tested

positive to pregnancy. Upon interrogation, PW1 mentioned the appellant

to be responsible with the pregnancy. She said that she was taken to E

Dispensary for treatment.

According to Elizabeth Lengidile (PW3) who is the mother of PW1,

the matter was reported to the police station whereby they were issued

with PF3 and went to the hospital for medical examination. She tendered

the victim's baptism certificate which was admitted in evidence as exhibit

P2.

Yona Athumani (PW2), assistant medical officer at Monduli District

Hospital examined the victim by ultra sound and found that she was

sixteen weeks pregnant. He filled the PF3 which was tendered and

admitted in evidence as exhibit PI.

A teacher from I.P.S, Elifuraha Maleko (PW4), said that she knew

the victim as a student at their school, and that, upon testing her, they
found that she was pregnant. PW4 tendered the pupil's attendance

register which was admitted as exhibit P3.

The appellant did not give his evidence because he jumped bail.

He absconded after the trial court ruled that the appellant had a case to

answer. The record of appeal shows that the appellant opted to give his

evidence on oath and said that he had no witness to call and no exhibit

to tender. On 13th June, 2018 when the case was called on for defence

hearing, he was absent thus hearing was adjourned to 19th June, 2018.

On the adjourned date, the appellant was still at large. Hearing of the

defence case continued to be adjourned till 3rd August, 2018 when the

prosecution prayed for judgment to be delivered in the appellant's

absence. Accordingly, the trial court issued a date for delivery of a

judgment. The judgment was delivered on 30th August, 2018. Here, we

wish to reproduce the proceedings of the trial court of 30th August, 2018

in order to show what transpired on that date, it reads as follows:

"30/ 08/2018

CORAM: A. A. Mkama-RM
For Prosecution: Chacha
C/Interpreter: Anna F. Alfonce

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 Accused: Absent
Chacha: the matter is forjudgment
Order: Judgment has been delivered in the presence o f the
accused person and Ms. Chacha, State Attorney.

Sgn: A. A. Mkama - RM
30/08/2018"

The above shows that the judgment was read in the presence of

the appellant but the quorum shows that he was absent. Nonetheless,

the appellant was sentenced to thirty (30) years' imprisonment for each

count. The sentences were to run concurrently. His appeal to the High

Court which was later on, in terms of section 45 of the Magistrates'

Courts Act, transferred to the Resident Magistrates' Court of Arusha at

Arusha to be heard and determined by Mahumbuga, Senior Resident

Magistrate with extended jurisdiction (the first appellate court) was

dismissed for being devoid of merit. Hence, this second appeal.

The appellant presented five grounds of appeal which are

reproduced hereunder:

"1. That, the lower courts erred in law and fact in

convicting and upholding the sentence against
the appellant while the charge sheet was
 incurably defective and no amendment was
done in terms o f section 234 (1) o f the CPA.
2. That, the lower courts erred in law and fact in
believing that the appellant impregnated the
victim while there is no proof that the
appellant is the person responsible for the
pregnancy because the victim asserted that it
was not her first time to perform sexual
intercourse before mating the appellant.
3. That, the lower courts erred in law and fact in
not finding that the trial against the appellant
was irregular and had infractions for the
appellant was denied the right o f equality
before the law to defend himself during the
trial which resulted to unfair trial contrary to
Article 13 (6) (a) of the Constitution o f the
United Republic o f Tanzania (the Constitution).
4. That, the lower courts erred in both law and
fact in believing that PW1 (victim) whose
evidence originated from a mis-application,
mis-apprehension and non-direction o f section
127 (7) of the Evidence Act
5. That, the first appellate court erred in law and
fact in upholding both conviction and sentence
o f the appellant while the case against the

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 appellant was not proved beyond reasonable
doubt."

At the hearing of the appeal, the appellant appeared in person

unrepresented, whereas, the respondent/Republic was represented by

Ms. Upendo Shemkole, learned Senior State Attorney assisted by Mses.

Naomi Mollel and Tusaje Samwel, learned State Attorneys.

The appellant being layperson did not have much to say. He opted

for the respondent to respond to his grounds of appeal while reserving

his right to rejoin, if need would arise.

In her brief submission, Ms. Samwel supported the appeal by

conceding to the third ground of appeal that the appellant was convicted

without being given an opportunity to be heard. Elaborating on her

stand, the learned State Attorney pointed out that, after the charge was

read over to the appellant, the prosecution called a total of four

witnesses. On 24th May, 2018, the prosecution closed its case, and that,

on 29th May, 2018, the trial court made a finding that the prosecution

had sufficiently made out its case to require the appellant to mount his

defence. She further submitted that, on that same day, the trial court

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explained to the appellant on his right to mount his defence whereby the

appellant opted to give his sworn evidence with no witness to call and no

exhibit to tender. The case was then adjourned to 13th June, 2018 for

hearing of the defence case. However, from 13th June, 2018 to 30th

August, 2018, the learned State Attorney argued that the appellant was

absent without notice.

She went on to argue that the record of appeal bears out that the

judgment was read in the presence of the appellant but it is silent as to

when he was arrested. It is also silent on whether the trial court

investigated on the appellant's reason of absence in order to satisfy itself

whether he had probable defence on merit.

Ms. Samwel contended that failure to afford the appellant a right

to account of his absence denied him his fundamental right to be heard

enshrined under Article 13 (6) of the Constitution thus vitiated the

proceedings of the trial court. Accordingly, the learned State Attorney

urged us to quash the proceedings of the two lower courts and set aside

the judgments, convictions and sentences of thirty years' imprisonment

imposed on the appellant.

 On the way forward, the learned State Attorney argued that,

generally, a retrial would have been ordered but given the circumstances

of the present appeal where there is insufficient evidence to uphold the

conviction and sentence in that the evidence of the victim was at

variance with the charge on the place where the crime was committed;

there was material contradiction between the evidence of PW1 with that

of PW2, and that, there is no evidence on when and who arrested the

appellant, it would not be in the interest of justice to order a retrial. She

thus prayed for the appellant to be released from the prison.

The appellant had nothing to rejoin. He only urged the Court to set

him free from prison.

Having heard Ms. Samwel's submissions and gone through the

memorandum of appeal and the record of appeal, we are in agreement

with her that the appellant was not accorded a right to be heard. Section

226 (2) of the Criminal Procedure Act provides that:

"226 (2) Where the court convicts the accused

person in his absence/ it may set aside such
conviction, upon being satisfied that his
absence was from causes over which he
 had no control and that he had a probable
defence on the merit "(Emphasis supplied).

The above provision of the law vests a discretionary power to the

trial magistrate either to set aside or not the conviction of the accused

person who was convicted in absentia. The conviction can only be set

aside and the proceedings be re-opened after the trial magistrate has

satisfied himself on the reasons of the absence of the accused and that

the accused had probable defence on the merit.

This Court has repeatedly emphasized on the need of the trial

magistrate or judge to exercise discretionary powers enshrined under

section 226 (2) of the CPA by affording a right to be heard to the re­

arrested accused person who was convicted and sentenced in absentia.

For instance, in the case of Marwa Mahende v. The Republic [1998]

T.L.R. 249 where the appellant was convicted and sentenced in absentia

by the District of Court of Tarime at Tarime after he had absconded bail

during the trial and, on appeal before the High Court, the sentence was

reduced, the Court noted that the record of appeal did not indicate as to

what happened after the appellant's re-arrest. As such, it reaffirmed the

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position stated in Olonyo Lenuma and Lekitoni Lenuna v. The

Republic [1994] T.L.R. 54 as follows:

"In our view the sub-section (that is section 226

(2) o f the CPA) is to be construed to mean that
an accused person who is arrested following his
conviction and sentenced in absentia should be
brought before the trial court first, and not to be
taken straight to prison.... The need to observe
this procedure assumes even greater importance
bearing in mind that by and large accused
persons o f our community are laymen not learned
in the law, and are often not represented by
Counsel. They are not aware of the right to be
heard which they have under the sub-section. It
is, therefore, imperative that the law enforcement
agencies make it possible for the accused person
to exercise this right by ensuring that the
accused, upon his arrest, is brought before the
Court which convicted and sentenced him, to be
dealt with under the sub-section."

It follows thereafter that, after the accused person had been

convicted in absentia and upon his re-arrest, he was required to be

taken to the trial court and be given a chance to explain as to why he

had absconded himself during trial. If there was justifiable cause then

the conviction and sentence could have been set aside and continue to

hear a defence. Failure by the trial court to comply with section 226 (2)

of the CPA vitiates the proceedings of the trial court which was

conducted in the absence of the appellant - see: the case of Severine

Kimatare v. The Republic, Criminal Appeal No. 279 of 2006

(unreported), Loning'o Sangau v. The Republic, Criminal Appeal No.

396 of 2013, Magoiga Magutu @ Wansima v. The Republic,

Criminal Appeal No. 65 of 2015 and Mohamed Abubakar v. The

Republic, Criminal Appeal No. 273 of 2015(all unreported).

In the present appeal, with due respect to the holding of the first

appellate court, we see nothing suggesting that the appellant was given

such a chance to explain his absence, and that, he failed to give

reasonable explanation of his absence. As we have shown, the

proceedings of 30th August, 2018 indicates that the judgment was read

in the presence of the appellant but he was not afforded a right to be

heard on the reason of his absence. Furthermore, as rightly observed by

the learned State Attorney, it was not on record when the appellant was

re-arrested and how he was sent to prison. Since the appellant was not
accorded a right to be heard, the proceedings of the trial court which

were conducted in the absence of the appellant were vitiated.

Ordinarily, we would have quashed the proceedings of the trial

court which were conducted during his absence, the proceedings of the

first appellate court and set aside the judgments of the two lower courts

with a direction that the appellant be sent back to the trial court and be

dealt with in accordance with the provisions of section 226 (2) of the

CPA. Nonetheless, having closely considered the circumstances of the

present appeal, we agree with the learned State Attorney that this is not

a fit case for a retrial, for the following reasons; one: the charge is at

variance with the evidence. The charge indicates that the offence took

place at Enguiki but PW1 testified that she met the appellant at E Forest.

Two, the evidence of PW1 materially contradict with the evidence of

PW4 and exhibit PI. While PW1 said that she was taken to E dispensary,

PW4 and exhibit PI establish that PW1 was examined at Monduli District

Hospital, and three, the record of appeal lacked the evidence on who

and when the appellant was arrested.

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 In the end, we allow the appeal. Consequently, we quash the

convictions and set aside the sentences imposed on the appellant and

make an order that the appellant, Pusindawa Losilo, be released from

prison unless he is otherwise being held for some other lawful purpose.

DATED at ARUSHA this 18th day of March, 2024.

B. M. A. SEHEL
JUSTICE OF APPEAL

P. F. KIHWELO
JUSTICE OF APPEAL

A. S. KHAMIS
JUSTICE OF APPEAL

The Judgment delivered this 18th day of March, 2024 in the

presence of the appellant appeared in person and Ms. Tobiesta

Matekeleza Chang'a, learned State Attorney for the