Judgement Criminal Appeal No

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT MOSHI CRIMINAL APPEAL NO. 26953 OF 2024 (C/F Criminal Case No. 21300 of 2024 in the Resident Magistrates’ Court of Moshi at Moshi) ABDALAH ZABURA MKILINDI @ DULA….............................. APPELLANT

VERSUS REPUBLIC....………………………………………………….… RESPONDENT

JUDGEMENT 17th February & 24th March, 2025. MONGELLA, J. The appellant, Abdalah Zabura Mkilindi @ Dula, was arraigned before the Resident Magistrates Court of Moshi at Moshi (henceforth, the trial court) for the offence of rape under Section 130 (1), (2) (e) and 131 A (1), (2) and grave sexual abuse under Section 138 C (1) (d) and 2(b) of the Penal Code [Cap 16 R.E 2022]. The particulars of the 1st offence, as depicted form the charge, were that the offence was committed on 09.02.2024 at Njoro area within Moshi district, Kilimanjaro region, whereby the appellant had carnal knowledge of a girl aged 11years (hereinafter referred to as the victim or PW1). With respect to the 2nd offence, it was alleged that on unknown dates and months between 2022 and 2024 at Njoro area within Page 1 of 14 Moshi district and Kilimanjaro region, for sexual gratification, the appellant used his manhood to rub the victim’s vagina. The appellant denied the charges levelled against him causing the case to proceed to trial. To prove the case against the appellant, the prosecution paraded four witnesses. The prosecution’s account was to the effect that: In 2022, the victim was a standard three student at Chenchen Primary School. As she hated going to school, and dodged sometimes, the appellant convinced her to be going to his room. Whenever in the appellant’s room, the appellant undressed her, took off

his trousers and used his manhood to play with her vagina. Each time he warned her not to disclose the acts to anyone. This practice continued until 09.02.2024 when, as described by the victim (PW1), the appellant inserted his entire manhood into her vagina causing her immense pain. She screamed and he stopped. He again warned her not to disclose to anyone or he would kill her. On 10.02.2024 at around 03:00hrs, the victim’s mother (PW2) saw her sleeping in an abnormal manner. She took off her underpants and inspected her. She found her vagina with blood and stretched. She woke the victim up questioning why her vagina was bleeding. The victim wrote on a paper that it was the appellant that had done such act to her. The next morning, the incident was narrated to the victim’s brother who advised PW2 to report the matter to the police. PW2 and the Page 2 of 14 victim went to Majengo police post and reported the incident. They were issued with a PF3 and required to go to Majengo Health Centre. At the Health Centre PW3, a medical doctor examined the victim’s private parts. He found her labia majora and minora swollen, reddish in colour and had bruises believed to be a day old. Her hymen was also found not intact. PW3 concluded that the victim had been penetrated by a blunt object. He filled the PF3 which was returned to the police post. PW4, the investigator of the case, bore witness

to the appearance of the victim and PW2 at the police post for reporting the incident and returning the PF3. He was also led by the victim to the place the incident took place whereby she led him to a room near the mosque. The direction to the crime scene tallied with the description she had offered in her statement. PW4 further testified as to the appellant’s arrest, which was made on 10.02.2024. In the said arrest the appellant was identified by the victim as the culprit. It was further alleged that the appellant was granted police bail, but did not appear at the station as required. It appears he jumped police bail as he was arrested in Tanga region before 28.07.2024 and transported to Moshi on 28.07.2024. Eventually, he was arraigned before the trial court. Upon being found with a case to answer, the appellant initially informed the trial court that he would testify and call five (5) witnesses. However, none of the witnesses entered appearance rendering him to defend his case solely. Page 3 of 14 In his testimony, he alleged being innocent and denied living at the premises where the incident occurred. He claimed to have merely used the alleged premises to change his clothes. Apart from challenging the evidence of PW1 and PW2 on ground of contradictions, he attacked the investigators’ evidence as to the date of his arrest calling him a liar. He denied being arrested on

the date stated by the investigator, but on the next day. Complaining that the case was fabricated against him, he testified that the room constituting the crime scene was near an Islamic religious school (Madrasa) rendering it impossible for him to have committed the offence. He believed the fabrication was due to grudges he had with PW2’s relative who had demised. The trial court found the appellant guilty of both counts. He was thus convicted to life imprisonment on the first count and thirty years imprisonment on the second count. Aggrieved by the conviction and sentence, he has preferred this appeal on the following two grounds: 1. That, the learned trial Magistrate erred in fact and law for convicting the accused person without the case being proved beyond reasonable doubt.

2. That, the learned trial Magistrate erred in law and facts for convicting the accused person on unfair trial (particularly on failure to exercise it is duty of calling or summon the defence witness while the accused was at remand custody hence not accommodated the defence witness right to be heard. (sic) Page 4 of 14 Hearing of the appeal proceeded vide written submissions. While the appellant engaged legal services of Mr. Emanuel Anthony, learned Advocate; the respondent, on the other hand, was represented by Mr. Henry Kasiano Daudi, learned State Attorney. Mr. Anthony commenced by notifying the Court that he had abandoned the 1st ground of appeal. He thus focused his submission on the 2nd ground whereby he faulted the trial court for failure to adhere to the provisions of Section 231(4) of the Criminal Procedure Act [Cap 20 R.E 2022], during hearing of the defence case. He averred that from the appellant’s arraignment before the trial court on 30.07.2024 to his conviction, he was in remand custody as he failed to procure his bail. That, on 19.08.2024 after the ruling on prima facie cash was made, the appellant notified the trial court that he would have five witnesses. He said that the session was then adjourned to 26.08.2024 whereby on that date the appellant informed the trial court that his witnesses feared appearing in court to testify and that since he was in remand

custody, he failed to persuade them and consequently he testified himself. Mr. Athony contended that Section 231(4) of the Criminal Procedure Act touches on right to fair trial. He argued that the provision imposes a duty on trial court to examine three things: one, that if the appellant wished to call his witnesses; two, if he failed to call the witnesses and; three, if the failure was due to negligence of the appellant. Page 5 of 14 The learned Counsel stressed that the record shows that the appellant had intended to call witnesses, but he was in custody and could not persuade his witnesses to appear. In the circumstances he held the view that the trial court was duty bound to serve summons to the witnesses to appear and testify in order to ensure that justice is not only done, but seen to be done. He fortified his averment with the case of Josephat John vs. Republic (Criminal Appeal 27 of 2011) [2012] TZCA 192 (25 May 2012) TANZLII. Mr. Anthony further contended that the failure by the trial court to call the appellant’s witnesses while he stayed in custody was a fatal irregularity which vitiates the entire proceedings of the trial court. He insisted that the trial was unfair. Insisting that the trial was unfair to the appellant, he finalized his submission praying for the appeal to be allowed and the proceedings, judgement and conviction by the trial court be quashed and

set aside accordingly. He called upon this Court to issue an order for retrial before another magistrate. The appellant’s 2nd ground of appeal was challenged. Addressing this ground, Mr. Daudi held the stance that Section 231(4) of the Criminal Procedure Act does not impose any mandatory duty to the trial court to summon or compel attendance of the defence witnesses. He contended that the duty is discretionary upon the trial court being satisfied that the intended witness would give material evidence on behalf of the accused person. Page 6 of 14 Mr. Daudi further averred that the appellant had wished to call witnesses and was given that opportunity from 19.08.2024 to 26.08.2024, but failed to summon them. He said that the appellant informed the trial court that he failed to summon his witnesses because he was in custody and his witnesses feared appearing in court to testify and he could not persuade them as he was in custody. In that respect, it was Mr. Daudi’s position that these circumstances show that the appellant was in communication with his witnesses, but failed to summon them because they feared to testify. He thus had the stance that even if the trial court had called the witnesses, there were no possibilities for them to appear and testify on the appellant’s behalf and that is why the appellant informed the trial court that he would testify by himself. In his

view, the appellant waived his right to call witnesses. Mr. Daudi argued further that the record does not show the appellant’s witnesses’ addresses nor did he classify what the witnesses shall testify on so that the trial court would weigh whether their evidence was material. He distinguished the case of Josephat John vs. Republic (supra) saying that in the said case, the appellant had informed the trial court of his intention to call his witnesses by giving the name and address of the witness. That, in the said case, the appellant also stated how the witness was material to his defence. He added that the appellant’s defence did not indicate if there was necessity for another witness to appear to corroborate his testimony. In his view, there was no need for another witness. Page 7 of 14 Mr. Daudi concluded by generally addressing procedural irregularities. He stressed that not every procedural infraction is fatal. That, in that respect the prejudice test is to be applied to determine its fatality whereby it is done by considering the nature of the appellant’s complaints in the course of trial or during his defence. While insisting that it is the appellant’s duty to substantiate how the error prejudiced him, he challenged the appellant for failure to explain on how he was prejudiced after he had himself waived the right to call witnesses. He thus called for the appeal to be

dismissed. Rejoining, Mr. Anthony commenced by reiterating his submission in chief. He proceeded arguing that Section 231(4) of the Criminal Procedure Act is mandatory as per what was articulated in Joseph John vs. Republic (supra). He stressed that the trial court was obliged to ensure that the witness is served with summons to appear to testify. In his stance, the only condition to be satisfied is that the accused person not being able to procure his witness. Thus, he said, the possibilities of witnesses to come, the willingness of the appellant to testify after he failed to procure his witness and failure to mention names and addresses of the witnesses were immaterial. Arguing further, he contended that Section 231(4) of the Criminal Procedure Act does not impose any of the conditions mentioned save for the accused to state that he has witnesses to call, but they are absent. Reciting the case of Joseph John vs. Republic (supra), he averred that the Court in that case insisted on justice not only being done, but also seen to be done especially when there is a Page 8 of 14 charge attracting capital punishment and the accused has no legal representation. Mr. Anthony restated the appellant’s statement to the effect that he had witnesses but they feared appearing before the trial court and he could not persuade them as he was in remand custody. Proving that the appellant was

incapable of procuring his witnesses, he argued that the appellant was also unrepresented in trial, thus lacked legal advice on the consequences of failing to bring witnesses or that he could request for summons to be issued. Rejoining on the argument that the appellant failed to disclose how the witness was material, Mr. Anthony shifted that duty to the trial court. He challenged the trial court for abdicating its duty to question the appellant regarding the materiality of the witnesses he intended to call. In that respect, Mr. Anthony held the view that in such circumstances it would be fair and just for the appeal to be allowed. I have considered rival submissions by the learned counsels. Following the 1st ground being abandoned, the surviving contention in the 2nd ground is on whether Section 231(4) of the Criminal Procedure Act was contravened. For ease of reference, I find it pertinent to reproduce the provision as hereunder: “(4) Where the accused person states that he has witnesses to call but that they are not present in court, and the court is satisfied that the absence of such witnesses is not due to any fault or neglect of Page 9 of 14 the accused person and that there is likelihood that they could, if present, give material evidence on behalf of the accused person, the court may adjourn the trial and issue process or take other steps to compel attendance of such

witnesses.” It is apparent on record that the prosecution case was closed on 19.08.2024. On the same day, the trial court found that a prima facie case was established against the appellant. The appellant was informed of his rights to enter defence according to Section 231 of the Criminal Procedure Act. The appellant chose to testify on oath and informed the trial court that he shall call five witnesses. The defence case was thus fixed to be heard on 26.08.2024. On 26.08.2024, prior to starting of the defence case, the appellant addressed the trial court that his witnesses feared to come to testify and that since he is in remand custody, he failed to persuade them. In that respect, he opted to testify only himself. The contention between the parties herein is whether the trial court was obliged in such circumstances to issue summons so that the appellant could procure the attendance of his alleged witnesses. Further, the argument is whether Section 231(4) of the Criminal Procedure Act sets a mandatory requirement. In the case of Juma Limbu Tembo vs. Republic (Criminal Appeal 168 of 2006) 2010 TZCA 79 (6 October 2010) TANZLII, the Court of Appeal addressing the import of the entire Section 231 of the Criminal Procedure Act, remarked that all requirements in the said provision were mandatory. The Court stated: Page 10 of 14 “From the provisions of section 231 of the CPA quoted

above, it is a mandatory requirement for the trial court to inform an accused person of the available options under the said provision, for making his defence and also the consequences which follows for using any of the options. An accused person is also entitled to be informed of his right to call his material witnesses as well as being assisted in procuring their attendance.” Apart from the above cited decision making it rather clear that Section 231(4) of the Criminal Procedure Act is couched in mandatory terms, it also mentions that an accused person, among other rights, is entitled to be informed of the right to call his material witnesses and being assisted in procuring their attendance. It is apparent on record, as I pointed out earlier, that on 26.08.2024 when the appellant was to make his defence, he addressed the trial court on his failure to procure the attendance of his witnesses. He gave two reasons being; one, that the witnesses feared to come to testify and two, since he was in remand custody he could not persuade them. His reasons demonstrated his intention to call the said witnesses, but being in confinement hindered his efforts to procure the said witnesses. This, in my view, shows that it was not his fault or neglect that caused non-appearance of his witnesses. The non-appearance thus renders one of the conditions under Section 231(4) of the Criminal

Procedure Act fulfilled. As to the likelihood of the witnesses to produce material evidence, I think somehow a scrutiny, albeit a simple one, should have been conducted by the trial court so as to satisfy itself that the witness is someone that could assist the accused person’s case. This was Page 11 of 14 however not done. After addressing the Court on his failure to procure his witnesses, the trial court never informed the unrepresented appellant on the fact that it could assist in procuring the attendance of the said witnesses. The trial court did not even try to question him so as to determine whether the alleged witnesses had a likelihood of presenting material evidence in favour of the accused. It is true, as observed by Mr. Daudi, that in Josephat John (supra), the appellant disclosed to the trial court that he had a witness that would verify his alibi and also provided the name and address of the witness. Thus, somehow details on the likelihood of the witness to be called to give material evidence on the appellant’s behalf was provided, which would have aided the trial court in determining the likelihood of the evidence by said witness to be material. Such details as to the name, address and nature of evidence to be produced by the witnesses to be called were never provided by the appellant in this matter. However, as I indicated earlier, the provision imposed the duty

to determine the likelihood of the evidence to be material is placed on the trial court and not the accused person. Considering the holding in Josephat John (supra), I have gathered that the important factor taken into consideration was not the likelihood of the evidence being material. The apex Court only focused on the fact that the accused person had stated that he had witnesses, but could not procure them due to reason out of his Page 12 of 14 control, which was the fact that he was in confinement during trial. The apex Court took into consideration this reason as being sufficient to oblige the trial court to summon the appellant’s witnesses. In the said case, the Court stated: “We are of the considered view that where, as in this case, an accused is in remand custody and has indicated that he requires a witness to appear and testify on his behalf, the trial court is obligated to ensure that the witness is served with summons to appear and testify. An accused who is in remand custody and under prison authority cannot be expected to effect service by himself. Section 231 (4) of the Criminal Procedure Act (CPA) spells out the duty of a trial court where an accused has stated that he has witnesses to call.” The omission to comply with Section 231(4) of the Criminal Procedure Act is considered a violation of the right to fair trial, thus having the effect of nullifying

proceedings. Borrowing a leaf from the case of Maneno Mussa vs. Republic (Criminal Appeal No. 543 of 2016) 2018 TZCA 242 (20 April 2018) in which the Court of Appeal found the trial court in violation of Section 231(1) of the Criminal Procedure Act; I will not order a retrial ab initio. This is because the omission occasioned by the trial court never affected the entire evidence. The irregularity clearly impacted the defence case alone, in fact, a part of it, as the appellant had already testified. In the premises, I hereby quash the trial court’s order closing the defence case issued on 26.08.2024 and nullify the proceedings from then on. I consequently quash the resultant conviction and set aside the sentence born therefrom. I hereby order the case file to be Page 13 of 14 remitted to the trial court for continuation of the defence case by facilitating attendance of the appellant’s witnesses in court, recording and considering such evidence in its decision. The case shall proceed before the same trial Magistrate or another Magistrate shall the trial Magistrate not be available. The appeal is allowed to such extent. Dated and delivered at Moshi on this 24th day of March, 2025. X L. M. MONGELLA

JUDGE Signed by: L. M. MONGELLA Page 14 of 14