CRIMINAL APPEAL NO

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DAR ES SALAAM SUB REGISTRY AT DAR ES SALAAM CRIMINAL APPEAL NO. 24667 OF 2024 (Arising from the Judgement of the District Court of Kibaha (Hon. F. Kibona, RM) in Criminal Case No. 39480 of 2023 dated 24 th May 2024 _____________________________ MANENO OMARY SHOMARI…………….…..……….……. …….APPELLANT VERSUS REPUBLIC……………………………………..…..……. ………...RESPONDENT JUDGEMENT Date of last order: 12th November 2024 Date of Judgement: 18th November 2024 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Kibaha in Criminal Case No. 39480 of 2023, where the Appellant was arraigned for the offense of rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code, Cap 16, R.E 2022. It was alleged that on diverse dates between January and August 2023, at Mwanalugali “A” area within Kibaha District in the Coast Region, the Appellant had sexual intercourse with a girl aged six (6) years (name withheld). For purposes of this Appeal, I shall refer to the victimized girl as “PW3” and or, where necessary, “the Victim”. 1 The Appellant pleaded not guilty to the charge. Consequently, the prosecution fronted seven (7) witnesses and tendered two (2) exhibits. The Appellant (the accused by then) relied on his affirmed testimony and tendered no real or documentary exhibit. Having evaluated the evidence adduced during hearing, the learned trial Resident Magistrate was satisfied that the offense to which the Appellant was charged was proved beyond a reasonable doubt. As such, he proceeded to convict and sentence him to life imprisonment. Dissatisfied, the Respondent has laid before this Court the following grounds of appeal and I quote in verbatim; 1. That, the learned trial magistrate grossly erred in law by convict and sentence the appellant contrary to section 127 (6) and (7) of Evidence Act as assessment to obtain truthfulness of PW 1 and PW2 was improperly done. 2. That, the learned trial magistrate grossly erred in law to convict and sentence the appellant contrary to section 192(3) of the criminal procedure Act 3. That, the learned trial magistrate grossly erred in law to convict and sentence as prosecution cannot act as defence witness and as the prosecutor. 4. That the learned trial magistrate grossly erred in law and fact to attach weight in PW 1, PW2, and PW3 evidence as it was incredible and unreliable as they fail to name the suspect until 21st September, 2023. 2 5. That the learned trial magistrate grossly erred in law and fact to convict and sentence the appellant disbelieving defence evidence which raise doubt as PW2 asserted to have found them inside the house while PW 1 and Grandmother was around and no threat was given to PW2 and PW3 to report the incident. When the matter came for orders on 30th September 2024, the Appellant appeared in person while Mr. Daudi Basaya, the learned State Attorney, appeared for the Respondent. By consent, the parties agreed to argue this Appeal through written submissions. Having passed through the records, I am satisfied that the parties adhered to the agreed schedule, which I intensely recommended. At the outset, I have to disagree with the Appellant's claim that he filed a Petition of Appeal with seven (7) grounds of appeal to this Court. He proposed arguing grounds 1, 2, 3, 4, 5, and 6 altogether while arguing ground 7 separately. With respect, that is not true because, as per the records, he only filed five (5) grounds of appeal. This Court, therefore, cannot discuss or determine what is not on record. Further, the Appellant did not argue on the third ground of appeal. I consider it to have been abandoned. Having observed this, I will examine the submissions by the parties. 3 Arguing on the first ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact in convicting and sentencing the Appellant contrary to section 127 (6) of the Evidence Act since the assessment to obtain the truth from PW1, PW2, and PW3 was improperly done. He pointed out that the evidence of PW1 indicates she found Kijuu in the doctor’s office, but according to the records, it was PW5 who was in the doctor’s room. He referred to this Court on pages 25 and 26 of the proceedings. In his further note, the Appellant argued that according to the record, it was PW2 who informed PW5, but it could appear that PW3 also told her of the incident. The question would be who informed PW5. The Appellant argued further that according to the evidence of PW2 and PW3, it was PW2 who was sent to tell the victim not to go to the Appellant’s house to Play. In normal circumstances, the victim was not in the Appellant’s home. PW2 testified to find the victim with the Appellant sitting on the bed naked. The Appellant was raping her. This evidence is inconsistent with the evidence of PW3 because a person cannot sit and at the same time rape someone. He cited the case of Wambup vs. Republic, Criminal Appeal No. 301 of 2018 4 (Unreported), where it was observed that; It was well established that first that there must be clear assessment of the victim's credibility on record and second the court must record reasons that notwithstanding noncompliance with section 127(2) a person offender age still told the truth these are two conditions that must be fulfilled for the court to convict a suspect of sexual abuse. Arguing on the second ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact to convict and sentence the Appellant contrary to section 192 (3) of the Criminal Procedure Act. Arguing further, section 192 (3) makes it mandatory that the disputed facts be read over to the accused, short of which a preliminary hearing becomes a nullity. He cited the case of Republic vs. Francis Lijenga, Criminal Revision No. 3 of 2019, Court of Appeal of Tanzania. The Appellant referred this Court to page 3 of the proceedings, where it is indicated that the undisputed facts were read over and explained to the accused person, but the records are silent as to which language was used to explain the contents to the accused person (the Appellant). He implored this to nullify the preliminary hearing. Regarding the fourth ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in 5 law and fact in attaching weight to the evidence of PW1, PW2, and PW3, which was incredible and unreliable because they failed to name the suspect until 20 th September 2023. He cited the case of Daudi Rashidi vs. Republic, Criminal Appeal No. 97 of 2020 (unreported), where it was observed that; It is trite law that the ability of a witness to name a suspect at the earliest opportunity is an all-important assurance of his reliability, in the same way as an unexplained delay or complete failure to do so should put a prudent Court to inquiry It was argued further that, according to PW3's testimony, the Appellant had been inserting his “dudu “into her “kibibi” since she was in standard one. He added that the record reveals that the incident was reported on 25 th August 2023. According to PW7, the Appellant was arrested on 21 st September 2023. PW1 testified that PF3 (Exhibit P2) was resubmitted to the police on 20 th September 2023, and that is when the Appellant was mentioned by the Victim (PW3). The unexplained delay in naming and arresting the Appellant at the early stage means that the evidence of PW1, PW2, and PW3 is unreliable and incredible to warrant the Appellant’s conviction. Arguing on the fifth ground of Appeal, the Appellant complained that the learned trial Magistrate grossly erred in 6 law and fact in convicting and sentencing him while disbelieving his defense evidence. It was the defense evidence that the Appellant did not commit the offense as alleged by the prosecution. He posed a question as to why the neighbors did not arrest him. It was the evidence PW1 that the Appellant was her neighbor, while PW2 testified that her grandmother told her to let the Victim know that she should not go to the Appellant’s House to play. Considering the evidence adduced, the Appellant and the Victim were neighbors. He complained that, although he raised doubts about the prosecution evidence, the learned trial Magistrate did not consider his defense evidence. He cited the case of Hussein Idd & Another vs. Republic (1986) TLR 166 where it was held that the appellants' duty was to raise a reasonable doubt in the mind of the Magistrate and no more. Having so observed, the Appellant implored this Court to allow the Appeal, set aside the conviction and sentence meted out against him. As I said before, the third ground of appeal was not argued at all, and thus, I consider it to have been abandoned. The sixth and seventh grounds of Appeal are not part of the grounds raised in the Petition of Appeal. In response, Mr. Daudi Basaya, the learned state attorney, 7 was on duty. In reply to the first ground of appeal, the learned counsel submitted that the purpose of the provision of section 127(6) of the Evidence Act (supra) is to assess the credibility of the evidence of the child of tender age. He added that even if the said evidence is not corroborated, the Court proceeds to convict after being satisfied that the child of tender age or the victim of the sexual offense is telling nothing but the truth. He added that the Appellant misdirected himself and that PW1, the victim’s mother, also needed to be assessed under the same section. It was submitted further that PW1 is an adult who does not qualify under the provision of section 127 (6) of the Act. It was primarily designed to deal with the child of tender age. He referred to this Court on page 7 of the proceedings. On PW2, Mr. Basaya observed that the trial Court correctly assessed her evidence and satisfied the requirement of section 127 (6) of the Evidence Act. He referred this Court to pages 10 and 11 of the proceedings, where various questions were posed to PW2. After the assessment, the trial Court was satisfied that PW2 was a credible witness to testify. She promised to tell the truth and not lie. On the PW3, Mr. Basaya contended that the trial Court correctly assessed her 8 credibility, as per section 127(6) of the Evidence Act, whereby different questions were imposed on her by the trial Magistrate, and she responded to them. Thereafter, the trial Court was satisfied that she was telling nothing but the truth. In response to the second ground of appeal, Mr. Basaya submitted that section 192(3) of the Criminal Procedure Act, Cap, 20 R.E 2022 entails that after the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused person in a language that he understands, signed by him and his advocate, if any, and by the public prosecutor and then filed. He referred this Court to pages 4 and 5 of the proceedings and observed that the trial Court did not comply with the cited section. However, he was of the view that such failure did not prejudice the Appellant as long he understood the nature of the accusations and was availed with the right to be heard. On the other hand, Mr. Basaya argued that the purpose of a preliminary hearing is to speed up the process by determining what is in dispute and what is not. The prosecution is duty-bound to bring witnesses of evidence on matters in dispute. He conceded that the trial court partially complied with 9 the provision of section 192(3) of the Act, which failure cannot nullify the whole proceedings and judgment. He insisted that the omission is not fatal and is curable by section 388 of the Criminal Procedure Act. Replying to the third ground of appeal, Mr. Basaya argued that it is not true that the prosecution acted as a defense witness and a prosecutor at the same time; what appeared on page 22 of the trial court proceedings was a typing error whereby instead of writing “Accused Person” it was written “State Attorney”. He referred this Court to page 23 of the proceedings, which indicated that the appellant had defended his case before the trial court. He considered the ground of appeal meritless. As said before, the Appellant did not argue the third ground of appeal. Arguing on the fifth ground of appeal, Mr. Basaya submitted that there are guiding principles on the reliability and credibility of witnesses, which the Court of Appeal of Tanzania has discussed in several cases. It is noteworthy that the assessment of a witness's credibility, especially on the question of demeanor, is under the monopoly of the trial court. He cited the case of Goodluck Kyando vs. Republic [2006] TLR 3631. As to how credibility should be assessed, the 10 learned counsel cited the case of Shabani Daudi vs. Republic, Criminal Appeal No. 28 of 2000 (unreported), where it was observed that; The credibility of a witness can also be determined in two ways; One, when assessing the coherence of the testimony of that witness. Two, when the testimony of that witness is considered in relation with the evidence of other witnesses, including that of the accused person. In these two other occasions the credibility of a witness can be determined even by a second appellate court when examining the findings of the first appellate court. Based on the foregoing, Mr. Basaya observed that PW1, PW2, and PW3 were credible witnesses because their evidence was cogent and reliable on how the offense was committed in the Appellant's home and how they knew him before. The learned counsel added that the Appellant was not mentioned at the earliest possible opportunity by PW2 and PW3 because they were threatened. Since they are of tender age, they were afraid to mention the Appellant earlier after being threatened by him until they could do that to their teacher (PW5). Mr. Basaya conceded to the very fact that the ability of the witness to name the suspect at the earliest opportunity is an assurance of the reliability of the witness, however, in this case, the witnesses were threatened. He cited the case of Marwa 11 Wangiti Mwita vs. Republic [2002] TLR 39. Replying to the fifth ground of appeal, the learned state attorney argued that it was not true that the trial Magistrate disbelieved the defense evidence. He referred this Court to page 23 of the trial Court proceedings when the Appellant defended himself simply by saying “they are suspecting me but I did not commit an offence if I committed the said offence why I was not arrested by neighbors, that is all” (sic). Mr. Basaya added that even the impugned judgment reflects the defense evidence on page 8. He implored this Court to disregard the argument. Having dispassionately considered the Petition of Appeal and rival arguments by the parties for and against the appeal, the question would be whether the offense of rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code (supra) had been proved beyond reasonable doubt. In Ahmad Omari vs. Republic, Criminal Appeal No. 154 of 2005, Court of Appeal of Tanzania at Mtwara (unreported), the Court observed that, in a criminal case, the burden of proof is on the prosecution and the standard of proof is beyond reasonable doubt. This is in consonant with Section 3(2) (a) of the Evidence Act (supra). It follows, therefore, 12 that a person is found guilty and convicted of a criminal offense because of the strength of the prosecution evidence against him, which establishes his guilt beyond reasonable doubt (see also John Makolobela Kulwa Makolobela & Another alias Tanganyika vs. Republic (2002) TLR 296). In determining this Appeal, I shall also seek the guidance of the Court of Appeal of Tanzania in Mapambano Michael @ Mayanga vs. Republic, Criminal Appeal No. 258 of 2015, where it was observed that the first appellate Court must subject the entire evidence on record to a fresh re-evaluation to arrive at a decision that may coincide with the trial Court or may be different altogether. Arguing on the first ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact in convicting and sentencing the Appellant contrary to section 127 (6) of the Evidence Act since the assessment to obtain the truthfulness of PW1, PW2, and PW3 was improperly done. On his part, Mr. Basaya argued that the purpose of the provision of section 127(6) of the Evidence Act (supra) is to assess the credibility of the evidence of the child of tender age. He added that even if the said evidence is not corroborated, the Court may proceed to convict after being 13 satisfied that the child of tender age or the victim of the sexual offense is telling nothing but the truth. Indeed, section 127(6) of the Evidence Act (supra) provides that; 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 of as the case may be 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 the child of tender years or the victim of the sexual offence is telling nothing but the truth. According to the above-quoted provision of the law, where in any criminal proceedings involving sexual offense the only independent evidence is that of a child of tender years or of a victim of the sexual offense, the may receive the evidence and may, after assessing the credibility of the evidence of the child of tender years of the victim of sexual offense, notwithstanding that such evidence is not corroborated, proceed to convict, provided that the court is satisfied that the child of tender years or the victim of the sexual offense is telling nothing but the truth. The cited law needs no interpolations; what the trial 14 Court is called to consider in criminal cases of such nature is the victim's credibility, and, if satisfied, may proceed to convict even if the evidence is not corroborated. It must be noted, however, that credibility involves the issue of whether the witness appears to be telling the truth as she believes it to be. In essence, this entails reliability, truthfulness and or accuracy of the information given during hearing. The information given can be acted upon after assessing the witness's trustworthiness, demeanor, and/or credibility. However, demeanor is in the exclusive monopoly of the trial Court. In Salum Ally vs. Republic, Criminal Appeal No. 106 of 2013 (unreported) the Court stated; on whether or not, any particular evidence is reliable, depends on its credibility and the weight to be attached to such evidence. We are aware that at its most basic, credibility involves the issue whether the witness appears to be telling the truth as he believes it to be. In essence, this entails the ability to assess whether the witness's testimony is plausible or is in harmony with the preponderance of probabilities which a practical and informed person would readily recognize as reasonable in the circumstances particularly in a particular case. The test for any credible evidence is supposed to pass, were best summarized in the case of Abbdalla Teje @ Ma lima Mabula Vs Republic, Criminal Appeal No. 195 of 2005 (unreported), to be: (i) Whether it was legally obtained; 15 (ii) Whether it was credible and accurate; (iii) Whether it was relevant, material and competent; (iv) Whether it meets the standard of proof requisite in a given case, otherwise referred to as the weight of evidence or strength or believability. The Appellant’s main complaint is that the credibility of PW1, PW2, and PW3 was not assessed. Mr. Basaya was of the view that PW1, being an adult person, is not caught up in the net of section 227 (6) of the Act. I entirely agree with him. Looking at the section, the legislature intended only to cover children of tender age, specifically the victims of sexual offenses, in this case, PW3. It does not cover the adults and other witnesses who are not victims of the alleged sexual offense. I looked at the impugned Judgment, and this is what I observed at page 10. Based on the testimony of PW3, the victim in this case, she described in detail how the accused person forcibly inserted his penis into her vagina (named as kibibi) on August when she was playing to the accused. It is noteworthy that the victim was familiar with the accused because her mother was sending her to buy charcoal since she was standard one. Considering the compelling evidence presented, I find no reasonable 16 doubt that the accused person has committed the alleged offense. Admittedly, looking at the above-quoted passage, one may quickly resolve that the trial Court summarized what was testified by PW3. There is nowhere he tried to assess the evidence of the victim. He did not even assert to have believed PW3 (or PW2). Even for the sake of the argument that she spoke the truth, the reliability and credibility of PW1 were not tested. PW3’s evidence generally seems not to have passed the test of truthfulness. In this circumstance, I am constrained to agree with the Appellant that the trial Court did not adequately assess the evidence of PW3 (the victim). The question would be what will be a proper recourse to be taken by this Court. In Method Leodiga Komba @Todi & Another vs. the Republic, Criminal Appeal No. 150 of 2021 (unreported), the Court said; Admittedly, the trial court did not completely consider PWl's credibility. This glaring omission, now a subject of appeal, as rightly contended by the appellants, was a flagrant violation of the trite position now that words of victims, particularly in sexual offences, should not be accepted wholesome and relied on to found a conviction. This principle of law which is now common and has attained a respectable antiquity and is often referred to by the Court was 17 pronounced in the case of Mohamed Said vs. the Republic, Criminal Appeal No. 145 of 2017 (unreported), that the word of the victim of the sexual offence should not be taken as gospel truth but that such testimony should pass the test of truthfulness. In the instant appeal, the trial court did not, in its judgment, expressly state that it was in any way moved or believed PW1 as a witness of truth or credible. As would be discerned from the above quoted part of the judgment, it simply examined her evidence and held that it was corroborated by the testimonies of PW2 and PW6. As a trial court, trite legal proposition is that determination of credibility by demeanour is within its exclusive domain (See Yasin Ramadhani Chang'a vs. Republic [1999] T.L.R. 489). The issue of her credibility first featured in the High Court judgment. It is common knowledge that, even an appellate court may assess a witness's credibility by looking at the evidence on record. In Shabani Daud vs. Republic, Criminal Appeal No. 28 of 2000 (unreported).” (Emphasis mine) From the authority above, it is apposite that being the first appeal, this Court has a mandate to assess the credibility and reliability of PW3 even if the trial Court failed to do so. I will, therefore, evaluate and assess the evidence of PW3 (victim). It must be noted, however, that credibility involves the issue of whether the witness appears to be telling the truth as he believes it to be. In essence, this entails reliability, truthfulness 18 and or accuracy of the information given during hearing. The information given can be acted upon after assessing the witness's trustworthiness, demeanor, and/or credibility. However, demeanor is in the exclusive monopoly of the trial Court (see Salum Ally vs. Republic, Criminal Appeal No. 106 of 2013 (unreported). According to PW3 (victim), she lived with her sister (PW2) and mother (PW1), and by then, she was in standard two at Kambarage Primary School. She testified further that her mother had been sending her to buy charcoal from the Appellant since she was in standard one at Mwanalugali A. She added that the Appellant had been inserting his “Dudu” into her “Kabibi”. She described “Kabibi” as the area she used to urinate. She further testified that the Appellant was always doing the same. In August, the Appellant raped her and threatened her not to tell her monther, and if she did that, he would slaughter her. On the occasion, his sister (PW2) came and found the Appellant raping her while they were all naked. PW2 also was threatened not to tell her mother (PW1), and if she did that, he would beat her. She informed her teacher (PW5). After that, they went to the hospital and police station. He identified the Appellant in Court. 19 Cross-examined by the Appellant, PW3 testified that “I am sure you raped me”. When re-examined by the learned state attorney, PW3 testified that “he was the one who raped me.” PW3’s evidence was corroborated by PW2 (her sister), who testified that her grandmother told her to tell PW3 (the victim) not to go to the Meneno to play. She promised to tell her. The Appellant is selling of charcoal. On an unknown date, her mother (PW1) required her to call PW3, who was playing at the Maneno’s home by then. She went there and found the Appellant and the victim sitting on the bed while naked. By then, the Appellant was raping the victim. When he saw her, he quickly put on clothes. She informed her teacher (PW5) that the PW3 was raped. She identified the Appellant in Court. Cross- examined by the Appellant, PW2 testified, "What I have stated is true.” PW4 medically examined PW3. In her testimony, PW4 testified that on 25th August 2023, while at her duty station, one woman came with a girl. They came with PF3 (Exhibit P2) with the view to know if the girl was raped. In the state of pain, PW4 examined her vagina and did not see hymen. She resolved that a blunt object penetrated her vagina. She filled out the PF3 form (Exhibit P2). 20 In his evidence, the Appellant testified very briefly that people suspected him, but he did not commit the offence and, if so, why his neighbor did not arrest him. I have dispassionately examined the evidence adduced during hearing and I am satisfied that PW3 (victim) was telling nothing but the truth. She was direct, consistent, credible and coherent on what the Appellant did to her. I closely examined the evidence of PW1 and noted that she knew what she was talking about. Even when the Appellant cross-examined her, she maintained that it was the Appellant who raped her. She described the meaning of Kabibi as the place she used to urinate. Her evidence was supported by the evidence of PW2, who testified that she saw the Appellant and the victim on the bed while naked, and the Appellant was raping her. The victim also confirmed this assertion. Her evidence was also corroborated by the evidence of PW4, who testified that a blatant object penetrated the victim’s vagina. The collective prosecution evidence adduced during hearing directly points fingers to the Appellant to be the one who committed the offense contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code (supra). From PW3’s evidence, I am satisfied that she was credible and a witness of truth. 21 I am highly guided by the decision of the Court of Appeal of Tanzania in Mohamed Said vs. Republic, Criminal Appeal No. 145 of 2017, where the Court quoted the decision of the Supreme Court of Philippines in the case of PEOPLE OF THE PHILIPPINES vs. BENJAMIN A. ELMANCIL, G. R. No. 234951, dated March, 2019 and noted as follows; In reviewing rape cases, this Court has constantly been guided by three principles, to wit: (1) on accusation of rape can be make with facility; difficult to prove but more difficult for the person accused though innocent to disprove; (2) in view of the intrinsic nature of the crime of rape where only two persons are usually involved the testimony of the complainant must be scrutinized with extreme caution; and (3) the evidence for the prosecution must stand or fall on its own merits and cannot draw strength from the weakness of the evidence for the defence. And as a result of these guiding principles, credibility of the complainant becomes the single most important issue. If the testimony of the victim is credible, convincing and consistent with human nature and the normal course of things the accused may be convicted solely on the basis thereof. In Onesmo Laurent @ Salikoki Vs. Republic, Criminal Appeal No. 458 of 2018, Court of Appeal at Moshi, the Court observed at page 12, thus; ….. we are cognizant that in view of the inherent nature of the offence of rape or any other sexual offence where 22 only two persons are usually involved when it is committed, the testimony of the complainant is very crucial and must be examined and judged cautiously. Indeed, in this context, we held, for instance, in Selemani Makumba (supra), that the best proof of rape (or any other sexual offence) must come from the complainant. Consequently, the complainant's credibility becomes the most important matter for consideration. The Court continued to note at pages 12 and 13 thus; If the evidence of the complainant is credible, convincing and consistent with human nature as well as the ordinary course of things, it can be acted upon singly as the basis of conviction - see section 127 (6) of the Evidence Act. (emphasis mine) In sexual offenses like the one at hand, the victim’s credibility becomes an essential matter for consideration. If the victim is coherent, consistent, and credible, the Court may proceed to convict, notwithstanding other corroborative evidence. In this case, PW3 (victim) did not seem to have been telling lies. She was credible. Her evidence was corroborated closely by PW2 (her sister) and PW4(medical doctor). It is my further observation that in view of the testimony of PW1, the defense evidence cast no doubt at all. In the premises, I find the first ground of appeal meritless, and I disregard it. Regarding the second ground of appeal, the Appellant 23 complained that the learned trial Magistrate grossly erred in law and fact for failure to adhere to section 192 (3) of the Criminal Procedure Act. On this, the Appellant argued that looking at the records, it is not established whether the Memorandum of agreed facts was read over to the Appellant and, if so, in which language. Mr. Basaya conceded to this fact. However, he was of the view that the omission did not occasion any injustice to the Appellant. section 192 (3) of the Criminal Procedure Act provides that; At the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused person in a language that he understands, signed by the accused person and his advocate, if any, and by the public prosecutor, and then filed. The quoted passage means that the contents of the memorandum of the agreed matters should be read over to the accused and explained in the language he or she understands and that should be reflected on records. In the case of Efraim Lutambi vs. Republic (Criminal Appeal 30 of 1998) [1999] TZCA 33 (10 June 1999), the Court observed that; 24 Any exhibits, including cautioned and extra-judicial statements, which are not in dispute should have them referred to and given exhibit numbers in the memorandum of undisputed matters. The contents of the memorandum, including the exhibited statements, if any, should be read over and explained to the accused (in a language he understands), and the fact that has been done should be reflected on the record. (Emphasis mine) In the case of Mnyameza Franswa vs. Republic, Criminal Appeal 56 of 2006, Court of Appeal of Tanzania at Mwanza, the Court was faced with an akin situation, and it stated at page 11 of the typed script that; Thus, the position is clear that it is the accused who is required to say which matters are not in dispute. Also, it's mandatory that the contents of the memorandum of undisputed facts be read and explained to the accused in the language he understands, and the records must show clearly that the contents of the memorandum of undisputed facts have been read over and explained to the accused in the language he understands. (emphasis mine) As correctly admitted by Mr. Basaya, the records are silent on whether section 192 (3) of the CPA was complied with. Luckily, no real or documentary evidence was tendered during 25 the preliminary hearing. In the two cases cited above, the Court expunged the evidence admitted during the preliminary hearing. Even if the Memorandum of agreed facts is disregarded or expunged, it will save no purpose because failure to conduct the preliminary hearing or conducting it improperly is not fatal. However, Courts are urged to perform it properly to save time and accelerate trials. In such circumstances, I agree with Mr. Basaya that the Appellant was not prejudiced at all. I thus find the second ground of appeal devoid of merit. Regarding the fourth ground of appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact in attaching weight to the evidence of PW1, PW2, and PW3, which was incredible and unreliable because they failed to name the suspect until 20 th September 2023. On his part, Mr. Basaya argued that the late naming was due to the Appellant’s threats to harm PW2 and PW3. As said before, in sexual offenses like the one at hand, the victim’s credibility becomes an essential matter for consideration. If the victim is coherent, consistent, and credible, the Court may proceed to convict, notwithstanding other corroborative evidence. In this case, I have already observed 26 that PW3 was a credible witness because she was coherent and consistent. She appeared to be telling the truth. PW2 and PW4 strongly corroborated her evidence. Even if PW1 and PW2 were incredible witnesses, that would mean nothing, provided the evidence adduced by PW3 (the victim) passes the credibility test. The Court may proceed to convict if it is satisfied that the victim is telling nothing but the truth. Going through the evidence of PW3 (the victim), one discovers that she was in a state of fear, having been threatened with being slaughtered by the Appellant. PW2 witnessed the Appellant and the victim on the bed naked. By then, the Appellant was raping the victim. The Appellant threatened to beat her if she ever mentioned him to her mother. In such circumstances, PW2 and PW3 were hesitant to name the Appellant at the earliest possible opportunity. In the state of fear, depression, and anxiety, no reasonable man would have expected the naming of the Appellant at the earliest stage. Based on the above analysis, I find the fourth ground of appeal devoid of merit. Regarding the fifth ground of Appeal, the Appellant complained that the learned trial Magistrate grossly erred in law and fact in convicting and sentencing him while 27 disbelieving his defense evidence. It was the defense evidence that the Appellant did not commit the offense as alleged by the prosecution. He posed a question as to why the neighbors did not arrest him. On his part, Mr. Basaya was of the view that the defense was considered accordingly, only that it did not cast any doubt on the prosecution evidence. I need not overemphasize that PW3 (the victim) was a credible witness. PW2 and PW4 strongly corroborated her evidence. The Appellant's evidence was that they suspected him, but he did not commit the alleged offense. If so, why did the neighbors not arrest him? In my opinion, the evidence given by the prosecution was more robust than the defense evidence. PW2 was the eyewitness who witnessed the Appellant raping the victim and named his name to her teacher (PW5). PW3 (the victim) was coherent and direct on what the Appellant did to her. She also recalled to have been seen with the Appellant on the bed by her sister (PW2). When cross- examined by the Appellant, PW2 and PW3 appeared to be coherent in what they believed to be accurate and true. In such circumstances, the appellant failed to raise doubt on the prosecution's strong, reliable, coherent, and consistent evidence. The trial Magistrate was correct in not believing the 28 Appellant’s defense. To that end, the fifth ground of appeal is devoid of merit, and I dismiss it. From what I have indevoured herein above, I wholesomely endorse and agree with the learned trial Magistrate that the offense to which the Appellant was charged was proved beyond reasonable doubt. That said, the conviction and sentence meted out against the Appellant by the trial Court are hereby upheld. I order accordingly. Right of appeal fully explained. DATED at DAR ES SALAAM this 18th November 2024. H.S. MTEMBWA JUDGE 29