JUDGMENT CRIMINAL APPEAL NO 31127 OF 2024 ANGANILE SABA MWAMBELA VS REPUBLIC FINAL NEW

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY) AT DODOMA CRIMINAL APPEAL NO. 31127 OF 2024 (Arising from Criminal Case No. 15117/2024 of the District Court of Manyoni District at Manyoni before Hon. G.F. Kapama, RM dated 23rdOctober, 2024) ANGANILE SABA MWAMBELA........................................................... APPELLANT VERSUS THE REPUBLIC............................................................................... RESPONDENT JUDGMENT 26th Nov.& 13th December, 2024 KAGOMBA, J The appellant herein was convicted by the District Court of Manyoni District at Manyoni (henceforth "the trial court") for the offence of rape contrary to section 130(1) & (2)(e) and 131(1) of the Penal Code, [Cap 16 RE 2022]. He was sentenced to serve athirty-year imprisonment and ordered to pay the victim a compensation of TZS 1,000,000/= after completing his jail term. It was alleged before the trial court that on 06th day May, 2024 during evening hours, at Gemu area, Mwamagembe Village within Manyoni District in Singida Region, the appellant did have sexual intercourse with one AM (her real name is withheld to protect her identity), aged ten (10) years. 1 Upon full trial, the trial court was satisfied that the prosecution had proved the case against the appellant beyond reasonable doubt, hence convicted him and sentenced him accordingly. Being aggrieved, the appellant has filed this appeal to challenge both the conviction and sentence made by the trial court bearing the following two grounds: - 1. That, the trial court erred in law and in fact when it failed to properly analyze and evaluate the prosecution evidence hence arriving at a wrong decision. 2. That, the trial court erred in law and in fact when it convicted the accused for rape while there were still reasonable doubts on the prosecution evidence. At the hearing, the appellant was represented by Mr. John Chigongo, learned Advocate, while the respondent enjoyed the service of Mr. Daniel Lyatuu, learned State Attorney. Submitting on the first ground of appeal, Mr. Chigongo faulted the trail court for failure to analyze properly and evaluate the prosecution evidence leading to an incorrect decision. Clarifying his contention, Mr. Chigongo argued that reading page 2 of the trial court Judgment it was unknown 2 whether the testimony of PW3 was taken under oath or not, PW3 being the victim and a child of tender. He added that section 127(2) of the Evidence Act, [Cap 6 R.E 2022] requires that a child of a tender age should promise to tell the truth or not to tell lies, and section 198(1) of Criminal Procedure Act, [Cap 20 RE. 2022] requires every witness to be examined upon oath or affirmation unless otherwise provided for under any written law, but the Judgment of the trial Court does not show compliance with is section. For this reason, it was his contention that those provisions were not considered by the trial Court. The learned Counsel further argued that the testimony of PW3, the victim that she went to fetch water at the appellant's house on 6/5/2024 evening without specifying the hour was so vague that the court may not know which exact time the offence was committed. According to Mr. Chigongo, another piece of evidence that was not well analyzed is where PW3 stated that she found some other people at the appellant's house who later left her there, but didn't mention their names. He added that the victim ought to name them as she knew them being fellow 3 members of her village. He added that the trial court ought to find out who those people were. It was Mr. Chigongo's further contention that those people were key witnesses for confirming whether the victim went to the appellant's house to fetch water, hence by not bringing them to corroborate the evidence of PW3, it was improper for the trial court to convict the appellant. Another evidence not well analyzed, according to the appellant's Advocate, is the statement by PW3 that the appellant pushed her to the wall and then raped her. In his view, such a statement does not tell whether the appellant raped her while standing up or he laid her down. He added that even the location and appearance of the kitchen was not properly described by PW3, hence it was not specified whether it was in one of those three room where she was raped. For those shortfalls, Mr. Chigongo argued that the act of rape and how it occurred has not been properly analyzed. Still undone, the counsel impeached the testimony of PW3 that the appellant covered her mouth with khanga without stating where that Khang came from. 4 Mr. Chigongo turned to point shortfalls in the testimony of PW1 Elinamala Thomas Kebile, the doctor who examined the victim. The Counsel argued that the doctor's evidence that he examined the victim at hospital and found that she was penetrated is, firstly, very short and secondly, doubtful because Mwamagembe village has no hospital but a health Centre. The Counsel further argued that PW1 did not mention the person who took the victim to hospital; didn't record in any medical instrument his finding that he found bruises in the victim's vagina; didn't mention the date he conducted the examination of the victim, and didn't tender any document to show his medical expertise. According to him, even the trial court judgement did not show that PW1 tendered any document to prove that the victim was penetrated. For these reasons he found that the testimony of PW1 has not been properly analyzed to enable the court enter conviction. In unveiling further gaps in the prosecution evidence, the learned Counsel submitted that the testimony of PW2 Janeth Jailous, the victim's mother is very vague and was not analyzed. He argued that PW2 testified that she took the victim to Ten Cell leader, Police post and then dispensary 5 without mentioning the date, the name of the Police Post and the Ten Cell leader concerned. Also, the Counsel submitted that PW2 didn't mention the instruction or document she was given by police. According to the learned Counsel, there is a contradiction between the testimony of PW2 who testified that she took the victim to a dispensary while PW1, the doctor said she examined the victim at the hospital. The Counsel's further contention is that the evidence of the appellant was not recorded at all, and the court didn't analyze it to show what the appellant stated in his defence. Refereeing to page 2 of the Judgment, the learned Counsel argued the learned trial magistrate states there was an objection on the defence side without specifically stating what the defence evidence was all about. Hence, his contention that the evidence was not analyzed to the required standard. The last point of lamentation under this first ground of appeal is concerned with page 3 of the impugned Judgment, where the trial magistrates stated that " the evidence has established the charge o f unnatural offence against the accused beyond reasonable doubts'. The learned Counsel found misdirection on part of the trial court as the appellant 6 was charged with rape and not the offence of unnatural offence. According to him, by mixing the two offences the trial made mistake in convicting and sentencing his client. Having submitted as above, the Counsel prayed the court to set aside the conviction against the appellant and free him based on the first ground of appeal. Submitting on the second ground of appeal, Mr. Chigongo stated that the court erred to convict the appellant while there many reasonable doubts on the prosecution evidence. He re-stated those doubts briefly as, firstly, whether the victim (PW3) adduced her evidence under oath or not, in accordance with the provision of section 127(2) of the Evidence Act. The second doubt, he submitted, is on non-description of the kitchen where the crime was committed, non-specification of the time of the incident, doubt on where the khanga came from, its owner, and how the appellant came to get it and use the same in raping the victim. Thirdly, the learned Counsel, submitted that there is a doubt on whether the victim went to the appellant's house because the key witnesses who could prove that fact, are the people the victim found fetching water at 7 the appellant' house, as well as the Ten Cell leader to whom the incident was reported, but were not called to testify. The learned Counsel sought to distinguish the case of Selemani Makumba vs Republic, T.L.R [2006] 397 which was relied upon by the trial court to land conviction and the case. He argued that for the evidence of the victim to be relied upon, there ought to be no doubts surrounding it. He added that in the instant case, there are people who could have helped to clear doubts that they saw the victim at the appellant's house but were not called to testify. To show more doubts in the prosecution evidence, Mr. Chigongo argued that since the offence is said to be committed in the village setting, it was expected that the victim would be crying and people around could have heard her crying but nothing of the sort was testified. Still submitting on the doubts surrounding the prosecution case, Mr. Chigongo argued that it was unclear whether the victim received treatment at a hospital or dispensary, and how the Clinical Officer received her without PF3, as the copy of judgment does not show if PF3 was tendered as an exhibit. 8 According to Mr. Chigongo, the last doubt, is whether Police were involved in this case, because the police station was never mentioned and no police officer was called to testify. The learned Counsel submitted that all the above doubts, lead to a conclusion that the evidence was not sufficient to convict the appellant. Citing the case of Jonas Nkize vs. Republic [1992] TLR 22, he added that the onus to prove the case beyond reasonable doubts lied upon the prosecution. For those reasons, he prayed the court to allow the appeal, set aside the conviction and set the appellant free because he didn't commit that offence. Replying for the respondent, Mr. Daniel Lyatuu, learned State Attorney disagreed with his counterpart on both grounds of appeal, which combined to read that; the court convicted the appellant without proving the offence beyond reasonable doubts. Mr. Lyatuu conceded that the judgment of the trial court doesn't state whether the victim (PW1) took her evidence under oath or not. He quickly added however that that was recorded on page 13 of the trial proceedings, 9 where the victim promised to state the truth and adduced her evidence without taking oath. He argued that there is no legal requirement that the judgment must state how the evidence was adduced. So, he prayed for dismissal of this argument. On the questions of identity of the appellant and the time when the offence was committed, Mr. Lyatuu submitted that that was a matter of fact for which the victim testified that she was left behind with the appellant at the appellant's home where she went to buy, as the appellant was selling water. The learned State Attorney further clarified that the victim knew the appellant well before that incident as they both reside in the same village; the offence was committed by the appellant and she was able to recognize him well, hence there was no doubt about the identity of the appellant. He argued. Mr. Lyatuu further submitted that, since the appellant didn't cross­ examine PW1 regarding his identification, it meant that the appellant conceded that he was identified as the culprit. In support of this contention, the learned Attorney cited the case of Nyerere Nyague vs. Republic, 10 Criminal Appeal No. 67 of 2010, CAT at Arusha (unreported), at page 5, the Court of Appeal stated thus. As a matter o fprinciple, a party who fails to cross examine a witness on a certain matter is deemed to have accepted that matter and will be estopped from asking the trial court to disbelieve what the witness said'. Cementing his argument, Mr. Lyatuu continued to argue that the appellant did not cross examine PW3 or any other witness regarding his presence at the scene of crime and his commission of the crime. On the argument that the Ten Cell leader and those who were found at the appellant fetching water were not called to testify to prove the charge, Mr. Lyatuu prayed the argument to be dismissed because in terms of section 143 of the Evidence Act, no number of witnesses is required to prove an offence. He added that since the offence is rape, the best witness is the victim and therefore, there were no reason to summon other witnesses because they didn't witness the commission of rape, and also because the appellant didn't dispute the presence of the victim at the scene of crime. Likewise, the learned State Attorney found no necessity of calling the Ten 11 Cell Leader to testify because the matter was reported to Police, a fact which the appellant conceded. Responding to the argument that the evidence of PW1 did not describe how she was raped when pushed to the wall, and where khanga that was used to close her mouth came from, the State Attorney submitted that such facts came from the testimony of the victim herself on which she was not cross-examined by the appellant. Once again, the Attorney referred to the case of Nyerere Nyague (supra) for this argument too. On the argument that there is no hospital at Mwamagembe Village, Mr. Lyatuu considered it as an afterthought for a reason that it was not raised during trial. He however replied that PW1 Clinical officer, who examined the victim, testified that his duty station was Mwamagembe Hospital, where he examined the victim and filled in PF3, and affixed the stamp of the hospital. Having so clarified, he prayed the court to dismiss this argument too. On lack of reference of PF3 in the judgment to show that the victim was examined, Mr. Lyatuu referred to page 11 of the proceedings, where it is shown that PF3 was tendered by PW1 the Clinical Officer and it was admitted without objection, having been read out in court. 12 On the argument that the time the victim was taken to Hospital and to the Ten cell leader was not described, he submitted that the victim's mother (PW2) clearly testified, as per page 12 of the proceedings, that she reported the matter to Ten Cell leader and took the victim to hospital on the same day the offence of rape was committed. Replying to the argument that there was contradiction between PW1 and PW2 as to whether medical examination of the victim was done at Hospital or dispensary, Mr. Lyatuu found it trivial arguing that it does not go to the root of the case. He clarified that both names refer to a medical institution that is within the concerned village. He added that it is the Clinical Officer (PW1) who described it well as a hospital and PF3 was affixed with the stamp which has the name of the institution, hence the distinction is technical which a lay person like PW2 wouldn't be able to differentiate. Responding to the argument that the defence of the appellant has not been properly recorded in the judgment, Mr. Lyatuu submitted that the appellant's evidence is recorded on page 20 of the proceedings. He added that the appellant's testimony was short and incapable of disproving the prosecution evidence, hence the trial court didn't much merits in it. 13 Regarding the contradiction whether the appellant committed rape or unnatural offence, Mr. Lyatuu prayed the court to disregard that argument for a reason that there was no any confusion caused, since the charge, proceedings and judgment established only one offence of rape under section 130 (1) (2) (e) and 131(1) of the Penal Code. He was emphatic that there was no any contradiction. On the lamentation that the rape incident was not reported to Police and was neither investigated by Police, Mr. Lyatuu prayed for dismissal of this argument for a reason that vide Preliminary Hearing as recorded on page 4 of the trial proceedings, the appellant agreed that the matter was reported to Police, and he was interrogated by Police before he was taken to court. Finally, the learned State Attorney submitted that the offence the appellant was charged with required a proof of only three elements, namely; the age of the victim, penetration into victim's vagina and that it is the appellant who penetrated his penis into the victim's vagina. Regarding proof of the age, Mr. Lyatuu submitted that PW1, PW2, and PW3 and PF3 (Exhbit P1) all proved that the victim was ten (10) years old, a fact the appellant did not dispute. 14 Concerning proof of penetration, the learned State Attorney submitted that the testimony of the Clinical Officer and the PF3 took care of that by showing that the victim had bruises which proved that there was penetration of a blunt object into the victim's vagina. He added that the appellant didn't cross examine the witness on this aspect, hence as per the principle of law in Nyerere Nyague (supra), these fact are deemed to have been accepted by the appellant. And on whether it was the appellant who penetrated the victim, Mr. Lyatuu submitted that that question was well -answered by the victim (PW3), who explained how the appellant pushed her into his house, tied him with khanga and inserted his penis into her vagina and raped her. According to Mr. Lyatuu, this fact was also not cross examined by the appellant. He added that the victim reported the incident the same day at the same time and explained how she knew the appellant before the offence and after the offence, as a person who lives in her village. According to the learned State Attorney, the appellant conceded that he sells water and the victim went to his house to fetch water, hence the evidence adduced had built well the prosecution case. 15 Mr. Lyatuu further submitted that, the appellant defended himself and the court found no merit in his defence. Having summed up the case that way, the Learned State Attorney prayed for dismissal of the appeal so that the appellant would continue serving his sentence. Rejoining, Mr. Chigongo, learned Counsel for the appellant started by pointing out that his counterpart has been referring to the proceedings while the appeal has been filed and argued based on the trial court judgment. According to him, save for the defence of the appellant which Mr. Lyatuu said in on page 3 of the Judgment, other complaints are not addressed in the said judgment, for which reason, he argued, his counterpart has conceded that the judgment has not analyzed and evaluated properly the evidence adduced. According to Mr. Chigongo, in filing appeals it is the copy of the judgement which is attached and not a copy of the proceedings, adding that it is the judgment which carries the decision of the court, hence the same has to analyze the evidence properly. In his further rejoinder, Mr. Chigongo argued that his counterpart has not disputed that even the PF3 is not mentioned in the trial judgment, which 16 has also not stated who tendered it. For this reason, he argues, the first ground of appeal that the court has not analyzed and evaluated the evidence tendered before it, is valid. According to Mr. Chigongo, his counterpart has also conceded that there is a contradiction regarding the words hospital and dispensary. It was Mr. Chigongo's views that the two are categorically different and the Clinical Officer (PW1) as an expert was supposed to be smatter in his evidence by not mentioning a hospital and yet tender a PF3 bearing a stamp of a clinic. The learned Advocate further reiterated that there is contradiction on page 3 of the judgment where the court stated that the charge was for unnatural offence but convicted the appellant for rape. He also reiterated the doubts he cast on the time of the commission of the offence where it was said that it was in the evening hours, which according to him that description of time is wide. Regarding identification of the accused, Mr. Chigongo rejoined that his learned friend misdirected himself by addressing that issue. 17 Mr. Chigongo distinguished the case of Nyerere Nyague (supra) for the reason that it delas with cross-examination of witnesses while he questioned about the time of commission of the offence. Regard how the rape was done, the learned Counsel reiterated that it has not been analyzed and the testimony of the victim did not describe it well, and didn't state where that khanga came from. Mr. Chigongo opposed the contention that his client didn't oppose the evidence adduced or cross-examine the witness, because on page 10 of the judgment, the court stated that the appellant opposed the case. Connected to the above, he also argued that the burden of proof does not shift to the defence and that it was the duty of the prosecution to prove the case beyond reasonable doubts. Finally, the learned Counsel argued that the evidence of the victim (PW3) is not enough to convict the appellant as those who were at the water well, the Ten Cell leader and Police were supposed to corroborate her testimony. 18 While conceding that there is no number of witnesses required to prove a matter in court, Mr. Chigongo argued, however, that there are competent and compellable witnesses who ought to be called, mentioning the Police who investigated the case and those who were fetching water, in particular. He reiterated that by not calling them to testify, doubts existed as to whether those people witnessed and handled the matter as it is alleged. For these reason the learned Counsel maintained his prayer that the appeal be allowed, the appellant be set free because he didn’t commit the offence. After a going through the parties' submissions, the grounds of appeal and the law, there is one issue for determination, which is; w hether the prosecution proved the case against the appellant beyond reasonable doubt. When determining the question whether the offence of rape was committed, the trial court correctly guided itself that under section 130(1), (2)(e) and 131 (1) of the Penal Code rape is committed when a male person have sexual intercourse with a girl or woman under circumstances described under section 130 (2) (a-f). 19 It is apparent that for the offence of rape of a girl of tender age to be proved the prosecution was required to prove three elements, simply stated by Mr. Lyatuu. That is, the age of the victim, in this case she was said to be ten (10) years, penetration and whether it is the accused and not anyone else who penetrated his male sexual organ into the child's vagina. It is basic that for a rape of a girl of tender age to be proved, consent to the sexual intercourse is immaterial and needs not be established. Likewise, it is the position of the law that even a slight penetration into the victim's vagina is enough to establish rape. Now, the submissions made by the learned counsel in this appeal, in my view, have raised three types of issues; relevant issues, irrelevant issues and misdirections. I shall briefly explain. Since the offence is concerning rape of a girl of a tender age, which is proved by establishing the three ingredients mentioned above, that is; the age of the victim, penetration and proof that it is the accused who committed the penetration, all other questions not directed towards proving or disproving those ingredients are, with due respect to the learned counsel, irrelevant. Hence, the question whether the victim was treated at a hospital, a dispensary or a health centre, the name of the Police Post and such other 20 matters, are irrelevant especially in the face of existence of the evidence of a Clinical Officer who received and examined the victim and opined that the girl was penetrated. On the other hand, the expectation that a judgement would contain every detail of the case merely it is the judgement which is attached to an appeal is a misdirection. There is a limit of what the judgment will entail. Under section 312(1) and (2) of the Criminal Procedure Act, provides: - 312.-(1) Everyjudgment under the provisions o f section 311 shall, except as otherwise expressly provided by this Act, be written by or reduced to writing under the personal direction and superintendence o f the presiding judge or magistrate in the language o f the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer as o f the date on which it is pronounced in open court. (2) In the case o f conviction, the judgment shall specify the offence o f which, and the section o f the Penal Code or other law under which, the accused person is convicted and the punishment to which he is sentenced. [Emphasis added] 21 The rest of the procedure related to recording of evidence is found in the proceedings, the recording of which is govern by section 210 to 214 of the Criminal Procedure Act. Back to the substance of the appeal, I recall that the duty of this court being the first appellate court is as stated by the Supreme Court of Uganda in Gapco (U) Ltd vs. A.S Transporters Ltd., Civil Appeal No. 7 of 2007, that is: " to subject the whole evidence on record to a fresh exhaustive scrutiny and to draw its own conclusions o f facts giving allowance to the fact that it has not seen the witnesses testify'. The same position was stated by the Court of Appeal in Mapambano Michael @Mayanga vs. Republic [2016] TZCA 310 (25 April 2016, among other decisions. I have carefully read the short proceedings of this case during trial. Three witnesses adduced their evidence for the prosecution. These are Elinamala Thomas Kebile, (PW1), Clinical Officer aged 27 years who on 6/5/2024 received the victim for examination and treatment. According to PW1, the victim (PW3) went to "Mwanagembe Hospital" in a company of her mother and a Policeman. They wanted him to investigate if she was raped. 22 According to him, the victim was crying in pain. She was examined and PW1 found that she had "some bruises in her private parts and a swelling in her head". He observed that the bruises might be caused by a blunt object. PW1 further treated the victim, filled in the PF3 and tendered it in court. The same was admitted as Exhb. "J1" without any objection from the appellant. The second prosecution witness is Janeth Emmanuel Jailos (PW2). She 30 years mother of the victim. She testied her daughter the victim is ten years old and studies at Mwamagembe Primary School in Standard V. She further testified that on 6/5/2024 she sent her daughter, the victim, to fetch water at the house of the appellant. That, as the victim came back home, she claimed that she was raped, and PW2 saw her in pain. Thereafter they went to report the incident to the Ten Cell leader whose wife escorted them to Police and upon being given a PF3 they eventually went to "Mwamagembe dispensary". When cross-examined by the appellant, she responded that; "your relatives were there". That was all she testified. 23 The third and last prosecution evidence was AM (PW3), who is the victim. According to court proceedings she "promised to tell the court the truth". In her testimony she testified that she is ten years old, and in standard V at Mwamagembe Primary School. As regard the rape incident, she testified that on 6/5/2024 around evening hours she went to fetch water at the appellant's place where she met some people, who then went away. She remained only with the appellant. After finishing fetching water, the appellant told him to take "nkonsi to the kitchen. Later, the appellant pushed her to the kitchen wall and did her " a b a mbayd' (ie. "Bad act") by inserting his penis into her vagina. She felt so painfully as it was her first time to have sex. PW3 testified further that the appellant covered her mouth by khanga. After the incident she went to tell her mother. Then they went to the Ten Cell leader, Police and dispensary. That they were four people. The victim also described the house of the appellant that it has three bed rooms and on the material day the appellant wore a white T-shirt and blue jeans. 24 When cross -examined by the appellant, she replied that "it was an old one". That is all on the prosecution evidence. Then came the defence hearing. The appellant opted to defend himself under oath without tendering any exhibit. Testifying as DW1-the appellant 34 years old, just stated that he did not do anything and all evidence adduced before the court is not correct. When cross-examined by the Prosecutor, he conceded that he used to sell water and the victim came on that day. He also replied that the victim is daughter of his neighbour and that she uses to fetch water there daily. He also stated that the victim was beaten and mentioned him. This is the entire evidence on record. The above testimonies reveal that, the rape incident occurred on 6/5/2024 and was reported to a Ten cell leader who is not mentioned and was further reported to Police who appear to have little interest in the matter. Certainly, the above evidence provides answers to some of the questions and lamentations posed by the appellant's Counsel such as the date of the incident, whether it was reported to Police or not and whether it was the Hospital or dispensary. 25 The grounds of appeal are, in the main, lamenting that the evidence was not analyzed and a proper conclusion was not reached. When such a situation happens the first appellate court is mandated to step into the shoes of the trial court, make its own analysis so as to arrive at its own conclusion. (See: Siaba s/o Mswaki vs. Republic, Criminal Appeal No. 401 of 2019 CAT at DSM. The above conclusion is therefore a result of executing that mandate. As regarding the proof of rape, I think the evidence has proved it beyond reasonable doubts, considering that under section 143 of the Evidence Act, [Cap 6 RE 2022], the law provides for no specific number of witnesses to prove the case. Also considering the best evidence rule stated in the case of Selemani Makumba vs Republic, Criminal Appeal No. 94 of 1999, Court of Appeal at DSM and in many other similar cases. The concern raised by Mr. Chigongo as to why potential witnesses such Police, the Ten Cell Leader and the neighbours who were found by the victim fetching water at the appellant's home were not called to testify, was well- answered by Mr. Lyatuu. I can only add that much as it might look strange that Police and Ten Cell leaders had to shy away from the conduct of this case, such a situation can easily be understood in a closed community like a 26 village where people are closely related to each other. The bottom-line is, each case shall be determined based on its own evidence and obtaining circumstances. The evidence, as explained above, sufficiently proved all the ingredients of the offence of rape against the appellant beyond reasonable doubt. Before winding up, I wish to address a matter of significant legal interest which I have observed in the trial proceedings, but was not traversed by the learned Counsel. It is recorded in the proceedings that on 4th June 2024 a fresh case with a charge of rape was read in court. The appellant pleaded not guilty whereupon, preliminary hearing was set on 18th June, 2024. On that date, the appellant was reminded on the charge and again, pleaded not guilty whereupon the trial Magistrate recorded the following: "FACTS BY PROSECUTOR That, the names, address and the offence facing an accused person is as per the charge. That, an accused is facing one offence o f rape, That an accused and the victim knows each other as they are living in the same village 27 An accused admitts that on 6/05/2024 was at mwamagembe village within game ward, manyoni district in singida region That an accused dispute to have carnal knowledge with the victim on the said date,at that particular area. That, an accused admit to have been arrested and taken to the police station for interrogation. That, an accused admitts to have been brought before this court on 04/06/2024 to answer the charges against him. COURT: Section 192 o f CPA, CAP 20, R.E 2022 IS COMPLIED WITH. PROSECUTOR: During hearing, we expect to bring 6 witnesses and 1 exhibits, i pray for another hearing date and summons to witnesses" Thereafter, the trial Court ordered the hearing to proceed on 2nd July, 2024 at 9.30 AM and that witnesses be informed. Apparently, the record above is presumably the Memorandum of the matters agreed upon at the preliminary hearing. If my imagination is correct, it was obviously done contrary to the law, for the following reasons: 28 Firstly, the same is indicated to be " facts by prosecution and not a Memorandum of the matters agreed upon at the preliminary hearing. Secondly, it does not conform to CR Form 14 of the Criminal Procedure (Approved Forms) Notice, 2017 GN No. 429 of 13/10/2017 titled: "Memorandum of the matters agreed upon at the preliminary hearing" made under section 192(3)(4) and (6) of the Criminal Procedure Act, Cap 20 R.E 2022. Thirdly, it is not signed by parties concerned particularly the accused person. Under such circumstances, what is considered to be the agreed facts were not agreed upon, and the preliminary hearing was, in law, futile. There is a plethora of authority on what happens when the preliminary hearing was not done, or was futile as in the instant case. In d e v id m s ig a la & am ani SANGA v. REPUBLIC [2013] T.L.R. 95 it was held as follows: A preliminary hearing is a necessary prerequisite in a criminal trial. It is not discretionary. The procedures stipulated under Section 192 are mandatory, and needless to say, Section 192 was enacted in order to minimize delays and costs in the trial o f criminal cases. However, in the most unlikely event 29 that a preliminary hearing is not conducted in a criminal case thatproceedings willnot automatically be vitiated. The proceedings could be vitiated depending on the nature o f a particular case. [Emphasis added] In the instant case, most the matters which were deemed to have agreed upon were subsequently proved by other testimonies. For example, that the accused is a is facing one offence of rape, that an accused and the victim knows each other as they are living in the same village, An accused admits that on 6/05/2024 was at Mwamagembe village within game ward, Manyoni district in singida region, That an accused dispute to have carnal knowledge with the victim on the said date, at thatparticular area and that, an accused admit to have been arrested and taken to the police station for interrogation. Looking at these items in light of the evidence adduced in court, I find the trial was not anyhow prejudiced by the abortive preliminary hearing, as the charge for the offence of rape was read to the accused, he pleaded not guilty, prosecution adduced evidence to prove all the ingredients of the 30 offence and the appellant did defend himself but was finally found guilty, convicted and sentenced for rape. As regard the statement in the trail judgment that the evidence showed that the appellant committed the offence of unnatural offence, I consider it a slip of the pen since in the entire proceedings and judgment the offence the appellant was accused of committing was rape under section 131(1) (2) (e) and Section 131(1) of the Penal Code. In any case he was not prejudiced by the said human error in the judgment. That said, I concur with the learned State Attorney that the prosecution proved it case against the appellant beyond reasonable doubt. In the final analysis, the appeal is dismissed for lacking in merit. Both the conviction and sentence meted out by the trial court are upheld. Dated at Dodoma this 13th day of December, 2024. ABDI S. KAGOMBA JUDGE 31