damas mfungo mgane vs republic 2023 tzhc 18761 30 june 2023

damas mfungo mgane vs republic 2023 tzhc 18761 30 june 2023

The trial court failed to properly examine and record the process of determining whether the child victim could give evidence under oath, as required by section 127(2) of the Tanzania Evidence Act. This procedural irregularity renders the victim's evidence valueless and vitiates the conviction. Only the testimonies of the victim (PW1) and the accused (DW1) are to be re-recorded afresh before a different magistrate to cure the defect.

Citation
damas mfungo mgane vs republic 2023 tzhc 18761 30 june 2023
Parties
Appellant: Damas Mfungo @Mgane; Respondent: The Republic
Court
TZHC
Jurisdiction
Tanzania
Judgment Date
30 June 2023
Procedural Posture
Criminal Appeal / Judgment on Appeal
Outcome
appeal partly allowed
Legal Topics
Rape, Child Witness, Procedure for Evidence of Child, Re Trial, Quashing of Conviction
Source Language
English
Criminal Law Evidence Law Rape Child Witness Procedure for Evidence of Child Re Trial Quashing of Conviction

Case Brief

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Parties

Damas Mfungo @Mgane

Appellant

The Republic

Respondent

Procedural Posture

Criminal Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the trial court properly complied with section 127(2) of the Tanzania Evidence Act in recording the evidence of a child witness
  2. 2 Whether the conviction and sentence can stand in light of procedural irregularities in recording the victim's testimony

Ratio Decidendi

The trial court failed to properly examine and record the process of determining whether the child victim could give evidence under oath, as required by section 127(2) of the Tanzania Evidence Act. This procedural irregularity renders the victim's evidence valueless and vitiates the conviction. Only the testimonies of the victim (PW1) and the accused (DW1) are to be re-recorded afresh before a different magistrate to cure the defect.

Court Disposition

appeal partly allowed

Orders

  • Proceedings of the trial court, specifically the testimonies of PW1 (victim) and DW1 (accused/appellant), are quashed.
  • Testimonies of PW1 and DW1 to be recorded afresh before another magistrate with competent jurisdiction.