elisha mkoko vs republic 2023 tzhc 20029 11 august 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (IRINGA SUB REGISTRY) AT IRINGA CRIMINAL APPEAL NO. 19 OF 2023 (Original Criminal Case No. 26/2021 of the District Court of Iringa before Hon. Z. Mpanguie, PR.M.) ELISHA MKOKO ................................. APPELLANT VERSUS REPUBLIC ................................ RESPONDENT JUDGMENT 75^ June & 11th August, 2023 I.C MUGETA, J: The victim in this case was aged 10 years at the incident time and 12 years when she testified in court. Under section 127(4) of the Evidence Act [Cap. 6 R.E 2022] she was a child of tender age. Section 127(2) of the Evidence Act requires such witnesses to testify on oath after satisfying the court that they understand the meaning and nature of oath or in case they do not understand the nature of oath, to make a promise to speak the truth. The test on the procedure to decide which way to go when dealing with such witnesses was set in Godfrey Wilson v. Republic, Criminal Appeal No. 168/2018, Court of Appeal - Bukoba (unreported) at page 13 - 14. In this case the learned trial magistrate recorded the examination of the victim to determine if she could give evidence on oath or a promise to speak the truth in the following manner: Page 1 of 4 I am staying only grandmother (sic). - We are staying only two of us. - I am studying at (sic) standard six (6) Igeteke Primary School. - I normally going (sic) to TAG. - Sin is bad thing. - Speaking ties is a sin. - That is court of law and I have come here to speak truth" After the foregoing inquiry the learned trial magistrate recorded: Court: "I certify myself that witness know the duty to speak the truth before this court hence she will give unsworn evidence." Section 127(2) of the Evidence Act provides: "A child of tender age may give evidence without taking oath or affirmation provided he/she promises to tell the truth and not to tell lies". I asked the parties whether the trial court complied with the said section and if not what is the effect of non compliance. Cleophas Mheluka, learned counsel for the appellant submitted that the learned magistrate erred to certify that witness promised to tell the truth while the promise was not recorded. This, in his view, invalidated the testimony of the victim rendering it of no probative value. Page 2 of 4 Sophia Manjoti, learned State Attorney conceded that the trial court failed to record the promise of the witness but it can be inferred from her answers. On that account, she submitted, the evidence of the victim is properly on record. It is my view that while I admit that the promise can be inferred from the inquiry, it is my settled opinion that the inference cannot regularise the evidence of the victim. This is because the general rule is that all witnesses must be sworn before they testify. Promising to tell the truth is an exception to the general rule, therefore, the promise ought to be expressly on record. The omission to record the promise, in my view, is incurable and cannot be saved by section 388 of the Criminal Procedure Act. Consequently, I hold that the testimony of PW1 is of no probative value. I expunge it from the record. Without the evidence of the victim on record, the remaining evidence on identification as to who raped and sodomised the victim is that PW1. She is also a child of tender age, whose evidence was recorded in the same manner as the victim (PW2). For the same reason, I expunge it from record. This makes the allegation that it is the appellant who committed the alleged offences unproven. The 5th complaint in the memorandum of appeal is that the charge was not proved beyond reasonable doubts. I find merits in this complaint Page 3 of 4 for the reasons above explained. In view of the foregoing, a discussion on the remaining complaints that the prosecution evidence has contradictions, that the appellant was wrongly arrested, that the trial court failed to properly evaluate the evidence and that the trial court proceedings has irregularities would be for academic purposes. In the event, I find merits in the appeal. I allow it because the appellant was convicted on illegal evidence. I order his immediate release from prison unless otherwise lawfully held for another cause. I.C. MUGETA JUDGE 11/8/2023 Court: Judgment delivered in chambers in the presence of Cleophas Mheluka, learned advocate for the appellant who is also present and Sauli Makori, learned State Attorney for the respondent. Sgd. I.C. MUGETA JUDGE 11/8/2023 Page 4 of 4