James Elias Judgment Final

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA GEITA SUB-REGISTRY

AT GEITA CRIMINAL APPEAL No. 6246 OF 2025 (Arising from Criminal Case No. 26276 of 2024 in the District Court of Bukombe at Bukombe) JAMES ELIAS…………………..………………………………………. APPELLANT

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

JUDGMENT Date of Last Order: 26/03/2025 Date of Judgment: 09/04/2025 MWAKAPEJE, J.: This marks the first appeal where the appellant contests the decision of the District Court of Bukombe, where he was convicted for two offenses of impregnating a school girl contrary to section 60A of The Education Act Cap 353 as amended by Section 22 of The Miscellaneous Act No. 2/2016, and rape contrary to sections 130(1), (2)(e) and 131 (1) of the Penal Code, Cap. 16 R.E.

2022. The appellant was therefore sentenced to serve 30 years of imprisonment. The brief history of the matter is that, in the trial court, when the charges were read to the appellant, he denied the charges, prompting the prosecution to present five witnesses to prove their case. The evidence Page 1 of 12 leading to his conviction was to the effect that PW1, a 15-year-old victim, testified that she was formerly a Standard Five pupil at Ilyamchele Primary School. She revealed that she had a child, Marieta, daughter of James, born on 6 April 2024, fathered by the appellant. PW1 stated that she met the appellant in August 2023 at Ilyamchele Village, where he seduced her. Five days later, they had sexual intercourse, and he promised to marry her. They subsequently cohabited at the appellant's parents' home, leading to her pregnancy and the birth of their child. PW2, Paschal Michael, the WEO of Namunge Ward, testified that on 13 August 2024, while at his office, he received complaints from Hamlani Ramadhani, Balieta, and Jemsi Eliasi, who alleged that the appellant had married their child and they already had a child together. PW2 reported the matter to Namunge Police Station. PW3, Elena d/o Jackson, stated that PW1 was born on 10 October 2010. On the night of 10 April 2024, PW1 went missing. After an unsuccessful search, PW3 learned that the appellant had been pursuing PW1. PW3

later found PW1, who revealed that the appellant had forced her into sexual intercourse. PW3 reported the incident to the ten-cell leader and took PW1 to the police, who directed them to the hospital, where it was confirmed that PW1 had been raped. PW4, Ludovick Andrew, a clinical officer at Namunge Health Centre, testified that on 14 August 2024, he examined PW1 and observed Page 2 of 12 evidence of penetration, confirming she was no longer a virgin. PW5, Nestory Kyando, a teacher at Ilyamchele Primary School, stated that PW1 was his Standard Six pupil in 2023. He explained that PW1 began missing classes and was last seen at school in August 2023, escorted by PW2 and PW3. PW6, Marieta d/o Lushinge, testified that PW1, born in December 2009, lived with her. In August 2023, PW1 went to the market and did not return. PW6 reported the incident to the village leaders. PW1 was found in August 2024 with a man and a child, who were later identified as the appellant and their child. PW6 reported the matter to PW3. In his defense, the appellant (DW1) stated that he met PW1 at a wedding on 5 June 2023 and sought her parents' consent to marry her. He claimed to have paid part of the bride price, TZS 300,000 out of a total of TZS 1,000,000, and began cohabiting with PW1 in Maswa District, where they had two children. In 2024, while visiting PW1's home to build her father's grave, he was

accused of rape and arrested. DW1 argued that PW1 and her mother denied the rape allegations and that PW4 had only examined PW1's health. After hearing the testimonies, the trial magistrate was satisfied with the prosecution evidence convicted the appellant of rape and impregnating PW1 and sentenced him accordingly. Dissatisfied with the decision, the appellant appealed to this Court on five grounds as follows: Page 3 of 12 1. That the trial court erred in law and, in fact, for convicting the Appellant and sentence 30 years in jail, whereas the prosecution side has failed fully to prove the offences alleged to the appellant because the appellant and the victim lived/married as wife and husband for the permission of the parents of the victim.

2. That the trial court erred in law and in fact for convicting the Appellant by using poor evidence brought by the prosecution side for example the witnesses in this case didn't prove the rape or impregnating the victim.

3. That the trial court erred in law and, in fact, for convicting the Appellant without considering the defense given by the appellant.

4. That the trial court erred in law and fact to convict the appellant of an excessive sentence of 10 years on the offence of impregnating a school girl who was not a student at the time they got married and impregnating her.

5. That the trial court erred in law and fact to convict the appellant while has a lawful marriage to PW1. At the appeal hearing, the respondent was represented by Merss. Robert Neophitus and Njiliku Mabula, learned State Attorneys, while the appellant appeared in person without legal representation. When invited to submit his grounds of appeal, the appellant adopted them, allowing the respondent, the Republic, to respond. In response to the grounds of appeal, Mr. Mabula opposed the appeal at the outset. He addressed the first, second, and fifth grounds collectively due to their similarity, then responded to the remaining grounds accordingly. On the first, second, and fifth grounds, Mr. Mabula submitted that the prosecution's evidence proved the charges beyond a reasonable Page 4 of 12 doubt. Citing Selemani Makumba v. Republic [2006] TLR 379, he emphasised that the victim's testimony is the best evidence in rape cases. He further referenced Meedrage Mohamed Naheka v. Republic, Criminal Appeal No. 391 of 2022 [2024] TZCA 481, reaffirming that penetration and identification of the perpetrator are key, especially when the victim is a minor. Mr. Mabula further stated that PW1 testified in detail about her repeated sexual encounters with the appellant, which led to pregnancy. She identified him as the father of her child. Notably, on page 17 of the trial proceedings, the appellant

did not cross-examine her, implying acceptance of her testimony, in line with Nyerere Nyague vs Republic (Criminal Appeal Case No. 67 of 2010) [2012] TZCA 103 (21 May 2012). PW1 also stated she was 15 at the time, a fact corroborated by PW3 and PW5 (her mother), who confirmed her birth year as 2009 (page 46 of the record). PW1 further testified that she cohabited with the appellant in Maswa District before his arrest. Mr. Mabula dismissed the appellant's claim of a consensual marriage with parental approval, asserting that sexual relations with a minor under 18 are illegal regardless of consent. The appellant also failed to challenge the validity of the alleged marriage during PW1's testimony. Given the victim was only 14 when the relationship began, her consent was legally irrelevant. Page 5 of 12 On the third ground, Mr. Mabula argued it was meritless, as the trial court thoroughly considered the defence on pages 4–6 of the judgment but found it unconvincing. Regarding the fourth ground, he refuted the claim that the victim was not a student. PW4, a teacher at Ilyamchele Primary School, confirmed she was enrolled until August 2023, supported by the attendance register. PW1 also testified that she moved in with the appellant shortly after he approached her. Thus, the prosecution proved the offence under section 60A(3) of the Education Act, Cap 353. Mr. Mabula concluded that

the prosecution's evidence was overwhelming and consistent, and he prayed for the appeal to be dismissed in its entirety. In rejoinder, the appellant claimed that the victim already had a child when he took her in, and that he too had a child with her. He also alleged that the court restricted his ability to cross-examine the victim on certain issues. The Court also inquired of the prosecution to address the issue of whether all the witnesses in the trial court had been sworn before rendering their respective testimonies. Mr. Mabula stated that, as reflected in the proceedings, whenever witnesses took an oath, the term "Kiapo" was recorded. This confirms that all witnesses testified under oath, as it is a standard court procedure. The Page 6 of 12 sequence of the witness testimonies further supports this, and the mention of "Kiapo" in a distinct format signifies that the oath was taken. After thoroughly reviewing the submissions presented by both parties, I turn to considering the merits of the appeal. To ensure a structured and comprehensive analysis, I will begin by addressing the issue raised by the court. Should it prove necessary, I will then proceed to examine the individual grounds of appeal in detail, ensuring that all relevant matters are addressed accordingly. It is well-established in legal practice that any witness called to testify in court must provide their

testimony under oath or affirmation. This procedural safeguard is not merely a formality; it serves to reinforce the integrity and reliability of the evidence presented, ensuring that the witness acknowledges the gravity of their statements and is held legally accountable for the truthfulness of their testimony. In criminal proceedings, this requirement holds particular significance and is enshrined under Section 198(1) of the Criminal Procedure Act, Cap. 20 [R.E. 2022]. The section provides explicit guidance to courts on administering oaths or affirmations, emphasising the importance of these measures as a cornerstone of justice in criminal trials. The said section reads as follows: "Every witness in a criminal cause or matter shall, subject to the provisions of any other written law to the contrary, be examined upon Page 7 of 12 oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Act." This provision underscores the court's paramount responsibility to administer justice founded on testimony that is both verified and solemnly presented. The oath imbues testimony with the gravitas necessary to uphold the solemnity of legal proceedings while reminding witnesses of their legal accountability. By making witnesses acutely aware of the consequences of dishonesty, including potential liability for perjury under the Penal Code, the provision

safeguards against falsehoods and ensures the reliability of evidence. Of particular importance is the use of the term "shall" in Section 198(1) of the Criminal Procedure Act. This term carries significant legal weight, denoting an obligatory requirement rather than a discretionary one. Such interpretation is further bolstered by Section 53(2) of the Interpretation of Laws Act, Cap 1 [R.E. 2022], which clarifies the imperative nature of provisions framed with the term "shall." By mandating this procedural step, the legislation upholds the integrity of the judicial system and underscores its commitment to justice. "Where in a written law the word 'shall' is used in conferring a function, such word shall be interpreted to mean that the function so conferred must be performed." Page 8 of 12 The mandatory nature of this requirement has been strongly emphasised in case laws, particularly in the case of Salimu Alphan v. Republic, Criminal Appeal No. 547 of 2016 [2018] TZCA 246 (19 April 2018), where it was stated that: "Where the word 'shall' has been used in an enactment, in terms of the provisions of section 53(2) of the Interpretation of Laws Act, Cap. 1 R.E. 2002, it connotes that compliance is imperative." [Emphasis supplied] Accordingly, any deviation from this requirement, such as the failure to administer an oath or affirmation before receiving a witness's

testimony, constitutes a grave procedural irregularity. Such an omission not only undermines the integrity of the judicial process but also renders the evidence inadmissible. This defect exposes the testimony to the risk of being expunged from the record, particularly during appellate or revision proceedings. The significance of this principle was emphasised in the case of Simon s/o Shauri Awaki @ Dawi v. Republic, Criminal Appeal No. 62 of 2020 [2022] TZCA 51 (23 February 2022). In this case, the Court of Appeal held that: "Indeed, the record shows that PW6 was not sworn by the trial Court before taking his evidence. The omission is contrary to the requirement of section 198 (1) of the CPA, and the evidence taken in breach of the said provision has no evidential value. The Court has, time and again, reiterated the said stance in its decisions. See: Godi Kasenegale vs. Republic, Criminal Appeal No. 10 of Page 9 of 12 2008, Salum s/o Said Kanduru vs. Republic, Criminal Appeal No. 122 of 2018, and Nestory Simchimba vs. Republic, Criminal Appeal No. 454 of 2017 (all unreported) to mention but a few. We thus accept the invitation by both learned counsel to discard PW6 evidence as we hereby do. [Emphasis supplied] Furthermore, in the case of Abas Kondo Gede v. Republic, Criminal Appeal No. 472 of 2017 [2020] TZCA 391 (12 August 2020), the court underscored that: “In the

circumstances, we accordingly expunge from the record of appeal the evidence of PW7 together with exhibit P6 (the Observation Form) which was tendered by the said witness. We wish to urge trial courts that a witness who is called to testify for either party must be sworn or affirmed, as the case may be, failure of which the evidence recorded and admitted is rendered valueless for offending the provisions of section 198(1) of the Criminal Procedure Act Cap. 20 R.E. 2019 (the CPA).’’ [Emphasis supplied] In the present case, after recording the basic particulars of each witness, namely their name, age, and religion, the trial magistrate inserted the term "Kiapo" (Swahili for "oath"), followed by a colon, after which the testimony directly ensued. Upon close examination of the trial court record, a significant procedural irregularity becomes evident: the record fails to clearly indicate whether the witnesses were actually sworn or affirmed, nor does it explicitly reflect the administration of the oath or affirmation. Page 10 of 12 Merely inserting the term "Kiapo" without corresponding narration or notation to confirm its actual administration falls short of meeting the statutory threshold. Such an ambiguous reference introduces uncertainty, leaving the record vulnerable to conflicting interpretations, whether the oath was administered or merely anticipated. The law requires

clarity and certainty in this regard, rather than assumptions or inferences. Court records must unequivocally reflect adherence to procedural requirements, as ambiguity undermines the credibility of the evidence. I therefore disagree with Mr. Mabula's assertion that all witnesses testified under oath as part of standard procedure. Unfortunately, this procedural lapse was not confined to a single witness but extended across the testimonies of all prosecution witnesses, PW1 through PW5, and even the appellant himself. Such a systemic failure to meet the mandatory legal requirement raises serious concerns about the validity of the trial proceedings. As custodians of due process, courts must ensure not only that statutory requirements are fulfilled in practice but that compliance is properly documented to uphold procedural integrity. Given the trial court's failure to administer and record the mandatory oath or affirmation, the testimonies of both prosecution and defence witnesses lack probative value and must therefore be deemed inadmissible. Accordingly, I hereby expunge all witness testimonies from Page 11 of 12 the record. Considering these profound procedural irregularities, which strike at the very root of the trial's validity, addressing the grounds of appeal on their merits would be futile. The entire proceedings are incurably defective. Consequently, I quash the trial

proceedings, set aside the conviction, and nullify the sentence imposed upon the appellant. In the interest of justice, I order a retrial de novo before a different magistrate. The retrial shall commence at the stage where the prosecution opens its case following the conclusion of the preliminary hearing and shall be conducted expeditiously. Should the appellant be convicted upon retrial, the sentencing court is directed to consider the period already served in custody when determining the appropriate sentence. It is so ordered. DATED at GEITA this 09th day of April 2025. G.V. MWAKAPEJE

JUDGE Page 12 of 12