Mbonimpaye criminal decision 2025 04 09 11 22 01

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA DC. CRIMINAL APPEAL NO. 000019045 OF 2024 NELLY FREDY @ MBONIMPAYE FREDY .............................. COMPLAINANT / APPELLANT / APPLICANT

VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT

JUDGMENT RWIZILE, J This appeal originates from criminal case No. 144 of 2023 of Kigoma district court. The appellant was charged on two counts of rape contrary to sections 130 (1)(2)(e) and 131(3) of the Penal code, [Cap. 16 R. E.2022] on the first count, and unnatural offence contrary to sections 154 (1)(a) and (2) of the Penal code, [Cap. 16 R. E.2022] on the 2nd. He was accused of raping a girl aged 6 years who is to be referred as the victim. Before the trial court, the appellant denied all the charges. The Republic called in 4 witnesses to prove the charges. The appellant did not call witnesses but defended himself. Thereafter, he was found guilty, convicted as charged, and sentenced to a concurrent sentence of life imprisonment on each count and six strokes. Aggrieved by both conviction and sentence, he has now appealed to this court advancing the following grounds: - 1. That, the trial court erred in law and fact for convicting the appellant without regarding that the prosecution side did not prove its case beyond reasonable doubt.

2. That, the honourable court erred in law and fact in convicting the appellant regardless of the procedural irregularities, there was no cautioned statement neither recorded at the police nor tendered before the court of law.

3. That the learned trial magistrate erred in law and fact to convict and sentence the appellant, there was no an interpreter, did not explain the substance of charge in a language the appellant understands.

4. That, the resident magistrate erred in law in convicting the appellant relying on circumstantial evidence and evidence without warning itself the evidence adduced are mere words. Page. 1 Hon. AUGUSTINE RWIZILE 5. That, the resident magistrate erred in law and fact since the whole proceeding is nullity, the appellant defended before the end of prosecution side.

6. That, the evidence was not corroborated with other evidence such as the owner of saloon.

7. That, the honourable Court erred in law and fact in convicting the appellant without considering the cardinal principle that the appellant cannot be convicted on the weakness of his/her defence but on the strength of the prosecution evidence adduced. At the hearing of this appeal, the appellant was unrepresented, the Republic was under the services of Mr. Dickson Makongo learned state attorney. The appellant did not have anything to submit but asked the court to deal with grounds of appeal raised. For the respondent therefore, Mr. Makongo argued in support of the appeal. The appellant briefly made a short rejoinder, that he did not commit the offence, and that there was contradiction on the age of the victim. According to him, she was said to be 6 and 7 years by the prosecution witnesses. When supporting the appeal, Mr. Makongo argued the 3rd ground first; he argued that in terms of the proceedings, when the appellant raised the issue of failure to follow the proceedings due to absence of an interpreter, the case was reheard after services of an interpreter were provided. He said therefore, since there was an interpreter throughout the retrial, this ground has no merit. According to the learned attorney, on ground 5 of the appeal, the prosecution closed its evidence on 19th June 2024 and the defence case commenced on 20th June 2024. This, according to him did not conflict

the procedure, since the prosecution closed its case first, and the defence followed. He said therefore, this ground has no merit. Making argument on the 2nd ground, Mr. Makongo was clear that there was indeed no caution statement recorded before the police to be tendered in court. Apart from that, he added, the appellant is estopped from raising this point at this stage because he did not do so at the trial. It was the attorney’s view that this ground as well has no merit. Mr. Makongo, argued together, the rest of the grounds. It was submitted that the charge was proved beyond doubt since age and penetration which are the elements of the offence were proved. He argued, the evidence proved the victim was born on November 26th, 2016 as testified by Pw1, Pw2, and Pw3. It was his further submission that the victim reported the matter immediately on arrival at home. Therefore, according to Mr. Makongo, there was no circumstantial evidence, rather it was direct evidence. Since the case was proved, he was of the view, this appeal be dismissed. Page. 2 Hon. AUGUSTINE RWIZILE Having heard the appeal, examined and scrutinized the record, I have to start with the 3rd ground of appeal. It was contended that, there was no interpretation services at the trial since the appellant did not know the language of the court-Kiswahili. It is on record that the appellant is not a Tanzanian. In order

to appreciate this, one has to look at the background of this case. Throughout the trial, the case was heard by two Magistrates. It was started by Hon. E.B Mushi-learned Senior Resident Magistrate. Upon hearing a good number of witnesses for the prosecution, for the purposes of expediting the trial due to increased number of magistrates at the station, it was re-assigned to Hon. A.N. Kahungu learned Senior Resident Magistrate. When the matter came before her for continuation of the trial, the appellant who was silent before, raised a point that he was unfairly tried by the former trial Magistrate since he was not provided with services of an interpreter. He asked the succeeding magistrate to re-hear it from the beginning. The prosecutor objected and asked the court not to heed to the prayer since the appellant did not raise that point before. The trial Magistrate upon considering the points of both sides, dismissed the prayer. But the trial magistrate did not end there, she recused herself from hearing the case, opining that the former trial magistrate is in a better position to finalize it. She remitted the record to the Resident Magistrate in Charge who also returned the case to Hon.E.B Mushi-SRM. When the matter appeared before her, and I think upon contemplating the dismissed prayer of the appellant for services of an interpreter, she rightly decided to restart a case a

fresh upon looking for the interpreter. On 28th May 2024 before E.B Mushi, the matter restarted. Facts were read to the appellant. He pleaded not guilty to the charge. On the same date, the victim testified. It was then scheduled for another hearing date on 11th June 2024. Nevertheless, when the trial continued, the record has it that on 11th June 2024, Pw2 a mother of the victim testified. But the proceeding does not show the interpreter was sworn in. Since the record does not show so, this court is clear that she did not take any oath or affirmation. Failure to take an oath or affirm before interpreting, is fatal since it is contrary to the law. Section 4(b) of The Oaths and Statutory Declarations Act, [Cap 34 R.E 2019] to be referred herein as the Act, provides that; “Subject to any provision to the contrary contained in any written law, ... an oath shall be made by any person acting as interpreter of questions put to and evidence given by a person being examined by or giving evidence before a court...” Basically, the law cited is set in mandatory terms. The trial court therefore did not comply with this mandatory requirement. It renders, in my opinion all evidence given on the same day not trustworthy. In yet another anomaly, on 19th June 2024, when the case was for continuation of the trial from where Page. 3 Hon. AUGUSTINE RWIZILE it ended on 11th June, the court recorded

that the “Interpreter is still under oath”. Wherefore, it recorded the evidence of Pw3 and Pw4 as last witnesses of the prosecution, then the prosecution case was closed. I have shown before that the interpreter was not sworn on 19th June; it follows therefore that she could not be reminded of the oath she did not take before. It is clear to me that even the proceeding dated 19th June had a similar problem as that of 11th. There was no oath taken and therefore what was done on that day is not believable. The exodus did not end there, when the appellant was called to make his defence on 20th June, not only the interpreter that did not take oath, but also the appellant did not. It is therefore glaring on the face of the record of that day, section 4 (a) and (b) of the Act was not complied with. The appellant, perhaps may have been served under the provisions to the effect, but there is no such a record. The proviso to section 4 plainly excludes taking of an oath but at least an affirmation must be made. It is not shown that the appellant took oath or affirmed. For the foregoing reasons, I think, even though for different reasons, the 3rd ground has merit. Having meditated the effect of failure to have an interpreter sworn/affirmed in three different occasions of the trial, and in an incident where the defence for no reason was taken without oath or affirmation, I think, I have to

expunge all evidence taken without complying with mandatory provisions of the law. That is to say, it is the evidence of Pw2, Pw3 and Pw4 on one side and that of the appellant on the other which have been expunged. What remains on record is the evidence of Pw1, alone. Under such circumstances, conventional wisdom has it that, there is no evidence sufficient to make any finding, since the appellant himself has no defence at all on record. In my considered view, I quash the judgement of trial court, set aside conviction and sentence. The remedy is therefore to remit the record to the trial court to properly record the evidence of the witnesses. The evidence of Pw1 is properly recorded therefore it should not be taken again. Since the 3rd ground of appeal disposes of the entire appeal. I find no need to proceed with the remaining grounds. Dated at KIGOMA this 9th of April 2025 . Page. 4 Hon. AUGUSTINE RWIZILE A. K RWIZILE

JUDGE OF THE HIGH COURT Page. 5 Hon. AUGUSTINE RWIZILE