CHRISTOPHER PIUS

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

AT BABATI CRIMINAL REVISION NO. 9345 OF 2024 (Originating from conviction and sentence in Criminal Case No. 186 of 2023 Babati District Court) REPUBLIC.......................................................................... APPLICANT

VERSUS CHRISTOPHER PIUSI..................................................... RESPONDENT

RULING 11th June & 24th June,2024 D. C. KAM U ZORA, J. This is revision suo motu following a complaint raised by the National Prosecution Service In-charge of Manyara Region regarding the correctness of the sentence imposed by the district court of Babati (hereinafter referred to as the trial court) in Criminal Case No. 186 of 2023. Briefly, the Respondent was arraigned before the trial court and charged with one count of rape contrary to sections 130 (1), (2)(e) and 131 (1) of the penal code [CAP 16 RE 2022]. It was alleged that on 2/12/2023 at Longu village within Babati district in Manyara region the Page 1 of 10 Respondent had carnal knowledge of a girl aged 9 years old (herein to be referred to as the PW1 or the victim). The charge was read and explained to the Respondent who pleaded not guilty hence the matter proceeded to full trial. The prosecution evidence reveals that in the morning of 2/12/2023, PW1 was instructed by her mother (PW2) to go to Qamara's home to get vegetables. She delayed going back home until noon time when PW2 decided to make follow up of her. Upon reaching there, she was informed that PW1 never went there but PW2 was later informed that there was a girl under a tree. Upon reaching to the said tree, she found PW1 under the tree while bleeding. She was interrogated and mentioned the Respondent as the person who raped her. The report was made to the

hamlet leader and then to the police station. PW1 was sent to hospital where she was attended by PW4, a medical doctor. According to PW4, the victim had laceration running from vagina to the anus. Since the victim named the Respondent as her assailant, he was arrested and interrogated by PW3 and his cautioned statement was admitted as exhibit. In his defence, the Respondent claimed that he was 16 years old and denied to have raped the victim. The learned trial magistrate was satisfied that the prosecution side managed to prove the case against the Respondent beyond reasonable doubt thus, convicted the Respondent. He Page 2 of 10 however considered the Respondent's defence over the age and held that the Respondent was 16 years. He pointed out that the prosecution side failed to establish that the Respondent was 19 years old as alleged in the charge. He therefore sentenced the Respondent to serve 2 months imprisonment and 6 strokes. The learned trial magistrate further ordered the Respondent or his parents to pay to the victim TZS. 300,000/= as compensation. The republic was irked by the sentence imposed on the Respondent hence, lodged official complaint to this court in which, an order was made to open the revision proceedings suo mututo assess the correctness of the sentence and orders passed by the learned trial magistrate. When the application was called for hearing Mr.

Raphael Rwezaura, learned state attorney appeared for the Applicant. The Respondent did not enter appearance despite several efforts to procure his attendance. It was discovered that he was already released from prison and an arrest warrant was issued to no avail. The summons was thereafter issued and published in newspaper but he did not enter appearance thus, the revision application was heard in his absence. In his submission, the learned state attorney submitted that as per the prosecution evidence, the Respondent was aged 19 years old when he was arraigned before the trial court but he claimed to be 16 years old Page 3 of 10 during his defence. He faulted the trial court for holding that the Respondent was 16 years old basing on his physical appearance. He argued that the Applicant was condemned unheard regarding the age factor. That, sections 113 and 114 (1) and (2) of the Law of the Child Act [CAP 13 RE 2019], (hereinafter referred to as LCA) read together with Rule 12 (1) and (2) of the Law of the Child (Juvenile Court Procedure) Rules of 2016 provide for procedures to be followed by the court where the age of the accused is at issue particularly, where it is alleged that accused is below the age of majority. According to the learned state attorney, the trial court was required to ascertain the Respondent's age through medical evidence such as DNA, birth certificate or

evidence from parents, guardian, relative or social welfare. To buttress his arguments, he referred to the case of Athanas Mbilinyi Vs. Republic, Criminal Appeal No. 275 of 2020 [2022 TZCA 663] where the Court of Appeal discussed in detail the applicability of the above provisions of the law. The learned State Attorney urged the court to remit the case file back to the trial court to ascertain the Respondent's age and pass the sentence accordingly. He however urged the court if it finds that the Respondent is of the age of majority, to invoke section 173(5) of the Criminal Procedure Act [CAP 20 RE 2022], (the CPA) to pass proper sentence to the Respondent. Page 4 of 10 Having gone through the submission by the learned State Attorney and the record, there are two issues for determination; one, whether the trial court was justified to hold that the Respondent was 16 years old and two, whether the trial court sentence was proper under the law. Starting with the first issue, the charge sheet shows that the Respondent was aged 19 years old at the time he was aligned before the trial court. During preliminary hearing, facts were read to him and it is on record that the Respondent disputed all facts and nowhere is shown if he admitted to his age as being 19 years. His response to the facts was too general as quoted hereunder; "Z do not agree with all facts. They should bring

evidence" In the first place, the above response by the Respondent is clear that all facts including even his personal particulars were disputed and this includes also the Respondent's age. For that reason, it needed to be proved with evidence by the prosecution side. Thus, the argument by the learned State Attorney that the issue of age was raised during defence is not correct. In his defence the Respondent claimed to be 16 years old. On being cross examined as to when he was born, the Respondent claimed that he did not know his date of birth. At page 12 of the trial court's judgment, the trial magistrate basing on his observation on the physical appearance Page 5 of 10 of the Respondent made a conclusion that the Respondent was below 18 years old. That was a serious error committed by the trial magistrate. Since the Respondent was claiming to be under the age of majority, his age status was likely to affect the whole trial if so proved. In other words, age of the accused/Respondent in the circumstance of this case was crucial for proper determination of the jurisdiction of the court and sentence to be passed upon conviction. In that regard, the trial court could not properly decide on the issue of age without according parties to present evidence on that aspect. Since the Respondent disputed all facts during preliminary hearing which presupposes that even his age was

disputed, the republic had a duty to prove all facts but no evidence was presented as regard the accused's age. By arriving to the conclusion that the Respondent was below 18 years on mere physical appearance, the learned trial magistrate erred. If the physical appearance raised doubt on the age of the accused, it was expected for the trial magistrate to have seen such fact at the earliest stage and not to wait until when the accused himself came up with the defence that he was 16 years old. Even if we agree that it was reasonable for the trial magistrate to reason so, he could not base on his suspicion to conclude that the accused was below the age of majority without inquiring Page 6 of 10 into the age in terms of sections 113 and 114 of the LCA. See also the case of Athanas Mbilinyi Vs. Republic (supra). For the purposes of clarity sections 113 and 114 of the LCA read that; 113. -(1) Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose ofgiving evidence, and it appears to the court that he is a child, the court shall make due inquiry as to the age of that person. (2) The court shall take such evidence at the hearing of the case which may include medical evidence and, or DNA test as is necessary to provide proof of birth, whether it is of a documentary nature or otherwise as it appears to the court to be worthy of

belief. (3) A certificate purporting to be signed by a medical practitioner registered or licensed under the provisions of the law governing medical practice in Tanzania as to the age of a child shall be sufficient evidence and shall be receivable by a court without proof of signature unless the court orders otherwise. (4) An order or judgement of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated to the court and the age so brought before it shall, for the purposes of this section, be deemed to be the true age of that person. Page 7 of 10 (5) Medical evidence and or collection of blood for the purpose of DNA from the child shall be conducted in the presence of a social welfare officer. 114. -(1) Where it appears to the court that any person brought before it is of the age of beyond eighteen years, that person shall, for the purposes of this section, be deemed not to be a child. (2) Without prejudice to the preceding provisions of this section, where the court has failed to establish the correct age of the person brought before it, then the age stated by that person, parent, guardian, relative or social welfare officer shall be deemed to be the correct age of that person. The above provisions are very clear that due enquiry as to the age of the accused has to be made. The court cannot just jump into a conclusion

of age by a mere physical appearance of the accused person. The appearance may be the basis for the inquiry to be made to establish the age and not otherwise. In the instant matter, the trial court never attempted to inquire on the age of the Respondent before arriving to the conclusion that the Respondent was below 18 years old. The trial magistrate therefore erred in holding that the Respondent was 16 years old for there was no basis for such conclusion. The learned state attorney invited this court to impose sentence if satisfied that the Respondent was above 18 years old. I however decline Page 8 of 10 such invitation because there was no evidence presented by the prosecution to prove the age and no inquiry was made by the trial court to establish the age of the Respondent. On the second issue as to whether the sentence passed by the trial court was proper under the law, the sentence passed was based on section 131 (2)(a) of the penal code. The said provision imposes sentence of corporal punishment for the first offender who is below the age of 18 years. It becomes obvious that the two months' imprisonment sentence which was passed by the trial magistrate was not proper under the law even if we assume that the Respondent was a child below the age of 18. The sentence also contravened section 119 of the LCA which prohibits custodial sentence for a child. Even if we assume

that the accused was of the majority age, still the sentence imposed contravened the Penal Code, section 131 (3) which impose life imprisonment sentence where the victim is below 10 years as it is on record that the victim in this case was 9 years old. In the case of Athanas Mbilinyi Vs. Republic (supra) the Court of Appeal having found that there was no inquiry to ascertain the age of the accused, proceeded to nullify the trial court's proceedings and decision and ordered retrial. Guided by that decision I proceed to nullify the proceedings, quash and set aside the judgment, sentence and Page 9 of 10 compensation order made by the trial court. Subsequently, I direct for re­ arrest of the Respondent and a case be tried afresh in compliance with the law before another magistrate with competent jurisdiction. This ruling should also be served to the trial magistrate who passed the impugned decision. It is so ordered. DATED at BABATI this 24th Day of June, 2024.

UZORA

JUDGE Page 10 of 10