IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

(IN THE SUB-REGISTRY OF DAR ES SALAAM)

AT PAR ES SALAAM

CRIMINAL APPEAL NO. 168 OF 2023

(Arising from the Decision of the District Court of
Kigamboni in Criminal Case No. 22 of2023)

ABILAI HASSAN MOHAMED--------- ------------------- APPELLANT

VERSUS

THE REPUBLIC--------- ----- ------------------------- RESPONDENT

JUDGMENT

Date oflast order: 25/03/2024

Date of Judgment: 03/05/2024

A. A. MBAGWA, J.
This is an appeal against both conviction entered and sentence imposed

by Kigamboni District Court in Criminal Case No. 22 of 2023. The

appellant, Abilai Hassan Mohamed was charged with, tried and convicted

of unnatural offence contrary to section 154(l)(a) and (2) of the Penal

Code [Cap 16. R.E 2022].

It was alleged in the charge that, on unknown dates between January,

2023 and February in 2023 at Dege area within Kigamboni District in Dar

es Salaam Region, the appellant, Abilai Hassan Mohamed, did have carnal

knowledge of one (AJ), a boy of seven (7) years against the order of

nature.
Page 1 of 20
Upon arraignment, the appellant pleaded not guilty to the charge, and

therefore the matter went to a full trial. In a bid to prove the allegations,

the prosecution paraded four witnesses. However, this being a sexual

offence case, I will not disclose the names of witnesses except the doctor

who conducted a medical examination of the victim. I have taken this

stance because mentioning the name of the victim's mother would lead

to the disclosure of the victim's identity thereby detracting the purpose of

concealing the victim's identity. Suffice it to say that the victim testified

as (PW1) whereas his mother was PW2, and PW3 was the victim's

younger brother aged three (3) years by then. Ezra Maswi Yohana, the

clinical officer at Kigamboni District Hospital testified as PW4. In addition,

the Republic tendered one documentary exhibit namely, PF3 (exhibit Pl).

The appellant, on his part, stood as a solo witness and did not have any

exhibit.

In a nutshell, the prosecution's account was that at the material time, the

appellant, Abilai Hassan Mohamed was working as a house boy in the

victim's house. He used to take the victim and his younger brother (PW3)

to and from school, among other duties. He also used to stay with the

duo at home when the victim's parents were away.

It was the evidence of the victim's mother PW2 that on the 2nd day of

February 2023 in the evening peeped into the victim's room.

Page 2 of 20
Outrageously, she saw the victim's young brother PW3 holding his penis

in a bid to insert it into the victim's anus. PW2 was shocked. She however

managed to calm down and gained the courage. She friendly interviewed

his two sons namely, PW1 and PW3 as to where they learned that

unbecoming habit. PW3 told her that he saw their uncle, Alibai (the

appellant), doing it unto the victim (PW1). At that moment, the appellant

was in his bedroom. PW2 called his husband who arrived at home shortly.

The victim's father, upon being briefed on what was obtaining, went to

report the matter to Kigamboni Police Station. On the same night at

around 00:00hrs, the police officers came and arrested the appellant.

PW1 (AJ) in his unsworn evidence testified that the appellant undressed

the victim (PW1) and forcefully inserted his penis into his anus in the

appellant's room. It was the testimony of PW1 that, he lives at Dege Area

within Kigamboni Municipality where he stays with his father, mother

(PW2), his young brother (PW3), and the appellant whom he identified as

Uncle Abilai in the dock. PW1 clarified that the incident took place on the

day when they did not go to school and their parents were away. Thus,

they were only three at home namely, the victim (PW1), his younger

brother(PW3), and the appellant.

Page 3 of 20
Before inserting his penis, the appellant told PW3 to lick his penis. After

the incident, PW1 did not tell anyone about it because the appellant

cautioned him not to let anyone know it.

PWl's testimony was supported by the testimony of PW3. In his unsworn

evidence, after he had promised to tell the truth, PW3 testified that he

saw Uncle Abilai (the appellant) inserting his penis into PWl's anus. He

further testified that the appellant had asked him (PW3) to lick the

appellant's penis.

PW2, the victim's mother told the court that upon reporting the incident,

they were issued a PF3 which they submitted to Kigamboni District

Hospital for medical examination of the victim. At Kigamboni Hospital they

were attended by a clinical officer one Ezra Maswi Yohana (PW4). PW4

testified that on 03/02/2023, he received PW1 and PW3 in the company

of their parents (PW2 and her husband). He thus examined both PW1 and

PW3. He observed that PWl's anus muscle was loose and open. As such,

she concluded that PW1 was penetrated. As to the victim's younger

brother (PW3), the clinical officer stated that he found his anus intact.

Finally, PW4 recorded his findings in the PF3 that he tendered as exhibit

Pl.

Page 4 of 20
On the other hand, the appellant strongly denied the allegations. He

testified that he was framed as he owes PW2's husband his outstanding

salary payments to the tune of Tshs. 400,000/=.

On account of the evidence presented, the trial Magistrate was satisfied

that the allegations were proved beyond reasonable doubt hence she

found the appellant guilty and convicted him of the offence. Consequently,

she sentenced the appellant to life imprisonment and ordered him to pay

the victim (PW1) compensation of Tshs. 500,000/=.

Aggrieved by the verdict and sentence, the appellant brought the instant

appeal. In the petition of appeal, he fronted six grounds namely;

1. That, the learned trial magistrate erred both in

law and facts for failure to properly evaluate,
analyze, and consider the evidence of PW2 on
record, a failure of which led the trial court to
arrive at an improper and erroneous finding
that the appellant's defence was an
afterthought.

2. That, the learned trial magistrate erred both

in law and facts to convict the appellant based
on evidence of PW1 and PW3 without the same
being assessed in line with the defence
evidence.

Page 5 of 20
 3. That, the learned trial magistrate erred in law
to convict the appellant based on evidence of
PW1 and PW3 whose evidence was not
assessed to determine whether they were
telling nothing but the truth as required by
section 127 (6) of the Evidence Act, (Cap. 6 RE
2022).

4. That, the learned trial magistrate erred both in*

law to disregard the appellant's defence in the
absence of good and cogent reasons for not
believing his defence evidence.

5. That, the learned trial magistrate erred both in

law to convict the appellant in a prosecution
case which was not proved beyond reasonable
doubt."
Upon a cursory glance at the above grounds of appeal, I was inclined that

the appellant's complaints may be reduced into three (3) grounds of

appeal namely;

1. That, the prosecution evidence was too weak to ground the

appellant's conviction.

2. That, the trial court unreasonably disregarded the appellant's

defence.

Page 6 of 20
 3, That, the evidence of PW1 and PW3 ( child of tender age) were

taken contrary to the dictates of section 127 (6) of the Evidence Act,

[Cap 6 R.E 2022],

It is noteworthy that the appellant fended his appeal whilst the

respondent/Republic was represented by Mr. Clement Masua, learned

State Attorney. The appeal was disposed of by way of written submissions

and both parties timely complied with the filing schedule.

In his submission in support of the appeal, the appellant argued grounds

1 and 5 conjointly, consolidated grounds 2 and 4 as one ground, whereas

ground No. 3 was argued severally.

Submitting on the 1st and 5th grounds of appeal, the appellant said that,

had the trial court properly evaluated and analyzed the evidence of the

prosecution, it would have found that the case against the appellant was

not proved beyond reasonable doubt as to justify the conviction of the

appellant. He submitted further that, the prosecution evidence depicts

that PW1 and PW3 implicated the appellant to avoid punishment from

their parents. In the appellant's opinion, PW1 and PW3 had interest to

serve hence their evidence ought not to be relied on. To buttress his

arguments, he cited the case of The Director of Public Prosecution

vs. Justice Lumina Katiti and 3 others, Criminal Appeal No. 15 of

Page 7 of 20

b / ■
2018. CAT at Da es Salaam (unreported) on pages 13 to 14, where the

Court of Appeal of Tanzania held that;

"The concept of a witness with interest to serve is

meant to discredit a witness by establishing that

he told a lie in order to serve his skin."

In reply to grounds 1 and 5, Mr. Masua, learned State Attorney submitted

that the court properly analyzed the evidence and the prosecution

discharged its duty of proving the case beyond reasonable doubt. He

submitted further that, PW1, the victim of offence was capable of

explaining the act done to hirn by the appellant. Mr. Masua went on that

PW3 corroborated the testimony of PW1 that, he was present at the time

the appellant was sodomising PW1.

Further, the learned State Attorney submitted that PW4 corroborated the

evidence of PW1 as she confirmed that upon, examining PW1, she found

his anus open and the muscles were loose. Mr. Masua candidly submitted

that the victim was penetrated as exhibited in the PF3 (exhibit Pl).

The learned state attorney submitted further that the prosecution

evidence was coherent throughout hence a sign that they were witnesses

of truth. To stress the point, he cited the case of EX.G.2434 PC George

Page 8 of 20
vs. the Republic, Criminal Appeal No. 8 of 2018, CAT at Moshi

(unreported) where the Court had this to say;

"The credibility of a witness can also be

determined in two ways: one when assessing

the coherence of the testimony of that witness.

Two, when the testimony of that witness is

considered in relation to the evidence of other

witnesses, including that of accused person. In

the two other occasions, the credibility of a

witness can be determined even by a second

appellate court when examining the findings of

the first appellate court."

Based on the submission above, Mr. Masua implored the court to dismiss

the 1st and 5lh grounds for want of merits.

With regard to the 2nd and 4th grounds, the appellant submitted that the

evidence of PW1 and PW3 was not assessed in line with the defence

evidence. He expounded that the defence evidence was disregarded

without good and cogent reasons. He argued that a careful scrutiny of

the evidence reveals that PW1 and PW3 were coached to implicate the

appellant. The appellant lamented that the conviction was solely based

Page 9 of 20
on the evidence of family members hence it was likely to be cooked. On

this, he relied on the decision of the Supreme Court of India in

Rameshwar V. State of Rajasthan, 952 AIR 54, 1952 SCR 377.

Replying, the learned State Attorney submitted that the trial court

considered the defence evidence but rejected it after it found the

prosecution evidence cogent. He referred the court to the case of John

Stephano & Others vs. Republic, Criminal Appeal No. 251 of 2021,

CAT at Bukoba (unreported) in which the court held that rejection of

defence evidence does not mean the defence was not considered. He

thus prayed for these grounds to be dismissed for lack of merits.

On the 3rd ground of appeal, it was the appellant's submission that, the

law, that is section 127(6) of the Evidence Act, (Cap. 6 RE 2022) is clear

that the Court should be satisfied that the child of tender age is telling

nothing but the truth. He challenged that the trial court did not record

the reasons for accepting the evidence of PW1 and PW3 hence an

impression that the trial court did not assess the credibility. He stressed

that the omission was fatal and offended the mandatory requirements of

section 127 (6) of Evidence Act, [Cap. 6 RE 2022]. He thus prayed for

the court to hold that, the prosecution evidence against the appellant

was not credible and reliable to prove the case against him to the hilt.

Page 10 of 20
In constrast, the learned State Attorney for the respondent submitted

that the legal requirement was complied with by the trial magistrate. He

elaborated that PW1 (victim) on pages 18-19 and PW3 on pages 33-34

of the proceedings prior to giving their testimony, promised to tell the

truth and not lies in terms of sub-section (2) of section 127 of the

Evidence Act [CAP 6 R.E 2022], He stressed that the trial Magistrate went

further and conducted an assessment by asking PW1 (Victim) and PW3

some questions before they testified. He submitted that as per the case

Mathayo Laurence William Mollel vs. The Republic, Criminal

Appeal No. 53 Of 2020, CAT at Arusha, it is not a legal requirement for a

child to indicate whether he understands the meaning of the oath. In

Mathayo Laurence William Mollel (supra), the Court of Appeal had

this to say;

"...the trial court ought to have conducted a test to verify

whether the child witnesses knew and understood the meaning

of oath or affirmation. In our considered view, that requirement

would only be necessary if the child witnesses testified on oath

or affirmation. We respectfully think that if a child offender age

is not to testify on oath or affirmation, a preliminary test on

whether he knew and understands the meaning of oath may be

dispensed with".
Page 11 of 20
In view of the above, the learned State Attorney prayed the court to

dismiss the appeal in its entirety for lack of merits.

Having canvassed the rival submissions, I should, at the outset, register

my appreciation to both the appellant and the learned State Attorney for

their industrious and researched submissions. Suffice it to say that I have

dispassionately considered both submissions in my deliberations.

At this juncture, the relevant issue for determination is therefore whether

this appeal is meritorious.

As hinted above, the 1st and 5th grounds were consolidated and argued

conjointly. After a thorough scrutiny of the appellant's complaints in the

above grounds, it is my view that the grounds require this Court to decide

whether the charge against the appellant was proved beyond reasonable

doubt. It is common cause that the evidence of PW1 and PW3 proved

that, indeed the appellant carnally knew PW1 against the order of nature.

Their evidence was corroborated by PW4 who found the victim's anus

open. In addition, the prosecution evidence was coherent and consistent

hence there was no reason for the trial court to discredit their testimony.

It is a settled position of the law that in sexual-related offences, the best

evidence comes from the victim. See the case of Selemani Makumba

v. Republic [2006] T.L.R. 379. I have strenuously assessed the

victim's evidence and found him a reliable witness. On pages 20 -24 of

Page 12 of 20
the typed proceedings, the victim (PW1) testified that it was the appellant

who inserted his manhood into his anus. The victim did not disclose the

incident as the appellant had warned him not to disclose the same. The

whole saga was unearthed when (PW3) was caught by their mother

(PW2) trying to insert his penis into PWl's anus. The appellant has invited

this court to disregard the evidence of PW1 and PW3 as persons who had

interests to serve citing The Director of Public Prosecution V.

Justice Lumina Katiti and 3 others (supra). It is a trite law that

every witness is entitled to credence unless there are good reasons not

to believe him. See: Goodluck Kyando vs the Republic, [2006] TLR

363. In assessing the credibility of a witness, the court has to consider

various aspects including the coherence of the witness evidence vis a viz

other witnesses. I have keenly navigated through the evidence as a

whole and noted that all the prosecution witnesses were so consistent.

The evidence of PW1 and PW3 was augmented by the medical findings

through PW4. On top of that, it would be irrational to demand a different

witness whereas it was clearly testified that at home no other person was

staying there apart from the appellant, PW1, PW2, PW3, and the victim's

father. In that regard, the argument by the appellant that the prosecution

witnesses had an interest to serve is, in the circumstances of this case,

Page 13 of 20
without merits. I therefore find no good reasons to disbelieve the

prosecution witnesses.

With the foregoing analysis and observation, the 1st and 5th grounds are

devoid of merits and therefore dismissed.

I now turn to consider the 2nd and 4th grounds which have been

condensed into one complaint namely, the trial court unreasonably

disregarded the appellant's defence. On this, the appellant laments that

the testimonies of PW1 and PW3 were not assessed in line with his

defence. He added that PW1 and PW3 were couched to implicate him.

He argued that his claim that he owed PW2 Tanzania Shillings Four

Hundred Thousand (Tshs. 400,000/=) as salary arrears was not

considered. Furthermore, the appellant complained that neither the

arresting officer nor the investigator of the case were brought in by the

respondent to testify. He implored the court to draw adverse inference

against the respondent's case.

To be fair to the trial magistrate, the defence evidence was adequately

considered particularly on page 17 of the judgment. The learned trial

magistrate categorically stated that the allegations with respect to claims

of Tshs. 400,000/- as salary arrears was an afterthought as the same

was not cross-examined by the appellant after PW2 had given her

testimony. Further, on page 21 of the impugned judgment, the trial

Page 14 of 20
magistrate expressly stated that she considered the appellant's defence

and arrived at the findings that the same did not raise any reasonable

doubts.

It is my findings that the appellant's defence was duly considered by the

trial court but rejected on the ground that it did not raise any reasonable

doubt. As such, the trial magistrate cannot be faulted on that.

Again, with respect to the complaint that, the prosecution failed to parade

material witnesses namely the arresting officer and the investigation

officer, I find this complaint bereft of merits. His evidence speaks against

this complaint. In his own testimony during the defence, the appellant

testified that he was arrested and later on interrogated by the police

officers (page 48-57) of the typed proceedings. To add up, there is no

specific number that the prosecution has to parade in order to prove the

case. Rather, the case is determined based on the quality of evidence.

In the case of Goodluck Kyando vs Republic (supra), the court held

that there is no particular number of witnesses that is required to prove

the case. This is inline with the dictates of section 143 of the Evidence

Act.

It is for the above reasons, I am constrained to hold that the appellant's

complaints on that aspect has no basis. I accordingly dismiss it.

Page 15 of 20
In the 3rd ground, the appellant challenges the admission and reliability of

the evidence of PW1 and PW3 (children of tender age). His complaint was
predicated on section 127 (6) of the Evidence Act. He assaulted the trial
magistrate saying that he received the evidence in contravention of
section 127 (6) of the Evidence Act, [Cap 6 R.E 2022]. He said that the

magistrate did not record the reasons for believing that PW1 and PW3
were telling nothing but the truth. To canvass this grievance, it behoves
me to reproduce the relevant section. Section 127(2) of the Evidence Act

provide;
(2) A child of tender age may give evidence without taking

an oath or making an affirmation but shall, before giving

evidence, promise to tell the truth to the court and not to

tell any lies.

I shall start with the question whether or not the evidence of PW1 was
received according to law. On this, I find it pertinent to reproduce part of
the proceedings dated on 17lh April, 2023 when PW1 was called on to
testify. On pages 17 -20 of the typed proceedings, it reads as follows;
"Court: -1. Prosecution case opens.
2. Case proceed in camera as per S. 186 93) of CPA Cap 20
R.E 2022.
PW1
Court-Victim is of tender age
SIGNED
S. W. MWAKALOBO-SRM.
17/04/2023

ASSESMENT OF THE VICTIM BY THE COURT

Court-What is your name?

Page 16 of 20
Victim-My name is (omitted)
Court-How old are you/
Victim-I am seven (7) years old.
Omitted:
Court -Do you know the different of speaking the truth and lies/
Victim-Yes, the child who speaks the truth is a good child and the
one who is telling lies is a bad child.
Court-Do you promise to tell the truth and not lies/
Victim-Yes, I promise to tell the truth and not lies.

SIGNED
S. W. MWAKALOBO, SRM.
17/04/2023
Court: Victim (PW1) promised to tell the truth and not lies.
SIGNED

S. W. MWAKALOBO-SRM
17/04/ 2023
Court-S. 127 (2) of TEA CAP 6 R.E 2022 Complied with."

Looking at the above extracted proceedings, there is no gainsaying that

the requirements of section 127(2) was duly complied with as PW1

promised to tell the truth and knew the meaning of telling truth.

Regarding the credibility, it is a settled position that the evidence of a child

of tender age should not be discarded on flimsy reasons without proof on

a balance of probabilities that there was something lacking that really

affected the quality and credibility of such evidence. In the case of

George Jonas Lesilwa vs Republic, Criminal Appeal No. 374 of 2020.

CAT at Moshi (unreported), the Court of Appeal at page 18-19 of the typed

Page 17 of 20
Judgment while commenting on Section 127 (2) of the Evidence Act

(supra) had this to say;-

"For the sake of completeness, we are constrained,

before leaving this subject, to observe that, going
by the above interpretation of the law, it must be

clear that, the evidence of a child of tender age

should not be discarded on flimsy reasons

without proof on a balance of probabilities
that there was something lacking that really
affected the quality and credibility of such
evidence. In other words, an appellate court
should look at the substance of the complaint
raised by the appellant and see whether the
alleged non-compliance with section 127 (2)
of the Evidence Act was of such a nature as to
be said, in rational terms, to have produced a
substantial defect upon such evidence. The
above observation, no doubt is the reason behind
the recent introduction of section 127 (7) of the

Evidence Act as amended by the Legal Sector Laws

(Miscellaneous Amendment) Act No. 11 of 2023,
which we find it imperative to reproduce, thus:
"Notwithstanding any other law to the
contrary, failure by a child of tender age to
meet the provisions of subsection (2) shall
not render the evidence of such child in­
admissible".
Page 18 of 20
Guided by the above holding, it is my considered findings that section 127
of the Evidence Act was complied with and the trial magistrate rightly and
correctly received and relied on the evidence of PW1 and PW3. In
addition, the evidence of a child of tender age, in terms of section 127(6)

of the Evidence Act, is considered pivotal in sexual related offence

especially where the child witness is the victim of crime. The court is
enjoined to receive and rely on it even without corroboration. The section
provides;

"127-(6) Notwithstanding the preceding

provisions of this section, where in criminal

proceedings involving sexual offence the only

independent evidence is that of a child of tender

age or of a victim of the sexual offence, the court

shall receive the evidence, and may, after

assessing the credibility of the evidence of the

child of tender years of as the case may be the

victim of sexual offence on its own merits,

notwithstanding that such evidence is not

corroborated, proceed to convict, if for reasons to

be recorded in the proceedings, the court is

satisfied that the child of tender age or the victim

of the sexual offence is telling nothing but the

truth."

Page 19 of 20
In sum, I am satisfied that the evidence of PW1 and PW3 was taken in

conformity with the dictates of the law and for that reason, I dismiss the

3rd ground of appeal.

That said and done, I find no reasons to fault the trial court. I therefore
dismiss the appeal in its entirety. The conviction and sentence of life
imprisonment imposed by the trial court are hereby upheld.
It is so ordered.

The right of appeal is explained.

Dated at Dar es Salaam this 3rd day of May 2024.

A. A. Mbagwa

JUDGE

03/05/2024

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