IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

DAR ES SALAAM SUB REGISTRY

AT DAR ES SALAAM
CRIMINAL APPEAL NO. 24667 OF 2024
(Arising from the Judgement of the District Court of Kibaha (Hon. F.
Kibona, RM) in Criminal Case No. 39480 of 2023 dated 24 th May 2024
_____________________________

MANENO OMARY SHOMARI…………….…..……….…….

…….APPELLANT

VERSUS

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

JUDGEMENT
Date of last order: 12th November 2024
Date of Judgement: 18th November 2024

MTEMBWA, J.:

This Appeal stems from the decision of the District Court

of Kibaha in Criminal Case No. 39480 of 2023, where the

Appellant was arraigned for the offense of rape contrary to

sections 130 (1) and (2) (e) and 131 (1) of the Penal

Code, Cap 16, R.E 2022. It was alleged that on diverse dates

between January and August 2023, at Mwanalugali “A” area

within Kibaha District in the Coast Region, the Appellant had

sexual intercourse with a girl aged six (6) years (name

withheld). For purposes of this Appeal, I shall refer to the

victimized girl as “PW3” and or, where necessary, “the Victim”.

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 The Appellant pleaded not guilty to the charge.

Consequently, the prosecution fronted seven (7) witnesses and

tendered two (2) exhibits. The Appellant (the accused by then)

relied on his affirmed testimony and tendered no real or

documentary exhibit. Having evaluated the evidence adduced

during hearing, the learned trial Resident Magistrate was

satisfied that the offense to which the Appellant was charged

was proved beyond a reasonable doubt. As such, he proceeded

to convict and sentence him to life imprisonment. Dissatisfied,

the Respondent has laid before this Court the following grounds

of appeal and I quote in verbatim;

1. That, the learned trial magistrate grossly erred in law

by convict and sentence the appellant contrary to
section 127 (6) and (7) of Evidence Act as
assessment to obtain truthfulness of PW 1 and PW2
was improperly done.

2. That, the learned trial magistrate grossly erred in law

to convict and sentence the appellant contrary to
section 192(3) of the criminal procedure Act

3. That, the learned trial magistrate grossly erred in law

to convict and sentence as prosecution cannot act as
defence witness and as the prosecutor.

4. That the learned trial magistrate grossly erred in law

and fact to attach weight in PW 1, PW2, and PW3
evidence as it was incredible and unreliable as they
fail to name the suspect until 21st September, 2023.

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 5. That the learned trial magistrate grossly erred in law
and fact to convict and sentence the appellant
disbelieving defence evidence which raise doubt as
PW2 asserted to have found them inside the house
while PW 1 and Grandmother was around and no
threat was given to PW2 and PW3 to report the
incident.

When the matter came for orders on 30th September

2024, the Appellant appeared in person while Mr. Daudi

Basaya, the learned State Attorney, appeared for the

Respondent. By consent, the parties agreed to argue this

Appeal through written submissions. Having passed through

the records, I am satisfied that the parties adhered to the

agreed schedule, which I intensely recommended.

At the outset, I have to disagree with the Appellant's claim

that he filed a Petition of Appeal with seven (7) grounds of

appeal to this Court. He proposed arguing grounds 1, 2, 3, 4, 5,

and 6 altogether while arguing ground 7 separately. With

respect, that is not true because, as per the records, he only

filed five (5) grounds of appeal. This Court, therefore, cannot

discuss or determine what is not on record. Further, the

Appellant did not argue on the third ground of appeal. I

consider it to have been abandoned. Having observed this, I will

examine the submissions by the parties.

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 Arguing on the first ground of appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

law and fact in convicting and sentencing the Appellant

contrary to section 127 (6) of the Evidence Act since the

assessment to obtain the truth from PW1, PW2, and PW3 was

improperly done. He pointed out that the evidence of PW1

indicates she found Kijuu in the doctor’s office, but according to

the records, it was PW5 who was in the doctor’s room. He

referred to this Court on pages 25 and 26 of the proceedings. In

his further note, the Appellant argued that according to the

record, it was PW2 who informed PW5, but it could appear that

PW3 also told her of the incident. The question would be who

informed PW5.

The Appellant argued further that according to the

evidence of PW2 and PW3, it was PW2 who was sent to tell the

victim not to go to the Appellant’s house to Play. In normal

circumstances, the victim was not in the Appellant’s home.

PW2 testified to find the victim with the Appellant sitting on the

bed naked. The Appellant was raping her. This evidence is

inconsistent with the evidence of PW3 because a person cannot

sit and at the same time rape someone. He cited the case of

Wambup vs. Republic, Criminal Appeal No. 301 of 2018

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(Unreported), where it was observed that;

It was well established that first that there must be clear

assessment of the victim's credibility on record and
second the court must record reasons that
notwithstanding noncompliance with section 127(2) a
person offender age still told the truth these are two
conditions that must be fulfilled for the court to convict
a suspect of sexual abuse.

Arguing on the second ground of appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

law and fact to convict and sentence the Appellant contrary to

section 192 (3) of the Criminal Procedure Act. Arguing further,

section 192 (3) makes it mandatory that the disputed facts be

read over to the accused, short of which a preliminary hearing

becomes a nullity. He cited the case of Republic vs. Francis

Lijenga, Criminal Revision No. 3 of 2019, Court of Appeal

of Tanzania. The Appellant referred this Court to page 3 of the

proceedings, where it is indicated that the undisputed facts

were read over and explained to the accused person, but the

records are silent as to which language was used to explain the

contents to the accused person (the Appellant). He implored

this to nullify the preliminary hearing.

Regarding the fourth ground of appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

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law and fact in attaching weight to the evidence of PW1, PW2,

and PW3, which was incredible and unreliable because they

failed to name the suspect until 20 th September 2023. He cited

the case of Daudi Rashidi vs. Republic, Criminal Appeal

No. 97 of 2020 (unreported), where it was observed that;

It is trite law that the ability of a witness to name a

suspect at the earliest opportunity is an all-important
assurance of his reliability, in the same way as an
unexplained delay or complete failure to do so should
put a prudent Court to inquiry

It was argued further that, according to PW3's testimony,

the Appellant had been inserting his “dudu “into her “kibibi”

since she was in standard one. He added that the record

reveals that the incident was reported on 25 th August 2023.

According to PW7, the Appellant was arrested on 21 st

September 2023. PW1 testified that PF3 (Exhibit P2) was

resubmitted to the police on 20 th September 2023, and that is

when the Appellant was mentioned by the Victim (PW3). The

unexplained delay in naming and arresting the Appellant at the

early stage means that the evidence of PW1, PW2, and PW3 is

unreliable and incredible to warrant the Appellant’s conviction.

Arguing on the fifth ground of Appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

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law and fact in convicting and sentencing him while

disbelieving his defense evidence. It was the defense evidence

that the Appellant did not commit the offense as alleged by the

prosecution. He posed a question as to why the neighbors did

not arrest him. It was the evidence PW1 that the Appellant was

her neighbor, while PW2 testified that her grandmother told her

to let the Victim know that she should not go to the Appellant’s

House to play. Considering the evidence adduced, the

Appellant and the Victim were neighbors. He complained that,

although he raised doubts about the prosecution evidence, the

learned trial Magistrate did not consider his defense evidence.

He cited the case of Hussein Idd & Another vs. Republic

(1986) TLR 166 where it was held that the appellants' duty

was to raise a reasonable doubt in the mind of the Magistrate

and no more.

Having so observed, the Appellant implored this Court to

allow the Appeal, set aside the conviction and sentence meted

out against him. As I said before, the third ground of appeal

was not argued at all, and thus, I consider it to have been

abandoned. The sixth and seventh grounds of Appeal are not

part of the grounds raised in the Petition of Appeal.

In response, Mr. Daudi Basaya, the learned state attorney,

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was on duty. In reply to the first ground of appeal, the learned

counsel submitted that the purpose of the provision of section

127(6) of the Evidence Act (supra) is to assess the

credibility of the evidence of the child of tender age. He added

that even if the said evidence is not corroborated, the Court

proceeds to convict after being satisfied that the child of tender

age or the victim of the sexual offense is telling nothing but the

truth. He added that the Appellant misdirected himself and that

PW1, the victim’s mother, also needed to be assessed under

the same section. It was submitted further that PW1 is an adult

who does not qualify under the provision of section 127 (6) of

the Act. It was primarily designed to deal with the child of

tender age. He referred to this Court on page 7 of the

proceedings.

On PW2, Mr. Basaya observed that the trial Court correctly

assessed her evidence and satisfied the requirement of

section 127 (6) of the Evidence Act. He referred this Court

to pages 10 and 11 of the proceedings, where various

questions were posed to PW2. After the assessment, the trial

Court was satisfied that PW2 was a credible witness to testify.

She promised to tell the truth and not lie. On the PW3, Mr.

Basaya contended that the trial Court correctly assessed her

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credibility, as per section 127(6) of the Evidence Act,

whereby different questions were imposed on her by the trial

Magistrate, and she responded to them. Thereafter, the trial

Court was satisfied that she was telling nothing but the truth.

In response to the second ground of appeal, Mr. Basaya

submitted that section 192(3) of the Criminal Procedure

Act, Cap, 20 R.E 2022 entails that after the conclusion of a

preliminary hearing held under this section, the court shall

prepare a memorandum of the matters agreed and the

memorandum shall be read over and explained to the accused

person in a language that he understands, signed by him and

his advocate, if any, and by the public prosecutor and then

filed. He referred this Court to pages 4 and 5 of the proceedings

and observed that the trial Court did not comply with the cited

section. However, he was of the view that such failure did not

prejudice the Appellant as long he understood the nature of the

accusations and was availed with the right to be heard.

On the other hand, Mr. Basaya argued that the purpose of

a preliminary hearing is to speed up the process by

determining what is in dispute and what is not. The prosecution

is duty-bound to bring witnesses of evidence on matters in

dispute. He conceded that the trial court partially complied with

9
the provision of section 192(3) of the Act, which failure cannot

nullify the whole proceedings and judgment. He insisted that

the omission is not fatal and is curable by section 388 of the

Criminal Procedure Act.

Replying to the third ground of appeal, Mr. Basaya argued

that it is not true that the prosecution acted as a defense

witness and a prosecutor at the same time; what appeared on

page 22 of the trial court proceedings was a typing error

whereby instead of writing “Accused Person” it was written

“State Attorney”. He referred this Court to page 23 of the

proceedings, which indicated that the appellant had defended

his case before the trial court. He considered the ground of

appeal meritless. As said before, the Appellant did not argue

the third ground of appeal.

Arguing on the fifth ground of appeal, Mr. Basaya

submitted that there are guiding principles on the reliability

and credibility of witnesses, which the Court of Appeal of

Tanzania has discussed in several cases. It is noteworthy that

the assessment of a witness's credibility, especially on the

question of demeanor, is under the monopoly of the trial court.

He cited the case of Goodluck Kyando vs. Republic [2006]

TLR 3631. As to how credibility should be assessed, the

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learned counsel cited the case of Shabani Daudi vs.

Republic, Criminal Appeal No. 28 of 2000 (unreported),

where it was observed that;

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 with the evidence
of other witnesses, including that of the accused person.
In these 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 foregoing, Mr. Basaya observed that PW1,

PW2, and PW3 were credible witnesses because their evidence

was cogent and reliable on how the offense was committed in

the Appellant's home and how they knew him before. The

learned counsel added that the Appellant was not mentioned at

the earliest possible opportunity by PW2 and PW3 because they

were threatened. Since they are of tender age, they were afraid

to mention the Appellant earlier after being threatened by him

until they could do that to their teacher (PW5). Mr. Basaya

conceded to the very fact that the ability of the witness to

name the suspect at the earliest opportunity is an assurance of

the reliability of the witness, however, in this case, the

witnesses were threatened. He cited the case of Marwa

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Wangiti Mwita vs. Republic [2002] TLR 39.

Replying to the fifth ground of appeal, the learned state

attorney argued that it was not true that the trial Magistrate

disbelieved the defense evidence. He referred this Court to

page 23 of the trial Court proceedings when the Appellant

defended himself simply by saying “they are suspecting me but

I did not commit an offence if I committed the said offence why

I was not arrested by neighbors, that is all” (sic). Mr. Basaya

added that even the impugned judgment reflects the defense

evidence on page 8. He implored this Court to disregard the

argument.

Having dispassionately considered the Petition of Appeal

and rival arguments by the parties for and against the appeal,

the question would be whether the offense of rape contrary to

sections 130 (1) and (2) (e) and 131 (1) of the Penal

Code (supra) had been proved beyond reasonable doubt. In

Ahmad Omari vs. Republic, Criminal Appeal No. 154 of

2005, Court of Appeal of Tanzania at Mtwara

(unreported), the Court observed that, in a criminal case, the

burden of proof is on the prosecution and the standard of proof

is beyond reasonable doubt. This is in consonant with Section

3(2) (a) of the Evidence Act (supra). It follows, therefore,

12
that a person is found guilty and convicted of a criminal offense

because of the strength of the prosecution evidence against

him, which establishes his guilt beyond reasonable doubt (see

also John Makolobela Kulwa Makolobela & Another alias

Tanganyika vs. Republic (2002) TLR 296).

In determining this Appeal, I shall also seek the guidance

of the Court of Appeal of Tanzania in Mapambano Michael @

Mayanga vs. Republic, Criminal Appeal No. 258 of 2015,

where it was observed that the first appellate Court must

subject the entire evidence on record to a fresh re-evaluation to

arrive at a decision that may coincide with the trial Court or

may be different altogether.

Arguing on the first ground of appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

law and fact in convicting and sentencing the Appellant

contrary to section 127 (6) of the Evidence Act since the

assessment to obtain the truthfulness of PW1, PW2, and PW3

was improperly done. On his part, Mr. Basaya argued that the

purpose of the provision of section 127(6) of the Evidence

Act (supra) is to assess the credibility of the evidence of the

child of tender age. He added that even if the said evidence is

not corroborated, the Court may proceed to convict after being

13
satisfied that the child of tender age or the victim of the sexual

offense is telling nothing but the truth.

Indeed, section 127(6) of the Evidence Act (supra)

provides that;

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 years 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 years or the victim of
the sexual offence is telling nothing but the truth.

According to the above-quoted provision of the law, where

in any criminal proceedings involving sexual offense the only

independent evidence is that of a child of tender years or of a

victim of the sexual offense, the may receive the evidence and

may, after assessing the credibility of the evidence of the child

of tender years of the victim of sexual offense, notwithstanding

that such evidence is not corroborated, proceed to convict,

provided that the court is satisfied that the child of tender

years or the victim of the sexual offense is telling nothing but

the truth. The cited law needs no interpolations; what the trial

14
Court is called to consider in criminal cases of such nature is

the victim's credibility, and, if satisfied, may proceed to convict

even if the evidence is not corroborated.

It must be noted, however, that credibility involves the

issue of whether the witness appears to be telling the truth as

she believes it to be. In essence, this entails reliability,

truthfulness and or accuracy of the information given during

hearing. The information given can be acted upon after

assessing the witness's trustworthiness, demeanor, and/or

credibility. However, demeanor is in the exclusive monopoly of

the trial Court. In Salum Ally vs. Republic, Criminal Appeal

No. 106 of 2013 (unreported) the Court stated;

on whether or not, any particular evidence is reliable,

depends on its credibility and the weight to be attached
to such evidence. We are aware that at its most basic,
credibility involves the issue whether the witness appears
to be telling the truth as he believes it to be. In essence,
this entails the ability to assess whether the witness's
testimony is plausible or is in harmony with the
preponderance of probabilities which a practical and
informed person would readily recognize as reasonable in
the circumstances particularly in a particular case. The
test for any credible evidence is supposed to pass, were
best summarized in the case of Abbdalla Teje @ Ma
lima Mabula Vs Republic, Criminal Appeal No. 195
of 2005 (unreported), to be:
(i) Whether it was legally obtained;

15
 (ii) Whether it was credible and accurate;
(iii) Whether it was relevant, material and
competent;
(iv) Whether it meets the standard of proof
requisite in a given case, otherwise referred
to as the weight of evidence or strength or
believability.

The Appellant’s main complaint is that the credibility of

PW1, PW2, and PW3 was not assessed. Mr. Basaya was of the

view that PW1, being an adult person, is not caught up in the

net of section 227 (6) of the Act. I entirely agree with him.

Looking at the section, the legislature intended only to cover

children of tender age, specifically the victims of sexual

offenses, in this case, PW3. It does not cover the adults and

other witnesses who are not victims of the alleged sexual

offense.

I looked at the impugned Judgment, and this is what I

observed at page 10.

Based on the testimony of PW3, the victim in this case,

she described in detail how the accused person forcibly
inserted his penis into her vagina (named as kibibi) on
August when she was playing to the accused. It is
noteworthy that the victim was familiar with the
accused because her mother was sending her to buy
charcoal since she was standard one. Considering the
compelling evidence presented, I find no reasonable

16
 doubt that the accused person has committed the
alleged offense.

Admittedly, looking at the above-quoted passage, one

may quickly resolve that the trial Court summarized what was

testified by PW3. There is nowhere he tried to assess the

evidence of the victim. He did not even assert to have believed

PW3 (or PW2). Even for the sake of the argument that she

spoke the truth, the reliability and credibility of PW1 were not

tested. PW3’s evidence generally seems not to have passed the

test of truthfulness. In this circumstance, I am constrained to

agree with the Appellant that the trial Court did not adequately

assess the evidence of PW3 (the victim). The question would be

what will be a proper recourse to be taken by this Court. In

Method Leodiga Komba @Todi & Another vs. the

Republic, Criminal Appeal No. 150 of 2021 (unreported),

the Court said;

Admittedly, the trial court did not completely

consider PWl's credibility. This glaring omission, now
a subject of appeal, as rightly contended by the
appellants, was a flagrant violation of the trite position
now that words of victims, particularly in sexual
offences, should not be accepted wholesome and
relied on to found a conviction. This principle of law
which is now common and has attained a respectable
antiquity and is often referred to by the Court was

17
 pronounced in the case of Mohamed Said vs. the
Republic, Criminal Appeal No. 145 of 2017
(unreported), that the word of the victim of the sexual
offence should not be taken as gospel truth but that
such testimony should pass the test of
truthfulness.

In the instant appeal, the trial court did not, in its

judgment, expressly state that it was in any way
moved or believed PW1 as a witness of truth or
credible. As would be discerned from the above quoted
part of the judgment, it simply examined her evidence
and held that it was corroborated by the testimonies of
PW2 and PW6. As a trial court, trite legal proposition is
that determination of credibility by demeanour is within
its exclusive domain (See Yasin Ramadhani Chang'a
vs. Republic [1999] T.L.R. 489). The issue of her
credibility first featured in the High Court judgment. It is
common knowledge that, even an appellate court may
assess a witness's credibility by looking at the evidence
on record. In Shabani Daud vs. Republic, Criminal
Appeal No. 28 of 2000 (unreported).”
(Emphasis mine)

From the authority above, it is apposite that being the first

appeal, this Court has a mandate to assess the credibility and

reliability of PW3 even if the trial Court failed to do so. I will,

therefore, evaluate and assess the evidence of PW3 (victim). It

must be noted, however, that credibility involves the issue of

whether the witness appears to be telling the truth as he

believes it to be. In essence, this entails reliability, truthfulness

18
and or accuracy of the information given during hearing. The

information given can be acted upon after assessing the

witness's trustworthiness, demeanor, and/or credibility.

However, demeanor is in the exclusive monopoly of the trial

Court (see Salum Ally vs. Republic, Criminal Appeal No.

106 of 2013 (unreported).

According to PW3 (victim), she lived with her sister (PW2)

and mother (PW1), and by then, she was in standard two at

Kambarage Primary School. She testified further that her

mother had been sending her to buy charcoal from the

Appellant since she was in standard one at Mwanalugali A. She

added that the Appellant had been inserting his “Dudu” into

her “Kabibi”. She described “Kabibi” as the area she used to

urinate. She further testified that the Appellant was always

doing the same. In August, the Appellant raped her and

threatened her not to tell her monther, and if she did that, he

would slaughter her. On the occasion, his sister (PW2) came

and found the Appellant raping her while they were all naked.

PW2 also was threatened not to tell her mother (PW1), and if

she did that, he would beat her. She informed her teacher

(PW5). After that, they went to the hospital and police station.

He identified the Appellant in Court.

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 Cross-examined by the Appellant, PW3 testified that “I am

sure you raped me”. When re-examined by the learned state

attorney, PW3 testified that “he was the one who raped me.”

PW3’s evidence was corroborated by PW2 (her sister), who

testified that her grandmother told her to tell PW3 (the victim)

not to go to the Meneno to play. She promised to tell her. The

Appellant is selling of charcoal. On an unknown date, her

mother (PW1) required her to call PW3, who was playing at the

Maneno’s home by then. She went there and found the

Appellant and the victim sitting on the bed while naked. By

then, the Appellant was raping the victim. When he saw her, he

quickly put on clothes. She informed her teacher (PW5) that the

PW3 was raped. She identified the Appellant in Court. Cross-

examined by the Appellant, PW2 testified, "What I have stated

is true.”

PW4 medically examined PW3. In her testimony, PW4

testified that on 25th August 2023, while at her duty station,

one woman came with a girl. They came with PF3 (Exhibit P2)

with the view to know if the girl was raped. In the state of pain,

PW4 examined her vagina and did not see hymen. She resolved

that a blunt object penetrated her vagina. She filled out the PF3

form (Exhibit P2).

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 In his evidence, the Appellant testified very briefly that

people suspected him, but he did not commit the offence and,

if so, why his neighbor did not arrest him.

I have dispassionately examined the evidence adduced

during hearing and I am satisfied that PW3 (victim) was telling

nothing but the truth. She was direct, consistent, credible and

coherent on what the Appellant did to her. I closely examined

the evidence of PW1 and noted that she knew what she was

talking about. Even when the Appellant cross-examined her,

she maintained that it was the Appellant who raped her. She

described the meaning of Kabibi as the place she used to

urinate. Her evidence was supported by the evidence of PW2,

who testified that she saw the Appellant and the victim on the

bed while naked, and the Appellant was raping her. The victim

also confirmed this assertion. Her evidence was also

corroborated by the evidence of PW4, who testified that a

blatant object penetrated the victim’s vagina. The collective

prosecution evidence adduced during hearing directly points

fingers to the Appellant to be the one who committed the

offense contrary to sections 130 (1) and (2) (e) and 131 (1)

of the Penal Code (supra). From PW3’s evidence, I am

satisfied that she was credible and a witness of truth.

21
 I am highly guided by the decision of the Court of Appeal

of Tanzania in Mohamed Said vs. Republic, Criminal

Appeal No. 145 of 2017, where the Court quoted the decision

of the Supreme Court of Philippines in the case of PEOPLE OF

THE PHILIPPINES vs. BENJAMIN A. ELMANCIL, G. R. No.

234951, dated March, 2019 and noted as follows;

In reviewing rape cases, this Court has constantly been

guided by three principles, to wit: (1) on accusation of
rape can be make with facility; difficult to prove but
more difficult for the person accused though innocent to
disprove; (2) in view of the intrinsic nature of the crime
of rape where only two persons are usually involved the
testimony of the complainant must be scrutinized with
extreme caution; and (3) the evidence for the
prosecution must stand or fall on its own merits and
cannot draw strength from the weakness of the
evidence for the defence. And as a result of these
guiding principles, credibility of the complainant
becomes the single most important issue. If the
testimony of the victim is credible, convincing and
consistent with human nature and the normal course of
things the accused may be convicted solely on the basis
thereof.

In Onesmo Laurent @ Salikoki Vs. Republic, Criminal

Appeal No. 458 of 2018, Court of Appeal at Moshi, the

Court observed at page 12, thus;

….. we are cognizant that in view of the inherent nature

of the offence of rape or any other sexual offence where

22
 only two persons are usually involved when it is
committed, the testimony of the complainant is very
crucial and must be examined and judged cautiously.
Indeed, in this context, we held, for instance, in
Selemani Makumba (supra), that the best proof of
rape (or any other sexual offence) must come from the
complainant. Consequently, the complainant's credibility
becomes the most important matter for consideration.
The Court continued to note at pages 12 and 13 thus;

If the evidence of the complainant is credible,

convincing and consistent with human nature as
well as the ordinary course of things, it can be
acted upon singly as the basis of conviction - see
section 127 (6) of the Evidence Act.
(emphasis mine)

In sexual offenses like the one at hand, the victim’s

credibility becomes an essential matter for consideration. If the

victim is coherent, consistent, and credible, the Court may

proceed to convict, notwithstanding other corroborative

evidence. In this case, PW3 (victim) did not seem to have been

telling lies. She was credible. Her evidence was corroborated

closely by PW2 (her sister) and PW4(medical doctor). It is my

further observation that in view of the testimony of PW1, the

defense evidence cast no doubt at all. In the premises, I find

the first ground of appeal meritless, and I disregard it.

Regarding the second ground of appeal, the Appellant

23
complained that the learned trial Magistrate grossly erred in

law and fact for failure to adhere to section 192 (3) of the

Criminal Procedure Act. On this, the Appellant argued that

looking at the records, it is not established whether the

Memorandum of agreed facts was read over to the Appellant

and, if so, in which language. Mr. Basaya conceded to this fact.

However, he was of the view that the omission did not occasion

any injustice to the Appellant.

section 192 (3) of the Criminal Procedure Act

provides that;

At the conclusion of a preliminary hearing held under

this section, the court shall prepare a memorandum of
the matters agreed and the memorandum shall be read
over and explained to the accused person in a language
that he understands, signed by the accused person and
his advocate, if any, and by the public prosecutor, and
then filed.

The quoted passage means that the contents of the

memorandum of the agreed matters should be read over to the

accused and explained in the language he or she understands

and that should be reflected on records. In the case of Efraim

Lutambi vs. Republic (Criminal Appeal 30 of 1998)

[1999] TZCA 33 (10 June 1999), the Court observed that;

24
 Any exhibits, including cautioned and extra-judicial
statements, which are not in dispute should have them
referred to and given exhibit numbers in the
memorandum of undisputed matters. The contents of
the memorandum, including the exhibited
statements, if any, should be read over and
explained to the accused (in a language he
understands), and the fact that has been done
should be reflected on the record.
(Emphasis mine)

In the case of Mnyameza Franswa vs. Republic,

Criminal Appeal 56 of 2006, Court of Appeal of Tanzania

at Mwanza, the Court was faced with an akin situation, and it

stated at page 11 of the typed script that;

Thus, the position is clear that it is the accused who is

required to say which matters are not in dispute. Also,
it's mandatory that the contents of the
memorandum of undisputed facts be read and
explained to the accused in the language he
understands, and the records must show clearly
that the contents of the memorandum of
undisputed facts have been read over and
explained to the accused in the language he
understands.
(emphasis mine)

As correctly admitted by Mr. Basaya, the records are silent

on whether section 192 (3) of the CPA was complied with.

Luckily, no real or documentary evidence was tendered during

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the preliminary hearing. In the two cases cited above, the Court

expunged the evidence admitted during the preliminary

hearing. Even if the Memorandum of agreed facts is

disregarded or expunged, it will save no purpose because

failure to conduct the preliminary hearing or conducting it

improperly is not fatal. However, Courts are urged to perform it

properly to save time and accelerate trials. In such

circumstances, I agree with Mr. Basaya that the Appellant was

not prejudiced at all. I thus find the second ground of appeal

devoid of merit.

Regarding the fourth ground of appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

law and fact in attaching weight to the evidence of PW1, PW2,

and PW3, which was incredible and unreliable because they

failed to name the suspect until 20 th September 2023. On his

part, Mr. Basaya argued that the late naming was due to the

Appellant’s threats to harm PW2 and PW3.

As said before, in sexual offenses like the one at hand, the

victim’s credibility becomes an essential matter for

consideration. If the victim is coherent, consistent, and credible,

the Court may proceed to convict, notwithstanding other

corroborative evidence. In this case, I have already observed

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that PW3 was a credible witness because she was coherent and

consistent. She appeared to be telling the truth. PW2 and PW4

strongly corroborated her evidence. Even if PW1 and PW2 were

incredible witnesses, that would mean nothing, provided the

evidence adduced by PW3 (the victim) passes the credibility

test. The Court may proceed to convict if it is satisfied that the

victim is telling nothing but the truth.

Going through the evidence of PW3 (the victim), one

discovers that she was in a state of fear, having been

threatened with being slaughtered by the Appellant. PW2

witnessed the Appellant and the victim on the bed naked. By

then, the Appellant was raping the victim. The Appellant

threatened to beat her if she ever mentioned him to her

mother. In such circumstances, PW2 and PW3 were hesitant to

name the Appellant at the earliest possible opportunity. In the

state of fear, depression, and anxiety, no reasonable man

would have expected the naming of the Appellant at the

earliest stage. Based on the above analysis, I find the fourth

ground of appeal devoid of merit.

Regarding the fifth ground of Appeal, the Appellant

complained that the learned trial Magistrate grossly erred in

law and fact in convicting and sentencing him while

27
disbelieving his defense evidence. It was the defense evidence

that the Appellant did not commit the offense as alleged by the

prosecution. He posed a question as to why the neighbors did

not arrest him. On his part, Mr. Basaya was of the view that the

defense was considered accordingly, only that it did not cast

any doubt on the prosecution evidence.

I need not overemphasize that PW3 (the victim) was a

credible witness. PW2 and PW4 strongly corroborated her

evidence. The Appellant's evidence was that they suspected

him, but he did not commit the alleged offense. If so, why did

the neighbors not arrest him? In my opinion, the evidence

given by the prosecution was more robust than the defense

evidence. PW2 was the eyewitness who witnessed the

Appellant raping the victim and named his name to her teacher

(PW5). PW3 (the victim) was coherent and direct on what the

Appellant did to her. She also recalled to have been seen with

the Appellant on the bed by her sister (PW2). When cross-

examined by the Appellant, PW2 and PW3 appeared to be

coherent in what they believed to be accurate and true. In such

circumstances, the appellant failed to raise doubt on the

prosecution's strong, reliable, coherent, and consistent

evidence. The trial Magistrate was correct in not believing the

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Appellant’s defense. To that end, the fifth ground of appeal is

devoid of merit, and I dismiss it.

From what I have indevoured herein above, I wholesomely

endorse and agree with the learned trial Magistrate that the

offense to which the Appellant was charged was proved beyond

reasonable doubt. That said, the conviction and sentence

meted out against the Appellant by the trial Court are hereby

upheld.

I order accordingly.

Right of appeal fully explained.

DATED at DAR ES SALAAM this 18th November 2024.

H.S. MTEMBWA
JUDGE

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