A Compendium of Child Justice Cases

INSTITUTE OF JUDICIAL
ADMINISTRATION LUSHOTO
1
2
INSTITUTE OF JUDICIAL
ADMINISTRATION LUSHOTO
3
Members of the Technical Team:
1. Mr Bollen Mwaipopo
2. Ms Fatuma Mgomba
3. Mr Frank Mirindo
4. Ms Tundonde Mwihomeke
Members who provided Additional Technical Support:

1. Hon Lady Justice Nyigulila Mwaseba, former Deputy Registrar,
Judiciary of Tanzania
2. Hon. Lady Justice Mwanabaraka S Mnyukwa, former UNICEF
Focal Person and Lecturer at the Institute of Judicial
Administration Lushoto
4
TABLE OF CONTENTS
PREFACE ........................................................................................................ iv
ACKNOWLEDGMENT ........................................................................................v
TABLE OF FULL-TEXT OF CASES INCLUDED ........................................... vi
ABBREVIATIONS ................................................................................................x
CHAPTER ONE ................................................................................................. 1

GENERAL PRINCIPLES .................................................................................... 1
1.1. INTRODUCTION ................................................................................... 1
1.2. UNDERPINNING PRINCIPLES ........................................................... 1
1.2.1 BEST INTEREST OF THE CHILD ..................................... 2
1.2.2. NON-DISCRIMINATION ................................................... 10
1.2.3. RIGHT TO PARTICIPATE AND BE HEARD ................... 13
1.2.4. RIGHT TO BE MAINTAINED ........................................... 13
CHAPTER TWO ............................................................................................... 17

CHILD IN CONFLICT WITH THE LAW ........................................................ 17
2.1. INTRODUCTION ................................................................................. 17
2.2. CRIMINAL RESPONSIBILITY ........................................................... 18
2.3. AGE DETERMINATION...................................................................... 20
2.4. JURISDICTION .................................................................................... 25
2.5. PROCEDURE ........................................................................................ 31
2.6. SENTENCING ...................................................................................... 34
CHAPTER 3 ...................................................................................................... 38
CHILD PROTECTION IN CRIMINAL PROCEEDINGS................................ 38
3.1. INTRODUCTION ................................................................................. 38
i
3.2. OFFENCES RELATED TO BREACH OF DUTY OF CARE:
MANSLAUGHTER ............................................................................... 38
3.3. OFFENCE OF RAPE ............................................................................ 42
3.4. PROCEDURE ........................................................................................ 45
3.5. EVIDENCE ........................................................................................... 49
CHAPTER FOUR ............................................................................................ 66
CIVIL APPLICATIONS IN RELATING TO CHILDREN ............................... 66

4.1. INTRODUCTION ................................................................................ 66
4.2 PARENTAGE: ...................................................................................... 66
4.3. CUSTODY AND ACCESS ................................................................... 68
4.4 APPLICATION FOR MAINTENANCE .............................................. 75
CHAPTER FIVE .............................................................................................. 79

FAMILY LAW RELATING TO CHILDREN .................................................... 79
5.1. INTRODUCTION ................................................................................. 79
5.2. CAPACITY TO MARRY ....................................................................... 79
5.3. DIVISION OF MATRIMONIAL ASSETS ........................................... 83
5.4 MAINTENANCE................................................................................... 85
CHAPTER SIX ................................................................................................. 88

SUCCESSION LAW RELATING TO CHILDREN .......................................... 88
6.1. INTRODUCTION ................................................................................. 88
6.2. INHERITANCE OF “ILLEGITIMATE” CHILDREN ......................... 88
ii
CHAPTER SEVEN: ......................................................................................... 94
TORTS RELATING TO CHILDREN ................................................................ 94
7.1. INTRODUCTION ................................................................................. 94
7.2. NEGLIGENCE ...................................................................................... 94
7.3. OCCUPIERS’ LIABILITY .................................................................... 96
7.3.1. Duty of Care toward Children.................................................... 96
7.3.2. Standard of care toward children .............................................. 98
7.3.3. Duty of care towards a trespasser child .................................... 99
7.4. COMPENSATION .............................................................................. 100
FULL-TEXT OF CASES INCLUDED......................................................... 102
iii
PREFACE
The idea to come up with the Compendium on Child Justice Cases

was conceived gradually by the Judiciary of Tanzania (JoT), the
Institute of Judicial Administration Lushoto (IJA) and UNICEF as the
training on Juvenile Justice Frontline Workers was ongoing. During
various trainings it was found out that there was no comprehensive
documentation on case-laws dealing with juveniles despite the fact
that there have been several decisions on juveniles and more so, cutting
across a variety of issues. It was as a result of those observations from
participants, that the IJA embarked on preparing this Compendium.
It was therefore, the demand by the training participants and other
stakeholders on child justice that this exercise had to be conducted
and I commend them all for coming up with this idea which has now
come to fruition.
This Compendium contains fifty-two judicial decisions of the High
Court of Tanzania as well as the Court of Appeal of Tanzania. These
decisions address both criminal and civil aspects of juvenile justice.
This Compendium is not just significant for judicial officers, but it is
monumental for the entire legal fraternity and the justice sector as a
whole.
The JoT is proud to have produced this much needed Compendium
which will enhance juvenile justice and develop further jurisprudence
as such I urge all justice sector stakeholders to fully utilize it.
Hon. Mr. Justice Prof Ibrahim H. Juma (PhD)
Chief Justice
iv
ACKNOWLEDGEMENT
There are very few occasions that give me goosebumps and elicit the
same excitement within me that I felt when the Institute of Judicial
Administration Lushoto (IJA) finished preparing this Compendium.
The IJA has been itching for the opportunity to contribute to the
provision of judicial and continuing education in a materially
meaningful manner. Thus, it is a great honour for the IJA to have
prepared this Compendium which will be useful not only to judicial
officers but also other justice sector stakeholders in the dispensation
of juvenile justice.
It gives me tremendous pleasure to acknowledge with great

appreciation the significant contribution made by all of those who
have been involved in one way or the other in the preparation and
ultimate production of this Compendium. This includes our strategic
partners UNICEF Tanzania for their valuable financial and technical
support.
In the same vein, I wish to express my profound appreciation to the

leadership of the Judiciary of Tanzania under His Lordship Prof
Ibrahim Hamis Juma, the Chief Justice of Tanzania for accepting
wholeheartedly the idea of preparing this invaluable Compendium.
Furthermore, I wish to thank the Technical Team from the IJA for
working tirelessly in ensuring that this Compendium comes out in the
present form.
The Juvenile Justice Frontline Workers Project which is the basis of

the present Compendium is a flagship project under the IJA, JoT and
UNICEF collaboration which represents the effort to improve juvenile
justice and rights of the child in Tanzania in compliance with national
and international obligation.
Justice Dr. Paul F. Kihwelo, J. A

Principal IJA
v
TABLE OF FULL-TEXT OF CASES INCLUDED
Ahaz Moses Mwalubanda v. Jane Kalyemba, Probate and

Administration Cause 3 of 1989, High Court of Tanzania at
Mbeya (unreported) ........................................................................................ 102
Alex Ndendya v. R, (Criminal Appeal 207 of 2018) [2020]
TZCA 202; (06 May 2020) ............................................................................... 107
Alvin Mpaze v. Theresia Bartholomeo, (HC) Matrimonial
Civil Appeal 1 of 1991, High Court of Tanzania at Tabora (unreported) .... 102
Amos Robare alias James v R, (Criminal Appeal 401 of 2017)
[2021] TZCA 130; (23 April 2021) .................................................................. 128
Angelina Widow of Bert Ndangoba v. Benedicto Nsubuga and
Bukoba District Council, Civil Case 12 of 1969, High Court of
Tanzania at Mwanza ...................................................................................... 133
Assah A. Mgonja v. Elieskia I. Mgonja, Civil Appeal 50 of
1993, High Court of Tanzania at Dar es Salaam (unreported) ................... 143
Attorney General v. Rebecca Z. Gyumi, (Civil Appeal No.204
of 2017) [2019] TZCA 348; (23 October 2019) ................................................ 150
Bakari Hamisi Ling’ambe v. R, Criminal Appeal 161 of 2014,
Court of Appeal of Tanzania at Mtwara (unreported) .................................. 179
Baraka Ally Nusura v. Nasra Francis Mpulule, High Court
of Tanzania at Dar es Salaam (Dar es Salaam Registry) (2021)
(unreported)..................................................................................................... 184
Bisege Mwasomola v. R, Criminal Session Case 3 of 2006,
High Court of Tanzania at Mafinga (unreported) ......................................... 198
Betekeye Bulinjie v. R, Criminal Appeal 151 of 1990 Court of
Appeal of Tanzania at Mwanza (unreported) ................................................ 211
Charles s/o Jackson v R, (H C Criminal Case 273 of 2017)
[2018] 1; (21 February 2018) .......................................................................... 214
Clemensia Falima v. Bashiri Ally (Minor) suing by next
friend Fatuma Zabron, Civil Appeal 19 of 1998, Court of
vi
Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil
Appeal No. 1 of 2019, High Court of Tanzania at Kigoma (unreported) ..... 228
Eliah Bariki v. R (Crim Appeal 321 of 2016) [2019] TZCA 40;
(11 April 2019)................................................................................................. 232
Elizabeth Michael Kimemeta alias Lulu v R, Miscellaneous
Criminal Application 46 of 2012, High Court of Tanzania at
Dar es Salaam (unreported) ........................................................................... 240
Elizabeth Mohamed v. Adolf John Mohamed, Administration
Appeal 14 of 2011, High Court of Tanzania at Mwanza (unreported) ......... 252
Enoka Bujiku v. R, Criminal Appeal 62 of 2015, Court of
Furaha Johnson v R, Criminal Appeal 452 of 2015, Court of
Appeal of Tanzania at Arusha (unreported).................................................. 276
Glory Thobias Salema v Allan Philemon Mbaga, (Civil
Appeal No 46 of 2019) [2020] TZHC3794;(13 November 2020) .................... 280
Godfrey Wilson v. R, (Crim Appeal 168 of 2018) [2019] TZCA
109; (06 May 2019) .......................................................................................... 286
Haruna Mtasiwa v. R, (Criminal Appeal No.206 of 2018)
[2020] TZCA 230; (15 May 2020).................................................................... 294
Hassan Kide Kandi v. R, Criminal Appeal 165 of 2018, High
Court of Tanzania at Mtwara (unreported) ................................................... 318
Hassan Mwambaga v. R, Criminal Appeal 47 of 2010, High
Court of Tanzania at Mbeya (unreported) ..................................................... 325
Hussein Rashid v. R, Criminal Appeal 231 of 2018, High
Court of Tanzania at Dar es Salaam (unreported) ....................................... 329
Jacob Mayani v. R, (Criminal Appeal .558 of 2016) [2020]
TZCA 1744; (24 August 2020) ........................................................................ 347
Jamali Ally Salum v. R, (Crim Appeal 52 of 2017) [2019]
TZCA 32; (28 February 2019) ......................................................................... 358
James Mapuga v. Jesca Ntonya, Civil Appeal 12 of 2006,
High Court of Tanzania at Dodoma (unreported) ......................................... 369
vii
Joseph Lazaro and 2 Others v. R, Court of Appeal of
Tanzania at Mwanza 118 of 2014, (unreported) ........................................... 373
Jovitus Johansen v. R, Criminal Appeal 509 of 2015, Court of
Appeal of Tanzania at Bukoba (unreported) ................................................. 388
Judith Patrick Kyamba v. Tunsume Mwimbe and 3 Others,
(Probate and Administration Cause 50 of 2016) [2020] TZHC
1364; (28 May 2020) ........................................................................................ 392
Juma Mahamudu v. R, Criminal Appeal 47 of 2013, Court of
Appeal of Tanzania at Mbeya (unreported) ................................................... 403
MA v. R, Miscellaneous Criminal Application 95 of 1999,
High Court of Tanzania at Mwanza (unreported)......................................... 407
Magina Kubilu alias John v. R, (Criminal Appeal 564 of
2016) [2020] TZCA 1750; (26 August 2020) ................................................... 423
Mathias Nyorobi v. Peter Zacharia (A minor by his next
friend), (DC) Civil Appeal 28 of 1995, High Court of Tanzania
at Tabora (unreported) ................................................................................... 433
Moses Sanjinto v. R, Criminal Appeal 64 of 2016, Court of
Appeal of Tanzania at Dodoma (unreported) ................................................ 445
Omari Mahita v. Rehema Shabani, Civil Appeal 149 of 2009,
High Court of Tanzania (unreported) ............................................................ 453
Owen Mkwemba v. General Manager, Friends Corner and
Tandale Hotels Ltd, Civil Case 332 of 1988, High Court of
Tanzania at Dar es Salaam (unreported) ...................................................... 461
Paulo Nuru Mgonja v. R, Criminal Appeal 190 of 2012, Court
of Appeal of Tanzania at Arusha (unreported).............................................. 470
.R v. Chepe Kalangali [1973] LRT No 77 ....................................................... 473
R v. Majuto Ngailo, Criminal Case No. 19 of 2014, High
Court of Tanzania at Njombe (unreported) ................................................... 479
R v. Projesstus Fidelis Mugalula alias Porojo and 3 Others,
Criminal Session 16 of 2009, High Court of Tanzania at Tabora
(unreported)..................................................................................................... 493
viii
R v Sprianus Angelo and others, (Criminal Session Case 27 of 2017)
[2019] TZHC 1; (20 September 2019)............................................................. 529
Robert Andondile Komba v. DPP, (Criminal Appeal
No. 465 of 2017) [2020] TZCA 277; (03 April 2020) ...................................... 545
Rwekaza Bernado v. R, Criminal Appeal 477 of 2016,

Court of Appeal of Tanzania at Bukoba (unreported)................................... 564
Sajjad Ibrahim Dharamsi & Another vs Shabbir Gulamabbas

Nathan, (Civil Appeal No.42 of 2020) [2020] TZHC 3703;
(30 October 2020) ............................................................................................ 569
Stephen Mbeba v. Hassan Maulid Mohamed,

( Juvenile Civil Revision 2 of 2019) [2020] TZHC 788;
(18 May 2020) .................................................................................................. 587
Tegemeo Kachira v R, (DC Criminal Appeal 8 of 2019)

[2019] TZHC 5; (10 October 2019).................................................................. 594
Veronica Agostino Shirati v. Issa Ramadhani Kisibo,

Civil Appeal 9 of 2020, High Court of Tanzania at Musoma
(unreported)..................................................................................................... 612
Yusufu Baruani v. R, Criminal Appeal 4 of 2010, Court of

Appeal of Tanzania at Tanga (unreported) ................................................... 616
Zakaria Kamwela and 126 others v. Minister of Education

and Vocational Training and Another, (Civil Appeal 3 of
2012) [2013] TZCA 167; (12 December 2013) ................................................ 621
ix
ABBREVIATIONS
ACRWC African Charter on the Rights and Welfare of

the Child
CEDAW Convention on the Elimination of All Forms of
Discrimination Against Women
JCR Juvenile Court Rules
LCA Law of the Child Act
LMA Law of Marriage Act
RE Revised Edition
x
CHAPTER ONE
GENERAL PRINCIPLES
1.1. INTRODUCTION
A child by reason of his physical and mental immaturity needs special
protection and care in all aspects of public and private life. The norms,
customs, practice and laws of handling and regulating the life of a
child including his rights in all aspects of child’s life, is known as
Child Law or Law of the Child. Thus, it includes the total sum of laws
that addresses responsibility of the state to act for the child’s legal
protection before as well as after birth. Also it includes the way legal
proceedings should be conducted and the child’s relationship with
parents or guardians. Therefore, the state, its actors and the parents
or guardians have the legal obligation to guarantee the promotion of
inalienable child’s rights and ensure that every child can realize his
rights without any form of discrimination. This chapter highlights
on how to safeguard and protect the rights of the child by both the
state and its actors as well as by individuals including the parents or
guardians. The diverse rights of the child that will be highlighted in
this chapter will include the underpinning principles as enshrined in
the Convention on the Rights of the Child (CRC),1 the African Charter
on the Rights and Welfare of the Child (ACRWC),2 and the Law of the
Child Act (LCA).3
1.2. UNDERPINNING PRINCIPLES

These are underpinning principles which are mainly derived from
the Conventions on the Rights of the Child. They are said to be
‘underpinning’ because they are very important in all matters affecting
all children everywhere and at all times. In Tanzania, the principles
have been domesticated into the municipal laws and are reflected in the
domestic legislation, policies and guidelines surrounding child justice.
It should be remembered that a child as a human being enjoys all
1 It was opened for signature1989, Tanzania ratified on 10th June 1991,
2 It came into force in 1999 in which Tanzania ratified on 16th March, 2003
3 CAP 13 R.E 2019
1
the basic human rights as any other member of the society. However,
recognizing the special position and peculiar needs of a child, the law
gives the child an additional treatment. Hence in this work we shall
focus on the special treatment of the child by the laws as opposed to
the generalized treatment of all human beings by the law.
The following are the underpinning or overriding principles of child

justice as reflected in the LCA and its Regulations.
1.2.1 BEST INTEREST OF THE CHILD

Section 4 (2) of the LCA stipulates that: “The best interests of a child
shall be a primary consideration in all actions concerning a child
whether undertaken by public or private social welfare institutions,
courts or administrative bodies”
This principle has been considered by courts in both criminal and

civil cases. The following are the cases which relate to the overriding
principle of the best interest of the child.
Case Law 1: Glory Thobias Salema v Allan Philemon Mbaga

(Civil Appeal No 46 of 2019) [2020] TZHC3794 ;( 13 November 2020)
Key Issue
Best interest of the child
Summary of the Case

The appellant applied for an order of custody in respect of one PAM in
a juvenile court. The juvenile court granted custody to the respondent
on the ground that the child was already above seven years of age
and living with the respondent. On appeal to the High Court, the
issue arose as to whether or not the trial court had considered the best
interest of the child.
2
Holding
(i). The law is well settled that in any event dealing with the child, the
primary consideration shall be on the best interests of the child.
(ii). The suggestion that the child has even changed the name is not a
governing factor to deny the respondent right to custody based on the
overriding principle of best interest of the child.
(iii). Under section 39 (2) of the LCA, if the views of the child have been
independently given, they’ must be taken into account by the court
before making the order of custody.
Case Law 2: Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas v

Shabir Gulamabas Nathan, Civil Appeal No 42 of 2020 High Court at
Dar Es Salaam (Unreported)
Key Issues
(i). Consideration of international instruments in interpreting the
provisions of the LCA
(ii). Natural parent automatic right to custody in the best interest of the
child
(iii). Observance of the principle of the best interest of the child in all
actions undertaken by the state or individuals.
Summary of the Case

The appellant - a step father of the child aged 11 years appealed against an
order of a juvenile court which gave the respondent, the biological father
of the child, the sole custody of the child. The respondent who was an
American married a Tanzanian woman who gave birth in the United States
in 2009 of the child subject of the custody proceedings. The child obtained
the United States’ nationality by virtue of birth but following the marriage
breakdown, the child and his mother returned to live in Tanzania since
2010 and never returned back to US. After returning back to Tanzania,
the mother of the child successfully filed for a divorce and she got married
to the first Appellant in 2014. The child had been living with his mother
before her death and later upon the death of the child’s mother, the child
3
continued to live with the first appellant as his step father who had
been taking care of him. The first appellant successfully applied for
custody orders over the child. Subsequently, the Respondent filed an
application to set aside orders by the juvenile court that had placed
the child under the custody of the first appellant. The application was
successfully granted. The first appellant appealed to the High Court.
Holding
(i). In interpreting the provisions of the Law of the Child Act,
the Court must take into account the meanings and opinions
expressed in the UN Convention on the Rights of the Child to
which Tanzania is a Signatory.
(ii). According to section 4 (2) of the LCA, It shall be the primary
consideration of any public or private institution, court or an
administrative body to take into account the best interest of the
Child in anything they are doing about children.
(iii). A child has the right to live with parents or guardians but he
cannot live or continue to live with parents or guardians if by
living there he is subjected to harm or serious abuse or it is not
in his best interest.
(iv). In making the order for custody or access the court should
consider the best interests of the child. In doing so the views of
the child if given independently and the need for continuity of
care, protection and control of the child must be observed.
(v). While the fact of parenthood is not to be trifled with and should
not be regarded as an important and significant factor in
considering in whose favour the custody of the child should be
given, a natural parent has no automatic right to custody if it is
not in the best interest of a child.
4
Case Law 3: Bharat Dayal Velji v. Chandni Vinesh Bharat,
(Civil Appeal No.45 of 2017) [2018] TZHC 45; (23 April 2018)
Key Issue
Custody of a child to unemployed mother .
Summary of the Case

See pages 124-125 below.
Holding
The best interest caters far beyond financial ability since children
need love, affection and care of which the mother is in a better position
to offer to her children against the whole world.
Case Law 4: Ahaz Moses Mwalubanda v. Jane Kalyemba,

Probate and Administration Cause 3 of 1989, High Court of Tanzania
at Mbeya (unreported)
Key Issue
Aappointment of a widow as administratrix serves the best interest
of the child interest
Summary of the Case
See pages 155-156 below
Holding
A widow who is most likely to take care of the interest of the children
of the deceased under section 33(1) of the Probate and Administration
Ordinance Cap 445 should be appointed as an administrator of her
husband’s estate.
5
Commentary
In these four cases it is clearly shown how best interest of the child
was taken into consideration by the Courts to reach their decisions in
matters affecting or touching the children. In the case of Glory Thomas
Salema it was insisted that when dealing with a child, the primary
consideration shall be on the best interest of the child. The same view
was taken in the case of Sajjad Ibrahim Dharamsi & Ally Jawad
Gulamabas where the court emphasized that since the LCA is silent
on what contains the best interest of the child, it is the upon the court
to create flexibility and decide cases according to the circumstances of
each case. The court went further by holding that in interpreting the
provisions of the LCA, the court must take the meanings and opinions
expressed in the CRC to which Tanzania is a signatory. In the case of
Bharat Dayal Velji the court insisted that the best interest of the child
carters far beyond financial ability. The fact that a mother of the child
is not employed does not matter, rather the important considerations
include provision of love, affection and care and in respect of which it
was found that the mother in the given case is in a better position to
provide. In the case of Ahazi Moses, upon death of the father the legal
heirs were young and still depending on their mother- the widow of the
deceased. In the circumstances, the court found that the appointment
of a widow to be the administrator of the deceased’s estate would serve
the best interest of the child.
6
Case law 5: MMN (A Child) v R, (Criminal Appeal No.173 of 2019)
[2020] TZHC 97; (25 February 2020)
Key Issue
The best interest of the child and determination of the child’s age
before sentencing
Summary of the Case

The appellant was charged with and convicted of unnatural offence
of a four years old child contrary to sections 154(1) (a) and (2) of the
Penal Code (Cap. 16 R.E. 2002) on his own plea of guilty. After the
charge was read and explained to him whereupon he pleaded guilty,
the Prosecution read to him the facts which he eventually admitted.
The Prosecution merely stated the particulars of the accused are
indicated in the charge sheet without reading them. Later, the
Prosecution tendered before the court a caution statement of the
accused person, his extra judicial statement and PF3 as exhibits. The
trial court read and explained the contents of the caution statement
and extra-judicial statement to the accused and he did not object to
their admissibility. The trial court convicted and sentenced him to life
imprisonment. Aggrieved by the trial court’s decision, he appealed to
the High Court. The appeal centred on addressing two questions: (i)
whether the appellant’s plea was unequivocal and given in accordance
with the law, and (ii) whether the trial court considered the age of the
accused before sentencing him.
Holding:
(i). The Law of the Child Act, 2009 is superior legislation on matters
relating to the promotion, protection and maintenance of the
welfare and rights of the child. It overrides other laws when it
comes to issues related to children.
(ii). If the accused person pleads guilty to the offence, his age must
be stated in facts of the case apart from being specified in the
charge sheet. This will enable the Court to impose a sentence
which serves the best interest of the child as required by the
law.
7
Case Law 6: R v. Majuto Ngailo, Criminal Case No. 19 of 2014,
High Court of Tanzania at Njombe (unreported)
Key Issue
Participation of a social welfare officer during trial in juvenile cases
Summary of the Case

The accused person who was at the time he was arrested was fifteen
years was charge with the offence of murder charge contrary to section
196 of the Penal Code [Cap 16 Re 2002]. It was alleged that the accused
person killed his biological father. In the fateful day, the deceased
was in the kitchen together with his wife and their two grandchildren
getting supper. Suddenly, two unidentified men stormed inside their
house, slapped the deceased’s wife and ordered her with the little
ones to go outside leaving behind the deceased and intruders. The
assailants brutally attacked the deceased and wounded him in his
head which led to his sudden death. It was alleged that the accused
killed the deceased because the deceased was about to sacrifice him
on witchcraft grounds. Hence the accused organized with his friends
to get rid of the deceased first. At the trial before the High Court,
issues arose on how to deal with a child who was facing a murder
charge and the admissibility of the extrajudicial statement. The trial
court directed its mind to issues of facts contained in the extrajudicial
statement. Also it directed its mind whether it was mandatory in
such a case to have participation of a social welfare officer.
Holding
In a murder charge against a child, it is important to ensure the
participation of a social welfare officer in the trial in order to safeguard
the best interest of the accused child pursuant to section 4 of the Law
of the Child Act, 2009.
8
Commentary
In criminal cases involving children, the best interest of the child has
been considered as critically important consideration and in different
perspectives. In the case of MMN (A child) it was stated that age
determination prior to sentencing is important for the court to impose
a sentence which serves the best interest of the child. Further, the
presence of a social welfare officer during trial of a child was held to
be mandatory so as to safeguard the best interest of the child as held
in the case of Majuto Ngailo. Currently, through GN 154 of 20194 the
JCR has been adopted to be used at the High Court during trial of a
child. Under rule 11 of JCR, among the persons who are required to
be present in the court during trial of a child accused person is a social
welfare officer.
4 The Judicature and Application of Laws (Adoption of Juvenile Court Rules in the High Court of
Tanzania) Rules, 2019.
9
1.2.2. NON-DISCRIMINATION
The principle of non-discrimination seeks to guarantee that human
rights are exercised without discrimination of any kind.
Section 5. -(1) of LCA states that a child shall have a right to live free
from any discrimination.
(2) A person shall not discriminate against a child on the grounds

of gender, race, age, religion, language, political opinion, disability,
health status, custom, ethnic origin, rural or urban background, birth,
socio-economic status, being a refugee or other status
This being one of the overriding principles of the law of the child, has
been considered by courts in various decisions.
Case Law 1: Elizabeth Mohamed v. Adolf John Mohamed,

Administration Appeal 14 of 2011, High Court of Tanzania at Mwanza
(unreported)
Key Issue
Discrimination by naming a child born out of wedlock as “illegitimate”
Summary of the Case

After the death of JCM intestate, the Respondent who was his
son begotten under a Christian marriage was appointed as an
administrator of his father’s estate. The appellant was one of the two
wives of JCM, the deceased, under customary marriage subsequent
to the deceased’s Christian first marriage. After several proceedings
in a primary court, it was held that three children of the appellant
were entitled to inherit from their father’s estate. The Respondent
successfully appealed to a District Court where it was held that the
three children of the appellant born out of an adulterous association
could not inherit from their father’s estate. The appellant appealed to
the High Court.
Holding
It is discriminative and inhumane to call a child born of parents who
are not married to each other “illegitimate” which in essence means
that he or she is an unlawful child.
10
Case Law 2: Judith Patrick Kyamba v. Tunsume Mwimbe and 3
Others, Probate and Administration Cause 50 of 2016, High Court of
Tanzania at Dar es Salaam (unreported)
Key Issues
Children born out of wedlock and inheritance of their fathers’ estate
Summary of the Case

The petitioner asked the High Court to be granted letters of
administration of her father’s estate after dying intestate. The
petitioner’s petition left out five children of the deceased who were
born out of the wedlock. At the hearing of the objection to the petition,
the petitioner argued that under the law illegitimate children have
no right to inherit the deceased’s estate and cannot have any legal
interest over the deceased’s estate.
Holding
(i). It is barbaric and discriminatory to contend that “illegitimate
children” cannot inherit from their father’s estate in light of
the provisions of Article 12 (1) of the Constitution of the United
Republic of Tanzania of 1977 that guarantees equality of all
human beings and Article 13 (1) of that Constitution which
provides equality before the law.
(ii). Children born out of wedlock are biological children just like
those born within the matrimonial home who are entitled to
equal shares of their common father with fellow siblings.
(iii). Even if it were to be argued that the alleged children born out of
wedlock are of the majority age and so are not protected under
section 4 (1) of the Law of the Child Act, 2008, which defines
a child to be a person below 18 years, it is the firm view of the
court that the Tanzania Indian Succession Act, 1865, aims at
protection of all the biological children of the intestate born
within or out of wedlock.
11
(iv). Children born out of wedlock are innocent creatures and there
is a Kiswahili phraseology “Kitanda hakizai haramu” which
literally means there are no bastard children though there are
bastard parents.
(v). A child is not culpable for its parent’s shortcomings nor can they
choose the situation they are born into since it is not a child’s
fault to be born in the situation.
Commentary
It is prescribed that a child should be free from any discrimination
regardless of his or her economic status, gender, race, age, religion,
language, political opinion, disability, health status, custom, ethnic
origin, rural or urban background, birth, socio-economic status, being
a refugee or any other status. In the case of Elizabeth Mohamed, it
was held that naming a child born out of wedlock as illegitimate is
a discrimination. A similar position was taken in the case of Judith
Patrick Kyamba where the High Court held that children born out
of wedlock are the biological children just like those born within the
matrimonial home. Thus, they have a right to inherit from their
biological father.
Although in these cases children born out of wedlock were above 18,
the position of the law is the same like it is in respect of a child who
is below 18. The LCA recognises a child as a person below the age
of 18. However, whenever it comes to inheritance a biological child,
regardless of the child’s age, has the right to inherit even if he or she
is above 18 years. It is further worth noting that the provisions of the
Bill of Rights in the Constitution can also be resorted to buttress the
rights of the child in appropriate situations.
12
1.2.3. RIGHT TO PARTICIPATE AND BE HEARD
Sections 11 and 99 (1) of the LCA prescribe for the participation of
children in judicial or administrative proceedings affecting them. It
also empowers children to be able to appoint an impartial person to
represent their views. Finally, the views of these children should be
taken into consideration, as they hold sufficient weight.
Children should have the opportunity to take part in sentencing

procedures against their parent or primary caregiver and if necessary,
should be able to have a legal representative or guardian to give
meaningful effect to their right to participation. Similarly, children
imprisoned with their parents or primary caregivers should have the
opportunity to take part in any administrative decision affecting them.
1.2.4. RIGHT TO BE MAINTAINED

The right to be maintained arises from the duty of a parent or guardian
to maintain a child. The maintenance may include the provision of
necessary needs for survival and development of a child. The case of
Assah A. Mgonja deals with the duty of a father to maintain a child.
This duty is provided under Article 27(2) of the CRC, Article 20(1) of
the ACRWC, section 129 of the Law of Marriage Act, Cap 29 R.E 2019,
section 8(1) and 41 of the LCA.
Case Law 1: Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil

Appeal No. 1 of 2019, High Court of Tanzania at Kigoma (unreported)
Key Issues
Duty of a Juvenile Court to consider financial status of both parents
in maintenance Orders
Summary of the Case

13
Holding
When a court orders maintenance of a child; it should consider the
financial status of both parents of the child, and if they are of the equal
economic status, they should be under equal footing in maintaining
their child.
Case Law 2: Assah A. Mgonja v Elieskia I. Mgonja, Civil

Appeal 50 of 1993, High Court of Tanzania at Dar es Salaam
(Unreported)
Key Issues
(i). The father’s duty to provide the needs of children the and the
impediments of physical or mental health
(ii). When the duty of the father to maintain a child shifts
Summary of the Case

See pages 143-144.
Holding
(i) That, among the needs of children who are incapable of leading
an independent life is the need for adequate and suitable shelter.
(ii) That the duty to provide for the needs of children lies upon
their father unless he is unable to do so, for reasons of physical or
mental ill-health.
Case Law 3: James Mapuga v. Jesca Ntonya, Civil Appeal 12 of

2006, High Court of Tanzania at Dodoma (unreported)
Key Issues
Duty to maintain a child where a child is in custody of another person
14
Summary of the Case
The appellant was the father of a child aged three years. After the
death of the mother of the child, it was agreed in a family meeting that
the Respondent (from maternal side of the child) should remain with
the child. The reasons for this decision were that the Respondent had
milk to feed the little child and the Appellant’s parents were old. After
the child had attained the age of 6 years, the Respondent filed a suit
at Dodoma Urban Primary Court claiming a total of TZS 500,000/=
as compensation for maintaining the said child. The Primary Court
granted the claim but reduced it to TZS 250,000/=. The appellant
was aggrieved by the decision of the Primary Court and appealed to
the District Court of Dodoma. The District Court upheld the amount
awarded by the Primary Court. The appellant was aggrieved by the
decision of the District Court and appealed to the High Court of
Tanzania at Dodoma. One of the issues on appeal before the High
Court was whether the District Court erred in law in not considering
the fact that the Appellant was contributing some money and food for
the up-keeping of his child.
Holding
A man has a duty to maintain his children when they are in his custody
or the custody another person by providing them with accommodation,
clothing, food and education as may be reasonable having regard to
his means and station in life or paying the costs thereof as per section
129(1) of the of Law of the Marriage Act, 1971.
Case Law 4: Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas

v Shabir Gulamabas Nathan, (Civil Appeal No.42 of 2020) [2020]
TZHC 3703; (30 October 2020)
Key Issues
Duty of a father to maintain a child
15
Summary of the Case
See pages 25-26.
Holding
The trial court could have made some orders to the respondent father
duty to maintain his child in respect of costs of living such as health.
Commentary
The case of Assah A. Mgonja and James Mapuga underscore the
primary duty of a father to maintain a child. That duty is provided
under section 129 of the Law of Marriage Act, Cap 29 R.E 2019. These
two cases case were decided before the enactment of the LCA. The
LCA under section 41 places the duty to maintain a child to a parent.
The definition of a parent under the LCA is very progressive since it
widens the scope of the persons who have the duty to maintain a child
unlike under the Law of Marriage Act. Once a parent fulfils the duty
to maintain, automatically a child enjoys a right to be maintained.
The position of the LCA on the duty to maintain and the factors to be
considered by a court when making a maintenance order can be seen
clearly in the case of Denis Elias Nduhiye. Unlike in the case of Assah
A. Mgonja and James Mapuga which place the maintenance duty to
and consider the income of a father, the case of Denis Elias Nduhiye
takes into consideration the income of both parents when considering
maintenance order. On the otherhand, the case of Sajjad Ibrahim
Dharamsi & Ally jAwad Gulamabas stresses on the role of the court
to make an order towards the father of the child on his primary duty
to maintain the child to cover the costs of living even if the custody is
given to another person. That position is provided under section 44 of
the LCA which is the same with the relevant Articles of CRC and the
ACRWC
16
CHAPTER TWO
CHILD IN CONFLICT WITH THE LAW
2.1. INTRODUCTION
Child in conflict with the law is a phrase which deals with any person
who is below the age of eighteen years accused of committing any
criminal offence. The legal protection to children in conflict with the
law has been emphasized since the incorporation of the Bill of Rights
in 1984 within the Constitution of the United Republic of Tanzania,
1977. The Convention of the Rights of the Child, clearly articulate the
manner in which a case of a child who is an alleged offender should
be managed to ensure their full protection and fair trial. This includes
recommendation to state parties to establish a special Juvenile justice
system with specialized juvenile justice institutions; legislation, child
friendly procedures and equip juvenile courts personnel with the
required knowledge and skills to properly handle these cases.5
Tanzania has ratified various international children’s rights treaties6

that provide guidance on dealing with issues of child in conflict
with the law. The United Nations Committee on the Rights of the
Child regularly emphasizes all countries to ensure domestication
of these treaties to facilitate implementation and ensure protection
of children’s rights. Tanzania has demonstrated its commitment in
upholding the human rights of children by domesticating the core
child rights standards in line with the UN Convention on the Rights
of the Child, 1989 and the African Charter on the Rights and welfare
of the Child, 1990 through enacting the Law of the Child Act CAP
13 R.E 2019. The country has taken further steps in developing the
rules that provide standard guidance on practice and procedures to
be followed in managing cases of children7. Part IX of the Law of the
Child Act 8provides protection of children in conflict with the law. It
explicitly addresses issues of jurisdiction, recommendation of social
5 Article 40 of the United Nations Convention on the Rights of the Child 1989.
6 United Nations Convention on the Rights of the Child 1989 and The African Charter on the
Rights and Welfare of the Child 1999,Beijing Rules for Administration of juvenile Justice,
United Nations Guidelines for the Prevention of Juvenile Delinquency, CRC Committee General
Comment No. 10.
7 The Law of the Child (Juvenile Court Procedure) Rules, 2016
8 Law of Child Act Cap 13 Re 2019
17
welfare officer and procedure of the Juvenile Court. In addition, it also
covers age determination, defense, bail, and sentencing.
This chapter includes some cases on criminal responsibility, age

determination, jurisdiction, procedure and sentencing involving a
child in conflict with the law.
2.2. CRIMINAL RESPONSIBILITY

In principle the “age of criminal responsibility” refers to the mental
capacity of children to commit crimes. The international standards
are clear that, there must be an age below which children are not
considered criminally responsible for their acts.9 In Tanzania the
minimum age of criminal responsibility is clearly set out under
section 15 of the Penal Code [Cap 16 Re 2019]. There is a rebuttable
presumption that a child under the age of 12 years is not criminally
responsible and an irrebuttable presumption that a child under 10
years of age is not criminally responsible ( doli incapax principle).
The child who is below the age of criminal responsibility, if he finds
himself in conflict with the law, should be dealt with through child
protection proceedings.
Case Law: MA v. R, Miscellaneous Criminal Application 95 of 1999,

High Court of Tanzania at Mwanza (unreported)
Key Issues
(i). Defence of Immature age under Criminal responsibility
(ii). Incapacity to having sexual intercourse
(iii). Duty to record a special finding
9 Article 40 (3) (a) of the United Nations Convention on the Rights of the Child 1989.
18
Summary of the Case
The accused- a child of nine years old, was charged and convicted on
his own plea of guilty of the offence of rape and contrary to subsections
(1) and (2) of section 130 and subsection 131(2) of the Penal Code [Cap.
16 R.e. 2002]. The district court sentenced him to life imprisonment.
After sentencing the accused, the trial court directed the sentence to
be confirmed by the High Court. Before the court file was taken to
the High Court of Tanzania at Mwanza, the Republic lodged a formal
complaint to the District Registrar with a request that the matter
be brought to the attention of the Judge in-Charge concerning the
illegality of the conviction and sentence passed against the accused.
Appropriate action was taken and the matter was placed before a
High Court judge to be dealt with by way of revision.
Holding
(i). The Law is very clear under section 15 (1) of the Penal Code
[Cap. 16 R.E. 2002] that any person who is charged with any
criminal offence and his/her age is proved to be under the age of
ten years, the Court of Law should find him/her not criminally
responsible for any act or omission.
(ii). The governing principle under section 15 (1) of the Penal Code is
that once a trial court is satisfied on the evidence, or by a general
observation of the person charged, that he/she is under 10 years
of age then it should immediately find the person charged not
criminally responsible for the act or omission he/she is alleged
to have committed. There should be no more proof, nor waste of
time even a minute, to ask whether or not the accused should
proceed to stand the trial.
(iii). Where an accused person is under 10 years, a trial court should
make a special finding to the effect that the accused by reason
of his or her being under 10 years of age is not criminally
responsible for the alleged act.
19
(iv). Where an accused person is charged with a sexual offence courts
are guided by section 15 (3) of the Penal Code and the question
that has to be asked by a trial court is whether the person
charged is a male person, and if he is, whether he is under
the age of twelve years for the Law presumes him incapable of
having sexual intercourse.
Commentary
Lack of criminal responsibility is a defence to all charges facing a child
below the age of criminal responsibility which is 10 years old. The
Penal Code is very clear that any person who is charged with any
criminal offence and his or her age is proved to be under the age of ten
years is not criminally responsible for any act or omission. The case of
MA the High Court underscored above governing principle and said
that where the trial court proved the age of the person to be below
years of criminal responsibility it should immediately find the person
charged not criminally responsible. It was further pointed out that
there neither need for more proof, nor waste of time, to ask whether or
not the accused should proceed to stand the trial.
In the same case it was shown that law presumes a male person less
than twelve years incapable of having sexual intercourse.
2.3. AGE DETERMINATION

Under the LCA where a person appears before the court to be a child
or his claim to be a child is disputed, the court shall make an inquiry
into his or her age.10 The case laws of MMN (Child) and Enoka Bujiku
set principles on the importance of the court to determine the age of
a person who appears to it to be a child. In determining the age, the
court may rely upon different documents as prescribed by the rules.11
Under Rule 12 (c) the information from any primary school attended
by the child as to the birth of the child can be relied upon to determine
the age of the child. In this case of Hassan Kide Kandi the High Court
relied on school pupils register book provided by a head teacher to
ascertain the age of an accused person.
10 Section 113 of the Law of the Child Act and Rule 12 (1) of the Juvenile Court Rules.
11 Rule 12 (2) of the Juvenile Court Rules
20
Case law 1: Hassan Kide Kandi v. R, Criminal Appeal 165 of 2018,
High Court of Tanzania at Mtwara (unreported)
Key Issue
Admissibility of pupils register book to ascertain the age of an accused
person
Summary of the Case

The appellant was convicted of rape and sentenced to 30 years
imprisonment by the trial court on his plea of guilty contrary to section
130 (1) (2) (e) and 131 of the Penal Code [Cap. 16 R.E. of 2002]. When
the charge was read to him for the first time, he remained silent; but
the second time when it was read to him, he pleaded guilty on rape.
According to the charge sheet, the appellant was nineteen years at
the time he committed the alleged offence. The trial court convicted
him of rape. Being dissatisfied with the conviction and sentence, he
appealed to the High Court. His ground of appeal was that the trial
magistrate erred in law and fact in convicting the appellant based on
equivocal plea of guilty. When the appellate judge saw the appellant
during the hearing of the appeal, the appellant looked so young in the
eyes of the High Court. The appellate judge probed the appellant on
his age and the appellant responded quickly he was seventeen-years
old. However, the appellant had no birth certificate to prove his age.
The High Court invoked section 369 of the Criminal Procedure Act
[Cap. 20 R.E., 2002] and recorded additional evidence from the head
teacher of Mkuti Ngome Primary School where the appellant schooled.
According to the school’s Pupils Register book, the appellant attended
Mkuti Ngome Primary school between years 2006 and 2012. He joined
the Primary School at the age of five years and completed standard
seven at the age of eleven years. The Register was submitted to the
High Court whereby the name of appellant was vividly seen and his
year of birth was recorded as 2001. In disposing the appeal, the High
Court found no logic to consider the ground of appeal, but it instead
indulged itself in dealing with the child offender.
21
Holding
(i). Considering the weight of the sentence in this offence, the

prosecution and arresting officers, must be extra careful to
verify the age of the young offenders and subsequently inform
the trial court, the actual and verified age of the accused.
(ii). A school Pupils Register book provided by a head teacher of the
school which the accused was studying is admissible to ascertain
the age of an accused person.
Case Law 2: MMN (Child) v. R, Criminal Appeal 173 of 2019 High
Court of Tanzania at Musoma (unreported)
(Kisanya, J.)
Key issues
(i). Determination of age where age is not stated in the facts
(ii). Mandate of trial court to inquire the age of the accused person
Summary of the Case
The appellant was charged with and convicted of unnatural offence
of a four years old child contrary to sections 154(1) (a) and (2) of the
Penal Code (Cap. 16 R.E. 2002) on his own plea of guilty. After the
charge was read and explained to him, the Prosecution read to him
the facts which he eventually admitted. The Prosecution, during the
preliminary hearing, merely stated the particulars of the accused
were as indicated in the charge sheet without reading them. Later,
the Prosecution tendered before the court a caution statement of the
accused person, his extra judicial statement and PF3 as exhibits. The
trial court read and explained the contents of the caution statement
and extra-judicial statement to the accused whereby the accused did
not object to their admissibility. The trial court convicted and sentenced
him to life imprisonment. Aggrieved by the trial court’s decision, he
appealed to the High Court. The appeal centered on addressing two
questions: (i) whether the appellant’s plea was unequivocal and given
in accordance with the law, and (ii) whether the trial court considered
the age of the accused before sentencing him.
22
Holding:
(i). If an accused pleads guilty, his age must be stated in the facts
apart from being specified in the charge sheet.
(ii). Even where the issue of age is not raised by the prosecution or
the accused person himself, the trial court is mandated to inquire the
age of the accused person whenever the need arises.
Case Law 3: Enoka Bujiku v. R, Criminal Appeal 62 of 2015,

Court of Appeal of Tanzania at Mwanza (unreported)
Key Issue
Importance of age determination on a person who appears to be a
child.
Summary of the Case

The appellant was charged with murder contrary to sections 196
and 197 of the Penal Code [Cap. 16 R.E, 2002]; but he pleaded guilty
to the lesser offence of manslaughter. The trial court convicted
him accordingly and sentenced him to serve a term of twenty years
imprisonment with corporal punishment of twenty-four strokes.
Aggrieved by the trial court’s decision; he appealed to the Court of
Appeal contending that he was below 18 years old at the time of the
commission of the offence.
Holding
It is important for the trial court to put special attention when
encountering a case involving a person appearing as a child, since age
of the young offender has great impact to delivery of justice.
23
Case Law 4: Elizabeth Michael Kimemeta alias Lulu v R,
Miscellaneous Criminal Application 46 of 2012, High Court of Tanzania
at Dar es Salaam (unreported)
Key issues
Circumstances when and where age determination can be done
Summary of the Case

The applicant was arraigned for committal proceedings at Kisutu
Resident Magistrates’ Courts in PI No. 1 of 2012 for murder. The
applicant`s counsels applied to the committing court for an order to
stay the proceedings and commit the applicant to the Juvenile Court
by the virtue of sections 100(2) and 113(1) of the Law of the Child
Act, 2009. The Kisutu Court Resident Magistrate’s Court held, inter
alia, that, it had no jurisdiction to entertain the application and that
“If the accused has any application to make, the same be made to
the High Court of Tanzania.” Aggrieved by the decision of the Kisutu
Resident Magistrate’s Court, the applicant applied to the High Court
to determine whether the applicant was entitled to be treated as a
child and be afforded with protections under the Law of the Child Act,
2009.
Holding
(i). Wherever a person is brought before any court for any legally
acceptable purpose except for giving evidence, section 113 (1) of
the Law of the Child Act, 2009 can be invoked and present such
a person in any court, at any time, requesting that an enquiry
on the age of that person to be done, so long as the court is one
of those envisaged by the Act.
(ii). Section 113(1) of the Law of the Child Act, 2009 may apply even
where there are no proceedings pending in a particular court
provided that a person seeking such age determination must
satisfy the court that he is not a mere busy body and that the
application is made for good purpose.
24
(iii). Where a decision has been made by a lower court and the
aggrieved party files the same application to the High Court to
determine the age of a person in certain proceedings, the High
Court can only do that in the course of such proceedings, which
must be pending in the High Court as per section 100(2) the
Law of the Child Act, 2009.
Commentary
The preceding cases above show child law recognizes importance of
the court to determine the age of a person charged with an offence
or who is bought before any court for any purpose except for giving
evidence. In MMN (Child) the High Court highlighted that the trial
court is mandated to inquire into the age of the accused person even
where the issue of age is not raised by the prosecution or accused
himself. In determining the age of a person who appears to be a child,
the High Court in the case of Hassan Kide Kandi highlighted the
evidences which are admissible to proof age of the child.
In Elizabeth Michael Kimemeta, the DPP was dissatisfied with the

Ruling by the High Court and applied for revision to the Court of
Appeal. The Court of Appeal of Tanzania .The Court of Appeal did
not address the merits of the case before the High Court. It found
that the High Court was improperly moved because the application
before the High Court was based on wrong citation of the applicable
legal provisions in the application for revision. The Court of Appeal
quashed the proceedings before the High Court and then remitted the
case to Kisutu Resident Magistrate’s Court for committal proceedings.
The editorial team considers the Ruling important on interpretation
of section of 113(1) of the LCA.
2.4. JURISDICTION
Under section 98(1) of the LCA the juvenile court has jurisdiction
over criminal cases against a child over the minimum age of criminal
responsibility. Sections 103 and 104 of the LCA stipulate that it also
has jurisdiction over committal hearings in relation to offences for
which the High Court has original jurisdiction. The issue of a proper
court to hear and determine criminal charges against a child was well
addressed in the below cases.
25
Case Law 1: Furaha Johnson v R, Criminal Appeal 452 of 2015
Court of Appeal of Tanzania at Arusha (unreported)
Key Issue
Juvenile Court Jurisdiction
Summary of the Case

On 27th September, 2010, the appellant appeared before the District
Court of Moshi to answer a charge of rape. According to the charge
sheet, he was seventeen years old. After full trial he was convicted
and sentenced to life imprisonment. His appeal against conviction and
sentence to the High court was not fruitful. The appellant appealed
to the Court of Appeal challenging the courts below on conviction and
the sentence imposed. The arguments before the Court of Appeal were
that the trial Court clothed itself with the jurisdiction it did not have
of trying, convicting and imposing an illegal sentence on the child
appellant.
Holding
(i). The District Court of Moshi which tried the appellant is not a
Juvenile Court
(ii). Since the appellant at the time of his arraignment and trial was
a child, he was not triable by the district court, but a Juvenile
Court.
(iii). The trial court, therefore, lacked jurisdiction ratione personae to
try the appellant
26
Case Law 2: Amos Robare alias James v. R, (Criminal Appeal
401 of 2017) [2021] TZCA 130; (23 April 2021)
Key Issue
Jurisdiction of a Juvenile Court
Summary of the Case

The appellant was charged with and convicted of the offence of
unnatural offence by a district court contrary to section 154(1) and (2)
of the Penal Code. The trial court sentenced the appellant to a prison
term of thirty years. Aggrieved by the decision, he unsuccessfully
appealed to the High Court, hence his appeal to the Court of Appeal.
At the Court of Appeal, the senior state attorney supported the appeal
on point of law that the trial court which tried the appellant had no
jurisdiction and did not comply with the provisions of LCA because at
the time of the commission of the offence the accused was 17 years old
and the LCA was already in force. She further argued the records also
showed that the accused was 17 years when he testified before the
trial court. On appeal to the Court of Appeal, the Republic therefore
contended that the proceedings before the trial court were a nullity.
Holding
In the light of the clear provisions of the LCA , District Court of
Serengeti had no jurisdiction to entertain the case against the child.
Case Law 3: Charles s/o Jackson v. R, (HC Criminal Case No

273 of 2017) [2018] 1; (21 February 2018)
Key Issue
Meaning of a Juvenile Court as opposed to a District Court
27
Summary of the Case
The appellant was charged with and convictedof rape at the District
Court of Musoma contrary to subsection 130 (1) and (2) of the Penal
Code Cap 16 R.E 2002 and preventing a school girl from attending
school regularly contrary to section 4(2) of GN 280/02 read together
with section 35(3) and 4 of the Education Act, Cap 353 R.E 2002. He
was convicted and sentenced to 30 years imprisonment in respect of
the first offence and 5 years in respect of the second offence. He was
also ordered to pay fine to the victim at the tune of Tsh 500,000/. It
was alleged that the appellant was 16 years when he committed the
offence a secondary school girl aged 17 years. The punishment of the
first offence was based on the assumption that a girl under 18 years
cannot give consent to a male for sexual intercourse.
Holding
In terms of section 98 of the Law of Child Act, Cap 13 R.E 2019, the
appellant was supposed to be tried by a juvenile court and in accordance
with the procedure governing it.
Case Law 4: Joseph Lazaro and 2 Others v. R, Court of Appeal of

Tanzania at Mwanza 118 of 2014, (unreported)
Key Issues
Jurisdiction of a Juvenile Court
Summary of the Case

The appellants, who were two adults and a 16-year old boy, were
charged with four counts before the Bunda District Court. The first
count was on entering in a National Park without permit contrary to
section 21 of the National Parks Act. They were convicted and sentenced
to pay fine to the tune of 20,000/= or 6 months’ imprisonment in case
of failure to pay the fine. The second count was being in unlawful
possession of weapons in a National Park contrary to section 24 of the
National Parks Act read together with paragraph 14(c) of the First
Schedule to the Economic and Organised Crimes Act [Cap. 200 R.E.
2002]. On the second count, they were convicted and sentenced to
28
pay TShs. 30,000/= or to serve a one year-imprisonment in default
thereof. In the third count of unlawful hunting in the National Park
contrary to section 23(1) of the National Parks Act read together
with paragraph 14 (a) of the Economic and Organised Crimes Act,
they were sentenced to a three years’ imprisonment each. As for the
fourth count of unlawful possession of government trophies contrary
to sections 86(1) and (2)(b) of the Wildlife Conservation Act read
together with the provisions of the Economic and Organised Crimes
Act, the appellants were sentenced to 20 years imprisonment each.
The appellants unsuccessfully appealed to the High Court, consequent
to which they appealed to the Court of Appeal on grounds that the
prosecution case was not proved beyond reasonable doubt; that the
lower courts did not consider the defence cases, and that one of the
appellants’ age was not considered.
Holding
The Law of the Child Act, 2009, is applicable to all trials relating to a
child. Section 98(1) of the Act establishes the Juvenile Court, which
has jurisdiction to hear and determine criminal charges against a child
Editorial Note
The Court of Appeal in Joseph Lazaro and 2 Others misdirected itself
under section 100 (1) of the LCA it is that when a juvenile offender
commits a crime with adults, the juvenile court has no jurisdiction to
entertain the case.
Case Law 5: Hassan Kide Kandi v. R, Criminal Appeal 165 of 2018,

High Court of Tanzania at Mtwara (unreported)
Key Issue
Jurisdiction of a juvenile court
29
Summary of the Case
The appellant was convicted of rape and sentenced to 30 years
imprisonment by the trial court on his plea of guilty contrary to section
130 (1) (2) (e) and 131 of the Penal Code [Cap. 16 R.E. of 2002]. Once
When the charge was read to him at for the first time, he remained
silent; but, at the second time when it was read to him, he pleaded
guilty on rape. According to the charge sheet, the appellant was
nineteen years at the time he committed an the alleged offence. The
trial court convicted him of rape. Being dissatisfied with the conviction
and sentence, he appealed to the High Court. His ground of appeal
was that the trial magistrate erred in law and fact in convicting the
appellant based on equivocal plea of guilty. When the appellate judge
saw the appellant during the hearing of the appeal, the appellant
looked so young in the eyes of the High Court. The appellate judge
probed the appellant on his age and the appellant responded quickly
he was seventeen-years old. However, the appellant had no birth
certificate to prove his age. The High Court invoked section 369 of the
Criminal Procedure Act [Cap. 20 R.E., 2002] and recorded additional
evidence from the head teacher of Mkuti Ngome Primary School where
the appellant schooled. According to the school’s Pupils Register book,
the appellant schooled at Mkuti Ngome Primary school between years
2006 to and 2012. He joined the Primary School at the age of five years
and completed standard seven at the age of eleven years. The Register
was submitted to the High Court whereby the name of appellant was
vividly seen and his year of birth was recorded as 2001. In disposing
the appeal, the High Court found no logic to consider the ground of
appeal, but it instead indulged occupied itself in dealing with the child
offender.
Holding
Section 98(1) of the law of the Child Act expressly vests jurisdiction in
the Juvenile Court to determine child matters even in criminal cases.
30
Commentary
The two cases demonstrate the provision on jurisdiction where the
offender is a person below the age of eighteen. The LCA clearly
provides that the juvenile court has power to hear and determine
criminal charges against a child. The Court of Appeal in Furaha
Johnson highlighted that since the appellant was a child, the trial
court with jurisdiction was a Juvenile Court. It further indicated that
lack of jurisdiction to try the appellant renders the trial a nullity. In
Hassan Kide Kandi the High Court pointed out that law of the child
expressly vests jurisdiction in the Juvenile Court to determine child
matters even in criminal cases.
2.5. PROCEDURE
The procedure of conducting proceedings by the juvenile Court is
addressed under section 99 (1) of the LCA that it shall be in accordance
to the JCR . The rules set specific procedures which the court should
adhere to during the criminal proceedings where a child capable of
committing a crime is against the penal law. These rules shall be
informed by the general conditions prescribed in the Act.12 Amongst
the conditions, the proceedings are to be held in camera and that
the presence of a social welfare officer in the criminal proceedings is
mandatory. The cases of Amos Robare and Furaha Johnson deal with
procedures of conducting proceedings by the juvenile Court.
12 Section 99(1) of the law of the Child Act Cap 13 Re 2019
31
Case Law 1: Furaha Johnson v R, Criminal Appeal 452 of 2015
Key issues
Presence of a social welfare officer in all hearings in trials involving
children
Summary of the case

See page 60 above.
Holding
The conduct of the trial in the absence of a social welfare officer would
have equally rendered the trial a nullity.
Case Law 2: Amos Robare aliasJames v. R, (Criminal Appeal 401

of 2017) [2021] TZCA 130; (23 April 2021)
Key Issues
children in conflict with the law
Summary of the Case

See page 61.
Holding
The presence of a social welfare officer in the trial proceedings is a
mandatory requirement for a valid criminal proceeding against an
accused child pursuant to section 99(1) (d) of the Law of the Child Act,
2009
32
Case Law 3: R v. Majuto Ngailo, Criminal Case 19 of 2014, High
Court of Tanzania at Njombe (unreported)
Key Issues
children
Summary of the Case

The accused person was facing a murder charge contrary to section 196
of the Penal Code [Cap 16 Re 2002]. It was alleged that the accused
person killed his biological father. In the fateful day, the deceased
was in the kitchen together with his wife and their two grandchildren
getting supper. Suddenly, two unidentified men stormed inside their
house, slapped the deceased’s wife and ordered her with the little
ones to go outside leaving behind the deceased and intruders. The
assailants brutally attacked the deceased and wounded him in his
head which led to his sudden death. It was alleged that the accused
killed the deceased because the deceased was about to sacrifice him
on witchcraft grounds. Hence the accused organized with his friend to
get rid of the deceased. At the trial before the High Court issues arose
on how to deal with a child who was facing a murder charge and the
admissibility of the extrajudicial statement.
The trial the court reverted to issues of whether facts contained in

extrajudicial statement are reliable as evidence that can be used
against the child accused.
Holding
(i). In a murder charge against a child, it is important to ensure
the participation of a social welfare officer in the trial in order
to safeguard the best interest of the accused child pursuant to
section 4 of the Law of the Child Act, 2009.
(ii). An accused person who is a child is not capable by reasons of
his age, physical and mental immaturity to make a statement
in his own before the police or a justice of peace in absence of a
parent, guardian, relative or a social welfare officer.
33
Commentary
The procedure of conducting proceedings by the juvenile Court
is enshrined by the law of the child. The cases above indicate the
importance of social welfare Officer’s participation in a trial involved
a child offender. In Majuto Ngailo the High Court highlighted the
importance of participation of the social welfare officer in insuring
the best interest of the child. The GN 154 of 2021 provided for the
adoption of the JCR to the proceedings in the High Courts. Yet this is
a good case to refer to as it highlights the best procedural issues which
are well stipulated under the relevant laws. In Furaha Johnson it
was held that the absence of social welfare officer during the criminal
proceedings of a child offender rendered the trial a nullity. The
requirement of presence of a social welfare officer is mandatory under
the Law of the Child Act.
2.6. SENTENCING
In juvenile justice system sentences aim at rehabilitating the young
offenders. When sentencing juvenile offenders, multiple principles
should be borne in mind such as proportionality, the welfare of the
child, protecting the best interest of the child, the need to maintain and
strengthen family relationships, least restrictive punishment (Article
37, UNCRC) and the accounting factors that attributed a child’s
offending behaviours. The law of the Child Act and the Rules provide
for permissible sentences that embrace principles of sentencing. The
provided sentences are probation orders, conditional discharge, a
repatriation order, fine, compensation and cost, or committal to the
approved school.
34
Case Law 1: Joseph Lazaro and 2 Others v. R, Court of Appeal of
Tanzania at Mwanza 118 of 2014, (unreported)
Key Issues
(i). Permissible sentences to a convicted child
(ii). Sentence of imprisonment to a convicted child
Summary of the Case

See pages 63-64.
Holding
(i). Imprisonment of a child is illegal as it is not authorized by the
provisions of section 119 of the Law of the Child Act, 2009.
(ii). Under the Law of the Child Act, 2009, the only permissible
punishments on a convicted child are a discharge, a repatriation
order, a custody order to a fit person or institution, or committal
to the approved school.
Case Law 2: MMN (Child) v. R, Criminal Appeal 173 of 2019

High Court of Tanzania at Musoma (unreported)
Key Issue
Proper sentence to a child offender
Summary of the Case

See pages 54-55.
Holding
(i). The Law of the Child Act, 2009, (Act No 13 of 2009) overrides
other laws when it comes to issues relating to children; and,
so, where a child has been charged with a sexual offence, the
determination of the age of the accused child is important
because age has implication on the sentence to be imposed.
35
(ii). Where the age of an accused person is not determined before
sentencing, for the interest of justice, the case may be returned
to the trial court for inquiry on the age of the accused and pass
sentence.
Case Law 3: Charles s/o Jackson v. R, (HC Criminal Case 273 of

2017) [2018] 1; (21 February 2018)
Key Issue
Custodial sentence on child offenders
Summary of the Case

The appellant was charged with and convicted of rape in the District
Court of Musoma contrary to subsections (1) and (2) of section 130 of
the Penal Code Cap 16 R.E 2002 and preventing a school girl from
attending school regularly contrary to section 4(2) of GN 280/02 read
together with section 35(3) and 4 of the Education Act, Cap 353 R.E
2002. He was convicted and sentenced to 30 years imprisonment in
respect of the first offence and 5 years in respect of the second offence.
He was also ordered to pay fine to the victim at the Tsh 500,000/. It
was alleged that the appellant was 16 years when the offence was
being committed to a girl of a secondary school aged 17 years. The
punishment of the first offence based on the assumption that a girl
under 18 years cannot give consent to a male for sexual intercourse.
Holding
(i). The proceedings leading to the conviction of the appellant and
its sentence were illegal and thus null and void.
(ii). The punishment of the custodial sentence was supposed to be
the last resort according to the appellant’s age.
36
Case Law 4: Betekeye Bulinjie v. R, Criminal Appeal 151 of 1990
Key issue
Consideration of age of the child offender
Summary of case
The appellant, when he was a minor, shot his brother and terminated
his life. The High Court convicted him with the offence of murder and
sentenced him to death. Aggrieved by the decision of the High Court;
he appealed to the Court of Appeal. In dispensation of justice, the
Court of Appeal considered whether the punishment awarded by the
High Court was proper to the appellant.
Holding
Where an offender was under 18 years at the time of the commission
of the offence of murder, in sentencing the accused the High Court
should have reference to the age of the offender at the time of the
commission of the crime rather than the time of sentencing.
Commentary
Child Law has prescribed the sentencing principles when dealing with
a child in conflict with law. In Betekeye Bulinjie, the Court of Appeal
took note of the of the offender’s age at the time of the commission
of the crime and not at the time of sentencing. It also provides for
various types of sentences to be imposed to a child in conflict with
the law. In Joseph Lazaro and 2 others, imprisonment of a child
was illegal as it is forbidden bythe Law of the Child Act, 2019. The
permissible punishments on a convicted child are probation orders,
conditional discharge, a repatriation order, fine, compensation and
cost, or committal to the approved school.13
13 Section 116,120 and 118 of the Law of the Child Act Cap 13 Re 2019 and Rule 51, 52, 53 and 55
of the Juvenile Court Procedure Rules 2016.
37
CHAPTER 3
CHILD PROTECTION IN CRIMINAL
PROCEEDINGS
3.1. INTRODUCTION
Children become victims of crime through child abuse in terms of
physical sexual and psychological abuse. The overriding principle in
treatment of children who are victims of crime are paying paramount
consideration on the best interest of the child, non-discrimination,
participation, and protection of their right to life, survival and
development. All these are centered in ensuring the protection and
welfare of the child.14 This chapter highlights several cases in which
children are involved in criminal law as victims of crime.
3.2. OFFENCES RELATED TO BREACH OF DUTY OF CARE:

MANSLAUGHTER
Criminal law creates specific offences relating to duty of care to other
persons. Section 195 (1) 15 of the Penal Code creates the offence of
manslaughter caused by unlawful omission amounting to culpable
negligence. The question of failure to exercise duty of care towards
children is considered by looking at the following three cases where
children died because of unlawful omission
Case Law 1: R v. Chepe Kalangali [1973] LRT No 77
Key Issue
Duty of care towards a toddler
14 Morgan J and Zedner L Child Victims: Crime, Impact and Criminal Justice, Oxford: Clarendon
Press, 1992, p 5. See sections 4(2), 5 and 13 of the LCA.
15 Penal Code [Cap 16 Re 2019].
38
Summary of the Case
The deceased was child aged between 1 ½ and 2 years old. On the
material day, the accused took the child from his wife because the
accused’s wife was going to report him that he had assaulted her. The
child was, on the next day, found in the river already dead. On the
night that the accused took the deceased from his mother, it rained
heavily. Besides, the deceased was suffering from pneumonia few days
before his disappearance from the accused. According to post-mortem
examination the deceased was suffering from Broncho-pneumonia.
The accused was charged with the offence of manslaughter contrary
to section 195 of the Penal Code.
Holding
(i). A person who has the custody of a child of tender age who had
just started walking has a duty to take care that the child does not
leave the house in which such child is staying and wander about to his
detriment.
(ii). A father who is in charge of a sick child of tender age but refuses
to surrender the child to its mother has a duty to take care of that
child in every respect.
Case Law 2: Bisege Mwasomola v. R, Criminal Session Case 3 of

2006, High Court of Tanzania at Mafinga (unreported)
Key Issue
Gross negligence of teachers
Summary of the Case

The accused, a headmaster of a primary school, announced in a
parade of pupils and in the presence of members of teaching staff
that on the following day some pupils should come with utensils for
the purposes of carrying sand somewhere away from the school. The
sand was to be used as building material by masons who were at that
time constructing class rooms and a staff room of that primary school.
The pupils complied with this directive. More than 500 pupils went
to collect sand. However, when the pupils arrived at the scene, they
39
did not find any heap of collected sand as they were told. The pupils
entered into the gully which was about 9 feet deep and started to
dig sand using sticks. Soon thereafter, the gully collapsed and some
pupils were trapped. Eight pupils died on the spot and another died
when he was being rushed to a dispensary. The accused was charged
with the offence of manslaughter of the nine pupils who died on that
fateful day. The prosecution case was that the accused let the pupils
to go to collect sand without an appropriate or adequate supervision.
The prosecution stated that those deaths could have been prevented
if the accused had provided or ensured adequate supervision and
care of the pupils. The prosecution concluded its case by stating that
pupils were prohibited by law from engaging in such tasks at schools.
According to the defence case, the accused directed some teachers to
supervise pupils at the gorge on that fateful day although none of
the teachers went there. One of the teachers was a master on duty
who was initially jointly charged with the accused for manslaughter
but was later discharged on a nolle prosequi. The accused directed
the head prefect who was in grade seven to supervise safe passage
of his fellow pupils at a bridge. The head prefect complied with the
instructions. Furthermore, the defence stated that the pupils were
not expected to enter into the gorge because the sand was not in the
gorge but out of it.
Holding
(i). A child, by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal
protection. This requirement is a universal obligation arising
from the International Convention on the Rights of the Child,
1989 and to which entered Tanzania is a signatory.
(ii). Whether or not there is a law which prohibits the use of pupils
in labour works, the primary consideration should be the best
interests of the child. That is the minimum standard under
which we shall not allow ourselves to descend.
(iii). Since pupils are mentally immature and their mental faculties
will not stop to take them to spots that mature persons cannot
dare go, they can only be restrained by a supervisor and in case
of pupils, their teachers.
40
(iv). It is a reckless act or gross negligence to direct a large number
of pupils to collect sand from a gorge without supervision.
(v). Where there is a wilful neglect of pupils by teachers who had
been instructed by their head teacher, the head teacher cannot
shoulder responsibilities of those teachers because the principle
of vicarious liability does not apply in criminal law to the extent
that omission of other teachers subordinate to the head teacher
would be inferred on him.
Case Law 3: R v Projesstus Fidelis Mugalula alias Porojo and 3 Others,

Criminal Session 16 of 2009, High Court of Tanzania at Tabora
(unreported)
Key Issue
Breach of duty of care and protection of children
Summary of the Case

On the material day, when discos were being played in two disco halls
located in one premise in Tabora Municipality during the Eid El Fitr
celebrations, several children fell down, others fainted. The disco halls
were full of people. People inside the halls were stamping on each
other. The atmosphere in the halls was too hot. Some children became
unconscious and were rushed to the hospital for treatment. Nineteen
children died while getting treatment at the Tabora Regional Hospital.
According to medical findings, the deaths of those children was
suffocation. The four accused persons stood charged with 19 counts of
manslaughter contrary to section 195 of the Penal Code [Cap. 16 R.E.
2002]. The first and the second accused persons were the owners of the
disco halls while the third accused person was the owner of a night
club. The fourth accused person was the organiser of the disco event
for children on the material day of the incident. At the end of their
trial before the High Court, all the accused persons were convicted of
multiple counts of manslaughter.
41
Holding
Since children belong to the most vulnerable group in the society by
virtue of their age, little ability and stamina to withstand bad and hot
conditions or places where there is “insufficient air”, they really need
extra care.
Commentary
These three cases demonstrate the fact that general criminal law
imposes duties of care towards children as a vulnerable group. The
case of Chepe Kalangali indicates that failure to exercise parental
duty of care towards a toddler may constitute manslaughter.
Leaving a toddler unattended constitutes culpable negligence. In
Bisege Mwasomola the High Court highlighted the importance of
teachers providing special safeguards and care whenever children
are directed to undertake labour works to spots where even mature
persons cannot risk to go. In Projesstus Fidelis Mugalula it was shown
that since children belong to the most vulnerable group in the society,
it is important that occupiers’ of premises where social events are
organized should ensure that their premises are well ventilated.
3.3. OFFENCE OF RAPE

Rape is an offence that principally affects women and children.16 It is
committed whenever a male person has sexual intercourse with a girl
or woman without her consent or where the victim is deemed incapable
of consenting.17 The Penal Code catalogues different circumstances
that give rise to the commission of the offence of rape. 18 There are
numerous cases addressing different aspects of the offence of rape
toward child victims.
16 Section 130 (1) of the Penal Code [Cap 16 Re 2019]

17 Section 130 (2)
18 Section 130 (2)
42
Case Law 1: Paulo Nuru Mgonja v. R, Criminal Appeal 190 of 2012,
Key issues
Consent is immaterial in statutory rape
Summary of the Case

A victim child aged 9 years and M went for prayers at the pastor’s
house (the appellant). While in the house there was a time when
M went out leaving behind the victim and the appellant who was a
pastor of a church. Then the appellant told the victim to lie down, took
out her pants, pushed her skirt up, applied baby care jelly, lied on top
of her and inserted his penis into her vagina and into her anus. The
victim painfully screamed but no one came for her rescue. Thereafter,
the victim informed her mother about her ordeal. The incident was
reported to the Police. The accused was charged with the offence of
rape at the District Court where one of the witnesses, the victim’s
mother testified that the victim was 9½ years old and was born in
1996 without mentioning the exact dates and month of the victim’s
birth. The accused was convicted and sentenced to life imprisonment.
Aggrieved by the decision of the District Court, he unsuccessfully
appealed to the High Court. He appealed further to the Court of Appeal
against the decision of the High Court on grounds that the prosecution
witnesses were not credible and there were material contradictions in
the prosecution case against him.
Holding
(i). In law, the essence of rape is premised around: (a) lack of consent
in the case of adult or with or without consent in the case of a
victim below the age of 18, and (b) penetration. In case of the
child, it is immaterial whether or not there was consent.
(ii). Where there is no evidence about the exact birth date of a child
victim, the benefit of doubt must be given to the accused in
determining the sentence.
43
Case Law 2: Moses Sanjinto v. R, Criminal Appeal 64 of 2016,
Court of Appeal of Tanzania at Dodoma (unreported)
Key Issue
Consent is immaterial in statutory rape
Summary of Case
The appellant was charged with the offence of rape under sections
130(1) and (2) (a) and 131(1) of Penal Code, Cap. 16 R.E. 2002. After
a full trial the appellant was convicted and sentenced to 30 years
imprisonment. He was dissatisfied with the conviction and sentence
and he appealed to the High Court but his appeal was dismissed
in its entirety. Aggrieved with the first appellate court’s decision,
he appealed to Court of Appeal. Two grounds were advanced. One,
the sentence of 30 years imprisonment imposed on him was illegal
because at the material time of the offence he was aged 18. Two, the
appellant’s conviction was founded on the charge which was defective.
Holding
In rape cases when the victim is a girl under the age of 18 years, it is
immaterial whether there was consent or not.
Case Law 3: Hassan Mwambaga v. R, Criminal Appeal 47 of 2010,

High Court of Tanzania at Mbeya (unreported)
Key Issue
“Consensual” sexual intercourse with a girl of tender age whether a

defence to a charge of rape
Summary of the Case

The appellant had carnal knowledge with a girl of 9 years old at
Mabanda area within Mbarali District in Mbeya Region. He was
charged before Mbarali District Court with the offence of rape contrary
to sections 130 and 131(2) of the Penal Code (Cap. 16 R.E. 2002. He
44
was convicted and sentenced to 30 years imprisonment. He appealed
to the High Court on the grounds that the case against him was not
proved beyond reasonable doubt.
Holding
A sexual intercourse with a girl of tender age, even if it is consensual,
is a commission of offence of rape.
Commentary
While consent is a valid defence to a charge of rape, a female child
is deemed incapable of giving valid consent. It is an offence to have
sexual intercourse with a female child whether or not there was a
consent.19
3.4. PROCEDURE
Criminal procedure governs the mode of conducting criminal trials
including those of child victims of crime. There are various rules of
procedures established to ensure fairness of criminal trials. Courts
have addressed certain procedural aspects ranging from preparation
of charges and conducting proceedings in camera. These procedures
are provided in both the JCR and the Criminal Procedure Act.
Case Law 1: Moses Sanjinto v. R, Criminal Appeal 64 of 2016,

Court of Appeal of Tanzania at Dodoma (unreported)
Key Issues
Citation of specific statutory provisions creating the offence in the
charge sheet
19 Section 130 (2) (e) of the Penal Code
45
Summary of the Case
The appellant was charged with the offence of rape under sections
130(1) and (2) (a) and 131(1) of Penal Code, Cap. 16 R.E. 2002. After
the full trial the appellant was convicted and sentenced to 30 years
imprisonment. He was dissatisfied with the conviction and sentence
and he appealed to the High Court but his appeal was dismissed in
its entirety. Aggrieved with the first appellate court’s decision, he
appealed to Court of Appeal. Two grounds were advanced. One, the
sentence of 30 years imprisonment imposed to him was illegal because
at the material time of the offence he was aged 18. Two, the appellant’s
conviction was founded on the charge sheet which was defective.
Holding
(i). Where the victim is under age of 18 years, the accused should be
charged under section 131(2) (e) of Penal Code which applies to
a statutory rape.
(ii). When a person charged under the provision which specifies
a different type of rape, the specific provisions dealing with a
particular category of rape should be cited in the charge sheet,
otherwise the infraction prejudiced the person because he was
denied the right of preparing his defence based on the proper
description of the offence charged with.
46
Case Law 2: Joseph Leko v. R, Criminal Appeal 124 of 2013, Court of
Appeal of Tanzania at Arusha (unreported)
Key Issues
Failure to cite specific provisions relevant provisions dealing with
statutory rape
Summary of Case
Holding
(i). Since consent is immaterial where a victim of rape is under
the age of eighteen years, an accused person should be charged
under section 130 (2) (e) of the Penal Code [Cap 16 Re 2002]
instead of section 130 (2) (b).
(ii). An omission to cite section 130 (2) (e) of the Penal Code [Cap 20
Re 2002] in a charge sheet is curable under section 388 (1) of the
Criminal Procedure Act [Cap 20 Re 2002] if the age of the victim
is disclosed in the course of the prosecution case.
Case Law 3: Jamali Ally Salum v. R, Criminal Appeal 52 of 2017

Court of Appeal of Tanzania at Mtwara (unreported)
Key Issue
Wrong citation of statutory provisions dealing with specific rape
Summary of Case
The appellant was charged with, and found guilty of, rape of his 12
year old niece contrary to sections 130 and 131(1)(e) of the Penal Code
(Cap. 16 R.E. 2002).The trial magistrate sentenced the appellant to
serve thirty years in prison. Aggrieved by the outcome of trial court,
the appellant appealed to the High Court which dismissed his appeal.
Still aggrieved, he appealed to the Court of Appeal whereby the appeal
was disposed by determination of two issues. The first issue related to
47
the failure by the prosecution to cite section 130(1), (2) (e) and 131(2) of
the Penal Code in the charge sheet. The second issue was the probity
of the evidence of the 12-year-old victim of rape and whether such
evidence could sustain the conviction for rape against the appellant.
Holding
(i). If the particulars of an offence informed the appellant the date
of its commission, the place and nature of the offence, the name of the
victim and her age; the appellant cannot be said to have been in any
way distracted by the defective citation of the applicable provisions of
the Penal Code [Cap. 16 R.E. 2002].
(ii). Where the particulars of an offence sufficiently informed the
appellant on the nature of the charge he is facing, a defect in the
statement of the offence is curable under section 388 of the Criminal
Procedure Act [Cap. 20 R.E. 2002].
Case Law 4: Eliah Bariki v. R, Criminal Appeal 321 of 2016, Court of

Key Issues
Requirement of in camera proceedings where the victim of rape is a
child of tender age
Summary of Case
The appellant was charged with an offence of rape contrary to sections
130(1) and (2)(e) and 131 (3) of the Penal Code (Cap. 16 R.E. 2002) as
amended by Act, No. 19 of 2007. The accused was charged for raping a
girl who was 8 years old. The trial was not conducted in camera. At the
end of the prosecution case, the trial district court was satisfied that
the prosecution case had been proved beyond reasonable doubt. The
conviction was based mainly on the uncorroborated evidence of the
victim. The appellant was sentenced to life imprisonment. On a second
appeal to the Court of Appeal, the appellant contended, inter alia,
that the conviction was based on unreliable evidence of the victim and
there were irregularities in the proceeding for trial was not conducted
in camera contrary to section 186 of the Criminal Procedure Act.
48
Holding
The legal requirement that proceeding to be conducted in camera is
meant to protect victims of rape rather than the alleged perpetrator.
Commentary:
Courts have addressed important procedural aspects in order to
ensure child protection. In cases such as Moses Sanjinto, Joseph Leko,
Jamali Ally Salum and Eliah Bariki have refused to allow accused
persons to rely on procedural irregularities to escape criminal liability.
JCR applies also to child victims.
3.5. EVIDENCE
Evidence law regulates the mode in which a child as a victim of crime
typically appears in courts as a witness to give testimony, and the
weight of evidence of to be accorded to such evidence.
Case Law 1: Robert Andondile Komba v. DPP, Criminal Appeal

465 of 2017, Court of Appeal of Tanzania at Mbeya (unreported)
Key Issues
Proof of age of the victim child in statutory rape
Summary of the Case

The appellant was charged with and found guilty of rape of a 14 years
old girl contrary to sections 130 (1) (2) (e) and 131 (1) of the Penal Code
(Cap. 16 R.E. 2002). The charge sheet indicated the age of the victim
to be 14 years. The Police Form No. 3 (PF3) similarly recorded the age
of the victim as 14 years. The trial court accepted the age of the victim
as indicated in the charge sheet and the PF3 to be the actual age
of the victim. Hence the trial court sentenced the appellant to serve
thirty years in prison. On a further appeal to the Court of Appeal,
the appellant faulted the High Court for refusing to hold that DNA
test results is the best evidence of rape. Besides, the Court of Appeal
raised suo motu the issue of proof of age of the girl victim.
49
Holding
(i). In case of a statutory rape, age is an important ingredient of the
offence which must be proved.
(ii). It is a trite law that citation in the charge sheet relating to the
age is not the evidence of the person’s age.
Case Law 2: Rutoyo Richard v. R, Criminal Appeal 114 of 2017,

Key Issues
(i). The burden of proof of age of the victim child
(ii). Police Form No. 3 as proof of age of child victim
Summary of the Case

The appellant was charged with and convicted of the offence of rape
contrary to sections 130 (1) and (2) (e) of the Penal Code [Cap. 16 R.E.
2002]. In the particulars of the offence in the charge sheet, it was
stated that the appellant had carnal knowledge of a girl aged fifteen
years. He was convicted and sentenced to serve a statutory minimum
sentence of thirty years’ imprisonment. After unsuccessfully appealing
to the High Court, the appellant appealed to the Court of Appeal. The
issue before the Court of Appeal was whether the charge of statutory
rape was valid without proof of the age of the victim.
Holding
(i). For an offence of statutory rape to stand under section 130 (1)
and (2) (e) of the Penal Code [Cap 16 RE 2002], it must be proved
by the prosecution side that the victim was below eighteen years
old
(ii). The particulars given by the victim or provided in the Police
Form No. 3 (PF3) are insufficient to prove the age of the victim.
50
(iii). Cogent evidence relating to the age from the victim, parent,
close relative, close friend, a teacher of school where the victim
was schooling or any person who knew well the victim is critical
in cases of statutory rape.
(iv). The offence of statutory rape cannot stand where the age of the
victim, which is one of the crucial ingredients of the offence, is
not proved.
Case Law 3: Rwekaza Bernado v. R, Criminal Appeal 477 of 2016,

Court of Appeal of Tanzania at Bukoba (unreported)
Key Issue
Competent witness to testify about the age of the victim
Summary of Case
In a trial before the District Court for the offence of rape contrary
to sections 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16 R.E.
2002. The particulars laid in the charge disclosed that the victim was
a girl aged seventeen years old. At the end of the trial the trial district
court was fully convinced that the prosecution had proved its case
beyond reasonable doubt. It convicted the accused and sentenced him
to thirty years’ imprisonment. The accused’s appeal to the High Court
was dismissed and the conviction and sentence imposed by the district
court were confirmed. The question of the age of the victim became the
subject of discussion before the Court of Appeal.
Holding
In general, a village chairman and an investigator are incompetent
persons to testify about the age of a victim of rape.
51
Case Law 4: Haruna Mtasiwa v. R, Criminal Appeal of 206 of 2018
Key Issues
Birth certificate as proof the age of the victim child
Summary of Case
a girl victim aged eight years contrary to sections 130 (1) and (2)
and 131 (1) and (3) of the Penal Code [Cap. 16 R.E. 2002]. Aggrieved
by the decision of the District Court he appealed to the High Court;
however, his appeal was unsuccessful. Still protesting his innocence
he appealed to the Court of Appeal challenging the decisions of the
lower courts on various grounds, including that: (i) the Police Form
No. 3 (PF3) was tendered by a senior state attorney; (ii) the evidence
was contradictory as it was not specifically explained if “mdudu” as
mentioned by victim referred to his penis; (ii) the age of the victim
was not proved due failure to produce birth certificate; and (iii) the
prosecution failed to prove the case beyond reasonable doubt.
Holding
(i). Where the mother has testified on the age of the victim, a birth
certificate is not required to prove the age of that victim
(ii). In the absence of a birth certificate, age may be proved by the
parents or a medical practitioner.
52
Case Law 5: Joseph Leko v. R, Criminal Appeal 124 of 2013, Court
of Appeal of Tanzania at Arusha (unreported)
Key Issue
Penetration in rape cases can be inferred from indirect words used by
the victim child
Summary of Case
The victim aged 11 years went to a shamba to collect soil for planting
trees. On arrival at the shamba she met the appellant whom she knew
before by appearance only. He asked her whether she was the one who
was stealing sugar cane and bananas from that shamba. When she
refused the allegation, he told her that they should go and see the
owner of that shamba. She refused. He got hold of her, pulled her into
the bush. He removed her underpants by force and threatened to cut
her with a knife if she shouted or raised an alarm. He fell her down,
covered her mouth with a shuka to prevent her from shouting. He
then raped her until he satisfied his desire. The appellant ran away as
soon as he saw the victim’s sister who had come to look for the victim.
The incident was reported to a ten cell leader and a village chairman
where the victim was living. The ten cell leader issued a letter to the
victim which she took to a police station. At the police station she was
issued with a Police Form No. 3 (PF 3). She went for medical check-
up. The appellant was charged with and convicted of the offence of
rape contrary to sections 130 (1), (2) (e) and 131 of the Penal Code
[Cap 16 R.E. 2002]. The appellant’s appeal to the High Court was
dismissed. He appealed to the Court of Appeal and contended, among
other things, that: (i) there was no evidence to show that penetration
took place because the victim did not state that he had inserted his
penis in her vagina; (ii) since the appellant was informed of his right
to have the doctor who prepared summoned for cross-examination, the
PF3 was erroneously admitted in court, and (iii) the appellant was not
properly identified at the scene of crime.
53
Holding
(i). Recent decisions of the Court of Appeal show that in proving
penetration in the cases of rape, a court has to look at the
circumstances of each case including cultural background,
upbringing, religious feelings, the audience listening, and the
age of the person giving the evidence.
(ii). That due to cultural restrictions and related matters, a witness
and even the court would avoid using direct words of the penis
penetrating the vagina.
(iii). In view of African traditions or customs the inability of a scared
child victim to testify straight away that an accused person
inserted his penis in her vagina cannot negate an inference that
there was penetration if the victim offered a vivid narration
of how she was raped before a male magistrate and a male
prosecutor.
Case Law 6: Hassan Kamunyu v. R, Criminal Appeal 277 of 2016,

Key Issue
Paradigm shift in drawing inference of penetration from the indirect
words of the victim child
Summary of Case
A Madrasa teacher was arraigned for ten counts of unnatural offence
under section 154(1) and (2) and two counts of sexual assault on a
person under section 135(2) of the Penal Code [Cap. 16 R.E. 2002]. The
prosecution case was that on diverse dates of the month of December
2014 the accused had sex against the order of nature with ten pupils
and sexually assaulted two pupils of the madrasa aged between seven
and thirteen years. He was convicted and sentenced to thirty years
of imprisonment on some of the counts of unnatural offence as well
as on one count of sexual assault to which he was sentenced to five
years imprisonment. On a second appeal to the Court of Appeal, the
appellant argued that the case against him was not proved beyond
54
reasonable doubt. He contended that the first count on unnatural
offence was not proved beyond reasonable doubt because the victim
did not explain what was “dudu”; that the prosecution witness who
was a victim of third count of unnatural offence was not credible in
that he could not remember the date when he was sodomized; and
that it was illegal to base convictions solely on the uncorroborated
evidence of children of tender years.
Holding
(i). There is a paradigm shift in the recent jurisprudence of the Court
of Appeal from the orthodox position where in offence of this
nature: sexual offences, the victims were supposed to be graphic
in narrating the ingredients of the offence. The current position
is that in proving that there was penetration in a rape case, it is
not always expected the victim will graphically describe how the
penis was inserted into the victim’s vagina.
(ii). The new development of the interpretation of the provisions of
section 130(4) of the Penal Code [Cap 16 R.E. 2002] has been
brought into being by taking into consideration, inter alia,
cultural background, upbringing, religious feelings, the audience
listening, and the age of the person giving the evidence.
(iii). The words like “[he] removed my underwear and started
intercoursing me”, “[he] undressed me and started to have sex
with me”, “kanifanyia tabia mbaya”, “alinifanya matusi” or
“he put his dudu in my vagina” or “did sex me by force”, “this
accused raped me without my consent”, “while this accused
was sexing me I alarmed” and “fortunately one B s/o T came
to my home and he found the accused still sexing”, though not
explicitly describing penetration, have been taken by courts to
make reference to penetration of penis of the accused person
into the vagina of the victim.
(iv). Where the victims are pupils in a Madrasa, a religious teaching
institution, it is not surprising that some of them may not be
graphic in describing the penis given their cultural background,
upbringing, religious feelings and their age.
55
Case Law 7: Bakari Hamisi Ling’ambe v. R, Criminal Appeal 161
of 2014, Court of Appeal of Tanzania at Mtwara (unreported)
Key Issue
Proof of rape by direct evidence of eye-witnesses other than the victim
child
Summary of the Case

On the material day, a woman was going to her toilet when she saw
the girl victim, aged 3 years, standing next to the toilet’s door. The
girl entered the toilet. After a short while, the woman heard the
girl crying loudly and bitterly. The woman rushed inside the toilet
where she saw the appellant squatting while his pair of trousers was
undressed down to his knees. He was holding the girl over his thighs.
The girl was naked and her underpants were on the floor of the toilet
room. The appellant then uplifted the girl and put her down on the
floor. In the process the woman could see the appellant’s penis which
was still erect. This led the woman to an irresistible conclusion that
the appellant’s penis had penetrated the girl’s vagina and that is why
she was crying. The appellant took his “panga” and ran away. The
woman raised an alarm. Several people responded including the girl’s
mother and another woman who met the appellant running away
from the toilet. When the girl’s mother reached the toilet, she found
the girl still naked and her underpants still on the floor of the toilet.
She examined the girl and saw some mucus and bruises with some
blood stains around the vagina region. The matter was reported to
the police where Police Form No. 3 (PF3) was issued and the girl was
taken to hospital. A medical doctor who examined the girl also saw
the bruises and blood stains. The medical doctor came to a conclusion
that the bruises were near the vulva which amounted to grievous
harm. The medical doctor was of the opinion that bruises were caused
by a penis. At the trial for rape contrary to sections 130(1) and (2)(e)
and 131 of the Penal Code [Cap. 16 R.E. 2002] before a District Court,
the girl could not testify because of her tender age. Although the
appellant denied to have committed the offence, he admitted to have
been at the scene of crime on the material day and time. At the end
of the trial, the appellant was convicted as charged and sentenced to
56
life imprisonment. He was ordered to pay compensation of one Million
Tanzanian Shillings. His appeal to the High Court was dismissed
and he filed a second appeal to the Court of Appeal. At the Court of
Appeal, the appellant challenged the decision of the lower courts on
the grounds that (i) due care was not taken in convicting him on the
basis of the evidence of a single witness; (ii) there was no proof of
penetration; and (iii) the order of compensation was made without
taking into account his ability to pay.
Holding
Direct evidence of a witness who has caught an accused person in
flagrante delicto committing an offence of rape corroborated by other
pieces of evidence may provide proof of penetration notwithstanding
that a victim girl is unable to testify account of her age and level of
comprehension.
Case Law 8: Yusufu Baruani v. R, Criminal Appeal 4 of 2010, Court

of Appeal of Tanzania at Tanga (unreported)
Key Issue
Best evidence of rape where a victim is incapable of testifying
Summary of Case
The appellant stood charged with the offence of rape in a trial court
contrary to sections 130 (2) (e) and 131 (3) of the Penal Code [Cap. 16
R.E. 2002]. The prosecution evidence established that the appellant
raped a baby girl of one year and six months years of age. One of
the prosecution witnesses adduced evidence before the trial court that
she suspected something sinister after she saw the appellant lying
on the bed covered with a bed sheet holding and kissing the victim.
She alerted people around including another prosecution witness who
jointly knocked the door, entered the appellant’s room and saw the
sperms coming out from the victim’s vagina after they had taken a
victim from the appellant. Besides, the evidence of the medical doctor
revealed that the private parts of the victim had widened, were reddish
57
and had spermatozoa. The appellant was convicted and sentenced to
30 years imprisonment. On appeal to the High Court, the High Court
confirmed the appellant’s conviction but substituted the sentence of 30
years’ imprisonment with that of life imprisonment. Still dissatisfied,
the appellant appealed to the Court of Appeal. The appellant advanced
three grounds of appeal, one among those grounds was that the trial
court was wrong to convict the appellant without the evidence of the
victim of rape.
Holding
1. Even if the best evidence of rape comes from the victim of rape,
this depends on the circumstances of each case because there
are times when the evidence may not come from a victim of rape
who can hardly talk.
2. Where a victim of rape is incapable of giving evidence, the
evidence of eye witnesses who saw an accused with a victim child
in incriminating circumstances and the evidence of a medical
doctor may be a sufficient evidence to ground a conviction for
rape.
Case Law 9: Godfrey Wilson v. R, Criminal Appeal 168 of 2018, Court

of Appeal of Tanzania at Bukoba (unreported)
Key Issue
Victim child as a competent witness
Summary of Case
of a child aged ten years contrary to sections 130(2)(e) and 131(3)(a)
of the Penal Code of by a District Court. The trial court conducted
a voire dire examination to establish whether the complainant who
was the first prosecution witness possessed sufficient intelligence to
testify. The examination was conducted in light of the provisions of
section 127 (2) of the Evidence Act [Cap. 6 R.E. 2002] notwithstanding
the fact that the alleged commission of the offence took place few
58
days after the coming into force of the Written Laws (Miscellaneous
Amendments) (No. 2) Act (Act No. 4 of 2016). On a further appeal
to the Court of Appeal, the appellant contended that the voire dire
examination was not duly conducted to establish the truth of the
witness of a tender age.
Holding
(i). The Written Laws (Miscellaneous Amendments) (No. 2) Act
(Act No. 4 of 2016) of section 127 (2) of the Evidence Act [Cap
6 Re 2002] provides for two conditions. One, it allows the child
of tender age to give evidence without oath or affirmation. Two,
before giving evidence, such child is mandatorily required to
promise to tell the truth to the court and not to tell lies.
(ii). The procedure that a trial judge or magistrate should adopt is
by asking a witness of a tender age such simplified questions,
which may not be exhaustive depending on the circumstances
of the case as follows: (a) the age of the child; (b) the religion
which the child professes and whether he or she understands
the nature of oath; and (c) whether or not the child promises to
tell the truth and not lies.
Case Law 10: Issa Salum Nambaluka v. R, Criminal Appeal 272 of

2018, Court of Appeal of Tanzania (Mtwara) (unreported)
Key Issue
Victim child as a competent witness
Summary of Case
The appellant was charged with the offence of incest by male of his
own daughter contrary to section 158 (1) (a) of the Penal Code [Cap.
16 R.E. 2002]. The victim, a girl aged 14 years, was called to testify
as the first prosecution witness. The victim was allowed to testify
on affirmation although the record did not reflect that that victim
understood the nature of oath. The trial court heavily relied on the
victim’s evidence to convict the appellant and sentence the accused.
59
On a further appeal to the Court of Appeal, the appellant contended
that the evidence of the victim should be expunged from the record
because it was received in contravention of subsection (2) of section
127 of the Evidence Act [Cap. 6 R.E. 2002] as amended by the Written
Laws (Miscellaneous Amendments) No 2 of 2016, (Act No 4 of 2016).
Holding
(i). From the plain meaning of the provisions of sub-section (2)
of section 127 of the Evidence Act [Cap. 6 R.E. 2002] a child
of tender age may give evidence after taking oath or making
affirmation or without oath or affirmation. This is because the
section is couched in permissive terms as regards the manner in
which a child witness may give evidence. In a situation where a
child witness is to give evidence without oath or affirmation, he
or she must make a promise to tell the truth and undertake not
to tell lies.
(ii). Section 127 of the Evidence Act [Cap. 6 R.E. 2002] is, however,
silent on the method of determining whether such child may be
required to give evidence on oath or affirmation or not.
(iii). The method for determining whether a child of tender age may
be allowed to testify is that a trial court should at the foremost,
ask few pertinent questions so as to determine whether or not
the child understands the nature of oath. If he replies in the
affirmative then he or she can proceed to give evidence on oath
or affirmation depending on the religion professed by such child
witness. If such child does not understand the nature of oath, he
or she should, before giving evidence, be required to promise to
tell the truth and not to tell lies.
(iv). Evidence of a child witness of tender age received on affirmation
without satisfying to a court that such child witness understood
the nature of oath is inadmissible.
60
Case Law 11: Alex Ndendya v. R, Criminal Appeal 207 of 2018,
Court of Appeal of Tanzania at Iringa (unreported)
Key Issue
Presence of a social welfare officer where a child is a witness
Summary of Case
of a ten years old girl before a District Court. On his second appeal
to the Court of Appeal, the appellant complained that the trial was
conducted without a Social Welfare Officer.
Holding
(i). The presence of a Social Welfare Officer in a Juvenile Court does
not envisage situations when the child is a witness; it envisages
a situation when the child is in conflict with the law; that is
when the child is an accused person.
(ii). The presence of a Social Welfare Officer is mandatory in a
Juvenile Court when the child is in conflict with the law. The
law is clear that it protects a child who is in conflict with the
law; not a child witness.
(iii). A Social Welfare Officer is not listed to constitute the District
Court rather Juvenile Court. The District Court is properly
constituted if presided over by a District Magistrate or Resident
Magistrate.
61
Case Law 12: Magina Kubilu alias John v. R, Criminal Appeal
584 of 2016, Court of Appeal of Tanzania at Shinyanga (unreported)
Key Issue
Expert evidence on rape
Summary of Case
The appellant was arraigned for rape of a girl aged thirteen years
contrary to sections 130(1) and (2)(e), and 131(1) of the Penal Code
[Cap. 16 R.E. 2002]. The appellant was found guilty, convicted and
sentenced to a prison term of thirty years, ten strokes of the cane and
ordered to compensate the victim Tshs. 500,000/=. He unsuccessfully
appealed to High Court against conviction and sentence. He then
appealed to the Court of Appeal on eight grounds including: he was
convicted basing on the strength of uncorroborated evidence, the
victim was not a credible witness and the Police Form No. 3 (PF3)
was not procedurally received in evidence and that in its absence, the
witnesses should not have been believed.
Holding
An expert opinion cannot override oral evidence of a person who
witnessed the incident and physically examined a victim and that
penetration can be proved orally by the victim and other witnesses;
without an expert opinion or oral evidence by experts.
62
Case Law 13: Juma Mahamudu v. R, Criminal Appeal 47 of 2013,
Court of Appeal of Tanzania at Mbeya (unreported)
Key Issue
DNA evidence in rape cases
Summary of Case
EZ, aged around seven years, and two other children were playing
outside their homes. The appellant surfaced at the scene and lured
EZ with a TShs 500/= note. He told her that with that money she
could buy ice cream at school. He asked her to follow him to a place
near some banana plantations. When they reached in the banana
plantations, the appellant pushed her towards the banana trees and
undressed her by removing her underwear. He himself undressed
and inserted his penis into EZ’s vagina. In the process, the appellant
squeezed EZ’s neck, ostensibly to prevent her from raising an alarm.
After completion of his desire, he left the scene, riding a bicycle. EZ
was left behind crying with blood oozing from her vagina. EZ’s friends
who heard her crying rushed to the scene and witnessed what had
transpired. They took EZ to her aunt. Her aunt reported the matter to
village authorities and eventually to the police. EZ was also taken to
a hospital for medical examination. The appellant was arrested and
charged with the offence of rape. He was convicted and sentenced
by a District Court to thirty years’ imprisonment. He unsuccessfully
appealed to the High Court. On a second appeal to the Court of
Appeal, he argued, among other things that Police Form No 3 (PF 3)
was not conclusive proof that the appellant had raped EZ because no
DNA was conducted; (iii) evidence of relatives needed corroboration
because acting on such evidence left a room for bias; and (iv) the age
of the victim was not proved.
Holding
The law as it is presently, does not lay conditions for DNA test in proof
of rape cases. Although Tanzania may not possess sufficient DNA test
facilities, the procedures provided for under section 240 (3) of the
Criminal Procedure Act [Cap. 20 R.E. 2002] suffices to establish and
63
provide fair and correct results in examining victims of offences like
those of rape.
Case Law 14: Robert Andondile Komba v. DPP, Criminal Appeal

465 of 2017, Court of Appeal of Tanzania at Mbeya (unreported)
Key Issue
DNA evidence in rape cases
Summary of Case
See page 95 above.
Holding
Proof by DNA test is neither a legal requirement nor the practice in
our jurisdiction because many a culprit would walk scot-free if that
were the case.
Commentary
These cases have established various evidential rules in favour
of accused persons. In several cases of statutory rape courts have
stressed on the significance of proving age of child victim for the
purposes of statutory rape and appropriate sentence. This duty falls
squarely on the prosecution side. Courts have rejected mere citations
of child victim of rape as sufficient proof of age. Cogent evidence needs
to be brought specifically to prove the age of the victim. However,
one of the most enduring judicial innovations on proof of penetration
in rape is the judicial recognition of drawing inference of penetration
from indirect words from child victims. Besides, it has been stressed
that expert evidence including DNA evidence is not necessary for
proof of penetration. More importantly, although the best evidence
of rape comes from the victim, it has been accepted that rape can be
proved by various eye-witnesses apart from the child victim if the
child victim is incapable of testifying. The procedure for reception of
evidence of children has changed after the amendment of the Written
Law (Miscellaneous Amendment) (No.2) Act, 2016 (Act No 4 of 2016).
64
The procedure for receiving child evidence is not the two-pronged tests,
traditionally known as the voir dire. Section 127 (2) of the Evidence
Act, Cap 6 Re 2019 as amended in 2016 states that a child may be
competent to testify if she can promise to tell the truth and not telling
lies. The case of Godfrey Wilson and Issa Salum Nambaluka provide
useful guidelines for trial courts when faced with child witnesses.
65
CHAPTER FOUR
CIVIL APPLICATIONS IN RELATING TO
CHILDREN
4.1. INTRODUCTION
The civil applications relating to children include parentage, custody,
access and maintenance. These applications are very important for
survival and development of a child in terms of physical and mental
aspects. The determination of the above applications is governed by
LCA and its Rules. This chapter highlights procedural legal principles
emanating from several decided cases where a child is involved in civil
proceedings.
4.2 PARENTAGE:
Parentage refers to the process of determining a child`s legal parents.
This process is typically found in paternity cases where the child`s
biological father was an issue and for various reasons, the identity
of the father had to be established. Section 35 of Law of the Child
Act, Cap 13 Re 2019 provides factors useful to establish paternity of
a child.
In most cases this application can as well be accompanied with other

application such as custody access or maintenance
Case Law: Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil

(Date of the Decision: 16th March 2020)
Key Issues
(i). Use of DNA test to prove paternity/parentage
(ii). Legal obligation to prove the parentage
66
Summary of the Case
The Appellant and the Respondent were in a love relationship in
which they were blessed with two children a boy who was born in 2011
named Elia and a girl who was born 2013 named Neema. ln 2013 they
separated due to misunderstandings between them. The respondent
filed an application for a maintenance order of the second child. Before
the trial court, there was a dispute about the paternity of the second
child. Although the trial Juvenile Court ordered a DNA test, it was not
carried out. After the parties had failed to carry out the DNA test, the
trial court held that the appellant had failed to rebut the allegation
he was not the biological father of the second child. Consequently,
the trial Juvenile Court ordered the appellant to pay TZS 50,000 per
each month as maintenance of the second child. Besides, the Court
ordered payment of TZS 10, 000 each month as custodian support.
Dissatisfied with the decision of the trial Juvenile Court, the appellant
appealed to the High Court of Tanzania. The appellant challenged the
two findings of the trial Juvenile Court. Firstly, he argued that the
burden of proof was wrongly shifted to him instead of the respondent
who was alleging that the appellant was the biological father of the
second child. Secondly, that, since the appellant was not the biological
father the trial court erred in ordering the maintenance and custodial
support on the child in respect of whom he is not the biological father
Holding
(i). According to subsections (a) to (e) of section 35 of the Law of
the Child Act, 2009, parentage of a child is to be proved by: (i)
marriage performed in accordance with the Law of Marriage
Act [Cap. 29 R.E. 2002]; (ii) the name of the parent entered
in the Register of Births kept by the Registrar-General; (iii)
performance of a customary ceremony by the father of the child;
(iv) public acknowledgement of parentage; or (v) DNA test
results.
(ii). It is settled law that who alleges the paternity of a child has
legal obligation to establish such fact.
67
Omari Mahita v. Rehema Shabani, Civil Appeal 149 of 2009, High
Court of Tanzania (unreported)
Key Issue
Constructive refusal to undertake DNA test
Summary of the Case

In 2007, the respondent petitioned a District Court for a declaration
that the appellant be declared as the putative father of her male child.
The trial court declared the appellant as the putative father of the
child and ordered the appellant to pay to the respondent TZS 100,000
per month and compensation at the same monthly rate effective from
2003 until the date of judgment. The appellant was aggrieved with the
findings of the trial court and appealed to the High Court. He argued,
inter alia, that the trial court made an erroneous finding that he was
the putative father of the child on the basis of the respondent’s evidence
because the appellant had refused to undergo a DNA test. Another
ground of appeal was that the monthly maintenance allowance of TZS
100,000 was in violation of the stipulated amount under the provisions
of the now repealed Affiliation Act [Cap. 273 R.E. 2002].
Holding
1. There is a constructive refusal to undertake a DNA test where
a person resists the efforts to report to the office of the Chief
Government Chemists for undertaking the test.
2. Where there is constructive refusal to undertake DNA test, the
court may draw such conclusion as may be appropriate in the
circumstances.
4.3. CUSTODY AND ACCESS

Section 98 (1) (b) of the Law of the Child Act, Cap 13 R.E 2019 gives
power to the Juvenile Court to hear and determine among other
things, applications for custody and access. 20
20 Rule 3 of the Law of the Child (Juvenile Court Procedure) Rules, 2016
68
When the Juvenile court is entertaining applications for custody or
access, it is required before the determination of application to give
details of the mediation services available.21
However, these applications can be determined in the matrimonial

proceedings whenever parties petition for divorce under the Law of
Marriage Act, Cap 29 R.E 2019. These applications have been determined
in the court of law and the following are cases relating to custody and access.
Case Law 1: Glory Thobias Salema Vs Allan Philemon Mbaga

(Civil Appeal No 46 of 2019) [2020] TZHC 3794 ;( 13 November 2020)
Key Issue
Best interest of the child
Summary of Case
See pages 23024 above.
Holding
(i). The law is well settled that in any event dealing with a child the
primary consideration shall be on the best interests of the child.
(ii). The argument that the child has even changed the name is not
a governing factor to deny the respondent right to custody based
on the overriding principle of best interest of the child.
(iii). Under section 39 (2) of the LCA, if the views have been
independently given, they must be taken into account before
making the order of custody.
21 Rule 65 of the Law of the Child (Juvenile Court Procedure) Rules, 2016
69
Case Law 2: Bharat Dayal Velji v. Chandni Vinesh Bharat,(Civil
Appeal No.45 of 2017) [2018] TZHC 45; (23 April 2018)
Key Issues
(i) Best interest of the child
(ii) Unemployed mother can be given custody of a child
Summary of the Case

The respondent, was married to VB in 2008 .Unfortunately, the couple
could not stay long following the death of VB in 2013. During their
union they were blessed with two issues namely, Kritika Vinesh Dayal
and Rian Vinesh Dayal. Following the death of VB, the respondent
successfully, applied for the custody of her children in a juvenile court.
The appellant, the father-in-law of the respondent and a biological
grandfather of the children in issue was dissatisfied with decision of
the juvenile court and so appealed to the High Court. On appeal, the
appellant, contended, inter alia, that since the appellant was the
one providing maintenance of the children and the respondent was
unemployed and had no means to support the children, the order of
custody granting the children’s custody to the respondent was not in
the best interest of the children.
Holding:
(i). The respondent who is the biological mother of the children is a
better person to be granted custody of her children compared to
the appellant who is the grandfather of the children.
(ii). Best interest goes far beyond financial ability but includes love,
affection and care of which the mother is in a better position to
offer to her children against the whole world.
(iii). Since the children`s father is no longer alive and the children
were still young, the only close surviving relative is their mother.
(iv). The appellant can still support the children notwithstanding
the facts that the custody of the children has been granted to
the respondent.
70
Case Law 3: Stephen Mbeba v. Hassan Maulid Mohamed,
Juvenile Civil Revision No 2 of 2019, High Court of Tanzania at
Dodoma (unreported)
Key Issues
Guidance for mediation
Summary of the Case

The applicant files an application for custody under rule 63(1) of
the Law of the Child (Juvenile Court Procedure) Rules, 2016. The
Juvenile Court when considering the application learnt the existence
of rule 71(1) and (2) of the Law of the Child (Juvenile Court Procedure)
Rules, 2016. Rule 71 requires the Juvenile Court to enquire whether
the parties have seen a mediator and if not, to adjourn the hearing for
a period of no more than 28 days, so that parties may resolve issues
through mediation. The Juvenile Court learnt further that the word
“mediator” has not been interpreted under the Law of the Child
(Juvenile Court Procedure) Rules, 2016 and the Law of Child Act,
Cap. 13. The Juvenile Magistrate was aware of the rule 65(6) of Law
of the Child (Juvenile Court Procedure) Rules, 2016 which provides
that the procedure for issues and service of summons shall be the
procedure provided under Order V of the Civil Procedure Code [Cap
33 Re 2002]. Under the circumstances, the Magistrate in the Juvenile
Court forwarded the case file to the High Court for guidance. The
High court called upon the parties advocate to advise it accordingly.
The advocate for the appellant advised the High Court on the contents
of rule 16(1) (m) read together with rule 69(2) (a) and (b) of the Law of
the Child (Juvenile Court Procedure) Rules, 2016. Those rules direct a
Juvenile Court to state details of a mediation service that is available.
The rules direct the Juvenile Court to inform the parties that they
will be required to attempt to settle their dispute through mediation
before first hearing. For these reason, the advocate opined that the
trial magistrate should have referred the case file to a Magistrate
In-charge of the Juvenile Court for appointment of a mediator. He
noticed that the provisions of rules 60(1)(2) and 99(10) of the Law of
the Child (Juvenile Court Procedure) Rules, 2016 authorized the use
of the provisions of the Civil Procedure Code [Cap 33 Re 2002] only
71
on matters of service of notice, summons, pleadings, applications to
set aside care orders and freeing children for adoption rules. On the
other hand, the advocate for the respondent, advised the High Court
on rules 71(1) (2) and 16(1) (m) of the Law of the Child (Juvenile Court
Procedure) Rules, 2016. He stated that the presiding Magistrate in the
Juvenile Court should encourage and facilitate the parties to consider
mediation and report back to the court. If the out of court mediation fall
short, the Juvenile court will proceed to hear the dispute accordingly.
Holding
(i). In the absence of a specific legal guidance on mediation in either
the Law of the Child Act, 2009, the Law of the Child (Juvenile
Court Procedure) Rules, 2016, or the Civil Procedure Code (Cap.
33); the Juvenile Court cannot adopt and enforce the rules of
procedure for mediation in the Civil Procedure Code.
(ii). There is no particular institution or person designated for
mediation services, within the local jurisdiction of the trial
Juvenile Court. The parties to dispute can decide to reach an
out-of-court settlement between themselves without involving a
third party. They can as well decide to go for mediation before a
third party of their own choice but at the end they must report
to the Juvenile Court for the necessary action and orders.
(iii). Since there are no rules of procedure governing mediation
services, it is prudent and advisable that a Juvenile Court should
encourage and facilitate the parties to dispute to consider an
out of court settlement on their own or by the help of mediator
of their own choice within prescribed period of time and report
back to the court foraction.
72
Case Law 4: Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas
v Shabir Gulamabas Nathan, (Civil Appeal No.42 of 2020) [2020]
TZHC 3703; (30 October 2020)
Key Issues
(i). In interpreting the provisions of the LCA the court must
take meanings and opinions expressed in the international
instruments in which Tanzania is a signatory.
(ii). Natural parent have no automatic right to custody if it is not in
the best interest of the child.
(iii). In making for an order of custody the court shall consider the
best interest of a child.
(iv). The best interest of a child shall be a paramount consideration
in all actions undertaken by the state or individuals
Summary of the Case
See pages 25-26 above.
Holding
(i). In interpreting the provisions of the Law of the Child Act
the Court must take into account the meanings and opinions
expressed in the UN Convention on the Rights of the Child to
which Tanzania is a Signatory.
(ii). According to Section 4 (2) of the LCA, It shall be the primary
consideration of any public or private institution, court or
administrative body to take into account the best interest of the
Child in anything they are doing about children.
(iii). A child has right to live with parents or guardians but he cannot
live or continue to live with parents or guardians if by living
there he is subjected to harm or serious abuse or it is not in his
best interest.
(iv). The guardian, parent or relative who is caring for a child may
apply to a court for custody of the child.
73
(v). In making the order for custody or access the court should
consider the best interests of the child. In doing so the views of
the child if given independently and the need for continuity of
care, protection and control of the child must be observed.
(vi). While the fact of parenthood is not to be trifled with and should
not be regarded as an important and significant factor in
considering in whose favour the custody of the child should be
given, natural parents have no automatic right to custody if it is
not in the best interest of a child.
Commentary
The decision of case of Glory Thomas Salema is important due to the
fact it insisted that when the court is determining custody and access
the primary consideration should be on the best interest of the child.
The fact that a mother of the child was not employed does not matter;
rather, provision of love, affection and care matter and it was found
that their mother was in a better position to provide the same. The
same position was taken in the case of Sajjad Ibrahim Dharamsi &
Ally Jawad Gulamabas in which the court ruled out that the fact that
the appellant is not the biological father of a boy, it is not a reason to
deny him access since the appellant had attachment for a long time
with a child that ensure the continuity of care which is on the best
interest of the child. In the case of Bharat Dayal Velji the court asserted
that the best interest of the child carters far beyond financial ability
when determining custody and access. The procedure for conducting
mediation before determination of application of custody was clarified
in the case of Stephen Mbeba in which the court stated that the rules
do not provide the procedure governing mediation services, therefore,
the parties to the dispute should consider an out of court settlement
on their own or with the help of mediator of their own choice within
prescribed period of time and report back to the court for action.
74
4.4 APPLICATION FOR MAINTENANCE
A person may make an application to get an order of the court for
maintenance if the person who is eligible to maintain a child or
contribute towards the welfare of a child failed to do so. In the juvenile
court, the application for maintenance can be made whether the
parents contracted marriage or not.
Case Law 1: Veronica Agostino Shirati v. Issa Ramadhani

Kisibo, (Civil Appeal No.9 of 2020) [2020] TZHC 814; (05 June 2020)
Key Issues
(i). Role of a Social Welfare Officer
(ii). Effect of lack of a social enquiry report
(iii). Ascertainment of other sources of income between parents apart
from salary
Summary of the Case

The appellant and respondent are biological parents of a child named
SRK. The appellant filed an application in a Juvenile Court praying
for maintenance order of the said child. She prayed the maintenance
to the tune of TShs. 300,000/= per month. The Juvenile Court ordered
the respondent to pay TShs. 60,000/= per month as maintenance of
the child. From March 2021, he was ordered to pay TShs. 80,000/= per
month after completing a bank loan. Dissatisfied with the order, she
appealed to the High Court of Tanzania on the grounds that, inter alia,
the Juvenile Court did not involve a Social Welfare Officer during the
proceedings and did not ascertain other sources of income between
parents apart from salary.
75
Holding
(i). Failure of a Juvenile Court to require a Social Welfare Officer
to prepare a social enquiry report before issuing a maintenance
order cannot vitiate maintenance proceedings.
(ii). The engagement of a Social Welfare Officer in a Juvenile Court
to make an enquiry is not mandatory under section 45 (1) of
the Law of the Child Act [Cap. 13 R.E. 2019]. It depends on the
circumstances of each case.
(iii). The court has to satisfy itself that legal factors/requirements
to be taken into account before making the maintenance order
have been established.
(iv). The duty of a Social Welfare Officer in applications for
maintenance orders is to assess the ability of parents in
maintaining and taking care of the child; and ascertain the
accuracy of any statements relating to the parents’ income and
outgoings as well as liabilities.
(v). That, while an income accruing from the salary is an important
consideration in assessing the ability of parents in maintaining
and taking care of their child, other sources of income between
the parents should be established as well.
76
Case Law 2:Omari Mahita v. Rehema Shabani, Civil Appeal 149
of 2009, High Court of Tanzania (unreported)
Key Issue
Duty of the court to protect children born out of wedlock
Summary of the Case

See page 120 above.
Holding
When the law provides a meagre figure for maintenance, the court
should look at the intention of the Legislature, namely to protect
children born out of wedlock.
Case Law 3: Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil

Key Issues
Duty of a Juvenile Court to consider financial status of both parents
Summary of the Case

Holding
When a court orders maintenance of a child; it should consider the
financial status of both parents of the child, and if they are of the equal
economic status, they should be under equal footing in maintaining
their child.
77
Commentary
The case of Veronica Agostino Shirati and Denis Elias Nduhiye
demonstrate the procedures when hearing and determining the
applications for maintenance before the court. Among the important
procedures that were highlighted is the role of the social welfare
Officers on application for maintenance and whether the social
inquiry report is mandatory and its effect. The LCA is very clear that
a court may order a social welfare officer to prepare a social inquiry
report, once that order has been made the court shall consider that
report when making an order for maintenance. The above two cases
also emphasizes the factors to be considered when determining the
amount to be paid as a maintenance. The same stand is clearly seen
under the LCA22 and the JCR23 where it provides what a juvenile
court should take into consideration when making a maintenance
order. Among the criteria which seem to be considered by the court on
the above cases is the issue of ascertaining all the sources of income/
financial status of the parents. The case of Omari Mahita highlighted
the duty of the court on application for maintenance, to protect the
child regardless of whether a child is born within the wedlock or not.
22 Section 44 of LCA
23 Rule 84 of JCR
78
CHAPTER FIVE
FAMILY LAW RELATING TO CHILDREN
5.1. INTRODUCTION
The law governing relations within the family, that is, the law of
marriage, is an area that has an immense impact on the status and
welfare of children. The welfare and the rights of children need to
be protected in any country. The need to protect such rights is based
on various reasons such as vulnerability of children on account of
their biological, economic and cultural factors than adults. Besides,
Tanzania, with its mix of statutes, customs and religious beliefs
conceives child rights differently. This chapter is intended to provide
legal principles which have emanated from selected case-laws on
capacity to marry, division of matrimonial assets and maintenance
which are useful in promotion and protection of child rights by ending
child marriage and stimulating attention to law and policy makers
to amend especially the relevant provisions of the Law of Marriage
Act (LMA) which are contrary to children rights.
5.2. CAPACITY TO MARRY

Capacity to marry means legal qualification of a person to contract a
valid marriage. Under the LMA , capacity to marry is determined by
age, sex, legal status, marital status of parties to marriage (subsisting
marriage), soundness of mental faculty and relationship between
persons intended to marry each other. Capacity to marry basing on
age is provided under section 13 of the LMA. Section 13 of the LMA
sets the minimum age of marriage for boys is 18 years while for girls
is 15 years, but it permits parents or guardians to give consent for their
daughters’ marriage before attaining the age of 18 years if he choose
as per section 17(2) of LMA. In addition, in certain circumstance
a court of law may grant leave to a girl below the prescribed age
under section 13(1) of the LMA to marry on a condition that she
attains 14 years as per section13 (2) (a& b) of the LMA. Section 13(2
(a) and (b) of the LMA is in conflict with the provisions of section
4 (1) of the Law of the Child Act of 2009, Article 5(1) The United
79
Republic of Tanzania. Under international law, it contradicts with the
Convention on the Rights of the Child, 1989, Article 21 of the African
Charter on the Rights and Welfare of the Child (1990) and Article
16(2) of the 1979 the Convention on the Elimination of All Forms of
Discrimination against Women (CEDAW).
The case of Attorney General v. Rebecca Z. Gyumi24 is of importance

due to fact that it deals with the question of capacity to marry in
respect of a girl child under 18 years.
Case Law: Attorney General v. Rebecca Z. Gyumi, (Civil Appeal

No.204 of 2017) [2019] TZCA 348; (23 October 2019)
Key Issues
(i). Marriage of a girl aged 15 years
(ii). Constitutionality of sections 13 and 17 of the Law of Marriage
Act [Cap 29 Re 2002]
Summary of the Case

The respondent petitioned the High Court seeking declarations on the
constitutionality of the provisions of sections 13 and 17 of the Law of
Marriage Act [Cap. 29 R.E. 2002]. The two provisions require consent
of parents or courts for girls below 18 years before they get married.
However, sections 13 (1) and (2) of the Law of Marriage Act allow girls
aged 15 years to get married at the age of 15 years but boys to get
married upon attaining the 18 years. The respondent’s case was that
these provisions offended the provisions of Articles 12, 13 and 18 of
the Constitution of the United Republic of Tanzania, 1977. She asked
the High Court to nullify those provisions and expunge them from the
Law of Marriage Act and declare that 18 years should be the minimum
age of marriage until the Government amends the law. The High
Court held that sections 13 and 17 were discriminatory because they
impose different treatment to persons in similar situations. The High
Court held that those sections offended the principle of equality under
Articles 12 (1) and 13 (1) of the Constitution. Instead of declaring those
24 Court of Appeal of Tanzania at Dar es Salaam (unreported)
80
provisions null and void, the High Court directed the Government
through the Attorney General to correct the anomalies in sections 13
and 17 within a period of one year from the date of the decision. The
Attorney General appealed to the Court of Appeal. He challenged the
decision on several grounds two being that it was erroneous to hold
that sections 13 and 17 were discriminatory for giving preferential
treatment on eligible ages for marriage between girls and boys and to
equate the age of the child with the age of marriage.
Holding
(i). It is not in dispute that, a girl at the age of 15 years is a child as
per section 4(1) of the Law of the Child Act, 2009 but with the
spirit embraced under sections 13 and 17 of the Law of Marriage
Act [Cap 29 R.E. 2002] it is apparent that a man has been exalted
as one having overriding treatment against the girl. It is only a
woman “technically a child” who can marry while she is below
the age of eighteen years with the consent of her parents or a
court.
(ii). Tanzania is a state party to the Universal Declaration of Human
Rights, 1948, the Convention on the Rights of the Child, 1989
and the African Charter on Rights and Welfare of the Child,
1990 all of which proclaim that only men and women of full age
have the right to marry.
(iii). The impugned provisions cannot be interpreted in isolation
rather in comparison to the said instruments which have laid
profound principles on rights to marry and finding a family. It is
through them, we can possibly ascertain as to whether sections
13 and 17 of the Law of Marriage Act are discriminatory or not.
(iv). By necessary implication a person who has not attained the age
of 18 years and above lacks the capacity to enjoy the right to
marry. Apart from age requirement, it is further reckoned that
the persons who enter into marriage must pass the test of free
and full consent.
81
(v). It is apparent that the impugned provisions of the Law of
Marriage Act, on the one hand, allows men with full age to
marry; it does the same to the women, but with relaxed and
compromised conditions that they are capable to marry even
when they are below the age of majority (18 years).
(vi). The bottom line of all the Conventions on the rights of a child is
that no marriage can be contracted with person or persons who
have not attained the age of majority.
(vii). The existence of sections 13 and 17 of the Law of Marriage Act
do not only violate the international law with which Tanzania
is a member and has signed and ratified, but also it offends the
salutary principles of law of contract which call for competency
of the parties who enter into the contract, particularly, in a
marriage as a contract.
(viii). The amendment of sections 13 and 17 of the Law of Marriage Act
was necessary when Tanzania enacted the Law of the Child Act
to reflect the rights protected by the Convention on the Rights of
the Child, 1989.
(ix). There is no scientific proof which substantiate the narration
that, due to biological reasons, girls should be subjected to early
marriages.
(x). The operation of sections 13 and 17 of the Law of Marriage Act
expose girls to serious matrimonial obligations and health risks
like domestic and gender-based violence, psychological distress,
miscarriage and teenage pregnancies. The marriage of under 18
years subjects a child into complex matrimonial and conjugal
obligations.
(xi). The impugned provisions under the Law of Marriage of Act do
not give equal treatment between boys and girls thus contravene
Articles 12 and 13 of the Constitution.
(xii). With the development of legislative paradigm in Tanzania,
children of whatever age regardless of the kind of objective they
want to achieve are incompetent to consent any contractual
arrangement. A girl child does not acquire adult status and/ or
capacity to contract because of marriage.
82
(xiii). A child is a child whether married or not. So, age has to be
considered first before one enters in a marriage contract
otherwise there was no need even for the Law of Marriage Act o
set age and conditions for one to marry.
Commentary:
This is a landmark case which upholds the non-discrimination
principle and gender equality. The non –discrimination principle and
gender equality is very essential for the achievement of child rights
and human right generally. However, usefulness of this case depends
on Government political will to amend sections 13 and 17 of the
LMA which allow a girl child to marry. Although these provisions are
founded on customs and religious beliefs of which government should
be careful to deal with, the Government should take serious all issues
which affect the wellbeing of children while undertaking measures to
amend those provisions of the LMA
5.3. DIVISION OF MATRIMONIAL ASSETS

Matrimonial assets comprise of all assets acquired during the course of
the marriage by one or both parties. They can sometimes also include
assets acquired before marriage if certain conditions are met such as
having been substantially improved during the marriage by one or
both parties25. An asset owned by one or both spouses who are married
to one another which, upon the application of one of the spouses to a
court, is subject to division between them. When granting a decree of
divorce or judicial separation a court has to take into consideration
several factors before the division of matrimonial property . Among
other factors, the court shall have regard to the needs of the children
of the marriage, if any, as provided under section 114 (2) of LMA which
conforms to Article 23(4)of the International Covenant on Civil and
Political Rights, 1966 (ICCPR), Article 15(1)and (2) CEDAW.
25 S. 114(3) of LMA
83
Case Law: Assah A. Mgonja v. Elieskia I. Mgonja, Civil Appeal 50
of 1993, High Court of Tanzania at Dar es Salaam (unreported)
Key Issues
The principle of the best interest and welfare of children in division of
matrimonial assets.
Summary of the Case

The appellant and the respondent were wife and husband whose
marriage was latter dissolved by an order of the court. In their
marriage, they also managed to build a house, to purchase a motor
vehicle and develop a farm. During their marriage the couple were
blessed with four children who were aged 12 years, 10 years, 6 years
and 3 years old respectively, apart from five other children that the
respondent had with another woman. In her petition the appellant
also sought for subsequent reliefs of divisions of matrimonial assets,
the custody of all the children and maintenance of those children. The
trial court declined to make an order for the division of the matrimonial
house. It directed that the matrimonial house had to remain a family
house to shelter the children of the marriage under the custody of their
father. The appellant was dissatisfied with this decision of the trial
court. On appeal the appellant contended the trial court erred in not
considering the matrimonial house as jointly acquired by the couple.
The decision of the trial court was wrong in making the children as the
lawful heirs of their parents’ house while their parents were still alive.
In defending the decision of the trial court, the respondent argued
that the decision was correct because the trial court considered the
interests of the nine children of the respondent of whom four were
begotten with the appellant.
84
Holding
(i). In considering interests of children, it is the party who has the
custody of the children who has to be awarded control of the
matrimonial home for the benefit of the children of marriage.
(ii). It is wrong for a court to refrain to determine the issue of a
matrimonial home simply because there are children of marriage
who stood to benefit.
(iii). That, among the needs of children who are incapable of leading
an independent life is the need for adequate and suitable shelter.
(iv). That the consideration of the interests of children in awarding
control of the matrimonial home should not be construed as
a way to deprive the other party denied of possession of the
matrimonial house.
Commentary
The High Court upheld the principle of best interest and welfare of
the child by ordering that matrimonial house to remain a family house
to shelter the children. This will improve children’s rights status and
development if it is only done judiciously.
5.4 MAINTENANCE
Maintenance order is a court order directing payment of a regular
fixed sum of money for basic and necessary support to a child after his
or her parents’ separation or divorce. There is a legal responsibility
on both parents to maintain dependent children. The dependence of
a child may be either by age or disability. Due to dependence arising
from disability, the High Court in Bakari Ally Nusura v. Nasra
Francis Mpulule ordered maintenance order to a child who was above
18 years.
85
Case Law: Bakari Ally Nusura v. Nasra Francis Mpulule,
Civil Appeal 67 of 2019, High Court of Tanzania at Dar es Salaam
(unreported)
Key Issue
Maintenance of a disabled child who is above 18 years.
Summary of the Case

The appellant and the respondent were husband and wife, blessed
with one female child who is disabled, aged 23 years when the
application was brought before the court. In her petition for divorce,
the respondent, prayed for among other things, division of matrimonial
assets and maintenance of her disabled child. The primary court
granted divorce and maintenance for the disabled to tune of 100,000
TZS and respondent be allowed to live with the child in matrimonial
house located at Tegeta. The appellant without success appealed
to the district court and then to the High Court. In the High Court,
the appellant argued that the district court erred in upholding to
uphold the decision of the Primary Court to order maintenance of the
disabled child without any medical report in respect of her sickness as
to mental disorder.
Holding
(i). Parents have no direct legal liability to maintain children who
are above 18 years save where they are disabled.
(ii). The duty of a parent to maintain his children does not end at the
age of 18 years if the child is a person with disability so long as
he /she remains with the disability.
(iii). It is a joint responsibility of parents to proceed to take care of
the child so long as the child is disabled.
(iv). There is no automatic protection of a child above 18 years under
the Law of the Child Act, 2009.
86
Commentary
This case is significant in invoking the principle of best interest and
welfare of children by ordering the father to maintain his disabled child
aged 23 years. Despite the fact that there is no automatic protection of
a child above 18 years under the LCA rather than under the LMA and
the persons with Disability Act No.9 of 2010. It considers the intention
of lawmakers to protect a child’s wellbeing due to physical and mental
vulnerability. The High Court recognized the dependency of a child as
defined under the LCA is the same as disabled child regardless of his
or her age.
87
CHAPTER SIX
SUCCESSION LAW RELATING TO
CHILDREN
6.1. INTRODUCTION
Succession law is an area of the law that deals with how a deceased`s
estate will be distributed or passed down to legal heirs upon his or
her death. In Tanzania succession is regulated and governed by
multiple laws with more than one laws of succession operating in
the same territorial jurisdiction. Legal pluralism in succession laws
has generated a lot of confusions among Tanzanian magistrates
and judges. There is throughout the evidence of courts of law
declaring certain provisions of succession laws to be null and void for
contradicting the country’s constitutional provision or written laws
or international laws. Children being the legal heirs or beneficiaries
of their fathers` estate, it is important for their best interest to have
predictable established legal principles originated from decided cases.
This chapter therefore seeks to provide case law principles which are
important to the court of law so as to have one stand on determination
of children’s rights to parental properties especially for children born
out of wedlock and on appointment of administrators of estates.
6.2. INHERITANCE OF “ILLEGITIMATE” CHILDREN

Inheritance is defined as a process whereby the heirs legally acquire
the property left behind by the deceased person. The distribution
process can be done either under intestate or testate rules of the law
applicable. Customary, Islamic and Statutory laws are commonly
referred to in succession disputes. A lot of problems arise out of
applications of customary rule 43 of Local Customary Law (Declaration)
Order (No.4), 1963 GN 436/63 which denies children right to inherit
from their fathers’ estate. Rule 43 contradict with the Article 12(1)
and 13(1) of the United Republic of Tanzania Constitution, Section 4
(1) The Law of the Child Act of 2009, the Convention on the Rights
of the Child, 1989, the African Charter on the Rights and Welfare of
the Child (1990) and the 1979 the Convention on the Elimination of
88
All Forms of Discrimination against Women (CEDAW). The case of
Judith Patrick Kyamba v. Tunsume Mwimbe and 3 Others and
Elizabeth Mohamed v. Adolf John Mohamed are recent judicial
decisions which declare rule 43 of GN 346/1963 is discriminatory for
denying children born out of wedlock right to inherit and the decision
of Ahaz Moses Mwalubanda v. Jane Kalyemba on appointment of
administrator speak loud.
Case Law 1: Judith Patrick Kyamba v. Tunsume Mwimbe and 3

Others, (Probate and Administration Cause 50 of 2016) [2020] TZHC
1364; (28 May 2020)
Key Issues
Children born out of wedlock rights to inherit from their father’s estate
Status of children born out of wedlock under customary law of

inheritance
Summary of the Case

The petitioner asked the High Court to be granted letters of
administration of her father’s estate after he died intestate. In her
petition, she left out five children of the deceased who were born
out of the wedlock. At the hearing of the objection to the petition,
the petitioner argued that under the law, illegitimate children have
no right to inherit the deceased’s estate and cannot have any legal
interest over the deceased’s estate.
Holding
(i). It is barbaric and discriminatory to contend that illegitimate
children cannot inherit from their father’s estate in light of the
provisions of Article 12 (1) of the Constitution of the United
Republic of Tanzania of 1977 that guarantee equality of all
human beings and Article 13 (1) of that Constitution which
provides equality before the law.
89
(ii). Tanzania has ratified international human rights instruments
that guarantee the rights of the child. These include the United
Nations Convention of the Child of 1989 and the African
Charter on the Rights and Welfare of the Child of 1990, whose
substantive norms have been domesticated through the Law of
the Child Act, 2009.
(iii). In view of the national and international law, children born out
of wedlock are no more referred to as “bastards” and they are
equal children like those born in wedlock sharing equal rights
including inheritance rights.
(iv). Even if it were to be argued that the alleged children born out of
wedlock are of the majority age and so are not protected under
section 4 (1) of the Law of the Child Act, 2008, which defines
a child to be a person below 18 years, it is the firm view of the
court that the Tanzania Indian Succession Act, 1865, aims at
protection of all the biological children of the intestate born
within or out of wedlock.
(v). Children born out of wedlock are innocent creatures and there
is a Kiswahili phraseology “Kitanda hakizai haramu” which
literally means there are no bastard children although there are
bastard parents.
(vi). A child is not culpable for its parent’s shortcomings nor can they
choose the situation they are born into since it is not a child’s
fault to be born in the situation.
(vii). Children born out of wedlock are the biological children just like
those born within the matrimonial home who are entitled to
equal shares of their common father with fellow siblings.
90
Case Law 2: Elizabeth Mohamed v. Adolf John Mohamed,
Administration Appeal 14 of 2011, High Court of Tanzania at
Mwanza (unreported)
Key Issues
Overriding effect of the provisions of the Law of the Child Act, 2009 to
customary rules of inheritance GN 346 of 1963
Children born out of wedlock and inheritance from their father’s estate
Status of children born out of wedlock under customary law of

inheritance
Summary of the Case

Holding
(i). It is utterly wrong that a child should be denied his right to
inherit from his father’s side simply because he was born out of
wedlock, the act which he had no control whatsoever.
(ii). It is discriminative and inhumane to call a child born of parents
who are not married to each other illegitimate which in essence
means the he or she is an unlawful child.
(iii). The association of parents may be illegitimate or unlawful
according to the norms of given society or religion but the product
of such association, that is, a human being born as a result of
such association cannot by any legal definition be illegal and
unlawful in a secular state.
(iv). The Bahaya customary rule upheld in Violet Ishengoma
Kahangwa and another v. The Administrator General and
another [1990] TLR 253 that a putative father’s obligation to
his illegitimate children is personal and ends with his death
and does not survive him and cannot attach to his estate is
repugnant to the provisions of the Law of the Child Act, 2009.
91
(v). The Bahaya customary rule is also repugnant to the principle of
natural justice in that under that law a child is saddled with a
sin which he did not himself commit.
(vi). Section 9 of the Law of the Child Act, 2009, imposes duties and
responsibilities to parents to their children during their lifetime
while section 10 of the same Act prescribes the rights of a child
to parental property after the parent’s death.
Commentary
The recent two judgments passed by the High Court on rights of
children born out wedlock to inherit has spurred up the debate on
the law of inheritance in the country. This has opened a legal debate
on whether the legal principles established by court can change the
existing rules of Customary Law on right to inheritance of illegitimate
children as provided under the GN 346/63. These decisions have shown
legal progressive impact to child rights activist and liberal lawyers in
Tanzania and worldwide. However, the decisions would not only be
of interest to the patrilineal community as they have a belief in their
customs, but to almost all conservative lawyers in the country since
they want law to be applied as it is provided under the law book.
Case Law 3: Ahaz Moses Mwalubanda v. Jane Kalyemba,

Probate and Administration Cause 3 of 1989, High Court of Tanzania
at Mbeya (unreported)
Key Issues
Appointment of administrator/administrastrix when legal heirs are
young and depend on their mother
Considerations for appointment of administrator/administrastrix
92
Summary of the Case
A brother of the deceased (caveator) lodged an objection in the
High Court objecting the appointment of the wife of the decease as
administrator of her husband’s estate. The widow was married to
the deceased in 1983 and they were blessed with two children. Her
husband died intestate on the 28/2/1989. The widow and her late
husband were employed as sales clerks by a regional trading company.
By their joint efforts they built a house which was estimated to have
been worth Tshs.700, 000 in 1989. At the hearing of the caveat in the
High Court one of the issues who was entitled to be appointed as the
administrator of the estate.
Holding
(i). Where children who are legal heirs are still young and depend
on their mother; in absence of cogent evidence to show a widow is
unfit person she is the one to be appointed as an administrator.
(ii). A widow who is most likely to care of the interest of the
children under section 33(1) of the Probate and Administration
Ordinance Cap 445 should be appointed as an administrator of
her husband’s estate.
(iii). A widow who has contributed to the value of her husband’s estate
and whose children are still young and depend on her should be
appointed as an administratix of her deceased husband’s estate
in absence of cogent evidence to show that the widow is unfit
person.
(iv). In determination of a person who is to be appointed as an
administrator of the estate of the deceased person who left
behind young children, two of the main considerations are the
age of children and a person who is capable of taking care of
those children.
Commentary
This is a progressive decision of the court due to fact that besides
considering gender, sex, mental status, integrity and relationship, the
court considers welfare of children in appointment of administrator/
administratix
93
CHAPTER SEVEN:
TORTS RELATING TO CHILDREN
7.1. INTRODUCTION
This chapter deals with cases of negligence and occupiers liability
particularly against children. Therefore cases under this chapter
have been grouped into six parts which includes cases dealing with
Negligence, Occupiers’ liability, duty of care towards children, standard
of care, duty of care toward child trespasser and compensation.
7.2. NEGLIGENCE
According to Winfield and Jolowicz, “Negligence is the breach of a
legal duty to take care which results in damage, undesired by the
defendant to the plaintiff.”26 It connotes situation of a duty, breach
of that duty, and damage thereby suffered by the person to whom the
duty was owed. They duty owed is not limited to adults but it extends
to children and even foetus. The case of Clemensia Falima deals with
negligence against children or foetus.
Case Law: Clemensia Falima v. Bashiri Ally (Minor) suing

by next friend Fatuma Zabron, Civil Appeal 19 of 1998, Court of
Appeal of Tanzania at Mwanza (unreported)
Key Issues
(i). Whether a child born alive with disabilities caused by the
negligence of a person before he was born can sue for the
negligence
(ii). Whether a foetus is owed a duty of care
26 Winfield, PH, and Jolowicz ,JA Winfield and Jolowicz on Tort, 9th edn, 1971 , p 45.
94
Summary of the Case
The respondent was born by a caesarean section in a regional hospital.
Four months after his birth his mother began to observe in him signs
of abnormality. He was referred to a neuro-surgeon at Muhimbili
Hospital in Dar es Salaam. The neurosurgeon informed the mother
that her child had suffered brain damage medically known as cerebral
palsy. She was told the brain damage could be caused by various factors
including delivery. The respondent attributed delayed delivery on the
part of the appellant, a nurse/midwife at the regional hospital. She
successfully sued the appellant and the Attorney General for general
damages, interests, costs and any other reliefs that the High Court
deemed fit to grant. Aggrieved with the decision of the High Court, the
appellant appealed to the Court of Appeal on the grounds that the
appellant or her employer had no duty of care to the respondent who
was a foetus at the material time and that there was no evidence that
the respondent’s cerebral palsy or mental retardation was caused by
the negligence of the appellant.
Holding
(i). A next friend of a child bears the burden to prove on a balance of
probabilities that foetal distress was due to prolonged labour.
(ii). The common law position prior to the general reception date is
that a foetus is not owed a duty of care which can entitle it to sue
after it was born.
(iii). There is a dire need for updating common law position in order
to catch up with other countries and statutory intervention is
the best way out.
(iv). A child, who is born alive but with disabilities which were caused
before it was born by the negligence of a person, should be able
to sue such person for the negligence.
95
Commentary
The case shows the duty of care extends to unborn child and the breach
of that duty may lead to an action for negligence. However, the case
highlights the conflict with the common law position is outdated and
the case calls for reforms through statutory law.
7.3. OCCUPIERS’ LIABILITY

Occupiers’ liability is a field of the law of torts which deals with the
liability of occupiers of premises toward visitors who come in their
premises for lawful purposes. It imposes a duty upon occupiers to
ensure that visitors (including children) will be reasonably safe in
using their premises for lawful purposes.
7.3.1. Duty of Care toward Children

The law of torts imposes a specific duty upon the occupiers of the
premises towards child visitors. According to section 3(3) (a) of the
Occupiers’ Liability Act Cap 64, the occupier is expected to be more
careful to children because they are less careful than adults therefore
the occupier is expected to guard them against any risk. The case of
Owen Mkwemba v. General Manager deals with issues relating to
occupiers’ duty toward children.
96
Case Law: Owen Mkwemba v. General Manager, Friends Corner
and Tandale Hotels Ltd, Civil Case 332 of 1988, High Court of
Key Issues
(i) Occupiers’ duty of care to children
(ii) Standard of care toward children
Summary of the Case

A child of 8 years who was in standard one died as a result of a wall of
a hotel belonging to the defendant falling on him. The child was living
with her parents about 10 meters away. On the day of the accident,
there was a cultural dance at the hotel. On that day some children
were seen playing at the bottom of the wall while others would climb
up the wall. The wall collapsed and the child belonging to the plaintiff
died. The plaintiff, the father of the deceased child, sued the hotel
for negligence and sought for general damages, costs and any other
relief that the High Court deemed fit to grant. At the trial there was
no evidence to establish that the deceased was one of the children
who climbed the wall nor that he was an invitee of the defendant. No
evidence was adduced to show that the deceased had money to pay for
the ticket to enable him to enter the hotel’s hall to watch the cultural
dance. The High Court was called to address the question that the
deceased being a child of 8 years, the wall was an allurement to him
especially because there was a cultural dance.
Holding
(i). A young child of 8 years is too young to realise that it is dangerous
to climb a wall.
(ii). The defendant has a duty of care to a young child where there is
a concealed source of danger
97
7.3.2. Standard of care toward children
Standard of care is the degree of care (watchfulness, attention,
caution, and prudence) that a reasonable person should exercise
under the circumstances. Ordinarily, occupiers owe a duty to take
reasonable care to ensure their premises are safe for visitors (which
includes licensees). But when it comes to children, occupiers should
be prepared that children are less careful than adults.27 This means
the duty imposed upon occupiers towards children is higher than that
imposed upon adults. The case of Projestus Fidelis among others,
deals with the standard of care which is required to children.
Case Law: R v. Projesstus Fidelis Mugalula alias Porojo and

3 Others, Criminal Session 16 of 2009, High Court of Tanzania at
Tabora (unreported)
Key issues
(i) Occupiers’ duty of care to children
(ii) Standard of care toward children
Summary of the Case

See page 83.
Holding
(i). By virtue of section 3(3) of the Occupiers’ Liability Act [Cap.

64 R.E. 2002], persons who are in control of premises and over
the custody of children are statutorily bound to exercise great
care towards children including children who are invited to be
entertained by disco.
(ii). Section 3(3) of the Occupiers’ Liability Act [Cap. 64 R.E. 2002]
speaks loudly that children are less careful and so great care
must be exercised when they are invited into any premises.
27 Section 3(3) (a) of the Occupiers Liability Act Cap 64
98
(iii). Since children belong to the most vulnerable group in the society
by virtue of their age, little ability and stamina to withstand bad
and hot conditions or places where this “insufficient air”, they
really need extra care.
7.3.3. Duty of care towards a trespasser child
Generally, the occupiers have no legal duty toward trespassers unless
there are dangers that the occupier is (or should be) aware of. Though
the occupier has no duty towards a trespasser (whether he is a child or
not) he has no right to injure him maliciously. This has been explained
in the case of Mathias Nyorobi v. Peter Zacharia
Case Law: Mathias Nyorobi v. Peter Zacharia (A minor by

his next friend), (DC) Civil Appeal 28 of 1995, High Court of
Tanzania at Tabora (unreported)
Key issues
Duty of care towards a trespasser child
Summary of the Case

One morning the appellant went to his sugar cane shamba. He found
children including the respondent, then aged 15 years in the shamba.
When the children saw the appellant, they hide in the middle of the
sugar cane leafy labyrinth. The appellant suspecting the children
were stealing sugar cane threw stones in the direction where the
children were hiding to dislodge them from the shamba. Later that
day the respondent met the appellant and complained to him that
while he was hiding in the sugar cane shamba one of the stones that
the appellant threw hit in the stomach region and he felt severe
pains. The appellant took the respondent to a police station to obtain
Police Form No 3 for medical treatment. The appellant informed the
respondent’s father about the incident. The respondent was admitted,
operated on and a ruptured spleen was removed from his stomach.
He was discharged after seven days. The appellant contributed TZS
15,000 towards the treatment of the respondent upon the intervention
of the elders. The respondent’s father was dissatisfied with the amount
99
of the compensation and filed a criminal case. In a criminal court,
the appellant was convicted on his own plea of guilty and fined TZS
5,000 or a nine months’ imprisonment. Consequently, the respondent
through a next friend, who was his father, sued the appellant for
unlawful assault that had occasioned a medical surgical operation and
removal of the respondent’s spleen. He prayed for general damages
and several heads of special damages. The trial district court awarded
the claim. The appellant appealed to the High Court contending inter
alia that the trial court erred in finding that tort was committed by
the appellant.
Holding
(i). Where a child is a trespasser, the land owner or an occupier of
land has a duty of care not to cause malicious injury upon him.
(ii). While a land owner or an occupier of land is at liberty to use
reasonable force to eject a trespasser child, he should give
reasonable opportunity to leave or flee before resorting to force.
Commentary
The three cases above demonstrate that the occupiers of the premises
owe duty to take extra care towards child visitors or tresspassers
because children are considered as less careful than adults. The case
of Mathias Nyorobi v. Peter Zacharia shows that though the occupier
owes no duty to trespasser child, he is not required to injure him
maliciously.
7.4. COMPENSATION
Compensation in torts is awarded in form of damages. This is the main
remedy in law of Torts. In awarding compensation for injuries arising
out negligence, consideration has to be given to surviving children of
the victim. This was so held in the case of Angelina Widow of Bert
Ndangoba v. Benedicto Nsubuga.
100
Case Law: Angelina Widow of Bert Ndangoba v. Benedicto
Nsubuga and Bukoba District Council, Civil Case 12 of 1969,
High Court of Tanzania at Mwanza (unreported)
Key Issue
Considerations in awarding compensation
Summary of the Case

The plaintiff sued the two defendants on behalf of her four children
and her mother in-law as dependant of her late husband under section
4(i) of the law reform (fatal accident and miscellaneous provision)
Ordinance cap 360. The plaintiff’s case was that the first defendants’
negligence and careless driving while in course of his employment
caused the deceased to fall down and be run over by the vehicle. The
Plaintiff stated that the second defendant was vicariously liable for
the death of her deceased husband. The plaintiff claimed a total of
TZS 60,000 as compensation to herself, her four children and the
mother of the deceased.
Holding
In awarding compensation arising out of negligence; the greatest
part of the total sum must go to the widow of the deceased if she is
responsible for looking after her children.
Commentary
The case deals with liability of employer for negligence of his employee
which resulted to death. The case shows that in assessing the quantum
of damages consideration has to be given to surviving children of the
deceased.
101
FULL-TEXT OF CASES INCLUDED
Ahaz Moses Mwalubanda v. Jane Kalyemba, Probate and

Administration Cause 3 of 1989, High Court of Tanzania at Mbeya
(unreported)
(Date of the decision: 6th April 1990)
JUDGMENT
CHUA, J.: Jane Kalyembe, the applicant in this case, is the widow of
the late Ahaz Moses Mwalubanda who died intestate on the 28/2/89.
According to the death certificate accompanying this application,
the primary cause of death is said to have been poisoning while the
secondary cause is said to have been respiratory failure. Remarks on
the certificate read: “presumed to have drunk organophosphate drug.”
The applicant told this Court that the deceased took poison. It was not,
however, made abundantly clear by the applicant what prompted the
deceased to take poison. The caveator Ambakisye Mwalubanda relied
on hearsay evidence in his attempt to explain the immediate cause
that made the deceased to take poison. But hearsay evidence being
in admissible cannot be relied upon to establish a crucial fact such as
the cause of death. To unravel the mystery surrounding the death
of the deceased it was important for an investigation and a judicial
inquiry to be carried out. This Court, in the absence of direct evidence
on the immediate causes that led to the deceased taking poison, will
therefore not speculate on what causes prompted him to do so for
such decisions could be attributed to a multitude of factors such as
matrimonial disputes, mental instability fear of facing scandalous
accusations etc. To be able to pinpoint which factor operated in any
single incident of suicide cogent evidence must be adduced. Having
said that, in this application my task is to deal with the appointment
of an administrator not to determine the cause or causes of the death
of the testator. As I said before the cause or causes of the death of the
deceased is a matter which must be the subject of a separate inquiry
specifically instituted for that purpose.
102
According to the applicant she was married to the deceased in 1983.
The couple was blessed with two male children, namely, Oscar born
in 1984 and John, born in1986. Furthermore, the applicant told
this court that both the deceased and herself were employed by the
Regional Trading Company Mbeya as Sales clerks and that from their
joint efforts they managed to build a house at Forest Hill Area Mbeya
estimated in 1984 to have been worth 700,000shs. The same building
is now said to be worth more than a million shs. Though no exact
figure could be suggested by the applicant. Other properties that the
applicant says were owned by the deceased are 200 broiler chicks, 2
local cows and a share in a shop which operated under the name of
the caveator.
The application is opposed by the caveator for a number of reasons.

Firstly it is contended that the applicant and the deceased used to
quarrel several times as a result of which in 1989 the applicant, while
pregnant, returned to her parents three times. One reason given for
the quarrels was that the deceased sometimes used to return home
late at night and that lead to quarrels with the applicant. Secondly
the caveator contends that the explanation by the applicant that the
deceased took poison has led to suspicion, indignation and hostility
from the relatives of the deceased. In short, the applicant does not
enjoy the confidence and trust of the family of the deceased. Thirdly
the applicant is accused of showing an uncaring attitude to the parents
of the deceased by not visiting them. Fourthly the caveator in his
affidavit asserts that it is feared that the applicant will not be able to
administer the estate properly to the advantage of the children and
may dispose of the house and other properties of the deceased. To
illustrate this point it is stated that two days prior to the death of the
deceased she had sold some chicks but no money has been found by
the caveator.
The applicant in countering the accusations against her stated that

on the 3rd day of the mourning of the death of her husband she was
chased away by the caveator and other brothers of the deceased, and
she also told to return to her parents and that she was not wanted
in the family. She had to comply and since that time she has been
living with her parents at Tukuyu without any maintenance from
103
the brothers of the deceased for herself and the children. She has
furthermore stated that the 200 broilers she and the deceased were
keeping must have been disposed of by the caveator and his brothers,
for broilers are ready for sale in about 2 months’ time, but not a single
cent has been given to her. The caveator in countering this allegation
admitted that only 30 chicks have been found after the death but that
these were by the 11/2 weeks old and that they all died because of
lack of care during the mourning period. In my view the caveator’s
explanation was unsatisfactory. I fail to understand why he wanted
the applicant to explain the whereabouts of money realized from sale
of chicks prior to the death of the deceased and his attributing death of
chicks due to lack of care may well be a cover up for he is not a witness
of truth as I shall demonstrate late in this judgment.
At the beginning of this trial, I framed only two issues. The first issue
was as follow: “what is the value of the house left by the deceased.”
The applicant adduced evidence to show that the house is now worth
more than a million shillings. This evidence was not challenged by
the caveator. Taking into account evidence of the applicant that the
house has 12 rooms, is built of burnt bricks and thatched by iron
sheets I do not entertain any doubt that such a structure would now
be worth over a million shillings in view of the prevailing high costs of
materials and labour.
The second issue which forms the crux of the matter was couched
thus: “who is law is entitled to be appointed the administrator of the
estate. The caveator in his evidence stated that he was appointed
by members of his clan to apply for letters of administration of the
estate of his deceased brother and that in accordance with that
trust bestowed on him he went to the Urban Primary Court Mbeya
to lodge his application only to be told that another application had
been lodged in the High court. He maintained that in accordance with
the customary law of the Wanyakyusa, which is the tribe of both the
deceased and the applicant, he is the proper person to look after
the affairs of the deceased and therefore he should be appointed the
administrator of the estate. But the question is whether this matter
is governed by customary law and therefore could have been properly
adjudicated upon in a primary court. The answer to this question is in
my view in the negative.
104
The reason is that the couple in this case, though Wanyakyusa by
tribe were not leading a made of life that can be described as being
customary. I refer first to the fact that both were educated and
employed as clerks, secondly they built a house in plot 846 Block
M forest Hill Mbeya as shown on Ext A tendered in court by the
caveator. Thirdly though the caveator wanted this Court to believe
that the deceased had built the house before he married the applicant,
I found his evidence to be doubtful. Reasons for doubting his evidence
is that when he was cross examined by the counsel for the applicant
on the age of the deceased he at first said that he was 39 years old
but he soon corrected himself after realizing that the deceased having
been his younger brother could not have been older than himself for in
examination in chief, he, the caveator, had said that he was 38 years
old. He then asserted that the deceased was 35 years old and that
his education was Std. XII. The caveator went on to assert that the
house was built before the deceased married the applicant and that it
was in 1972. Since the deceased died in 1989 aged 35 years then the
caveators’s assertion in cross examination that the house was built in
1972 would mean that the deceased built it when he was only 18 years
old. Now assuming that the deceased had commenced primary School
when he was 7 years old in order to complete Std. XII he had to spend
at least 11 years in school which means that he would have completed
Std. XII when he was 18 years old. It is not easy to believe that a
school boy in Std. XII would have managed to build a 10 roomed house
unless it is shown that he inherited large sums of money or was given
a gift or had won a lottery. It was not suggested, however, that the
deceased had inherited any money, or had been given a gift or won a
lottery. In view of the above observation, I have formed the view that
the caveator had deliberately misrepresented the facts in order to oust
any claim by the applicant that she contributed to the cost of building
the house. Believing as I do that the applicant had contributed to the
cost of building the house which is built over a surveyed plot in Mbeya
town that is an additional reason for holding that this is not a matte
that is governed by customary law.
105
Having held that customary law is not applicable to this case I now
apply section 33 (1) of the Probate and Administration Ordinance
(Cap 445) which prescribes:
“Where the deceased has died intestate, letters of administration of

his estate may be granted to any person who, according to be rules
for the distribution of the estate of an intestate applicable in the case
of such deceased, would be entitled to the whole or any part of such
deceased’s estate.”
In this case in view of the fact that the applicant was not only a wife
but also contributed to the value of the estate, there can be no doubt
that she would, under any fair system of inheritance be entitled to a
share of the estate. The children of the deceased who undoubtedly are
the hairs of the deceased are still young and depend on the mother. I
therefore find that in the absence of cogent evidence to show that the
applicant is an unfit person she is the one most likely to take care of
the interest of her children. She has to do this if she has to go to beg
from relatives of the deceased who appear to hold her in suspicion?
In the result the applicant is hereby appointed the administrator of the

estate of the late Ahaz Moses Mwalubanda. To allay fears of relatives
of the deceased that she may be tempted to dispose of the property
of the deceased, especially in the event of her getting remarried to
another person, under section 65 of the Probate and Administration
Ordinance she is hereby directed that she should not dispose of the
house of the deceased until the two children become adults.
106
Alex Ndendya v. R, (Criminal Appeal 207 of 2018) [2020] TZCA 202;
(06 May 2020)
(Mziray, Mwambegele and Mwandambo JJA)
JUDGMENT
MWAMBEGELE, J.A.: This appeal stems from the decision of the

District Court of Njombe at Njombe where the appellant, Alex Ndendya,
was charged with and convicted of the offence of rape [contrary to
section] 130 (1) & (2) (e) and 131(1) of the Penal Code, Cap. 16 of
the Revised Edition, 2002 (now Revised Edition, 2019). It was alleged
that on 24.03.2015 at Usita Primary School in Wanging’ombe District
within Njombe Region, the appellant had carnal knowledge of a ten-
year-old girl who, to hide her identity, we shall simply refer to her as
the victim or PW1; as she so testified in the trial court.
The facts leading to the appellant’s conviction by the trial District

Court, as they can be gleaned from the record of appeal, are simple.
They go thus: the appellant was a cook at Usita Primary School
at which PW1, a child of ten years of age, was a Standard V pupil.
On 24.03.2015, at about 12:00 hours, PW1 was together with her
colleagues washing dishes. The appellant asked one Tasiana, also a
pupil there, to call PW1 so that she could see him in the store. PW1
and Tasiana went to the store where they found the appellant who,
after a short while, told Tasiana to go back where she was, leaving
behind the appellant and PW1 in the store. After Tasiana left, the
appellant closed the door, took a polythene bag, spread it down and
forced PW1 to lie there in a supine position, undressed her underpants
and skirt and ravished her. The appellant was wielding a knife in that
process. The appellant released her after he was done but that was
not until he warned her not to tell anyone as to what had transpired,
otherwise he would stab her with the knife he wielded.
Indeed, the victim did not tell anybody for fear that the appellant
would stab her with a knife as threatened at the scene of crime. Not
even after her aunt; Oliva Kawogo (who testified as PW2) asked her
why she was walking abnormally to which question she simply replied
107
she was walking normally. At a later stage her aunt was persistent;
she again asked her what had gone amiss as she was not walking
normally. It was at that point in time when she let the cat out of the
bag; she told her aunt that the appellant had raped her. PW2 then went
to report to Santina Emmanuel Ngeniuko (PW4), the Head Teacher
of Usita Primary School who also reported the matter to Abraham
Mgaya (PW6), the Usita village chairman. PW6, together with the
Hamlet Chairman of Kibena whose name could not be disclosed, went
to arrest the appellant. They took him to the office of PW4 where, upon
interrogation, the appellant confessed to have had sexual intercourse
with the victim. After the confession, PW6 called for a militiaman
who took him to Makoga Police Post at which No. G. DC Ambrose
took his cautioned statement in which he also confessed to have had
sexual intercourse with PW1. The appellant was arraigned in the
District Court and, after a full trial which comprised six prosecution
witnesses and the appellant in defence, he was found guilty, convicted
and sentenced to a prison term of thirty years and four strokes of the
cane. He was also ordered to pay the victim compensation of TShs.
500,000/=.
The appellant’s first appeal to the High Court was not successful.
Still aggrieved, he has preferred this appeal on five grounds of
grievance, paraphrased as follows: one, the first appellate Court erred
in law in dismissing the appeal while the trial was conducted without
a social welfare officer; two, the testimonies of PW1 and PW2 were
contradictory; three, the appellant was convicted on circumstantial
evidence which was not watertight; four, the appellant was convicted
on the weakness of his defence; and, five, the prosecution did not prove
the case against the appellant beyond reasonable doubt.
The appeal was argued before us on 27.04 2020 by video

conference: a facility of the Court. The appellant was in person at
Iringa Prison while the respondent Republic appeared through Ms.
Magreth Mahundi, learned State Attorney who was in the premises of
the Court together with us.
When we called upon the appellant to argue his appeal, he simply

adopted the five-ground memorandum of appeal and asked the learned
108
State Attorney to respond to them. Need arising, he reserved his right
to rejoin.
Responding, Ms. Mahundi prefaced her response by expressing her

stance at the very outset that the Republic supported the appellant’s
conviction and sentence by the two courts below. She responded to the
memorandum of appeal through the fifth ground which is a general
one; that the prosecution did not prove the case against the appellant
beyond reasonable doubt.
The learned State Attorney started her onslaught by submitting

that in rape cases, the best evidence is that of the victim. For this
standpoint of the law, the learned State Attorney referred us to our
decision in Joseph Leko v. Republic, Criminal Appeal No. 124 of 2013
(unreported) in which we relied on our previous decision in Selemani
Makumba v. Republic [2006] TLR 379 to state that true evidence of
rape has to come from the victim, if an adult, that there was penetration
and no consent, and, in case of any other woman where consent is
irrelevant, there was no consent.
In the case at hand, she submitted, the victim adduced sufficient

evidence that on the material date, she was at school with her fellow
pupils when the appellant called her through Tasiana to the store
where he threatened her with a knife and raped her. The appellant
himself corroborated the victim’s testimony through his cautioned
statement as well as his oral confession before PW2, PW4 and PW6.
The learned State Attorney added that he was aware, as held by the
Court in Geofrey Sichizya v. D.P.P, Criminal Appeal No. 176 of 2017
- [2020] TZCA 159 at www.Tanzlii.org, that a cautioned statement
which has been objected by the maker must be corroborated so as to
rely on it to convict an accused person. In the case at hand, she went
on, there was enough corroboration from PW2 (at p. 18 of the record of
appeal), PW4 (at p. 40) and PW6 (at p. 52).
With regard to oral confession, the learned State Attorney, again,

cited our decision in Geofrey Sichizya (supra) in which we held that
such kind of evidence may be sufficient by itself to found a conviction
against a suspect. In the circumstances, she argued, the appellant’s
oral confession before PW2, PW4 and PW6, was quite sufficient to
109
found a conviction against him.
The learned State Attorney did not stop there. She referred us to
p. 60 of the record of appeal where the appellant testified that his
relatives went to the parents of the victim so that she could be taken to
the Hospital for treatment but that they refused to receive the money.
That, she submitted, is yet another corroboration to the victim’s
testimony.
On the complaint regarding discrepancy in the testimonies of PW1

and PW2, the learned State Attorney submitted that the gist of the
complaint by the appellant hinges on the dates on which the former
told the latter what had befallen her.
While PW1 testified that it was on 24.03.2015 when PW2 asked her
why she was walking abnormally and replied that she was walking
normally and that it was on 25.03.2015 when she revealed that she
was raped, PW2 (at pp. 18 - 19) testified that it was on 31.03.2015
when she said she was walking normally and that it was on 08.04.2015
when he was told by her son Alpha Wawa that the victim had a “fiancé”
at school. Upon a fierce interrogation, PW1 told her she was raped by
the appellant. The learned State Attorney conceded that, surely, that
was a discrepancy in evidence. However, she was quick to state that
the discrepancy can be glossed over as it is trivial; it did not go to
the root of the matter. If anything, she submitted, what was relevant
was whether the victim was raped by the appellant. To buttress this
proposition, the learned State Attorney referred us to our decision in
Dickson Elia Nsamba Shapwata v. Republic, Criminal Appeal No. 92
of 2007 (unreported).
Regarding the complaint that a social welfare officer should have

been present at the trial, the learned State Attorney contended that
the appellant has misconceived the law. She submitted that the Law
of the Child Act, Cap. 13 of the Revised Edition, 2019 (hereinafter the
Law of the Child) establishes the Juvenile Court under section 97 (1)
and under section 99 (1) (d) of the same Act, a social welfare officer
must be present in the proceedings. She clarified that the law protects
a child who is in conflict with the law; not a child witness. In view of
the fact that the appellant was not a child and in further view of the
110
fact that the proceedings were not in the Juvenile Court, the presence
of a social welfare officer was not required.
Having submitted as above, the learned State Attorney prayed that

the appeal should be dismissed in its entirety.
The appellant, in rejoinder, fending for himself, brought to the fore

several complaints before rebutting the arguments raised by the
learned State Attorney. He complained: one; that he was in bad blood
with PW2 who engineered the manufacturing of the case against him
so that he could be jailed, two; that he was tortured and forced to
jot down what appears in the cautioned statement; three, that the
-police refused him to call a relative to be. present when making the
cautioned statement and that he complained so in the District Court
but that it did not record it under the pretext that the police officer
who recorded the statement was a public servant who could not lie;
and, four, that he complained on first appeal but the High Court did
not say anything.
Against Ms. Mahundi’s response, the appellant challenged the

prosecution for not procuring Tasiana to come and testify. Neither
did it call anyone who was present at school on the material date,
he charged. He also was emphatic that there was a discrepancy in
the testimonies of witnesses especially PW1 and PW2 on when the
latter asked her about walking abnormally and when she told her
the appellant raped her. He also submitted on the discrepancy as to
the date when the victim was taken to the hospital for examination.
The appellant also challenged Nicolaus Sayona (PW5); the Doctor
who filled the PF3 and his evidence that the exhibit he tendered did
not prove that he was the one who raped the victim. He added that
the white fluid seen by PW2 in the victim’s vagina as not being the
spermatozoa mentioned in the PF3, let alone being from his body.
Having submitted as above, the appellant prayed that his appeal

be allowed and that he be released from prison custody.
We propose to confront the grounds of appeal in the order they

appear above. However, before we do that, we find it appropriate to
address, first, the complaints raised by the appellant. The first
111
complaint was that he was in bad blood with PW2 who fabricated the
case against him so that he could be jailed. We think this complaint
is not backed by evidence. The appellant never stated so in the courts
below. The complaint has just surfaced in the Court on second appeal.
We are convinced that it was but an afterthought.
With regard to the complaint that he was tortured and told the
police officer who took his cautioned statement that he raped the
victim, we admit that the appellant complained so in both courts below.
However, at the trial, having so complained, the trial court conducted
an inquiry after which the trial court ruled that the statement was
voluntarily made. We are satisfied that the trial court rightly dealt
with the complaint.
As for the complaint that the police refused him to call-a relative to
be present when making the cautioned statement, again this is not
backed by evidence. Like the first complaint, the appellant did not do
so at the trial. Neither did he do so that on first appeal. We are of the
considered view that this complaint is but an afterthought.
The appellant also complained before us that the trial magistrate

did not record his complaints under the pretext that the police officer
could not have lied. We are positive that the appellant is trying to
impeach the court record. It is settled law in this jurisdiction that a
court record is always presumed to accurately represent what actually
transpired in court. This is what is referred to in legal parlance as the
sanctity of the court record. In Halfani Sudi v. Abieza Chichili [1998]
T.L.R. 527 the Court followed its previous decision in Shabir F.A. Jessa
v. Rajkumar Deogra, Civil Reference No. 12 of 1994 (unreported) to
hold that:
“A court record is a serious document; it should not be lightly

impeached.”
We also subscribed, in that case, to the decision of the High Court of
Uganda by Bennett Ag. CJ in Paulo Osinya v. R. [1959] EA.353, to
hold that:
112
“There is always a presumption that a court record accurately
represents what happened.”
In the case at hand, the appellant, having not raised such a
complaint in the first appellate court, we are certain that, it is but
an afterthought. In the premises, we are not prepared to accept the
impeachment of the court record so lightly. The appellant has certainly
failed to rebut the presumption that the court record accurately
represents what happened in the trial court.
We find and hold that the appellant’s complaints are baseless.

We dismiss them.
Having addressed the appellant’s preliminary complaints, we

now turn to determine the grounds of appeal.
The first ground is a complaint that the trial court conducted the case
without the social welfare officer in the accord of the law. This ground
will not detain us. As rightly put by the learned State Attorney, a
social welfare officer is required in proceedings in the Juvenile Courts
established under section 97 (1) the Law of the Child. The provisions
of section 99 (1) (d) of the same Act mandatorily require a social
welfare officer to be present during the proceedings in the Juvenile
Courts. The presence of the social welfare officer does not envisage
situations when the child is a witness; it envisages situations when the
child is in conflict with the law; that is, when the child is an accused
person. Sections 97and 99 (1) (d) are under Pat IX of the Law of the
Child which is titled “A Child in Conflict with Law” and therefore
the provisions under that head serves that purpose. In the case at
hand, the proceedings were in the District Court whose composition is
provided for under section 6 (1) (b) of the Magistrates’ Courts Act, Cap.
11 of the Revised Edition, 2019. Under this provision, a District Court
is properly constituted if presided over by a District Magistrate or
Resident Magistrate; a social welfare officer is not listed to constitute
the District Court. We find this complaint in the first ground of appeal
wanting in substance and dismiss it.
113
The second ground of appeal seeks to fault the first appellate court
for dismissing the appeal while the evidence of PW1 and PW2 was
contradictory. The law on the point is as put by the learned State
Attorney; the Court will only take into consideration contradictions
which are not minor and go to the root of the matter - see: Mohamed
Said Matula v. Republic [1995] T.L.R. 3 and Dickson Elia Nsamba
Shapwata (supra), Issa Hassan Uki v. Republic, Criminal Appeal
No. 129 of 2017 (unreported), Mohamed Haji Ali v. Director of Public
Prosecutions, Criminal Appeal No. 225 of 2018 - [2018] TZCA 332 at
www.tanzlii.ora to mention but a few. But, we ask ourselves, what are
material discrepancies or contradictions which go to the root of the
matter and what are minor which do not? As good luck would have
it, this is not the first time the Court is asking itself this question.
The Court traversed on the point in Elia Nsamba Shapwata (supra).
In that case, in answering the question, the Court quoted an excerpt
from the learned authors of Sarkar, the Law of Evidence, 16th Edition,
at p. 48 which excerpt we find it worth recitation here:
“Normal discrepancies in evidence are those

which are due to normal errors of observation normal errors
of memory due to lapse of time, due to mental disposition such
as shock and horror at the time of the occurrence and those
are always there however honest and truthful a witness may
be. Material discrepancies are those which are not expected
of a normal person. Courts have to label the category to
which a discrepancy may be categorized. While normal discrepancies
do not corrode the credibility of a party’s case, material discrepancies
do.”
In Issa Hassan Uki (supra) we subscribed to the observation by the
High Court (Mnzavas, J. - as he then was) in Evarist Kachembeho &
Others v. Republic, 1978 LRT n. 70 wherein, at p. 351, it was observed:
“Human recollection is not infallible. A witness is not expected to be

right in minute details when retelling his story”.
114
In that case - Issa Hassan Uki (supra) - we also relied on our
decision in John Gilikola v. Republic, Criminal Appeal No. 31 of 1999
(unreported) to underline that due to the frailty of human memory
and if the discrepancies are on details, the Court may overlook such
discrepancies.
In the case at hand the contradiction in the evidence of PW1 and

PW2 complained of by the appellant is the dates on which PW1 refuted
that she was not walking abnormally and when she told PW2 that she
was raped. Indeed, the account by the two witnesses differ. While PW1
testified that she refuted on 24.03.2015 and said she was raped on the
following day, PW2 testified that it was on 31.03.2015 and 08.04.2015,
respectively. In the light of the cited authorities above, we do not think
this inconsistence was such that it could corrode the prosecution’s
case. What was relevant here, as rightly submitted by the learned
State Attorney was proof that PW1 was raped. If that is proved, the
appellant cannot be left scot free by the mere fact that the dates on
which she narrated her ordeal differed with what her aunt narrated.
We are at one with the first appellate court that the contradictions in
the evidence of PW1 and PW2 were minor and negligible as there was
evidence to sufficiently prove that the victim was ravished. We are of
the same standpoint regarding the date on which was taken to the
Hospital. We find the second ground of appeal arid of merits as well.
Next for consideration is the third ground which seeks to challenge

the first appellate court that it upheld the decision of the trial court
which based on circumstantial evidence which was not watertight. We
have had more than ample time to peruse the entire record of appeal.
Having so done, we do not go along with the appellant’s contention.
The trial court did not convict him on the strength of circumstantial
evidence. Neither did the first appellate court uphold that point. The
record has it that the appellant was convicted on the strength of the
testimony of witnesses as well as his oral confession and cautioned
statement. We will let the record paint the picture. At p. 79 of the
record the trial court stated:
115
“...I have no good and cogent reasons for not
believing PW1, PW2, PW3, PW4, PW5 and PW6.
Again, the omission to call Tasiana and Alpha Wawa cannot
affect the weight of the prosecution evidence because the
accused admitted in the presence of PW2, PW4 and PW6
and confessed before PW3 that he had sexual intercourse with PW1.
That evaluated, I find that the accused person had sexual intercourse
with the prosecutrix (victim).”
And the first appellate court had this to say at p. 130 of the record of
appeal:
“In all [the] circumstances of the case, I am convinced that the cautioned
statement of the appellant was corroborated by the appellant’s own
confession before PW2, PW4 and PW6 while the evidence of PW1 was
corroborated by the evidence of PW2, PW4 and PW6.”
In view of the foregoing two excerpts from the two courts below,
we are certain that the appellant was not convicted on the strength of
circumstantial evidence but, rather, on the strength of the testimony
of the prosecution witnesses as well as on the strength of his oral
confession and cautioned statement. The third ground of appeal
crumbles as well.
The fourth ground of appeal is a complaint that the appellant was

not convicted not on the strength of the prosecution case but on the
weakness of his defence. In determining this ground, we will address
on the testimony of witnesses and the appellant’s oral confession and
cautioned statement. As stated, when determining the first ground,
the evidence of the victim was corroborated by the testimonies of PW2,
PW4 and PW6 as well as the appellant’s oral and written confessions.
We do not find it necessary to repeat here in detail how the same
was corroborated. However, PW2, PW4 and PW6 testified that the
appellant confessed before them that he had sexual intercourse with
the victim and begged for forgiveness. The learned first appellate judge
relied on Muriuki v. Republic [1975] 1 EA 223 (the decision of the High
Court of Kenya) and Mabala Masasi Mongwe v. Republic, Criminal
Appeal No. 161 of 2010 (unreported decision of the Court) to observe
that an oral confession is admissible and may be used to convict an
116
accused person. We endorse that the High Court’s observation depicts
the correct position of the law in this jurisdiction. There is a plethora
of authorities on the point – see: Director of Public Prosecutions v.
Nuru Mohamed Gulamrasul [1988] T.L.R. 82 and Patrick Sanga
v. Republic, Criminal No. 213 of 2008 (unreported), Rashid Roman
Nyerere v. Republic, Criminal Appeal No. 105 of 2014, Posolo Wilson
@ Mwalyego v. Republic, Criminal Appeal No. 613 of 2015, Martin
Manguku v. Republic, Criminal Appeal No. 194 of 2004 and Melkiad
Christopher Manumbu & 2 Others v. Republic, Criminal Appeal No.
355 of 2015 (all unreported), to mention only a few. In Patrick Sanga
(supra), we observed at p. 7 of the typed judgment:
“Under section 3 (1) (a), (b), (c) and (d) of the Evidence Act, Cap. 6
a confession to a crime may be oral, written, by conduct, and/or a
combination of all of these or some of these. In short, a confession need
not be in writing and can be made to anybody provided it is voluntarily
made”.
In Mohamed Manguku (supra), the Court sounded a caution that
such oral confession would be valid as long as the suspect was a free
agent when the words imputed to him were said. Likewise, in Posolo
Wilson @ Mwalyego (supra), we observed:
“... it is settled that an oral confession made by a suspect,

before or in the presence of reliable witnesses, be they civilian
or not, may be sufficient by itself to found a conviction against
the suspect.”
We are bound by the above standpoint of the settled law in this
jurisdiction. In the case at hand, the appellant confessed before
PW2,PW4 and PW6 to have had sexual intercourse and asked for
forgiveness. That confession was made in the office of PW4 when the
appellant was a free agent. It is shown nowhere in the evidence of
PW2, PW4 and PW6 as well as in the evidence of the appellant himself
that would suggest the appellant not being a free agent when he made
the said confession. That oral confession, therefore, was rightly relied
upon the trial court to mount the conviction against the appellant. In
the same token, the first appellate court rightly upheld that finding
by the trial court.
117
With regard to the cautioned statement, we go along with the learned
State Attorney that because it was retracted, as a matter of prudence,
it needed corroboration to rely on it to convict the appellant. We are
fortified in this view by the decision of the Court in Bombo Tomola v.
Republic [1980] TLR 254, in which it held:
“Generally, it is dangerous to act upon repudiated [or retracted]

confession unless it is corroborated in material particulars or unless
the court, after full consideration of the circumstances, is satisfied of
its truth.”
We also agree with the learned State Attorney that there was enough
evidence to corroborate it. As we held in Hemed Abdallah v. Republic
[1995] T.L.R. 172:
“Once the trial court warns itself of the danger of basing a conviction
on uncorroborated retracted confession and having regard to all the
circumstances of the case it is satisfied that the confession is true, it
may convict on such evidence without any further ado.”
In the case at hand, the first appellate court rightly addressed its mind
to the foregoing positions of the law and relied on Tuwamoi v. Uganda
[1967] 1 EA 84 to hold that the cautioned statement was corroborated
in the manner already alluded to above.
For the avoidance of doubt, we are alive to the fact that the
appellant challenged the prosecution why it did not field Tasiana
andAlpha Wawa and the pupils present at the scene of crime during
the commission of the offence. However, in the excerpts from both lower
courts reproduced above, we are certain in our mind, that failure to
field those witnesses did not water down the prosecution’s case.
With regard to Ms. Mahundi’s submission that the appellant

testified that his relatives went to parents of the victim so that they
could reconcile the matter but that they refused to receive the money,
we do not think the learned State Attorney has appreciated the
evidence. We have read p. 60 of the record and what we could gather
118
from that piece of evidence by the appellant is that his parents went to
the victim’s parents so that she could be taken to the hospital to verify
if she was raped. The mission was not to settle the matter out of court.
That piece of evidence, therefore, cannot corroborate the testimony of
the victim.
The above said, we are satisfied that the fourth ground of appeal
has no merits as well. It must fail.
Last for determination is a general ground of complaint that the

prosecution did not prove this case beyond reasonable doubt. In view
of what we have stated above; finding and holding all the four grounds
of appeal as wanting in merits, this ground must also fail.
In the final analysis, like the two courts below, we entertain no flicker
of doubt that the guilt of the appellant was established to the hilt.
Eventually, we find the appeal wanting in merits and dismiss it
entirely.
119
Alvin Mpaze v. Theresia Bartholomeo, (HC) Matrimonial Civil Appeal
1 of 1991, High Court of Tanzania at Tabora (unreported)
(Date of the decision: 4th November 1993)
JUDGMENT
KATITI, J.: Before Kigoma District Court, was THERESIA
BATHOLOMEO the respondent herein, seeking the dissolution of
marriage between her, husband ELVIN MPAZE the appellant herein.
This marriage was already disintegrating in every form, to bits and
pieces, it was already dead – it only needed an obituary, it needed
one of competent authority, to declare it dead and grant divorce, a
necessary ritual, formality,- the respondent succeeded to get the
divorce – declaring that the marriage had irreconcilably, and broken
down, beyond repair.
And coming on heels to the order granting divorce were three

further orders that: -1- the two twins Kulwa and Dotto born in 1981,
be in the custody of their father, while the two other children Kizza
and Eric born in 1985 and 1989 respectively, be in the custody of
THERESIA BATHOLOMEO, their mother “ until they are grownup”.
-2- that the matrimonial house acquired be sold and the proceeds of
sale thereof be distributed to the parties, and -3- that the appellant
shall also pay maintenance for the children in the respondent’s
custody, and the respondent herself. As it can be seen, it is the first
two such orders, that administered agony and disturbance upon the
appellant, and hence his appeal, to this Court, against the same. The
appellant complains in presenting the appeal:-
1. That the trial Magistrate, did not bother to find out the ability of
the respondent to maintain the two children, whose custody she
got.
2. That the trial Magistrate errored in law, in not specifying at
what age the above children are to return to the appellant.
3. That in ordering the sale of the house, the trial Magistrate,
did not take into consideration the interests of children who
presently occupy the same.
120
The appellant is seeking two orders: One that the two children now in
the custody of their mother, be limited to the age of seven years, after
which the said children should revert to him. Second, that the house-
sale order be altered to the effect, that the appellant compensate her,
the half equal value of the house in cash.
It would seem that after nine years of marriage, the parties

thereto have called it a day- the so many years of love and affection,
punctuated closely by effeminate darlings and dears, have suffered
a change, the wear and tear of marriage, assumed tearing apart
proportions, and marriage became to them, an unbearable cargo,
which instead of sinking the ship, it must be thrown overboard, and
the appellant put it very graphically in his letter, to her, for it, inter
alia, reads, thus:
“Mzigo ukiwa mzito sio lazima uubebe - nikiwa bega kwa began a
usemi huo, ninakubali kwamba karibu miaka tisa na nusu (91/2),
ambayo tunaishi pamoja nilikuwa na mzigo ambao sina sababu ya
kubeba. Kwa hiyo nimefika sehemu ambayo nimetua mzigo huu kiasi
kwamba tena siwezi”…Maana halisi, na haya nataka ieleweke wazi
kwamba tangu leo huyo mama wawili,au Theresia Tumeachana.”
From the above, is the culmination of the divorce proceedings, and
hence the divorce itself. From the humble view, that it takes the man
and woman themselves, to voluntarily walk into the marital bond
vows, and it takes the parties themselves, to walk out of them, as if
it was not they, who vowed to live together for life to the exclusion
of others, as if the vows were forced on their lips. These sentiments,
are endorsing the after events but it stands clear, that letter exhibit
P.3 written after the appellant, had brought in the same matrimonial
home another woman, PERECY WILSON MBALIZI, the hereto
second respondent, cogently speaks volumes, and the trial Magistrate
conclusion that the marriage had irreparably broken down, cannot be
faulted, and that none of the parties has challenged the same is an
unequivocal vindication of the same, and I shall hastily go to other
aspects.
121
The appellant complained, that the trial Magistrate did not
address himself, to the interest of the children, whose custody was
given to their mother, in so far as the mother’s ability to maintain them
was concerned. The facts put straight, are that, the 1st two children
whose custody was given to the respondent were about six, and two
years of age, respectively. And according to the provision of subsection
(3) of section 125 of the Marriage Act 1971, hereafter to be called the
Act, there is a presumption of fact, that is a rebuttable presumption,
that giving allowance, to the undesirability of disturbing the life of the
child, because of changes necessitated, by custodial orders, it is for the
good of the child, below seven years of age to be in the custody of his
or her mother. This is not without persuasive support from elsewhere-
for in the case of, Ives v. Ives (1973) 3 Fam Law 16. Where the two
children were four years, the custody was given to the mother, the
Court declaring that “all things being equal, small children should be
in the care of their mother.” In Re W (A minor: Custody) 1983 4ER 492,
(1983)13 Fam Law 47, the Court decided in favour of the mother- “if
all factors are balanced then it is probably right for a child of tender
years to be brought up by his, or her mother.” I should be fast to avoid
child generalization, on the matter of a young child, being with its
mother, for individual circumstances of each case would vary in the
light of grasp of realities of the relationship between the child, and the
adult concerned. So that, while in permitting circumstances the father
would take care of the child, and qualify to have custody of the child
of tender years, and that, some mothers would be disqualified from
having custody, it is my view that mothers having generally more
capacity, and opportunity to form tender and loving relationship, with
the child, which is of utmost importance, and other factors including
ability nicely balanced, the presumption that a young child be brought
by a mother is inevitably strong. In this case, I can earnestly vouch,
that the trial Magistrate was guided by the provisions above, he did
not err, neither in fact nor law he did not deserve to be deprecated at
all. In any case, as the appellant on his confession is [a person] without
visible means of livelihood, he has no material advantage, better than
the respondent, and the same told in terms of interests of children, he
is hardly a better choice for the custody of all the children. The first
ground fails therefore.
122
The appellant did in his litany of complaints, include a
complaint that the trial Magistrate erred in not specifying the period
of such custody and that the custody order, should be varied in such
away, that when the same children attain of seven years of age, revert
to his custody. Once again, and I hope without boring the appellant,
the way he wants to deal with these children, is not what the children
welfare, want, they cannot change hands just like chattels. But where
custody has been issued the following may happens (1) first where
a custody order issued, has not been for a specific period, or has
otherwise been not rescinded, it shall expire upon the child attaining
the age of eighteen years- see section 133 of the Marriage Act even
transcending the age of marriage, if the child is a girl, see Section
12 of the Act. Second, any custody order is without prejudice to the
right of any patent to apply to the court to have the said custody
order varied or rescinded, depending on variable circumstances that
may dictate such a course of action- see section 133 of the Act. And I
may as well add my caution, without prejudice to the above that the
Courts should sparingly allow change of custody, for in my humble
view and experience, the child being continuously looked after by one
parent brings stability to the child, and is far better than the said
child being looked after, in in a fragmented way, necessitated by a
succession of custody changes I shall not vary the trial Magistrate
custody order- in the direction sought by the appellant although this
is without prejudice to his right to make the necessary application for
variation of the same as and when there is a material change in the
circumstances. In the circumstance the custody order shall remain in
such terms as it was pronounced by the trial Magistrate. And that, the
appellant is without employment, it is even more imperative that I do
not do so.
The question matrimonial property to which I hereby and now
advert, is an issue that is never missed in divorce proceedings –the
parties may easily forego their matrimonial partnership cum conjugal
relationship, but not matrimonial property- in particular immovable
property- house. This is not to mean a derogation of the same, but
its importance between these hitherto married people, who have, cut
their union asunder, conclusively called it a day. As usual and these
days of female gender liberation, as expected the respondent among
other things, prayed for division of matrimonial property, especially
the house built in Mwanga Majengo area. Although it was not seriously
123
canvassed, it is also undeniable that the nine and half year’s marriage
was a credible witness to the construction of this house. And although
now, and currently superannuated from employment, the appellant
was then in good earning employment, and hence building the house,
as the respondent was also then a house wife, -not an office wife taking
care of the children, and the matrimonial home, for a period of nine
and half years.
In my view this is the juncture to pose the question whether that
house was “asset acquired by them during the marriage, by their joint
efforts”?, in terms of section 114 (1) of the Marriage Act 1971. This issue,
is not attracting any errands in wastage of time, for from the top of
the Judicial Pyramid of the land- the Court of Appeal interpreting the
above section, in the new celebrated authority – Bi Hawa Mohamed
v. Ally Seifu (CA) Civil Appeal No 9/1983 (not yet reported), held that
joint efforts in the acquisition of matrimonial property should be
construed to mean and include, “domestic effort” or “work”, of the
husband or wife in the course of such marriage. The above case, does
not go into the determination, of what percentage such contribution
would constitute, and this would depend on the circumstances of each
case. It is sufficing to note that the house wife’s “domestic duties”, are
acknowledged as a contribution that gives rise to a claimable right
in law. Exemplifying on the potentiality of such right, the Court of
Appeal on page, (14) of the judgment said and I quote:-
“The question arises, whether this diligent performance of her own

domestic duties, can be taken as disentitling the appellant from
claiming a share in matrimonial, or family assets. We do not think
so. The correct approach is that the husband and wife, in performing
their domestic duties are to be treated as working not only for their
current needs but also for their future needs. In the present case, the
appellant in looking after the matrimonial home, must be regarded as
working not only for her current needs, but also for her future needs,
and such future has to be provided from the matrimonial, or family
assets jointly acquired during the marriage, in keeping with the extent
of her contribution.”
124
This rationalization, is very inspiring and equity laden. And indeed
coming to think of it, in attendant and commensurate depth, if at the
beginning of it all, the parties to marriage solemnly promise to live
together for life, to the exclusion of others and work with that quality of
life in mind, acquire property to sustain that life why should one party,
at the unfortunate and of marriage, claim monopoly of such property
he should be estopped. In my view, the fruits of such marriage should
be like a continuous contributory bank joint account from which at
the end of the marital day each must be able to withdraw his, or her
share.
Fortunately, the appellant is not challenging the contribution

by the respondent, nor is he demeaning, or debasing it, he is only
praying, that he be allowed to compensate cash the respondent half
the cost of the house instead of selling the house. He posed, this
prayer considering the interest of the children over whom he has
custody and using the said house. I have with anxiety considered this
prayer, of course, not ignoring the response, by the respondent that if
the house is not sold she be given a room to live in. Adverting to the
respondent’s prayer, first of being given a room in the said house if the
house cannot be sold, I find it very unattractive for the parties who
parted of acrimoniously. Letting the respondent in the house would be
to introduce in that house anarchy, and law and order, would be the
victim, - an experience that would leave the children living therein not
unscarred. I shall not allow this prayer by the respondent.
It is the appellant’s concession, as the law demands, that the respondent

must be compensated. The issue is whether to do so the matrimonial
house must be sold? The light bearer, in the direction of answering
this issue, is section 114 of the Marriage Act 1971. In terms of section
114 (1) above, the Court shall have power, having granted divorce, or
subsequent thereto, to order the division between the parties of assets
acquired by their joint efforts, or order sale of such property, and the
sale proceeds thereof, be divided between the parties. And exercising
such powers, the Court has to be guided by (a) customs of parties’
community (b) extent of contribution by such party, (c) debts incurred
towards the acquisition of the same, (d) the needs of the children (e)
the division of such property shall, incline towards equality of division.
125
In my humble view, considering the provisions of this very section 141
(1), as guided by the provisions of subsection (2) of section 114, of the
Marriage Act I hold the following to be necessarily attendant -1- that
the Court has power to order sale of property but it is not mandatory
to do so, -2- that in view of the provisions of subsection (2) of section
114 of the Marriage Act 1971, the Court has discretion, which it must,
as guided by this subsection, exercise judicially and -3- where sale and
division of property has been ordered such division “should incline
towards equality.” On this latter aspect, DENNING MR. (as he then
was) characteristically noted in the case of Chapman v. Chapman
(1969) 3 All ER.476:
“It comes to this, here were this couple, setting out in life together
without any “nicely calculated or more”. Each had contributed what
he or she could to the joint venture. When that venture comes to
an end, the guardian knot has to be cut. It is done by holding that
“equality is equity.”
With respect, the tendency of ordering sale of matrimonial property
and while in search of “equality” ordering division of such property
mathematically achieves unequal results. It is my view that, what we
finally achieve is an illusion of equality, and not equitable settlement.
For the sale and division of property, as is done now, hardly produces
equal results -1- sale of family homes increases disruption, dislocation
-2- causes distress in the lives of children as they are hardly considered
in the process of making the order -3- division of property is hardly
equal, when the mother has custody of more children than the father
-4- when she cannot easily enter the labour market as the husband
may and -5- when she is denied access to the husband’s career assets,
acquired during marriage.
In this case since the appellant is conceding half share to the

respondent, as did order the trial Court, interfering with the same
is non-warranted. And if he is otherwise financed, the house need
not be sold considering the interest of children therein staying. The
house sale order by the trial Magistrate is therefore set aside. It is
now ordered, that house shall officially be evaluated, in terms of its
market price, and half of that shall be paid in cash to the respondent,
126
within reasonable time – the house shall, in the meantime be subject
to caveat, not to sold or be sold after the lapse of children custody
orders, in favour of the appellant and proceeds thereof to be shared
equally between the parties. The appeal affected, to the extent shown
above, and cash party to bear its own costs.
127
Amos Robare alias James v R, (Criminal Appeal 401 of 2017)
[2021] TZCA 130; (23 April 2021)
(Mkuye,JA Mwambegele JA , and Levira JA)
JUDGMENT
MWAMBEGELE. J.A.: The District Court of Serengeti sitting at

Mugumu convicted Amos Robare alias James, the appellant herein, of
unnatural offence contrary to section 154 (1) and (2) of the Penal Code,
Cap. 16 of the Revised Edition, 2002, It was alleged in the particulars
of the offence that on 27.08.2010 at about 09:00 hours at Mugumu
Township within Serengeti District, Mara Region, the appellant did
have carnal knowledge of a girl aged IOV2 years against the order of
nature. We shall henceforth refer to the victim as JR to conceal her
true identity. The appellant pleaded not guilty to the charge. After
a full trial comprising five prosecution witnesses and the appellant
himself for the defence, the appellant was found guilty, convicted
and sentenced to a prison term of thirty years. His first appeal to the
High Court was barren of fruit, for Maige, J. found the appeal with
no scintilla of merit and dismissed it on 31.03.2017. Still wishing to
vindicate his innocence, he has come to this Court on a second appeal
seeking to assail the decision of the High Court on ten grounds of
grievance. However, for reasons that will come to light shortly, we
shall not reproduce them here. Neither, for the same reasons, are we
going to consider them.
When the appeal was placed for hearing before us, the appellant
appeared in person, unrepresented. Ms. Revina Tibilengwa, learned
Senior State Attorney, Ms. Gisela Alex, learned State Attorney and
Mr. Frank Nchanila, also learned State Attorney, joined forces to
represent the respondent Republic.
When called upon to argue his appeal, the appellant, fending for
himself did no more than adopt the ten ground memorandum of appeal
earlier filed. He thereafter opted to hear the response of the Republic
after which, need arising, he would make a rejoinder.
128
At the very outset of her response, Ms. Tibilengwa supported the
appeal. Her concession to the appeal was not pegged on the grounds
of appeal but on a legal point to the effect that the court which tried
the appellant had no jurisdiction to do so, for the appellant was a
child who ought to have been tried by a Juvenile Court. Clarifying,
she submitted that the charge sheet upon which the appellant
was arraigned indicated that at the time of the commission of the
offence he was 17 years of age. He was also 17 years of age when he
testified on 14.11.2011 as appearing at p. 20 of the record of appeal.
Ms. Tibilengwa went on to submit that the Law of the Child, 2009
(henceforth “the Law of the Child” or simply “the Act”) came into force
on 01.04.2010. Thus, she went on to submit, the Law of the Child was
in force when the appellant is alleged to have committed the offence
on 27.08.2010. Section 98 (1) (a) of the Act provides that a child shall
be tried by a Juvenile Court and section 99 (1) (a) of the same Act
stipulates that the trial of the child shall be conducted in the presence
of a Social Welfare Officer, she argued. In the case at hand, those
relevant provisions were not complied with, she submitted.
In view of the above submissions, Ms. Tibilengwa contended that the

proceedings of the trial court were a nullity. So were the proceedings
before the first appellate court which originated from nullity
proceedings. She thus implored us to nullify the proceedings of both
courts below. She buttressed this proposition with our unreported
decision in Furaha Johnson v. Republic, Criminal Appeal No. 452 of
2015 in which we were faced with an analogous situation and nullified
the proceedings of both lower courts.
With regard to the way forward, Ms. Tibilengwa was hesitant to pray
for a retrial in a proper court, for the appellant has been serving an
illegal sentence for about nine years; since 12.07.2012 when he was
convicted by the trial court. Also relying on Furaha Johnson (supra),
she prayed that the appellant should be set at liberty in which we took
that course of action.
Given the response by the Republic, the appellant had nothing in

rejoinder. He simply asked to be released from prison.
129
Having considered the learned arguments by Ms. Tibilengwa in the
light of the clear provisions of the Law of the Child, we find ourselves
unable to disagree with her that the District Court of Serengeti had no
jurisdiction to entertain the case against the appellant; a child.
The law of the Child was enacted with a view to, inter alia, making
provisions for a child who is in conflict with law. The provisions of
section 4 (1) of the Law of the Child defines a child as a person below
the age of eighteen years. Section 97 thereof establishes a juvenile
Court for purposes of determining matters relating to children. We
take the liberty to reproduce the section hereunder. It provides:
“97. -(1) There shall be established a court to be known as the Juvenile

Court for purposes of hearing and determining child matters.
(2) The Chief Justice may, by notice in the Gazette, designate any
premises used by a primary court to be a Juvenile Court.
(3) A Resident Magistrate shall be assigned to preside over the
Juvenile Court.”
The Juvenile Court has been bestowed with powers to preside over
criminal charges against a child who is in conflict with law. The
provisions of section 98 of the Act read:
“98.-(1) A Juvenile Court shall have power to hear and determine-

(a) criminal charges against a child; and
(b) applications relating to a child care, maintenance and
protection,
(2) The Juvenile Court shall also have jurisdiction and exercise
powers conferred upon it by any other written law.
(3) The Juvenile Court shall, wherever possible, sit in a different
building from the building ordinarily used for hearing cases by
or against adults. “
130
The provisions of section 99 (1) (f) of the Act mandatory require a
social welfare officer to be present in the proceedings before a Juvenile
Court against a child who is in conflict with law.
The facts of the present case fall in all fours with the facts in Furaha
Johnson (supra), the case cited to us by the learned Senior State
Attorney. In that case, like in the present, the appellant was a child
aged seventeen years. He was charged with the offence of rape in
Moshi District Court it being alleged that he committed that offence on
18.10.2010. At the conclusion of the trial, the appellant was convicted
as charged and sentenced to life in prison. His first appeal to the
High Court (Mwingwa, J.) was futile. On an appeal to the Court, the
State Attorney who appeared for the respondent Republic supported
the appeal on the ground that the District Court of Moshi was not
a Juvenile Court and therefore had no jurisdiction to entertain the
matter. The Court held:
“The Court takes judicial notice of the fact that the District Court of
Moshi which tried the appellant is not a Juvenile Court. Since the
appellant at the time of his arraignment and trial was a child, he was
not triable by the District Court, but a Juvenile Court. The trial court,
therefore, lacked jurisdiction ratione personae to try the appellant.
This alone rendered his trial a nullity. But even if the appellant had
been tried by the appropriate court, the conduct of the trial in the
absence of a social welfare officer would have equally rendered the
trial a nullity.”
We are guided by the position we took in Furaha Johnson (supra).
In the case at hand, it is indicated nowhere that the District Court
of Serengeti was sitting as a Juvenile Court when presiding over the
charge against the appellant. Neither has it been indicated anywhere
in the record of appeal that the Social Welfare Officer was present
during the proceedings. The proceedings before it were therefore a
nullity. So were the proceedings before the first appellate court for
they stemmed from nullity proceedings.
131
For the reasons stated, we invoke our powers of revision bestowed
upon us by the provisions of section 4 (2) of the Appellant Jurisdiction
Act, Cap. 41 of the Revised Edition, 2019 to nullify the proceedings
before the trial court. We also nullify the proceedings before the
first appellate court which emanated from nullity proceedings. In
consequence whereof, we quash the judgment of the trial court as well
as that of the first appellate court and set aside the sentence meted
out to the appellant by the trial court and upheld by the first appellate
court. As the appellant has served an illegal sentence for nine years
or thereabouts and has been behind bars for about eleven years since
his arraignment on 30.08.2010, we agree with Ms. Tibilengwa that
ordering a retrial before a court with jurisdiction will leave justice
crying. In its stead, we think, setting the appellant at liberty, as we
hereby do, will leave justice smiling. We thus order the immediate
release of the appellant Amos Robare @ James from prison custody
unless lawfully held there for some other lawful cause.
132
Angelina Widow of Bert Ndangoba v. Benedicto Nsubuga and Bukoba
District Council, Civil Case 12 of 1969, High Court of Tanzania at
Mwanza
(Date of the decision: 29th May 1971)
Editorial Comment: This case is reported in 1969 in (1971) HCD

No 190 as Anglina v. Nsubuga and Bukoba District Council. In this
Compendium, the case is reproduced in full as opposed to the summary
form in the High Court Digest.
JUDGMENT
MNZAVAS, AG. J: The plaintiff, Angelina sues the two defendants,
Benedicto Nsubuga and Bukoba District Council on behalf of herself,
her four children and her deceased husband’s mother as dependants
of the deceased husband under section 4(i) of the Law Reform (Fatal
Accidents and Miscellaneous Provisions) Ordinance, Cap. 360 of the
Laws.
The plaintiff bases her claim on negligence in so far as the

first defendant is concerned and joins the second defendant alleging
vicarious liability. The facts which are not in dispute are as follows:
On 7/6/68 the first defendant who was at that time employed

by the second defendant as a driver was detailed to carry timber
and poles on a Council’s vehicle registration number BK4318 from
Bukoba to a village called Kabirizi. He left Bukoba driving the vehicle
accompanied with his two turn-boys, the deceased and one Yustas
Karashani (D.W.2). It would appear from the evidence that the vehicle
reached Kabirizi at about mid-day. After the timber was off-loaded
at Kabirizi the party proceeded to Lubale where they reported to the
divisional Executive Officer that they had already delivered timber
and poles to Kabirizi Ujamaa village to be used for construction of a
bridge. At Lubale one, Cornel Moreka (P.W.2) asked for a lift to Bukoba,
he was allowed and boarded the vehicle at the back. I will refer to
this witness later in my judgment. From Lubale the party proceeded
133
on their way back to Bukoba. On their way back the deceased fell off
the vehicle and was run over by the vehicle and thereby sustaining
serious injuries which later, on the same day proved fatal.
The learned counsel for the plaintiff argued that it was due to
negligent and careless driving of the first defendant that caused the
deceased to fall down and run over by the vehicle. It was also argued
that as the alleged negligent driving was done by the first defendant
while in the course of his employment as a driver of the Council, the
second defendant, the second defendant was vicariously liable for the
death of the deceased. The learned counsel for the second defendant on
the other hand argued that there was no evidence to show that it was
due to negligent driving of the first defendant that caused the death
of the deceased. It was further argued, and without prejudice to the
former submission, that even if there was evidence of negligence on
the part of the first defendant, the second defendant could not be held
vicariously liable because, according to the defence, when the accident
occurred the first defendant was not in the course of his employment
as a driver of the second defendant.
At this stage I would mention that the first defendant was not
present during the hearing of this case. His whereabouts could not
be traced and as such the Court on the application of the plaintiff
had ordered that he be served with summons by way of substituted
service. This was done and a copy of the summons was affixed to the
first defendant’s last known address on 8/10/69. The plaintiff was
therefore allowed to proceed ex-parte in so far as the first defendant
was concerned.
In support of her case the plaintiff brought five witnesses.

Cornel (P.W.2) related to the court that on 7/6/69 he was travelling
in a Bukoba District Council lorry driven by the first defendant.
According to this witness the lorry was returning from Kibirizi to
Bukoba. He told the Court that in the cabin the first defendant sat
with the deceased and one Justian and that there were also two turn-
boys seated behind the lorry. This witness further told the Court
that when they reached a place called Kanazi a lady was given a lift.
According to his testimony the said lady leaded her load of bananas at
134
the back of the lorry and she embarked the vehicle in the cabin. They
then continued their journey and that when they reached Katerero
the two turn-boys at the back started quarrelling and, because of this,
the driver stopped the vehicle and the deceased settle the quarrel
between them by leaving his seat in the cabin and sitting at the back
of the lorry. One of the turn-boys took the seat of the deceased in the
cabin. The deceased according to the evidence sat at the back till they
reached a place called Makonge where the vehicle was stuck in mud.
In his evidence the witness told the Court that when the vehicle was
stuck the driver was sending the deceased to his home. They managed
to push the vehicle out of mud and they all again boarded it. This time
the driver sat in the cabin with Justinian and the lady passenger, and
the two turn-boys sat behind with Cornel (P.W.2). According to Cornel
the deceased stood at the mud-guard of the vehicle and looked at those
behind the vehicle and asked them whether they were already seated.
The door to the cabin was, according to Cornel, half open when the
deceased was standing on the mud-guard and that as he was doing so
the vehicle was set in motion. Soon after one of the turn-boys cried out
saying “the vehicle has killed a man”- Hearing this the driver stopped
the vehicle and it was found that the deceased had been run over by
the vehicle. According to this witness the vehicle had travelled about
15 yards before they heard the turn boy raising the alarm. The witness
also said that he himself had not properly sat down when the vehicle
started moving.
Against this evidence we have the testimony of Augustin Karugendo

(D.W.4) a turn-boy who was among the passengers in the vehicle.
According to his evidence the deceased was standing on the door-step
of the vehicle holding at the top of the cabin when he fell off the vehicle.
He told the Court that the driver had earlier asked the deceased to get
into the cabin but that the deceased said it was not necessary as he
was already near his house and he continued standing on the door-
step. Soon after he heard Athuman (D.W.3) another turn-boy raising
an alarm that the deceased Ndamgoba, had fallen down. We also have
the testimony of Yustus Karashani (D.W.2), another employee of the
Council, who witnessed the accident. According to him in his evidence
in –chief he told the Court that the deceased insisted standing on the
door-step and kept himself in position by holding the upper part of the
135
cabin and that he was in this position when he fell down and run over
by the vehicle.
If the Court is to accept the testimony of Cornel (P.W.2) as true

account of what happened just before the deceased fell off the vehicle
and run over by it, the conclusion would be that the driver drove the
vehicle before making sure that all the passengers had already taken
their seats in the vehicle and hence the falling of the deceased from
where he was standing. If this is what actually happened then the
first defendant’s driving would certainly amount to negligent and
dangerous driving for he was under a duty as the driver of the vehicle
to see that all the passengers in the vehicle had safely taken their seat
before he set the vehicle in mention. If, on the other hand, the Court
is to believe the evidence of Augustin (D.W.4) and that of Athuman
(D.W.3) and Yustas (D.W.2) which is to the effect that the deceased on
his own volition, chose to stand on the door-step while the vehicle was
in motion and after the driver had warned him that he should get into
the cabin then the conclusion would be that the deceased falling off
the vehicle was the result of his own negligence and as such the first
defendant could not be held liable for his death.
The decision on this issue depends wholly in the credibility of the

witnesses. Cornel an apparently disinterested and unbiased witness
who is not employed by the second defendant gave his evidence in
a most straight forward cogent manner. He all through his evidence
stood to his oath and was completely unshaken by the strong and able
cross examination by the defence counsel. I fail to see why Cornel who
was clearly uninterested as to what should be the outcome of this case
should decide to tell lies to the Court if what he testified to the Court is
not what actually happened. That the testimony of Cornel has a ring
of truth is evident from the evidence of Surgent Alex (P.W.3) who was
a prosecution witness in Bukoba Criminal Case No. 3/1969 (Exh B) in
which the first defendant was charged with and convicted of driving a
motor vehicle on the public road without due care and attention and
permitting more than two person to sit on the front driver’s seat.
136
Leonesia (P.W.4) a court clerk in the Resident Magistrate’s Court
Bukoba produced to the Court the case file (Exh B) relating to the
criminal charges against the first defendant. Like the first defendant
all the three defence witnesses are employees of the Council. Two of
them are turn-boys of the Council and the third is employed by the
Council as a forest guard. This being the position their evidence is
likely to be tainted in favour of the defendants. Indeed, all of them
were hesitant and contradictory in their evidence. For example, Yustus
(D.W.2) told the court in his examination in chief that the deceased
chose to stand on the door-step of the vehicle because he (deceased)
said he was about to reach his house. In cross-examination the same
witness said the deceased decided to stand on the door-step and said
he was taking that posture because it was too hot in the cabin.
All the three defence witnesses did not at all impress me as

witnesses of truth. They gave the Court the impression that either
they did not know what they were talking about or if they knew they
deliberately decided to tell lies. The evidence of Cornel (P.W.2) and that
of the Sargent (P.W.) corroborate and the totality of their evidence,
bar perjury, must be compatible with the conclusion that the deceased
met his death due to the negligent and careless driving of the driver,
the first defendant. He is therefore to compensate the plaintiff for the
death of the deceased. I now come to the question whether the second
defendant is equally liable. To find the Council liable for the death of
the deceased it must be proved- That the first defendant was in the
course of his employment as a driver of the second defendant when he
drove the vehicle negligently and caused the death of the deceased.
There is no dispute whatsoever that the first defendant was at the

material time employed by the second defendant as a driver. It is
equally not in dispute that the first defendant was driving the vehicle
BK 4318 when the vehicle killed the deceased. The learned counsel
for the 2nd defendant admits these facts but argued that even if these
facts are true, the first defendant was on the occasion of this accident
not carrying out his master’s business and was, on this occasion
acting outside the scope of his authority as a driver of the Council.
The learned defence counsel brought evidence to show that on the
material day the first defendant deviated from the main road when
137
he was coming from Kabirizi to Bukoba in that he left the main road
to Bukoba and drove towards Maruku Experimental station: a road
leading to deceased house. It was argued that the first defendant met
the accident which caused the death of the deceased when he, without
the authority of the Council, was sending the deceased to his house.
The defence argued that because the first defendant had no authority
from the Council to take the deceased home in the Council’s vehicle,
he was at that time acting outside the scope of his employment and as
such the Council could not be held vicariously liable for the death of
the deceased.
The learned defence counsel argued that the facts show that the first
defendant was on a frolic of his own when he caused the accident- In
support of this argument the Court was referred to the decision in
Crook v. Derbyshire Ltd. and Another (1956) 2 All E.A.447. There is no
dispute that the first defendant was taking the deceased home when
the accident occurred. There is equally no dispute that the deceased
was an employee of the Council at the time and he was from Kabirizi
where he had been on council’s official duties.
The Executive Officer of Bukoba district council (D.W.1) told the Court
that the first defendant had no authority to send the deceased home in
the Council’s vehicle and that his doing so was contrary to Council’s
standing Regulations.
There can be no doubt from the map(D.Exb 2) produced the defence

that the first defendant deviated from the main road to Bukoba and
drove to Maruku in order to send the deceased home. It was when
he was sending the deceased home that the accident occurred. Before
deciding this issue the Court has to answer the question- what is the
course of employment? According to Winfield on Tort - 7th Edition page
741, “a wrong falls within the scope of employment if it is expressly
or impliedly authorized by the master or is authorized manner of
doing something which is authorized, or is necessarily incidental to
something which the servant is employed to do.”
In the case of Mitchell v. Crassweller (138 E.R.1189) at page 1193,

Jervis C.J. had this to say “No doubt a master may be liable for injury
done by his servant’s negligence, where the servant, being about
138
his master’s business, makes a small deviation, or even where he so
exceeds his duty as to justify his master in at once discharging him”.
The learned Chief Justice goes on and says – “and again, I think, at all
events, if the master is liable where the servant has deviated, it must
be where the deviation occurs in a journey on which the servant had
originally started on his master business; in other words, he must be in
the employ of his master at the time of committing the grievance.” This
exposition of the law was agreed by Maule, Cresswell and Williams JJ
as the law to be applied when the question of vicarious liability is in
issue. The next case I would like to refer to is that of Rayner v. Mitchel
(2 CPD 357) at page 359 where Lord Coleridge C. J states “ It was laid
down in Lord Holt’s time, and repeatedly since, that whenever the
master instructs a horse of a carriage or anything which may readily
be made an implement of mischief, to his servant to be used by him
in furtherance of his master’s business, or for the execution of his
orders, the master will be responsible for the negligent management
of the thing entrusted to the servant, so long as the latter is using it
or dealing with it in the ordinary course of his employment. That is
undoubtedly a correct statement of the law.”
In Mohamed Akbar v. Nicholas and Another 12 E.A.C.A 39 in which

the question of vicarious liability was in issue it was held “That when
a plaintiff in a suit for negligence proves that damage has been caused
by the defendant’s motor-car, the fact of ownership of the lorry by the
defendant and of the driver being in his employment at the time and
actually driving the vehicle was prima facie evidence that the driver
was acting within the range of employment and that the defendant
was liable.”
If the above decisions and the exposition of the law by Winfield tells
us anything that thing is that it is not for every act of negligence by a
servant that a master is liable; but that the master is liable if the act
of negligence was done by the servant, either within the scope of his
authority or as an incident to his employment.
In the present case it has been argued by the defence that the first
defendant was acting outside the scope of his employment when he
deviated from the main road as he had no authority from his employer
139
to send the deceased home in the Council’s vehicle. This, the defence
argued, was a breach of the Council’s regulations. It may be true that
there were regulations prohibiting the Council’s employees from using
the Council’s vehicle without authority of the Council but as argued
by the learned counsel for the plaintiff if there were such regulations,
the Court expected the second defendant to exhibit them to the Court
as this would have been the only way to prove that there were such
regulations. The second defendant having failed to produce the said
regulations this court has no alternative but to presume that there are
no such regulations.
Even if, for argument’s sake, the court was to find that there were
regulations prohibiting employees from using Council’s vehicle for
their own ends, I would not be prepared to say that the sending of the
deceased, who was the Council’s employee and who was on duty at
that time amounted to using the vehicle by the first defendant for his
own private purposes as pleaded in the amended written statement of
defence, paragraph three. The deviation by the first defendant occurred
in a journey on which the first defendant had originally started on his
master’s business. The sending of the deceased home in the Council’s
vehicle by the first defendant may not have been expressly authorized
by the second defendant but his sending the deceased home in the
Council’s vehicle is clearly and necessary incidental to what he is
employed to do. The act certainly cannot be treated in abstraction
from the circumstances as a separate act.
Taking into account the fact that there is no evidence to show that the
1st defendant was acting outside the scope of his employment when he
made the deviation, I can only agree with the learned counsel for the
plaintiff that the negligent driving was done by the first defendant
while he was in the course of his employment and consequently his
employer, the second defendant, is vicariously liable for the death of
the deceased.
The next question which has to be decided is that of damages to be

paid to the dependants of the deceased. The plaintiff is claiming a
total of shs. 60,000/= as compensation to herself, her four children and
for the mother of the deceased.
140
There can be doubt that the wife of the deceased and the deceased’s four
children aged 16, 7, 4, and 3 were wholly dependants of the deceased.
As for the mother of the deceased who was 60 years at the time the
deceased met his death and who died 2 ½ year later, the degree of
her dependency on the deceased has been challenged by the defence.
The learned defence counsel argued that although the mother of the
deceased used to live with the deceased, the deceased was not the only
son who cared for her. It was suggested that the maintenance of the
mother must have been shared between her sons one of whom is a
high-ranking official in the police (P.W.5)
It was also suggested by the defence that the family was not wholly
dependent on the deceased as the family owns shambas of coffee,
bananas and tea. There is evidence that the wife is at the moment
living on the earnings from the shambas and no doubt, members of
the family are assisting the widow and the children - That would only
be natural after this tragedy; but certainly this would not have been
necessary if the deceased was still alive. Any help given to the widow
and her children must be wholly gratuitous and must depend on the
financial ability of the rest of the family.
The defence finally argued that even if the second defendant is found
to be vicariously liable for the death of the deceased, the deceased was
also to blame for his death and that the court should therefore reduce
any damages awarded because of contributory negligence on the part
of the deceased. I do not think the deceased is guilty of contributory
negligence. If the first defendant had not set the vehicle in motion
before the passengers were safely seated the accident need not have
occurred. The defence of contributory negligence does not on the facts
of this case hold water. The first defendant was wholly to blame for
the accident and as such the 2nd defendant is equally liable.
I now come to the amount of damages to be awarded to the defendants:
There is no proper proof of deceased age at the time he died. Postmortem

report (Exb A). gives his age as “adult”. The plaint under the heading
particulars of negligence, says that the deceased was 27 years old when
he died. This estimation of deceased’s age has not been challenged by
the defence. I therefore, in the absence of better evidence hold that
141
the deceased was 27 years old when he met the unfortunate accident.
Taking the retirement age as 55 and the fact that the deceased was
in receipt of shs.245/= per month at the time he died – see letter of
appointment Exh C- there would be a dependency of 55-27 which is
28 years. This brings a total of shs. 245X12x28 which is shs. 82,320/=.
There is no evidence as to how much of the deceased’s income from his
salary went to the maintenance of the widow and the children. But in
my view, all things being equal, he could not have spent more than
half of his income for the maintenance and upkeep of the family. The
defendants are therefore entitled a sum in the region of shs. 40,670
compensation.
There is finally the question of apportionment. According to the

decisions in Kassam v. Kampala Water Co. Ltd. (1965) E.A. 587 and
Hayes v. Patel (1961) E.A.129, the greatest part of the total sum must
go to Angelina, the widow of the deceased on the ground that she has
the responsibility of looking after the four children.
I apportion shs. 30,00 to her. Each of the four children to get shs.2,600.
The mother who was 60 years old and who died two years after the
death of the deceased did not very much depend on the deceased for her
maintenance. The balance of shs. 270/= would have amply covered her
expenses up to the time she met her death. This amount is awarded
to her heirs. There will be judgment against the 2nd defendant to the
tune of shs. 40,670/= with costs and interest as prayed.
142
Assah A. Mgonja v. Elieskia I. Mgonja, Civil Appeal 50 of 1993, High
Court of Tanzania at Dar es Salaam (unreported)
(Date of the decision: 8th September 1995)
JUDGMENT
MWAIKASU, J: - The parties in this appeal, namely ASSAH E.
MGONJA, who is the appellant, and one ELIESKIA I. MGONJA,
were formerly husband and wife having entered a Christian marriage
sometime in 1980. Due to misunderstanding and upon the appellant’s
petition their marriage was legally dissolved on 19/4/1993 by the order
of the lower court.
Among the reliefs prayed for, besides the dissolution of the marriage,
were division of matrimonial assets; the custody of all the children
and maintenance for all the children and any other relief.
There was evidence adduced by the petitioner which was not at all
disputed by the Respondent, that during their marriage the couple
was blessed with four children, namely Joel Mgonja, Grace Mgonja,
Richard Mgonja and Baraka Mgonja, then aged 12yrs, 10yrs, 3yrs old,
respectively. During such duration of their marriage the couple also
managed to build a house; purchased one m/v Reg. No. TZ. 89712,
make Toyota Hillux Pickup, now out of order, and developed a farm
that had been purchased by the Respondent in 1977.
In determining the reliefs sought he by the appellant, the lower court

declined to make any order in respect of the house on the ground that
the same had to remain a family house to shelter the children of the
marriage; no orders was made in respect of the m/v on the ground
that there was no evidence given by the appellant that during the
subsistence of their marriage they had acquired a motor vehicle Reg.
No. TZ.89712, make Toyota Hilux Pickup; and as regards the custody
of children the learned trial magistrate considered the ages only of the
four children and then made the order that the three older children
had to remain in the custody of the Respondent; while the youngest
had to be under the custody and sole maintenance of the appellant.
143
It is against such decision of the trial court on the reliefs, other than
dissolution of the marriage, sought by the appellant that this appeal
has been preferred to this Court.
Arguing her appeal, the appellant has maintained, among other things
that she cannot accept that children of the marriage are entitled to
inherit the properties of their parents while the parents are still alive,
which would appear to be the effect of the decision of the trial court in
respect of the house jointly acquired with the Respondent; that the m/v
Reg. No. TZ.89712 Toyota Hilux had been purchased by then in 1987;
and that though the farm was purchased by the Respondent in 1977,
before their marriage, it was herself to who had played a major role in
developing it by supervising the clearing of it, providing fertilizers and
planting with pineapples, oranges and banana plantains all of which
are said to be growing in the farm. Besides it is on such very farm that
their matrimonial house was later built.
Arguing the appeal for the Respondent, Mr. Kashumbugu, learned

advocate, has contended among other things, in support of the
judgement of the lower court to the effect that there was no evidence
relating to the existence of m/v TZ. 89712, Toyota Hilux pickup or
as to whether she ever contributed in its acquisition, how such m/v
was so acquired, and whether the same was so acquired during their
marriage. As regards the farm, it has been his contention that as such
farm was bought by the Respondent in 1977 at the time when they
were not marred, the appellant cannot claim any interest in it. As
regards the division of the matrimonial house he has argued that it was
upon considering the interests of the nine children of the Respondent,
of whom four were begotten with the appellant, that the lower court
declined to order the division of such matrimonial house. However,
the learned counsel would be prepared to accept determination of
the interests of the parties in the matrimonial house, irrespective
of whether or not the property is to be divided among the interested
parties.
144
In the light of the evidence adduced before the lower court, it is my
considered opinion that it was wrong for the learned trial magistrate
to deprive the appellant of her interests in the matrimonial house by
refraining to determine the same for the simple reason that there were
children of the marriage who stood to benefit. As rightly contended by
the appellant, that was not a disposal of the property in the course of
an administration of deceased’s estate. The guiding principles in the
division of matrimonial property following a divorce are those provided
for under S. 114 of the Law of Marriage Act 1971; as also interpreted
by the court of Appeal in Bi-Hawa’s case. What then does the law say?
In terms of S.114 of the law of Marriage Act 1971, it is there provided

as follows:-
“114-(1) the court shall have power, when granting or subsequent to the
grant of a decree of separation or divorce, to order the division between
the parties of any assets acquired by them during the marriage by
their joint efforts or to order the sale of any such asset and the division
between the parties of the proceeds of sale.
(2) In exercising the power conferred by subs. (1) the court shall have
regard
(a) to the custom of the community to which the parties belong;
(b) to the extent of the contribution made by each party in money,

property or work towards the acquiring of the assets;
(c) to any debts owing by either party which were contracted for their
joint benefit;
(d) to the needs of the infant children, if any, of the marriage, and
subject to those considerations, shall incline towards equality of
division.
145
(3) For the purposes of this section, references to assets acquitted
during a marriage include assets owned before the marriage by one
party which have been substantially improved during the marriage by
the other party or by their joint efforts.”
In this case there has been no dispute as to the extent of contribution by
either party in the acquisition of both the house and the m/v and in the
development of the farm that was purchased by the Respondent prior
to their marriage. For while the appellant claimed before the lower
court to have acquired both the house and m/v during their marriage,
there was no dispute raised by the Respondent as to the extent of
contribution by either of them. Neither did the Respondent dispute
the appellant’s extent of involvement in their efforts to develop their
farm. As such there can be no question as to the extent of contribution
by either of the parties. They have, in the circumstances, to be taken
to have had equal contribution in the acquisition of both the house,
the motor vehicle and the in development of the farm.
I also take note of the fact that among the needs of infant children
that is these children who have not reached the age of majority as
to be able to lead an independent life, there is the need for adequate
and suitable shelter. The duty to provide the same lies upon the
father, unless unable to do so, for reasons of physical or mental ill-
health. That can be effected by renting a house or building one for
the purpose. In considering such interests of infant children, it is
the party who has custody of the children who has to be awarded
control of the matrimonial home for the benefit of the children of the
marriage. Nevertheless, that should not be construed as a way to
deprive the other party denied of such possession, of any interest in
the house. It is therefore imperative that despite awarding possession
of the house to the party who has custody of the infant children must
be determined, so that in the event of an attempt by the party who
has possession of the house to dispose of it, or upon such other party’s
death, the interest of the party who has been deprived of possession of
such house, is duly recognized and protected.
It is in the light of such considerations and in terms of the provisions

of S.114 of the Law of marriage Act 1971, that this Court order as
follows that is to say:
146
(a) that the appellant is entitled to two fifths (2/5) of the value of
both the house and the farm acquired and developed, respectively
by the parties during their marriage.
(b) that the parties are entitled to an equal share of the proceeds of
sale upon the sale of the m/v TZ 89712 Toyota Hillux Pick up.
(c) that the matrimonial house and farm shall remain in the
possession of the party who has custody of infant children of the
marriage until they reach the age of majority and have started
leading an independent life, after which either party shall be
entitled and have liberty to demand division of such matrimonial
house and farm, by sale of the same.
(d) Upon each party having custody of some of the infant children
of the marriage then both the house and farm shall be subject
to sale and divided on equal basis, in order to enable each party
establish a new home for the children.
Now coming to the issue of maintenance, it is understood that the

Respondent is still working with the Ministry of Education and
Culture and the appellant is working with TACOSODE on contract
basis. The law on maintenance of children and spouse is very clear. As
regard maintenance of children, that is spelt out under S.129 of the
Law of Marriage Act 1971. It is there provided as follows:
“129 –(1) save where an agreement or order of court otherwise provides

it shall be the duty of a man to maintain his infant children, whether
they are in his custody or the custody of any other person, either by
providing then with such accommodation, clothing, food and education
as may be reasonable having regard to his means and station in life or
by paying the cost thereof.
(2) Subject to the provisions of subs.(1), it shall be the duty of a woman

to maintain or contribute to the maintenance of her infant children if
their father is dead, or his whereabouts are unknown or if and so far
as he is unable to maintain them.”
147
It is clear from the foregoing provision that while the law imposes a
duty upon father of a child to maintain such child, such duty may be
shifted by an order of a court where circumstances so demand. That
is what happened in the instant case in respect of the youngest child
that was placed under the custody of the appellant. It appears that the
lower court did so, and it had the mandate under our law to do so, upon
being made aware that the appellant had her own independent source
of income, as she was then said to be working with TACOSODE. That
being the position the order of the lower court as to the maintenance
by the appellant of the infant child under the custody of the appellant
cannot be interfered with.
Coming to the issue of the custody of the children of the marriage,

the four children were then aged between 12 yrs and 3yrs. It upon
considering the age of the children only that the lower court decided to
place only the youngest child under the custody of the appellant. The
children were not given any opportunity to choose as between their
divorcing parents as with who they would feel more comfortable to
live. Yet in terms of subs. (2) of S.125 of the Law of Marriage Act 1971,
it is provided as follows:
“125 – (2) In deciding in whose custody an infant should be placed the

paramount consideration shall be the welfare of the infant and subject
to this, the court shall have regard-
to the wishes of the parents of the infant; and
to the wishes of the infant, where he or she is of an age to express an

independent opinion; and
to the customs of the community to which the parties belong.
(3) There shall be a rebuttable presumption that it is for the good of

an infant below the age of seven years to be with his or her mother
but in deciding whether the presumption applies to the facts of any
particular case, the court shall have regard to the undesirability of
disturbing the life of an infant by changes of custody.
148
(4) where there are two or more children of a marriage, the court shall
not be bound to place both or all in the custody of the same person but
shall consider the welfare of each independently.”
It is evident from the foregoing provision that the three children of the
marriage then aged 12yrs,10yrs and 6yrs ought to have been heard
before being placed under the custody of the Respondent, as with
whom between the divorcing parents they would have liked most to
live. It is also evident that the lower court erred in law, to place the
6years old child under custody of the Respondent; without there being
any reasonable grounds to rebut the presumption that a child of that
age ought to be placed under the custody of the mother. Of course the
situation now has changed. What, however, remains to be regularized,
is the opportunity to be given to the other three children of the marriage
begotten by the appellant and the Respondent, to choose as between
the two parents, with when they would most prefer to live. In the
circumstance I set aside the lower court’s order for the custody of the
three older children all of whom had been placed upon the Respondent
and order that such children be required to appear before the lower
court and allowed to exercise such choice, in accordance with the law.
Accordingly, I allow this appeal in part, and make no order for

costs.
149
Attorney General v. Rebecca Z. Gyumi, (Civil Appeal No.204 of
2017) [2019] TZCA 348; (23 October 2019)
(Mwarija. Korosso, and Levira, JJA.)
JUDGMENT
LEVIRA JA.: This is an appeal on Constitutional matter which was

initially lodged and entertained by the High Court of Tanzania at Dar
es Salaam, Main Registry (Lila J.K as he then was, Kihiyo, J. and
Munisi, J.) in Miscellaneous Civil Cause No. 5 of 2016. In her petition
before the High Court, the respondent, Rebeca Z. Gyumi challenged the
constitutionality of sections 13 and 17 of the Law of Marriage Act, Cap
29 R.E. 2002 (herein referred as “the LMA”). The said sections require
consent of parents or court for girls below 18 years before marriage
and at the same time, section 13(1) and (2) of the LMA allows a female
person to get married at the age of 15 years and a male person to get
married only upon attaining the age of 18 years. Thus, the respondent
argued that the said provisions of the LMA offend the provisions of
Articles 12, 13 and 18 of the Constitution of the United Republic of
Tanzania, 1977as amended from time to time (the Constitution). She
therefore sought the declaration that the said provisions are null and
void, must be expunged from the statute and 18 years should remain
the minimum marriage age until the Government amends the law.
On the basis of the respondent’s petition before the High Court,
four controlling issues were taken into account for determination,
namely: One, whether the provisions of sections 13 and 17 of the LMA
contravene the right to equality as provided for under Article 12 of the
Constitution. Two, whether the provisions of section 13(1) & (2) of the
LMA is discriminatory provision thus contravening the right against
discrimination as provided for under Article 13(1), (2), (3), (4) and (5)
of the Constitution. Three, whether the provisions of section 17 of the
LMA contravene the right to equality and dignity of a person, and a
right to non-discrimination as provided for under Articles 12 and 13 of
the Constitution. Four, whether the provisions of section 13(2) of the
LMA is too vague and susceptible of being arbitrarily interpreted to
deny female children their right to education which is the cornerstone
150
of the freedom of expression as provided for under Article 18 of the
Constitution.
The petition was disposed by way of written submissions. Upon
close scrutiny of the submissions by both parties the High Court
was satisfied that the provisions of sections 13 and 17 of the LMA
are discriminatory as they uphold different treatment to persons of
similar situations hence offending the principle of equality enunciated
by Articles 12(1) and 13(1) of the Constitution. However, the High
Court did not declare the said provisions of the LMA null and void;
instead, it found them to be unconstitutional.
In exercise of the powers vested in it under Articles 13(2) and 30(5)
of the Constitution and the Basic Rights and Duties Enforcement Act
(the BRDEA), the High Court directed the Government through the
Attorney General within a period of one year from the date of the
decision to correct the complained anomalies within the provisions
of section 13 and 17 of the LMA and in lieu thereof put 18 years as
the eligible age for marriage in respect of both boys and girls. The
appellant, the Attorney General was aggrieved and hence, the current
appeal.
In this appeal, the Attorney General appeals against the whole
Judgment of the High Court on the following grounds:
1. That, the High Court erred in law in holding that sections
13 and 17 of the Law of Marriage Act [Cap 29 R.E. 2002] are
discriminatory for giving preferential treatment regarding the
eligible ages of marriage between girls and boys.
2. That, the High Court erred in law in equating the age of the
child with the age of marriage.
3. That, the court erred in law by holding that customary and
Islamic laws do not apply in matters of marriage stated in the
Law of Marriage Act [Cap 29 R.E. 2002].
4. That the High Court erred in law by holding that with, various
legislative developments that have taken place, it is unexpected
to have valid and competent applications filed in court seeking
leave under sections 13(2) and 17(2) of the Law of Marriage Act
[Cap 29 R.E. 2002]
151
5. That, the High Court erred in law by holding that sections 13
and 17 of the Law of Marriage Act [Cap 29 R.E. 2002] have lost
their usefulness thus, they deserve to be declared null and void.
Basing on the above grounds, the appellant prays to this Court to
quash the decision of the High Court and declare that sections 13 and
17 of the LMA are constitutional.
At the hearing of this appeal the appellant was represented by Mr.

Mark Mulwambo, learned Principal State Attorney who was assisted
by Ms. Alesia Mbuya, also learned Principal State Attorney whereas,
the respondent enjoyed the services of Mr. Mpale Mpoki, who was also
assisted by Messrs Alex Mgongolwa, Fulgence Massawe and Jebra
Kambole, all learned advocates.
Before commencement of the hearing of this appeal, Mr. Mpoki raised

a preliminary matter in respect of the list of authorities filed by the
appellant in Court on 18th July, 2019 and served to the respondent’s
counsel. According to him, the said list of authorities contained
Hansards (Majadiliano ya Bunge (HANSARD), TAARIFA RASMI
(MKUTANO WA PILI), TAREHE 19 Januari-27 Januari, 1971 and
Bunge la Tanzania, Majadiliano ya Bunge, Mkutano wa Kumi na
Moja, Kikao cha Kumi na Mbili- Tarehe 18 April 2018) appearing in
No. 7 & 8 of the said list which were not tendered during the trial.
He thus objected the said documents to be relied upon in this appeal.
After some arguments of counsel for the parties, Mr. Mulwambo
conceded to the objection and therefore, the said Hansards excerpts
were expunged from the list of authorities to be relied upon by the
appellant in this appeal.
Thereafter, Ms. Mbuya commenced to address the Court by adopting

the filed written submissions to constitute an integral part of her
submission at the hearing. She then argued the grounds of appeal
seriatim. In her submissions, Ms. Mbuya stated that sections 13 and
17 of the LMA are not discriminatory. It was her contention that
not all laws that treat people in similar situations differently can be
said to be discriminatory rather, it is a way of providing affirmative
action to vulnerable members of the community and that some
people in similar situations do actually require different treatment
152
due to various reasons including biological ones. In cementing on the
affirmative action, Ms. Mbuya referred the Court to section 34(2) of
the Persons with Disabilities Act, 2010 which requires the Minister
to ensure promotions in employment to persons with disabilities.
As to the biological differences, it was contended that girls and boys
though being in the same age still can be treated differently because
girls undergo early maturity than boys. Therefore, the impugned
provisions were placed to serve and protect both girls and boys who
fail to continue with secondary education as they are likely to engage
in early sexual activities. According to the appellant, the High Court
was wrong to peg both girls and boys on the same footing since they
do not always belong in the same category. Regarding the issue of
equality, the learned Principal State Attorney submitted that it only
requires people who are similarly situated to be treated similarly
while those who are different to be treated differently and that is the
essence of age of marriage difference envisaged under sections 13(1)
and 17(1) of the LMA.
Furthermore, the learned Principal State Attorney submitted that

age is not a criterion for discrimination in our Constitution therefore
it is justified by the safety valves stated under section 13(2) and 17(2)
of the LMA. To drive the point home this Court was invited to consider
the decision in Mbushuu Alias Dominic Mnyaroje and Others v. R
[1995] T.L.R 79. It was thus argued that, the impugned provisions are
valid since they allow the court and parents to give leave or consent
for children to marry. The learned Principal State Attorney prayed for
the first ground of appeal to be allowed.
In regard to the second ground of appeal, the learned Principal State

Attorney argued that it was wrong for the High Court to equate the
age of the child with the age of marriage. She argued further that
despite the enactment of the Law of the Child Act, 2009 (the LCA)
the impugned provisions in the LMA have remained intact. According
to her, the age of marriage is different from that of the child because
the said age is closely related to the age of puberty and it pays due
consideration to the biological maturity of human beings. As such, the
age of marriage is set to offer protection to adolescent girls who are
most likely to engage in sexual activities before 18 years of age hence,
153
bearing children out of wed lock, she added. Ms. Mbuya emphasised
that the age of marriage to a girl is 15 years as per Judge Spry’s
Report of 1969 which in essence suggested the age of marriage. Thus,
the decision of the High court was faulted for taking inspiration from
the decision of Zimbabwean case in Loveness Mudzuru & Ruvimbo
Tsopoddz v. Minister of Justice Legal and Parliamentary Affairs and
Others, Constitutional Application No. 79 of 2014 (unreported). The
learned Principal State Attorney vehemently alluded that unlike our
Constitution, the Zimbabwean Constitution has a specific provision
setting the age of marriage to be 18 years. It was her observation
that such decision is only persuasive and thus ought not to have been
relied upon by the High Court.
In the third ground of appeal, the main appellant’s contention is

that, the High Court erred in law by holding that customary and
Islamic laws do not apply in matters of marriage stated in the LMA.
The learned Principal State Attorney’s argument was premised on
the fact that the High Court ignored the appellant’s argument that,
the LMA came up as a result of the views collected in the Report of
Judge Spry, 1969 and that the legislation is a fusion of Islamic and
Customary values. In addition, Ms. Mbuya contended that, the LMA
was enacted on the basis of the White Paper No. 1 of 1969 which was
published to seek people’s opinion on various customs, traditions and
religious customs relating to marriage with a view of codifying them.
Her stance was that the LMA exists in a parallel system together with
customary law and religious laws of marriage. Moreover, she argued
that the customary and Islamic laws cannot override the specific law
of marriage as the LMA considers both customary and Islamic laws.
Strongly, she aired out that judicial pronouncement cannot change
customary practices and therefore, it was wrong for the High Court to
decide against Judge Spry’s Report.
The appellant claimed that the High Court did not pay due regard
to her argument that it will be dangerous and may create chaos if
courts were to make judicial pronouncements on the constitutionality
of customs and customary law as it was held in Elizabeth Stephen and
Another v. AG [2006] T.L.R 404.
154
In conclusion, the learned Principal State Attorney, submitted that,
the LMA is a self-executing law and as such, other laws such as the
Judicature and Application of Laws Act (JALA) cannot and should not
override it.
Submitting on ground four of the appeal, the learned Principal

State Attorney argued that the High Court erred in embarking on
presumptions by holding that, with various legislative developments
that have taken place, it is unexpected to have valid and competent
applications filed in court seeking leave under sections 13(2) and 17(2)
of the LMA. She pointed out that the law has made tremendous steps
in protecting the interests of girls below the age of 18 by outlawing sex
out of wedlock for them. Ms. Mbuya further highlighted that there has
been some development of the law, for instance the Sexual Offences
Special Provision Act (SOSPA) which creates offences like statutory
rape but, she said, the developments did not touch the LMA because
the said Act serves the purpose as she referred the case of the Attorney
General v. W. K. Butambala [1993] TLR 46.
Other laws referred as part of legislative developments by the

appellant include section 130 (2)(e) of the Penal Code [Cap.16
R.E. 2002]; the Written Laws (Miscellaneous Amendment) Act No.
2 of 2016 in which section 22 amends the Education Act [Cap. 353]
by adding a new section which prohibits marrying or impregnating
primary or secondary school pupils. However, the learned Principal
State Attorney was mindful of the fact that, the Education Act only
offers safeguard to children who are in the formal education systems
and does not cover those who are not. Thus, she emphasised that
sections 13 and 17 of the LMA are still relevant to those girls and boys
who are below 18 years of age and who are not in the formal education
system and wish to get married.
In respect of the fifth ground of appeal, the learned Principal State

Attorney contended that the High Court erred in holding that sections
13 and 17 of the LMA have lost their usefulness thus they deserve
to be declared null and void. She submitted that under Article 30(5)
of the Constitution the High Court was supposed to declare the
impugned provisions unconstitutional and if need be, instead, the
155
relevant authority was supposed to be afforded time to correct the
anomaly. She also cited section 13(2) of the BRDEA in support of her
stance. However, the appellant argued that instead of holding that
the provisions of the law deserve to be declared null and void, the
High Court was bound to find them either unconstitutional or invalid.
In support of this position the appellant cited the case of Julius
Ishengoma Francis Ndyanabo v. Attorney General, [2004] TLR 41 and
The Hon. Attorney General v. Reverend Christopher Mtikila, Civil
Appeal No.45 of 2009 (unreported) where it was said that, the court
never nullified the provisions in issue, rather, the court left it to the
appropriate authority (Government) to look into the matter.
The respondent through her learned advocates opposed this appeal

by addressing the grounds of appeal one after the other. Mr. Mpoki
submitted on the first ground of appeal while, Mr. Mgongolwa, and
Mr. Massawe submitted on the second and third grounds of appeal
respectively, and Mr. Kambole submitted on the fourth and the fifth
grounds of appeal. The respondent’s reply to the written submissions
in support of the appeal was as well adopted as part of the respondent’s
submission.
In regard to the first ground of appeal, Mr. Mpoki commenced his

submission by making reference to Article 12 (1) of the Constitution
which provides that, all human beings are born free and are all equal.
He insisted that Article 12(1) of the Constitution should be read
together with Article 13(4) which provides that no person shall be
discriminated by any person or any authority acting under any law.
Mr. Mpoki went ahead submitting that, the appellant has failed to
justify why there is discrimination between boys and girls under the
LMA, as far as the eligible age for marriage is concerned; and that, the
impugned provisions are saved by Article 30(2) of the Constitution. In
support of his argument, he cited a number of decisions, including the
case of Kukutia Ole Pumbun and Another v. Attorney General
and Another [1993] TLR 159 at page 166; Mbushuu Alias Dominic
Mnyaroje and Another v. Republic [1995] TLR 97, at page 112 and
Julius Ishengoma Francis Ndyanabo (supra) at page 29.
156
In regard to the appellant’s point that age is not a prohibited ground
of discrimination in the Constitution, Mr. Mpoki submitted that it is
untenable because the respondent never alleged that sections 13 and
17 of the LMA constituted discrimination based on age and the High
Court did not make a finding to that effect.
It was further submitted by Mr. Mpoki that the aim of affirmative

action is to elevate people to the same level in the society as you cannot
discriminate people by affirmative action. He added that, sections 13
and 17 of the LMA do not assist a girl or a boy below 14 years to
solve problems in the society instead, they put them in more problems.
While citing the case of Julius Ishengoma Francis Ndyanabo (supra)
which defines discrimination, Mr. Mpoki argued that discrimination
should be defined as distinguishing persons who are supposed to be in
the same level and category.
Therefore he submitted that, the LMA does not promote affirmative

action for girls. If anything, the said law undermines girls’ progress
by allowing them to marry earlier and even before they complete
their secondary school education. So, according to Mr. Mpoki, sections
13 and 17 of the LMA do not serve the purpose of serving children
because they condone segregation contrary to Article 13(1) & (5) of the
Constitution which provides that, all persons (including children)
are equal before the law.
In respect of biological reasons, it was Mr. Mpoki’s submission that,

the appellant has made a bare assertion that girls mature earlier
than boys without any scientific proof. That even in the absence of
evidence to support that girls mature earlier, the biological maturity
or development is not in itself indicative of readiness for marriage. The
learned advocate reminded us that the Constitution is very specific in
seeking to transcend stereotypes about differences and emphasizes
that, “all human beings are borne free, and are all equal”’ and “every
person is entitled to recognition and respect for his dignity” as per
Article 12 of the Constitution.
157
Submitting on the assertion that allowing girls to marry at younger age
is a protective measure, the learned counsel contended that, affording
children to get married is not protection. It was further observed that,
the institution of marriage does not in itself offer any more protection
for young girls than boys of the same age and there is nothing in the
LMA that suggests that Parliament’s intention in enacting the said
law was to protect girls and boys from engaging in sexual activities.
Regarding the appellant’s argument that the LMA was enacted so as

to harmonise civil, customary and Islamic law and to accommodate
the interests of the whole society, Mr. Mpoki submitted that, if
the effect of such codification is to discriminate against one group,
then the court should step in to rectify the situation and ensure
compliance with the Constitution which asserts equality before the
law irrespective of gender or sex. The respondent referred this Court
to Article 19(2) of the Constitution which insists that protection of
the rights in relation to faith and religion shall be in accordance with
the provisions prescribed by the laws which are of importance to a
democratic society. However, he was also mindful of section 11(4) of
JALA which provides:
“Notwithstanding the provisions of this Act the rules of customary law

and Islamic law shall not apply in regard to any matter provided in
the Law of Marriage Act.”
Regarding the assertion that the impugned provisions assure
safeguards and protection, Mr. Mpoki submitted that the alleged
safeguards provided by sections 13(2) and 17(2) of the LMA are
discriminatory. Expounding on this point, he stated that under section
13(2) the only safeguard provided is for boys and girls who are fourteen
years of age to seek the court’s permission to get married under special
circumstances. In addition, he argued that section 17(2) of the LMA
provides for more avenues for girls under the age of eighteen to get
married than boys of the same age and therefore, the said provision is
discriminatory.
158
Addressing on the position of international and regional laws in
respect of minimum age for a person to marry, the learned advocate for
the respondent faulted the observation made by the learned Principal
State Attorney by stating that the said instruments recognise the
age of marriage to be 18 years for both men and women. Specifically,
some of those provisions are, Article 6 of the Protocol to the African
Chater on Human, and People’s Rights’ on the Rights of Women
(Maputo Protocol); The Convention on the Elimination of All Forms
of Discrimination Against Women (CEDAW) and Article 21(2) of the
African Charter on the Rights and Welfare of the Child. The learned
advocate stressed that, these regional and international instruments
are applicable in Tanzania, as the same have been signed and ratified
by the Government. He went ahead stating that, the spirit of the
Convention on the Rights of the Child (CRC), CEDAW and the African
Charter on the Rights and Welfare of the Child have been translated
into the Law of the Child Act, 2009 (the LCA) in the long title. Lucidly,
he insisted that, section 13(1) of the LCA can be construed to prohibit
child marriage.
On the strength of the above submissions, Mr. Mpoki argued that

the High Cout correctly held that sections 13 and 17 of the LMA are
discriminatory for giving preferential treatment regarding the eligible
ages of marriage between girls and boys and hence, the first ground of
appeal should be dismissed.
Mr. Mgongolwa responded to the second ground of appeal by submitting
that, this ground of appeal is misconceived because the gist of the
matter is based on sex, age and marriage as a subject matter. He also
stated that at page 574 of the Record of Appeal the issue before the
High Court was about age as prescribed in sections 13 and 17 of the
LMA; and therefore, the issue of age could not be ignored as these
sections give clear picture that age is a crucial factor in a marriage.
He insisted that, the High Court was right to touch on the issue of age.
Mr. Mgongolwa submitted futher that, section 9 of the LMA defines
the term marriage to mean a voluntary union, so in a legal context a
union is a contract. Therefore, it was his submission that a child has
no capacity to contract and a child does not cease to be a child because
he or she enters in the marriage institution.
159
In addition, Mr. Mgongolwa submitted that section 2 of the LCA
defines a child as an infant who has not attained the age of 18 years.
He strongly argued that, as of necessity, the High Court was right to
equate the age of the child and the age of marriage.
Regarding the Zimbabwean case of Loveness Mudzuru & Ruvimbo

Tsopoddz (supra), Mr. Mgongolwa submitted that, the court just took
inspiration and it did not say that it is bound by that decision and
what the court did is a common practice. Mr. Mgongolwa submitted
futher that, in the case of The Attorney General v. Rev. Christopher
Mtikila (supra) relied upon by the appellant the issue was whether
the Parliament could alter the basic structure or essential features of
the Constitution. In the said case the court did not apply the Indian
authorities due to the finding that, the basic structure principle was
not applicable to the Constitution and thus distinguishable.
While responding to the appellant’s argument that the age of marriage

is different from the age of the child and that is why the LCA did not
seek to amend the LMA, Mr. Mgongolwa strongly submitted that had
LMA provided for the definition of a child, the enactment of the LCA
could have affected it.
In regard to the case of Elizabeth Steven and Another (supra) referred

by the appellant, Mr. Mgongolwa submitted that the said case cannot
be embraced at the moment because it dealt with criminal issues and
it has nothing to do with the matter at hand.
Regarding the third ground of appeal that the High Court erred in
holding that customary and Islamic laws do not apply in matters of
marriage stated in the LMA, Mr. Massawe strongly disagreed with
the appellant’s submission that the LMA exists in a parallel system
together with customary and religious laws of marriage. He argued
that, the LMA is a result of views collected from people based on their
customs, traditions and religions values, when codified, it became a
law. He submitted further that, the LMA is the main and the only
law in Tanzania that coordinates, and regulates matters connected to
marriage. Therefore, Mr Massawe submitted that, the decision of the
High Cout in this ground of appeal was not a position of the court as
said by the appellant but, it is the position of the law under section
160
11 (4) of the JALA. According to the learned counsel, the High Court
was proper in interpreting section 11(4) of the JALA and a Pandora
box cannot be opened by saying that the LMA is enacted to cover
customary and Islamic laws.
Another observation made by Mr. Massawe was that the appellant

failed to appreciate what was before the trial court as he said that,
the High Court did not determine the constitutionality of customary
law rather it determined the applicability of customary law vis
as vis matters provided for within the LMA. The learned counsel
clarified that, before the High Court the respondent was challenging
the constitutionality of sections 13 and 17 of the LMA, and thus,
the case of Elizabeth Steven and Another cited by the appellant is
inappropriate in this context. It was futher contended that the import
of section 11(4) of the JALA does not override the Law of Marriage
Act but rather, limits the application of culture and religions rules for
matters provided for in the LMA.
In addressing the fourth ground of appeal Mr. Kambole commenced his

submission by showing the contradictions brought by the appellant’s
submission. As such, he submitted that the arguments offered by
the appellant are contradictory to the earlier arguments where the
appellant submitted that, the impugned provisions acknowledge that
sex happens and that it allows children to be born within marriage.
Mr. Kambole noted that, in this ground the appellant argued that the
impugned provisions seek to protect the interests of girls and boys by
outlawing sex out of wedlock. Another contradiction highlighted by
Mr. Kambole is that, the appellant argued that statutory rape is sex
of a girl below 18 years of age unless she is a wife of a man. According
to him, this submission contradicts the appellant’s argument that the
provisions are protective, since they facilitate rape of girl child under
the gist of marriage.
Mr. Kambole also challenged the amendments of the Education Act

by the Written Laws (Miscellaneous) Act, No.2 of 2016 relied upon
by the appellant. He argued that, the said amendment could easily
have the opposite effect of resulting into girls leaving school to marry
when they realise that they are pregnant to prevent the persons who
161
impregnated them from being found guilty under that Act. In addition,
Mr. Kambole argued that these provisions are superfluous given the
fact that there are Penal Code provisions on sexual offences against
girls below 18 years. The learned advocate argued strongly that, the
safeguard provided by those provisions is only to the girls who are in
formal education system, regardless of their age. Girls who are not in
formal education like vocational training institutes and colleges are
unprotected while they deserve the same protection under the law
because they are also children.
Mr. Kambole went further arguing that, the Sexual Offences Special
Provision Act (SOSPA) leaves child bride open to rape; as intercourse
between a man and a girl which would otherwise be considered as
statutory rape and illegal with or without the girl’s consent, is legalised
to child brides of ages 15 to 18. Therefore, it was his contention that, this
law does not protect a girl child from sexual violence by her husband.
According to Mr. Kambole, this ground of appeal is also without merit
and thus, he prayed for the same to be dismissed as well.
The fifth ground of appeal was challenged by the respondent as it

was submitted that, contrary to the appellant’s argument, the High
Court did not declare the provisions of sections 13 and 17 of the LMA
as null and void. Mr. Kambole submitted that the judgment and the
drawn order are very clear that, the High Court ruled out that those
provisions are unconstitutional, and the Government was given time
to correct the complained of anomalies within the provisions of sections
13 and 17 of the LMA in terms of Article 30(5) of the Constitution
which states that:
“Where in any proceedings it is alleged that any law enacted or any

action taken by the Government or any other authority abrogates or
bridges any of the basic rights, freedoms and duties set out in Articles
12 and 29 of this Constitution, and the High Court is satisfied that
the law or action concerned, to the extent that it conflicts with this
Constitution, is void or is inconsistent with this Constitution, then the
High Court, if it deems fit, or if the circumstances or public interest
so requires, instead of declaring that such law or action is void, shall
have power to decide to afford the Government or other authority
162
concerned an opportunity to rectify the defect found in the law or
action concerned within such a period and in such manner as the High
Court shall determine, and such law or action shall be deemed to be
valid until such time the defect is rectified or the period determined by
the High Court lapses, whichever is the earlier. “
With that stance, it was alluded that the law will be deemed to be
valid during the period in which Parliament has to correct it. Thus,
the statement by the High Cout concurring with the Respondent
that the impugned sections “deserve to be declared null and void” is
simply the Court’s analysis about the validity and constitutionality
of the sections, but not the court’s holding on the said provisions. Mr.
Kambole emphasized that, it was proper for the court to declare those
provisions unconstitutional. He submitted firmly that in situations
where a girl child cannot vote, enter into a contract and/or consent into
sex, it cannot be said that it is proper to subject her into a marriage
contract which the High Cout said is a complex conjugal matrimonial
relation. He prayed for this ground of appeal to be dismissed as well.
In a very brief rejoinder, Mr. Mulwambo mostly reiterated what was

submitted in chief by Ms. Mbuya. He urged us to find and declare that
there is a purposive meaning in those provisions of the LMA under
scrutiny and allow the appeal.
With all respect and without prejudice, we do not intend to reproduce

the whole submissions, rather we will make reference of the same here
and there while determining the above introduced grounds of appeal.
We have dispassionately considered at length the rival submissions
by both parties and the whole record of appeal. We wish, foremost to
appreciate the insights availed by counsel for both parties through
their submissions. Indeed, their submissions have carried our mind in
serving the purpose of determining the appeal.
In respect of the first ground of appeal, Ms. Mbuya faulted the

observation made by the High Court in the premise that, sections 13
and 17 of LMA are not discriminatory because they tend to treat people
in similar situations differently as a way of providing affirmative action
to vulnerable members of the community. She cued examples under
section 34(2) of Persons with Disabilities Act, 2010 and section 33(1)
163
of the Employment and Labour Relations Act, 2004 as provisions of
the law which ensure realisation in protection of vulnerable members
of the community.
To appreciate the import of sections 13 and 17 of LMA, as the High

Court did we find it prudent to reproduce them in full as follows:
13.—(1) No person shall marry who, being male, has not attained the
apparent age of eighteen years or, being female, has not attained
the apparent age of fifteen years.
(2) Notwithstanding the provisions of subsection (1), the court shall, in

its discretion, have power, on application, to give leave for a marriage
where the parties are, or either of them is, below the ages prescribed
in subsection (1) if—
(a) each party has attained the age of fourteen years; and
(b) the court is satisfied that there are special circumstances which
make the proposed marriage desirable.
Also section 17 provides;
17.—(1) A female who has not attained the apparent age of eighteen
years shall be required, before marrying, to obtain the consent—
(a) of her father; or
(b) if her father is dead, of her mother; or
(c) if both her father and mother are dead, of the person who is her
guardian, but in any other case, or if all those persons are dead, shall
no require consent.
(2) Where the court is satisfied that the consent of any person to a
proposed marriage is being withheld unreasonably or that it is
164
impracticable to obtain such consent, the court may, on application,
give consent and such consent shall have the same effect as if it had
been given by the person whose consent is required by subsection (1).
[The emphasis is supplied]
In light of the above provisions, the law has set a minimum age to a
person who wants to marry. That is, a woman and a man are eligible
to marry when they attain the age of 15 and 18 years respectively.
Apart from setting the minimum age, there is a preceding condition
on a woman opting to marry at the age of fifteen. She can acquire
such right after obtaining consent from her father, mother, guardian
or leave of the court.
It is not in dispute that, a woman at the age of 15 years is a child

as per section 4(1) of the LCA. Also with the spirit embraced under
sections 13 and 17 of LMA, it is apparent that a man has been exalted
as one having overriding treatment against the woman. It is only a
woman “technically a child” who can marry while she is below the age
of eighteen years with the consent of her parents or a court. Does that
sound as discrimination? Or is it an affirmative action?
We are mindful of the fact that LMA was enacted in 1971 and that
the impugned provisions were incorporated to serve the purpose at
such particular era and perhaps to date. However, it is our respectful
view that, Tanzania is not an isolated island. It has from time to
time been indebted to legal jurisprudence from other jurisdictions by
ratifying and domesticating international, regional and sub regional
instruments or enacting laws as a means of acknowledging the
outcry of the international community and taking action against the
violation of human rights which includes the right of a girl child. By
ratifying and domesticating these instruments, the Government of
Tanzania has demonstrated commitment to enforce them and assure
smooth realization of human and peoples’ rights. Thus, the impugned
provisions cannot be interpreted in isolation rather in comparison to
the said instruments which have laid profounding principles on rights
to marry and finding a family. It is through them, we can possibly
ascertain as to whether sections 13 and 17 of LMA are discriminatory
or not.
165
Before we proceed further, we have taken deliberate effort to revisit
some of the provisions envisaged in selected instruments under which
Tanzania is a member. Under Article 16 of Universal Declaration of
Human Rights, 1948 it is provided that:
(1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and
at its dissolution.
(2) Marriage shall be entered into only with the free and full consent
of the intending spouses.
(3) The family is the natural and fundamental group unit of society and
is entitled to protection by society and the State. [Emphasis added]
Article 1 of the Convention on the Rights of the Child, 1989 and Article
2 of the African Charter on the Rights and Welfare of the Child, 1990
define a child to mean every human being below the age of 18 years,
unless under the law applicable to the child, majority is attained
earlier.
Under Article 6 of Protocol to the African Charter on Human and

Peoples’ Rights on the Rights of Women in Africa, 2003 States Parties
are obliged to ensure that women and men enjoy equal rights and
are regarded as equal partners in marriage. They are also required to
enact appropriate national legislation to guarantee that:
a) No marriage shall take place without the free and full

consent of both parties;
b) The minimum age of marriage for women shall be 18 years.

[Emphasis added]
166
Much as it can be gleaned from the above provisions, there are two
underscored preceding requirements which must be taken on board to
realize the right to marry. It is clearly proclaimed that only men and
women of full age have the right to marry. By necessary implication a
person who has not attained the age of 18 years and above lacks the
capacity to enjoy the right to marry. Apart from age requirement, it is
further reckoned that the persons who enter into marriage must pass
the test of free and full consent.
Turning to the issue under discussion, it is apparent that the impugned

provisions of the LMA on one hand allow men with full age to marry;
it does the same to the women, but with relaxed and compromised
conditions that they are capable to marry even when they are
below the age of majority (18 years). The learned advocates for the
respondent were adamant that the law does not promote affirmative
action instead it undermines the girls’ progress. With greatest respect
we subscribe to this proposition in the sense that, the law does not
subject the women to any constructive outcome. We tend to hold so for
the reasons we shall soon demonstrate.
Firstly, the impugned provisions have failed to uphold and appreciate

the true intentions of the respective international, regional and sub
regional instruments. The bottom line of all the Conventions on the
rights of a child is that no marriage can be contracted with person or
persons who have not attained the age of majority. This principle is
envisaged under the Law of the Child Act, 2009 (the LCA). Thus, the
existence of sections 13 and 17 of LMA do not only violate the
international law with which Tanzania is a member and has signed
and ratified, but also it offends the salutary principles of law of
contract which call for competency of the parties who enter into the
contract, particularly, in a marriage as a contract. We need to note
that, the Convention on the Rights of the Child, 1989 (the CRC) came
after the enactment of the LMA, 1971. In 2009 Tanzania enacted
the Law of the Child Act to reflect the rights protected by the CRC
without amending the impugned provisions of the LMA to reflect
the age and rights protected in the LCA. In our respective views, we
think that, amendment of the said provisions was necessary. Thus,
with the legislative development under the LCA, the amendment
167
of the Education Act, Cap 353 vide the Written Law (Miscellaneous
Amendment) Act and the amendment of the Penal Code through the
Sexual Offence Special Provisions Act (SOSPA), which are geared
at protecting rights of children, in our considered opinion, we do not
think that the development in the above laws are to be treated in
isolation with the LMA when it comes to matters touching on the
rights of children and in particular rights against discrimination.
Secondly, with all due respect to the learned Principal State Attorneys
for the appellant, the assertions that different treatment of the same
persons promotes affirmative action, we think, is far demanding of
merit. There is no scientific proof which substantiate the narration
that, due to biological reasons, girls should be subjected to early
marriages. We subscribe to the findings of the High Court that,
the operation of sections 13 and 17 of LMA expose girls to serious
matrimonial obligations and health risks like domestic and gender
based violence, psychological distress, miscarriage and teenage
pregnancies. As rightly found by the High Court it is our settled view,
that marriage of a child under 18 years subjects a child into complex
matrimonial and conjugal obligations.
Thirdly, we agree with the learned counsel for the respondent who
hinted that the dictates of section 34(2) of Persons with Disabilities
Act, 2010 and section 33(1) of the Employment and Labour Relations
Act, 2004 are serving distinguishable purposes. We are equally
of the view that at any stretch of imagination, the said provisions
cannot be equated with impugned provisions in the LMA. We hold so
because in other laws, the minorities enjoy the preferential treatment
which is a positive or rather affirmative discrimination as it aims
at facilitating employment opportunities and requisite protection to
the disadvantaged. We consider that, since the LCA does not define
a child by distinguishing between a boy and a girl child and /or give
preferential treatment to a girl child, it is high time that, a child
should also be so recognized under the impugned provisions of the
LMA to ensure equal treatment and nondiscrimination between boys
and girls.
168
In the event, we are now satisfied that the impugned provisions under
LMA do not give equal treatment between a boy and girl child thus
contravene Aticles 12 and 13 of the Constitution. We take note that
the appellant did not discuss whether or not the impugned provisions
of the LMA are saved under Article 30(1) of the Constitution. However,
it is our observation that the said provisions curtail the rights and
freedoms of a girl child intended to be protected by Article 30(1) of the
Constitution. Therefore, we do not see any cogent reason to disturb
the findings of the High Court. Having so stated, the first ground of
appeal fails.
In the second ground of appeal the appellant argued that it was

wrong for the High Court to equate the age of the child with the age
of marriage. Basically, this ground of appeal is challenging part of the
impugned judgment as reflected at page 576 of the Record of Appeal
when the High Court stated:
“Close reading of the above provisions gives us divergent imports

including: that they indeed permit persons under the age of eighteen
years who by definition are children to enter into marriage (section
13(1) & (2) i.e. girls at 15 years or even 14 years) while for
boys it is 18 years or 14 years; it is thus true that the provisions
give differential treatment between girls and boys as far as the
eligible age of marriage is concerned.” [Emphasis added]
The appellant disagrees with the above holding of the High Court on
account that the age of marriage and of the child is different because
they tend to achieve different objectives. It was further contended that
the age of marriage has a very close relation to the age of puberty and
it is set to protect teenagers who are mostly likely to engage in sexual
activities before they attain the age of 18 years.
It is our firm observation that the appellant’s assertions are not, with
respect, sound reasons. We are mindful that Marriage relationship
stands as a social contract therefore the age of child and age of
marriage are inseparable factors to be taken into account. As we
have stated earlier, girls cannot be protected from sexual activities by
allowing them to get married at younger age as correctly argued by the
respondent. When we were expounding the first issue, it was clearly
169
stated that sections 13 and 17 give different treatment between a boy
and a girl child. The basis of that holding was in consequential to
the age of child against the age of marriage. With the development of
legislative paradigm in Tanzania, children of whatever age regardless
of the kind of objective they want to achieve are incompetent to consent
any contractual arrangement. As such, in our considered views, a girl
child does not acquire adult status and/ or capacity to contract because
of marriage. The international legal instruments which Tanzania has
ratified and domesticated, expressly provide that men and women
should be equal partners in marriage; neither of them should be
treated as having overriding right than the other when entering the
union.
In that sense therefore, we agree with the High Court that the
impugned provisions provide for unequal treatment between girls
and boys. We wish to add that, a child is a child whether married or
not. So, age has to be considered first before one enters in a marriage
contract otherwise there was no need even for the LMA to set age and
conditions for one to marry. It is our firm view that, the High Court
correctly equated the age of the child and the age of marriage. We thus
agree with the submission of the counsel for the respondent that, the
second ground of appeal is without merit.
We now revert to the third ground as we consider whether customary

and Islamic law apply in matters of marriage stated in the LMA.
Ms. Mbuya stated that it was wrong for the High Court to hold that
customary and Islamic laws do not apply in matters of marriage
stated in the LMA. According to her, since the LMA was enacted as a
result of views collected in the Report of Judge Spry, 1969 and the said
legislation is a fusion of Islamic and customary values therefore, the
LMA exists in parallel system together with customary and religious
laws of marriage. While referring to the case of Elizabeth Stephan and
Another (supra), the appellant was of the view that, if courts were to
make judicial pronouncements on the constitutionality of customary
and Islamic laws, it will be dangerous and may create chaos.
170
The respondent on the other hand disagreed with the appellant’s
assertion in regard to customary and religious laws of marriage.
According to the respondent, since the LMA is a result of views collected
from people basing on their customs, traditions and religious values,
once codified, it becomes a law and therefore, customs and religious
sentiments have no place for the codified matters. Mr. Massawe
commended the High Court for giving proper interpretation of section
11(4) of the JALA while dealing with matters raised in this ground of
appeal. He urged us to consider that, the issue before the High Court
was a ‘child’ in relation to LMA. Thus, he said, it was proper for the
High Court to scrutinise the constitutionality of sections 13 and 17 of
the LMA just like it is the case to other laws whose constitutionality
is challenged.
We think it is instructive to consider what exactly transpired in the

holding of the High Court hereunder;
“Having closely gone through the provisions of section 11 of the

Judicature and Application of Laws Act, Cap 358 R.E. 2002 we are
satisfied that it prohibits the application of customary law and rules
of Islamic Law in the Law of Marriage Act.
That being the case, the argument by the respondent has no legs to
stand taking regard that the impugned provisions have been codified
under the Law of Marriage Act. Subsection (4) of Cap 358 provides:
11 (4) -Notwithstanding the provisions of this Act, the Rules of

customary law and the rules of Islamic law shall not apply in regard
to any matter provided in the Law of Marriage Act.”
Then the High Court went ahead stating that:
“With such clear wording of the provision, it is our considered view that
the argument that the two provisions should be spared on account of
values embedded in customary law and rules of Islamic law is invalid
and cannot stand.”
171
It appears that the appellant is faulting the plain interpretation given
by the High Court in respect of section 11(4) of the JALA. We are
mindful of the guidance under the principle of the law that, whenever
the language of the statute is plain and clear, the duty of interpretation
does not arise and therefore the provisions of law applied do not invite
discussion. This stance can also be observed in the decision of the
Court in Republic v. Mwesige Geofrey and Tito Bushahu, Criminal
Appeal No. 355 of 2014 (unreported). While dealing with similar
issue of statutory interpretation, the Court quoted with approval the
decision of the USA Supreme Court in Caminetti v. USA 242 US, 270
(1919); and, Consumer Product Safety Commission et al. v. GTE
Sylvania, Inc. et al. 227 U.S 102(1980). In Caminetti’s case (supra)
it was stated that:
“It is elementary that meaning of a statute must in the first instance,

be sought in the language in which the statute is framed, if it is plain
... the sole function of the courts is to enforce it according to its terms”.
The Court was persuaded by that decision and went on expounding

that:
“We have chosen to begin our discussion with the familiar canon of
statutory construction that the starting point for interpreting a statute
is the language of the statute itself. Absenting a clearly expressed
legislative intention to the contrary, that language must ordinarily be
regarded as conclusive.”
Being guided by the above principle, we are of the considered view

that the interpretation of section 11(4) of JALA by the High Court was
in line with the above elaborated principle. This is due to the fact that,
the language of the statute is plain and therefore, the above provision
needed to be interpreted ordinarily by looking at what the legislator
intended to say and that is what it means.
172
It can be captured from the LMA’s long title that, this law was not made
to coordinate the operation of customary and Islamic laws rather it
was introduced to regulate the law relating to marriage, personal and
property rights between husband and wife, separation, divorce and
other matrimonial reliefs and other related matters. We safely discern
this to be the intention of Parliament underlying the enactment of the
LMA. For clarity the long title of the LMA is quoted hereunder:
“An Act to regulate the law relating to marriage, personal and property
rights as between husband and wife, separation, divorce and other
matrimonial reliefs and other related matters.”
Thus, the assertion that LMA is not a self-executing law because it

was enacted as a result of views collected from people basing on their
customs, traditions and religious values, does not carry any weight, it
is unfounded and it offends the spirit of section 11(4) of JALA.
While referring to the case of Elizabeth Stephan and Another (supra),

the learned Principal State Attorney argued that it will be dangerous
and may create chaos if courts were to make judicial pronouncements
on the constitutionality of customary and Islamic laws. This line of
argument was challenged by the respondent on the ground that it was
made out of context. Indeed, the raised argument is devoid of merit
because our thorough perusal of the record does not indicate that the
High Court dealt with the constitutionality of either the customary or
Islamic laws. We therefore agree with the counsel for the respondent
that, the case cited by the appellant is distinguishable from the case
under discussion. In that case the petitioners filed their petition under
the provisions of Article 30(3) of the Constitution and sections 4, 5 and
6 of the BRDEA. They prayed for the Court to declare unconstitutional
some of the paragraphs of the Second schedule to the Local Customary
Law (Declaration) (No.4) Order, 1963, G.N. 436 of 1963 for violating
their basic rights as guaranteed under Articles 12(1)and (2),13(1),(2)
(4) and (5) and24 (1) of the Constitution. Upon close scrutiny the Court
formed an opinion that:
173
“For customs and customary law, it would be dangerous and may
create chaos if courts were to make judicial pronouncements on their
Constitutionality. This will be opening the pandoras box, with all
seemingly discriminative customs from our 120 tribes plus following
the same path.”
In the circumstances, the position transcended in the case of Elizabeth

Stephan and Another (supra), is distinguishable from the present
matter in two dimensions. Firstly, the petitioners who were Wasukuma
by tribe sought for declaration that some paragraphs of the Second
Schedule to the Local Customary Law (Declaration) (No.4) Order,
1963, G.N.436 of 1963 are unconstitutional. Therefore, their petition
was rooted on customary and traditional values which existed within
the community of Wasukuma. Secondly, any judicial pronouncement
declaring the said paragraph to be unconstitutional could lead to
chaos because their amendment avenue was not through the courts of
law rather the district council where the parties reside. At any stretch
of imagination we cannot equate the circumstances of that case with
the present matter as in this appeal, the contention is not based on
only a specific ethnic group or tribe. In this case therefore, the High
Cout was right to base its decision on the provisions of section 11 (4)
of JALA.
Regarding the argument by the appellant that the LMA exists

in parallel system together with customary and religious laws of
marriage, we need to pause and consider this statement particularly,
by considering what it means by parallel system. The Concise
Oxford English Dictionary, Eleventh Edition defines the term
parallel to mean “occurring or existing at the same time or in a similar
way”. By this definition, it is our respective observation that the two
are dispensable and they cannot co-exist in a parallel system. As we
stated earlier on, all matters to which the law applicable is LMA, the
rules of customs and religious values are inoperative. In this regard
we subscribe to the decision in Mohamed Ndatwa v. Hamisi Omari
[1988] TLR 137 where Samatta, J. (as he then was) while dealing
with interpretation of section 71 of the LMA as the appellant therein
had filed a suit claiming from the respondent recovery of dowry and
various tradition payments he made when he married the respondent’s
daughter, had this to say:
174
“Any rules of Customary Law or Islamic Law which might have
regulated the return of gifts made in contemplation of a marriage are
now suspended by the provisions of section 71 of the Act, quoted above.
The provisions of section 3A of the Judicature and Application of Laws
Ordinance, Cap. 453, make that perfectly clear. The section reads:
3A Notwithstanding the provisions of this Act the rules of customary
law and the rules of Islamic Law shall not apply in regard to any
matter provided for in the Law of Marriage Act, 1971. The various
payments made by the appellant in contemplation of the marriage to
the respondent’s daughter were in effect, whatever name one attaches
to them, gifts, and, therefore, are covered by the provisions of s. 71 of
the Act. It follows that, in my considered opinion, in law the appellant
is not entitled to the restitution of the said gifts.”
Thus, in our considered view, the contention that LMA exists in
parallel system together with customary and religious laws of
marriage is tantamount to interpolations of what is not stated in the
law. We need to emphasize here that, the law is supposed to be given
proper interpretation. Basing on our discussion above, we find the
third ground of appeal unmerited.
In the fourth ground of appeal the appellant is complaining that the

High Court erred by basing its decision on speculations on the future
validity and competency of ‘applications’ intended to be made under
sections 13(2) and 17(2) of the LMA. The appellant vigorously argued
that the holding of the High Court was based on speculation while
the law is still in existence aiming at safeguarding the interests of
boys and girls. The appellant’s argument was highly challenged by
the respondent where, Mr. Kambole stated that, the issue before the
High Court was not on the applications for leave under the scrutinised
provisions as the appellant would wish it to sound. But, he said, it
was just an obita dictum - whether there will be valid application to
seek leave and that was not the basis of the impugned decision. To be
certain on this matter, it is pertinent to revisit what the High Court
said as reflected at page 583 of the Record of Appeal:
175
“Close reading of SOSPA provisions makes us wonder how after its
enactment a court could be moved under section 13(2) or 17(2) of the
Act and grant leave for a girl under 18 to enter into marriage while
such prayer if granted by the court will constitute the newly created
offence of statutory rape. From 1998 when the SOSPA amendment
came into being, it is now over 15 years now (sic), which means we do
not expect to have valid and competent applications still been filed in
our courts seeking leave. “[Emphasis added]
As it can be deduced from the above extract, the High Court aired
out its views after having traced and recognised the legislative
developments which aim at ensuring welfare and protection of a child.
In that regard, we do not agree with the appellant that what was
stated was the holding of the High Court. The words used by the High
Court are very clear as the above extract gives a clear picture that,
the appellant missed a proper interpretation of what was said by the
High Court. It is important to note that, there is a difference between
‘holding’ of the court and “orbita dictum, although these terminologies
are interrelated, as obita dictum may assist in reaching into the
holding but they are not one and the same thing. The Black’s Law
Dictionary Free Online Legal Dictionary 2nd Edition defines the term
“hold” to mean: “To adjudge or decide, spoken of the court particularly
to declare the conclusion of law reached by the court as to the legal
effect of the facts discussed. “On the other hand, it also defines the term
‘orbiter dictum’ to mean: “Said in passing, it is a Judges statement that
is based on some established facts, but does not affect the judgment.”
Basing on the above definitions, we are satisfied with the respondent’s

argument that, indeed, what was stated by the High Court was an
orbiter dictum as its decision did not determine the fate or future of
the validity and competency of the intended applications under the
said provisions subject to this appeal. In our considered view, the
statement by the High Court was not aiming at underrating the
Government’s efforts in ensuring welfare and protection of a child. To
support our view let the relevant part of the impugned decision speak
for itself:
176
“With a practical approach, we have looked at the Law of Marriage
Act which is undoubtedly old as it was enacted over 45 years ago. We
have also taken note of various legislative developments that have
taken place since then. We would like to believe that though done in a
fragmented way, all was done to match the public outcry worldwide of
ensuring that the welfare and protection of the girl child is enhancing
and the dignity and integrity is generally safeguarded.”
Having clearly demonstrated what was said by the High Court after
appreciating the legislative developments that have been taking
place, we do not find any reason as to why we should differ with the
observation made in regard to the ‘applications’ referred therein. It is
undisputed fact that the LMA and in particular impugned provisions
came into existence before various legislative developments referred
by the High Cout and others. Before the enactment of the LCA
Tanzania had no specific law to lay a clear demarcation between a
child and an adult so as to safeguard the rights and interests of the
child. Therefore, we should not be surprised, though ionically that
the said provisions of LMA protect the rights of a child by requiring
applications to be made before marriage as a way of safeguarding
child rights and interests. We note that the said rights and interests
are now safeguarded under a specific law which in our considered
opinion need to be reflected in old laws through amendments. With
that observation in our minds, we find that, there is no way it can be
said with certainty that the High Court made its holding basing on a
speculation in regard to applications under sections 13(2) and 17(2)
of the LMA, as in the first place, there was no such holding in that
regard. Therefore, this ground of appeal in our considered observation
is non-meritorious.
The fifth and last ground of appeal need not detain us much. As correctly
submitted by the respondent, the trial court did not err in holding that
sections 13 and 17 of the LMA have lost their usefulness thus they
deserve to be declared null and void as contended by the appellant.
At the outset, it has to be clear that we have failed to understand the
gist of what is challenged in the fifth ground of appeal. We wish to
reproduce the relevant pat of the impugned decision hereunder:
177
“... Apart from giving preferential treatment between boys and girls in
regards to the eligible age for marriage and other grounds elucidated
herein above, we are constrained to agree with the petitioner that
the said provisions are no longer serving any useful purpose. In
that regard we are in agreement with the petitioner that they deserve
to be declared null and void. “ [Emphasis added]
The High Court having considered all the arguments for and
against the petition found that sections 13 and 17 of the LMA are
unconstitutional and that was the conclusion reached by the High
Court as correctly pointed out by the respondent. It should be noted
that, the said provisions of the LMA were not declared null and void
by the High Court as the appellant would wish us to consider. That is
why having found the said provisions unconstitutional, the High Court
gave the Government a period of one year to cause the amendment of
the LMA. In the circumstances, we find and hold that the fifth ground
of appeal is also unmerited.
For the foregoing, we find and hold that the entire appeal has no merit.
The appellant was supposed to abide by the order of the High Court
to cause the amendment of the LMA as directed. Having so stated, we
dismiss the appeal in its entirety with no order as to costs.
178
Bakari Hamisi Ling’ambe v. R, Criminal Appeal 161 of 2014, Court of
Appeal of Tanzania at Mtwara (unreported)
(Bwana, Oriyo, and Kaijage, JJA)
(Date of the decision: 3rd December 2014)
JUDGMENT
BWANA, J.A.: The appellant, Bakari Hamisi Ling’ambe, was charged

with and convicted of the offence of rape contrary to section 130 (1) (2)
(e) and 131 (3) of the Penal Code, Cap 16. The trial court, the District
Court of Lindi at Lindi, sentenced him to life imprisonment and to pay
compensation of shillings One Million (Tsh. 1,000,000/=) to his victim.
His first appeal before the High Court was unsuccessful, hence this
second appeal. Before us he appeared in person, unrepresented, while
Mr. Hashim Ngole, Senior State Attorney, represented the respondent
Republic. In his Memorandum of Appeal, the appellant raised eight
grounds of appeal which were summarized into four as follows:-
• That his defence evidence was not considered by the two courts
below.
• That due care was not taken by the courts below in convicting
him relying on the evidence of a single witness.
• That the courts below did not consider the glaring discrepancies
evident in the prosecution case.
• That the order for compensation of 1,000,000/= did not take into
account his ability to pay.
Briefly put, the facts leading to this appeal are as follows. On 19

August 2012 at about 12.00 noon at Muungano Village of Lindi
district, Fatuma Kazembe, PW1, was going to her toilet. She saw
Swabra Saidi (PW3) a girl aged 3 then and the victim of this offence,
standing next to the toilet’s door. The said girl then entered the toilet.
After a short while, PW1 heard PW3 crying loudly and bitterly. PW1
rushed inside the toilet where she saw the appellant squatting while
his pair of trousers was undressed down to his knees. He was holding
PW3 over his thighs. PW3 was naked and her underpants was on the
floor of the toilet room.
179
It was the prosecution evidence that when the appellant saw PW1, he
uplifted PW3 from his thighs and put her down on the floor. In the
process, PW1 could see the appellant’s penis which was still erect.
According to PW1 what she saw led her to an irresistible conclusion
that the appellant’s penis had penetrated PW3’s vagina and that is
why she was crying. In other words, the appellant was found in
flagrante delicto. PW1 further testified that the appellant then told
her: “sijamuumiza, mezea”. He then took his “panga”, threatened
PW1 and ran away.
Having witnessed what was going on, PW1 raised an alarm. Among
the people who responded immediately were Fatuma Mohamed, PW2,
the victim’s mother and Mwajuma Ally, PW6 who met the appellant
running away from the toilet. The mother, PW2, upon reaching the
toilet, she found PW3 still naked and her underpants still on the floor
of the toilet. She examined PW3 and saw some mucus and bruises
together with some blood stains around the vagina region. The matter
was reported to the police where a PF3 was issued and PW3 was taken
to hospital.
Josephine Leonard Ngonyani, PW4, a medical doctor who examined

PW3, also saw the bruises and blood stains referred to above. She
came to the conclusion that the bruises were near the vulva which
amounted to grievous harm (the PF3-Exh.P2). She was of the opinion
that the bruises were caused by a penis.
The victim, PW3, could not testify because of her tender age. Although
the appellant denied to have committed the offence, he did, however,
admit to have been at the scene of crime on the material day and time.
Before us, the appellant did not break new ground, apart from what
he had raised earlier. Some of the grounds of appeal raised new issues
that had not been considered by the courts below. They could be an
afterthought. However, being a second appellate court, we cannot deal
with an issue which was either not disputed or raised in the courts
below and a finding to the contrary made (Charles Barnabas v. The
Republic, Criminal Appeal No. 145 of 2003 - unreported). On the part
of the respondent Republic, Mr. Ngole learned Senior State Attorney,
did support both the conviction and sentence meted out against the
appellant.
180
We will now examine the grounds of appeal as raised. We start by
considering the claim that the prosecution case contained many
discrepancies. He did not elaborate. The law on this point is now
settled. Not every inconsistency and or contradiction will make a
prosecution case to flop. In Said Ally Ismail v. Republic, Criminal
Appeal No. 214 of 2008 (unreported), the Court held:-
“…however, it is not every discrepancy in the prosecution’s witness that

will cause the prosecution case to flop. It is only where the gist of the
evidence is contradictory then the prosecution’s case will be dismantled
…” (Emphasis provided).
(See also: Ally Kinanda and Others v. The Republic, Criminal Appeal
No. 206 of 2007; Samson Matiga v. The Republic, Criminal Appeal No.
205 of 2007; and Omari Kasenga v. The Republic, Criminal Appeal
No. 84 of 2011-all unreported).
The appellant, as stated earlier, did not point out what he considered
to be discrepancies, inconsistencies or contradictions in the
prosecution case. We are therefore hesitant to entertain general and
or unsubstantiated claims, as raised by the appellant.
The other point raised by the appellant is that he was convicted

relying on the evidence of a single witness. Our perusal of the court
record reveals that the overwhelming evidence of PW1, the eye
witness, and that of PW2, the mother of the victim, was corroborated
by the evidence of PW4, a medical doctor and PW6 who met/saw the
appellant running out and away from the scene of crime, the toilet. All
these witnesses were material in proving the prosecution case beyond
reasonable doubt.
It suffices to state here that the law is long settled that there
is no particular number of witnesses required to prove a case (Section
143 of the Tanzania Evidence Act, Cap 6). A court of law could convict
an accused person relying on the evidence of a single witness if it
believes in his credibility, competence and demeanour. In the absence
of evidence to the contrary, there is no reason to fault the credence of
a given single witness. (Emmanuel Luka and Others v. The Republic,
181
Criminal Appeal No. 325 of 2010 – unreported). The pivotal question
is whether the evidence on record is sufficient to uphold a conviction.
In the instant case, there were more than one credible prosecution
witnesses, who, as held by the two courts below, established the case
beyond reasonable doubt. We have no reason to fault the courts’
findings on this issue.
The appellant, as well, claims that the two courts below did not take
into consideration his defence case. Again, he did not elaborate. The
record proves the contrary. From page 46 to 47, the trial court in its
judgment, examined extensively the defence case. Likewise did the
first appellate court, at page 64 of the record. Both courts however,
came to the conclusion that the prosecution case was established
beyond reasonable doubt. What this means, simply put, is that
the prosecution evidence was so strong as to leave no doubt to the
criminal liability of the accused person. Such evidence did irresistibly
point to the accused person (but not any other) as being the one who
committed the offence (See: Yusufu Abdallah Ally v. The Republic,
Criminal Appeal No. 300 of 2009; Goodluck Kyando v. The Republic,
Criminal Appeal No. 118 of 2003; Majaliwa Guze v. The Republic,
Criminal Appeal No. 213 of 2004 – all unreported). That is what was
established in this case and therefore we have no reason to depart
from that finding of the courts a quo.
One other issue that attracts our attention is whether there was
penetration proved in this matter. Our view, when discussing this
matter, should not be withdrawn from the uncontroverted fact that
the victim of this crime was only three years old. She could not testify
as to what befell her given her age and level of comprehension. The
evidence of PW1 and PW2 as corroborated by PW4 and the PF3 (Exh
P2) clearly establish that there was penetration of the victim’s vagina
by the appellant’s penis.
The appellant has raised, as well, his concern over the order for
compensation. He is of the view that the two courts below should have
taken into account his ability to pay the compensation. We do agree
with the appellant although from a different, perspective.
182
The order for compensation imposed by the trial court and upheld by
the first appellate court was done without, going by the record of the
case, the appellant being accorded an opportunity to state his ability or
inability to pay. His means of life were not assessed so as to establish
his ability to pay compensation and if so, how much. Therefore having
been denied the opportunity to be heard on this vital point, he was not
fairly treated. The order for compensation was not judicially imposed.
(See: Magabe Gokoya v. The Republic, Criminal Appeal No. 254 A of
2010. We, accordingly, invoke our revisional powers under section 4
(2) of the Appellate Jurisdiction Act, Cap 141, and revise that order by
setting it aside.
As to the sentence of life imprisonment, that is the minimum

mandatory sentence that may be imposed to a convict of this kind of
offence (Section 131 (3) of Cap 16). Therefore, we cannot disturb it.
Accordingly, the appeal partly succeeds by setting aside the order for
payment of Tsh. 1,000,000/= as compensation. As to the conviction
and sentence of life imprisonment, the appeal is dismissed, conviction
and sentence upheld.
183
Baraka Ally Nusura v. Nasra Francis Mpulule, High Court of
Tanzania at Dar es Salaam (Dar es Salaam Registry) (2021)
(unreported)
JUDGMENT
MLACHA, J.: This is a second appeal. It is a matrimonial appeal.
It touches two unique aspects namely, maintenance of a child who is
disabled and who has crossed the age of majority (18) and maintenance
of a wife during Islamic iddat period both of which after divorce. These
issues have been a subject of litigation in the lower courts without
agreement. The appellant Bakari Ally Nusura, did not see justice in
the decisions of the lower courts which decided the case against him.
He has appealed to this court and appears to be very uncompromising.
He appears to be highly provoked and angry.
I have spent some time to read the records of the lower courts. I have
also heard the appellant and his ex-wife who is the respondent in this
appeal, Nasra Francis Mpulule. I will start by the background.
The matter started at Kinondoni Primary Court in Matrimonial Cause

No. 119 of 2017. The respondent was the petitioner. The appellant
was the respondent. It was a petition for divorce, maintenance and
division of matrimonial assets. The primary court granted divorce,
tshs.600, 000/= being maintenance during iddat and monthly payment
of tshs.100,000/= being maintenance to the child, Raya Bakari Ally
(23) who is disabled. It also gave the respondent a house in Tegeta
where she was allowed to live with the child. The appellant appealed
to the District Court of Kinondoni in Matrimonial Appeal No.17 of
2018 without success. He has now come to this court by way of appeal
armed with 4 grounds but essentially challenging the maintenance
orders.
The grounds of appeal are these:-

1. That the honourable appellate Magistrate erred in Law and in
fact to raise its own issue and abandon the grounds raised by
the appellant and hence denied the parties to address on said
issue and hence denied an opportunity of right to be heard.
184
2. That the learned appellate Magistrate erred in Law and in
fact to hear the appeal before her without calling the record of
Primary Court Magistrate hence her wrong decision.
3. That the learned appellate Magistrate erred in Law and in fact
to uphold the decision of Primary Court Magistrate to order
maintenance of Tshs. 100,000/= to a daughter of 23 years old as
a child and without any medical report in respect of her sickness
as to mental disorder.
4. That the learned appellate Magistrate erred in Law and in fact
to declare the payment of Tshs.600,000/= to the respondent as
an eidh (sic) without an evidence that on record to project.
The appellant made an oral submission. He did not appear to be
troubled by divorce because he had already made his mind on the
issue as expressed in the Islamic talaka which he gave. He could not
even been troubled by the house which was given to the respondent.
His trouble was on the maintenance orders. He was not ready to pay
maintenance to the child and his ex-wife as ordered. He threatened to
kill himself if the maintenance orders were left intact!
The respondent submitted saying that, the child has mental problems
(mapepo). She is running away. She asked the court to force the
appellant to maintain her. She added that the appellant is leaving the
house with her because he has 4 others.
The appellant made a rejoinder and stressed that he was not ready to
maintain the child. He appeared to be very uncompromising on issues
of maintenance.
I have considered the submissions and the record. I am impressed by

the reasoning and decision of the district court. The magistrate made
a good analysis of all the key issues. It was a considered judgement so
to say. It is not correct therefore to say that he raised his own issues
and decided them or that he decided the case without a perusal of the
lower court records. That makes grounds one and two baseless which
are dismissed accordingly.
185
I will now move to grounds three and four. Apparently, it is not
disputed that the appellant is the father of the child and that she has
mental problems. It is also not disputed that the respondent was not
accommodated at the matrimonial home after the issue of the talaka.
She was dismissed out right.
Addressing the issue of maintenance of the child, the learned

magistrate who heard the appeal said that maintenance of the child
in this case cannot come under the Law of the Child Act, 2009 because
she is already above 18 years and thus not a child within the meaning
of Section 4(1) of the Act. He took the matter to The Persons with
Disabilities Act, No.9 of 2010 and based his decision on it. He ordered
the appellant to proceed to maintain his child as ordered by the
primary court despite the fact that she was above 18 years. I think his
decision is correct.
Maintenance of children is governed by Part VI (h) of The Law of

Marriage Act. it is also provided under other Laws which regulate
the Welfare of Children. These include The Law of the Child Act, 2009
and The Persons with Disability Act No. 9 of 2010. The words used
in Part VI (h) of the Law of Marriage Act pre suppose a reference to
young children. It uses the word “infant” suggesting young children.
The wording of The Law of the Child Act suggest a child within the
meaning of section 4(1) of the Act which refers to a person under the
age of 18 years. So to say, when we talk of children under the Law of
the Children Act, we refer to persons under the age of 18 years. People
under this age have protection under the Law. They have the right
to be maintained by parents. Above this age there is no automatic
protection. Parents have no direct legal liability to maintain children
who are above 18 years save where they are disabled. The position
of the Law as correctly observed by the magistrate who heard the
appeal is that, disabled people have a right to be maintained by the
community. The duty to maintain them is contained under section
16(1) of The Persons with Disabilities Act, which reads;
186
“16 (1) Every relative of a person with disability shall have an
obligation to provide social support to such person.
(2) where there is more than one relative of a person with

disability, the relatives shall be under collective obligation
to provide social support to such person”. (Emphasis added)
Section 3 define a person with disability to mean:
“a person with a physical, intellectual, sensory or mental

impairment and whose functional capacity is limited by
encountering attitudinal, environmental and institutional barriers”.
(Emphasis added)
It means that disabled people despite their age have a right to be

maintained. The society (including parents/relatives) have an
obligation to give social support to them. Social support includes
daily subsistence. It follows that the duty of a parent to maintain his
children does not end at the age of 18 if the child is a person with
disability. It proceeds so long as he/she remains with the disability.
So long as there is no dispute that the child under discussion has mental
problems and thus unable to maintenance herself, the appellant is
legally bound to proceed to maintain her. It is a joint responsibility
of parents to proceed take care of the child so long as she is disabled.
The appellant must therefore pay the monthly payments as ordered.
I will now move to the second aspect, maintenance during iddat

period. The background to this aspect is that the parties moved to
BAKWATA as a reconciliation Board before coming to Court. During
deliberations, it was discovered that the appellant had already issued
the Islamic Talak to the respondent. This was fully agreed between
them. On further inquiry, it was discovered that he could not hold her
back for 3 months to serve her iddat period. She was chased out right
away. That was found to be not acceptable under Islamic law which
gives a married wife a right to be maintained by her husband during
the iddat period. As settlement, it was decided that the respondent
should be given Tshs.1,000,000/= as denied maintenance for the period
of iddat. Parties agreed and the appellant advanced Tshs. 400,000/=.
187
She could not pay the balance of Tshs.600,000/= which became part
of the claims before the primary court. Both courts saw the claim as
being justified and granted it.
I see nothing wrong in the award. This award has its base in Islamic
Law of Marriage which is not part of our Law but is also reflected in
section 115 (1) of the Law of Marriage Act. it reads as under:-
“115 Power of Court to order maintenance for Spouses
(1) The court may order a man to pay maintenance to his wife or
former wife-
a) If he has refused or neglected to pay for her as required by
section 63;
b) If he has deserted her, for so long as desertion continuous;
c) During the course of any matrimonial proceedings
d) When granting or subsequent to the grant of the decree of
separation;
e) When granting or subsequent to the grant of a decree of
divorce;
f) Where the parties were married in Islamic form, for the
customary period of iddat following the date on which the
divorce takes or is deemed to have taken effect.
Provided that where the marriage has been dissolved, the wife shall not,
unless the court for special reasons so directs, be entitled to maintenance
for herself for any period following the date when dissolution takes
effect”. (Emphasis added)
The claim is specifically covered under item (f) but could also be
granted under items (b) and (c) because at that time there were
pending matrimonial proceedings at the Marriage Conciliation Board
of BAKWATA and the respondent was already out of the matrimonial
home. She was still a lawful wife of the appellant and therefore entitled
to maintenance. That disposes the second aspect.
188
A word by way of passing to the appellant. Conflicts may arise out
of the business of the Satan or on our own weaknesses, leading to
divorce. If conflicts have developed thereby causing love to jump out
of the window, resulting to divorce, there is no need of thinking about
killing the other partner or killing oneself. Anger and feelings of
revenge have disastrous effects and must be avoided. Instead of going
to that end, one should cool down and think of prayer and forgiveness.
That will give him peace of mind, strength and new plans. Let the
appellant be adviced accordingly.
That said, the appeal is found to be devoid of merits and dismissed

with costs.
189
Bharat Dayal Velji v. Chandni Vinesh Bharat,(Civil Appeal No.45 of
2017) [2018] TZHC 45; (23 April 2018)
(Date of decision: 23rd April 201)
JUDGMENT
ARUFANI, J.: The respondent, Chandni Vinesh Bharat was in 2008
married to one Vinesh Bharat. Unfortunately the couple could not
stay long following the death of the husband, Vinesh Bharat in 2013.
During their union the duo were blessed with two issues namely,
Kritika Vinesh Dayal and Rian Vinesh Dayal. Following the death of
her husband, the respondent successfully, applied for the custody of
her children before the Juvenile Court of Dar es Salaam at Kisutu via
Misc. Civil Application No. 115 of 2016. The appellant on the other
hand is the father in law of the respondent and a biological grandfather
of the children in issue. The appellant is not satisfied with the decision
of the Juvenile Court of Dar es Salaam hence he decided to come
to this court by a way of appeal. Mr. Salim H. B. Mnkonje, learned
advocate for the appellant filed in this court a memorandum of appeal
containing nine grounds of appeal as follows:-
1. That the trial court erred in law in entertaining application for
custody when it had no jurisdiction for Zanzibar based parties.
2. That the trial court erred in law in not writing proper ruling.
3. That the trial court erred in a law and fact in not taking into
consideration the appellant’s affidavit in opposition to the
application for custody.
4. That the trial court erred in law and fact in not considering the
best interest of the children to the unemployed mother while she
has no means to support them.
5. That the trial court erred in law and in fact in not considering the
appellant was providing maintenance and quality international
school education to his grandchildren.
190
appellant was providing proper Hindoo religious and culture
training.
respondent and the children were provided with free residence
in Zanzibar.
8. That the trial court erred in law and in fact in not considering
that the appellant and the respondent’s family are all based in
Zanzibar.
9. That the trial court erred in law and in fact in not considering
other welfare interest for the children.
Submitting in support of the first ground of appeal the learned counsel
for the appellant argued that, the respondent and her parents together
with her matrimonial home is based in Zanzibar. He added that the
respondent ran away from Zanzibar when issues of inheritance and
other rights of the children commenced. It was submitted further
that, the respondent started the issue of children in Zanzibar after
reporting to the Idara ya Ustawi wa Jamii and argued that, the matter
should be instituted in the local limits of the court whose jurisdiction
the defendant actually and voluntarily resides or carries on business
or personally works for gain. He made reference to section 18 (a) of
the Civil Procedure Code, Cap 33 R.E 2002. He maintained that, the
parties are Zanzibar, children are schooling in Zanzibar and submitted
that, in the stated circumstances the decision of the trial court should
be dismissed.
The learned advocate argued in relation to the second ground of appeal

that, the ruling of the trial court does not comply with Order XX Rule
4 of the Civil Procedure Code, Cap. 33 R.E 2002. He argued that, the
ruling does not meet statutory requirement of the law as it contains no
point of determination and reasons for the decisions. He referred the
court to the number of authorities to that effect, including the case of
Edwin Isdori Elias v. Serikali ya Mapinduzi Zanzibar [2004] TLR 297
and Hamisi Rajabu Dibagula v. R [2004] TLR 181. Further to that,
the learned advocate lamented that, the trial court did not consider
the appellant’s affidavit in opposition to the application for custody of
191
the children. He added that, the counter affidavit contained evidence
regarding the issue of custody and ability to cater for International
school education which the appellant was providing. He submitted
that, the appellant has been fulfilling the welfare of the children
without any form of discrimination.
The learned advocate submitted further that, the best interest of the
children is a paramount consideration when giving custody of a child
to a person. He said the requirement out weights the presumption
of minority of a child. The learned advocate was of a view that the
trial court ought to give custody to the appellant who is capable of
providing for the best interest of the children than the respondent who
is unemployed. Moreover, the learned advocate continued to challenge
the decision of the trial court on the ground that, it did not consider
the fact that the appellant and the respondent’s family are based in
Zanzibar. He maintained that the cultural upbringing the children
in Zanzibar was much more convenient than in Dar es salaam where
even the children does not get enough sleep due to avoidance of traffic
jam.
Prof. Shaidi, learned advocate represented the respondent in this

appeal and opposed the appeal. He submitted that, the issue of
claiming for the custody of the children arose when the respondent
had shifted and settled in Dar es Salaam with her children following
the death of her husband in Zanzibar. The learned advocate submitted
that, the respondent and her parents resides in Dar es Salaam, and it
was where her marriage was contracted. He stated that, the children
are schooling in Dar es Salaam and it would be ridiculous for the court
in Zanzibar to sit and determine the rights of the children.
With regards to the second ground of appeal the learned advocate for
the respondent replied that, a ruling is not a judgment. He said a
judgment is a product of a trial where parties agrees on issues for
determination and the judgment has to address those issues. In the
given circumstances, the learned advocate argued that, the ruling of
the trial court meets the entire legal requirements. He argued that,
the trial court relied on age of the children to grant custody of the
children to the respondent.
192
The learned advocate for the respondent submitted further that,
the appellant’s affidavit was considered by the trial court and that
is why he was given access to visitation of the children. He added
that, the respondent has been staying with her children for about a
year and taking them to school without any problem and that has
demonstrated her capability to provide for the welfare of her children.
Further to that, the learned advocate argued that the respondent’s
affidavit indicates that, she was being sexually abused by her brother
in law and that her children also sexually abused in the extended
family environment where they were in Zanzibar.
Further to that, the learned advocate submitted that the best interest
of a child principle is not the only consideration that the court shall
consider when granting custody of a child. He submitted that, the
court shall consider the importance of a child being with his mother
in terms of section 39 (1) of the Law of the Child Act, 2009. He added
that, the reason of financial muscle relied upon by the appellant to
win custodian of the children is not the main reason for the grant. The
learned advocate maintained that, there is no point for the children
to stay with their grandparents while their biological mother is still
alive. He made reference to the case of Halima Kahema v. Jayantilal
G. Kiria [1987] 147 where it was held that, welfare of the child requires
that the child be in hands of either of the parents rather than the
child’s grandparents.
After considering the submission of the counsel for the parties and
going through the record of this matter the court has found before going
to the merit of the appeal it is proper to state at this juncture that, the
appeal was improperly filed in this court out. The court has come to
the above finding after seeing the appeal before the court originates
from the Juvenile Court and was filed and determined under the Law
of the Child Act, 2009. Section 130 of the said law read together with
Rule 123 of the Law of the Child (Juvenile Court Procedure) Rules,
2016 (Hereinafter referred to as the Rules) requires a party intending
to appeal against the decision of the Juvenile Court made under the
above law to be lodged in the court which passed the decision within
fourteen days from the date of the impugned decision or order.
193
The court has found though the procedure to appeal against the
decision of the Juvenile court is as provided above but the appeal at
hand which is challenging the decision of the Juvenile Court of Dar es
Salaam at Kisutu delivered on 2nd day of December, 2016 was filed
directly to this court on 15th day of February, 2017 which is out of
time and no leave of the court was sought to file the same out of time.
Secondly the appeal was filed directly in this court instead of being
filed in the trial court as provided under Rule 123 (3) (a) of the Rules.
As the appeal was filed in this court improperly and out of time
prescribed by the law it is the finding of this court that, the same is
improperly before the court and its consequences would have been
to strike out the same. However, the court has found before striking
the same out, as the above point was raised by the court suo moto it
is proper to go to the merit of the appeal as this appeal is touching
the rights of the children which the courts are casted with a duty of
protecting the same.
The court has carefully considered the rival submission of the learned
counsel for the parties in relation to the grounds of appeal filed in this
court by the appellant and after going through the record of the trial
court, the court has found the issue of jurisdiction of the trial court
raised in the first ground of appeal is baseless. The court has arrived
to the above finding after seeing that, the respondent and the children
she was seeking for the order of their custody stays in Dar es Salaam
where the trial court situates and exercise its jurisdiction.
Even if it would have been stated there is another court which had
jurisdiction to entertain the matter than the trial court as stated in
the submission of the appellant but that point of jurisdiction was not
argued and determined in the trial court so that it can be brought to
this court by way of appeal. The court has found that, despite the fact
that the said point of jurisdiction of the court was raised in paragraph
15 of the respondent’s counter affidavit but the same was not argued
to enable the trial court to determine the same. To the contrary the
record of the trial court shows that, after the affidavit, counter affidavit
and the reply to the counter affidavit being filed in court, the counsel
for the parties notified the court through Advocate Lucy Mwang’ombe
194
who held their brief that, they had agreed the court to proceed with
the matter without submission.
This to my view connotes literally that, the said point of jurisdiction

together with that of jurat of attestation being badly affirmed raised in
the same paragraph fifteen of the respondent’s counter affidavit were
abandoned. If were abandoned the same cannot be raised in this court
which is sitting as an appellate court as it will be contrary to section
19 of the Civil Procedure Code, Cap 33, R.E 2002 which requires the
point of objection to jurisdiction of the court to be raised in the court
of first instance unless there has been a consequent failure of justice
as stated in the case of National Bank of Commerce V Risase Ndama
[1997] TLR 282.
The court has considered the submission by the counsel for the
appellant that, the court denied them the right to raise preliminary
points of objection and stated it will continue to dispose of the matter
by way of affidavit and find the same is not supported by the record
of the trial court as the record shows the parties informed the trial
court through Advocate Lucy Mwang’ombe that, they had agreed the
court to proceed to dispose of the matter without written submission.
Since it has not been stated anywhere in the record of the case that
the trial of the matter in the trial court resulted into failure of justice
in any manner because of the alleged point of lack of jurisdiction it
is the view of this court that, the point of jurisdiction raised in the
appellant’s first ground of appeal cannot be used to fault the finding
of the trial court.
The court has carefully considered the argument of the counsel for
the appellant in relation to the second ground of appeal where the
appellant is stating the trial court erred in law in not writing a proper
ruling. The finding of this court in relation to this ground of appeal is
that, though the ruling of the trial court is very brief but is a proper
and correct ruling as it contains all ingredients of the decision of the
court expounded in the law and cases cited by the learned counsel for
the appellant in his submission.
195
The court has arrived to the above finding after seeing the ruling
of the trial court contains what the applicant prays from the court
which is an order of custody of the children. The court has also found
the ruling contains the decision of the court as it granted the custody
of the children to the respondent in this appeal as prayed and gave
the appellant who is the grandfather of the children right to visit
the children. Also the court has found the ruling contains the reason
which made the court to arrive to the said decision which is that, the
children are veiy young and are living with the respondent in this
appeal who is their biological mother. In the premises the court has
failed to see what is missing in the ruling of the trial court which can
make the court to find it was not written properly.
Coming to the rest of the grounds of appeal which I will deal with them
together the court has found proper to start by stating that, a family is
a unit consisting of parents and children, in which the later has a blood
relation with the former. Section 7 of the Law of the Child Act, 2009
gives a child right to grow up with his parents. It is a common ground
that the respondent is a biological mother and the remaining parent
of the children in dispute. The appellant who is the grandfather of the
children is challenging the decision of the trial court which granted
custody of the children to the respondent. The grounds upon which
he is disputing the decision lays on the grounds of appeal posed early
in this judgment which leads the court in determining the issue as to
whether this appeal has merits.
In consideration of the rival arguments from both sides and upon

perusal of the record of the lower court, I am satisfied with the decision
of the trial court that, the respondent who is the biological mother of
the children is a better person to be granted custody of her children
compared to the appellant who is the grandfather of the children.
The factors considered by the trial court includes the fact that, the
children were still young and they were leaving with their mother.
These reasons in my view holds water. Since the children’s father
is no longer alive, the only close surviving relative is their mother.
Basing on the submissions made to this court there is nothing strange
196
to jeopardize the best interest of the child if they are to stay with their
mother. Best interest carters far behind financial ability as submitted
by the respondent’s learned counsel. The children needs love, affection
and care of which the mother is in a better position to offer to her
children against the whole world.
The appellant’s learned counsel’s argument that the appellant was

providing maintenance, quality international school education and
teaching the children proper Hindu religious and culture has been
considered by this court and found as rightly stated by the learned
counsel for the respondent the children are continuing with their
education at Al Muntazir school under the guardian of the respondent
who is their mother. Since the respondent is also a follower of Hindu
religious and culture she can continue to train the children about
their faith as the appellant wanted to do. To the view of this court still
all the rights mentioned by the learned counsel for the appellant can
be offered by the appellant to support the children notwithstanding
the facts that the custody of the children has been granted to the
respondent.
In the light of all what has been stated hereinabove the court has
found it is not only that the appeal filed in this court by the appellant
was filed in court out of time and without leave of the court but the
grounds of appeal filed in this court by the appellant have nothing
substantial which can make this court to fault the decision of the trial
court. In the upshot the appeal is hereby dismissed in its entirety for
want of merit and the court is ordering each party to bear his or her
own costs. It is so ordered.
197
Bisege Mwasomola v. R, Criminal Session Case 3 of 2006, High Court
of Tanzania at Mafinga (unreported)
JUDGMENT
WEREMA, J.: This is rather a technical matter involving he offence
of manslaughter. As a criminal offence, it is governed by principles
of criminal law. The offence of manslaughter is not a strict liability
offence and as such recklessness or knowledge on the part of the
accused must be proved as the mens rea of the offence. If the mens
rea is not proved or inferred conviction cannot be found. I must also
state at this early moment that the standard of proof of culpability
in manslaughter is proof beyond reasonable doubt and not the civil
standards which are based on the balance of probability. The onus of
proof is always on the prosecution and the duty of the accused person
is to raise reasonable doubts on prosecution’s evidence. This case is
sensitive in that it involved death of younger primary school pupils
in what appear to be lack of supervision by teachers. It is likely that
sentimental feelings, which are obvious in a human nature, can have
an upper hand to infer culpability. That should not happen to courts
of law. The fact are as hereunder.
The accused, Bisege Mwasomola, was a Head teacher at Kimala

Primary School in Kilolo District Iringa region. It is a school with
more than 700 scholars of grades one to seven. These grades are
known as standards and are also classified as Classes one to seven.
The school goers are pupils but I will refer to them as scholars. On
11 March 2004, the accused announced in a parade of scholars and in
the presence of members of teaching staff that on the following day,
those in grades 3 to 7 come with utensils such as buckets, baskets,
sufurias and bag sand that they were required to go and carry sand
at a place known as Holowa, a distance of about 5 kilometres from the
school. That announcement came after the Head teacher and members
of the teaching staff emerged from a meeting where it was agreed
that the scholars be used to fetch sand. There is no denial that the
announcement was made and that it was made by the accused person.
198
From those who testified it would appear that the age group of
scholars involved was between 9 years and 15 years. I think, such age
group, requires attention and supervision by teachers even if there
are prefects among their peers. There is no doubt, and I so hold, that
the scholars required not only supervision but care.
The sand was to be used as a building material by masons who were

at that time constructing class rooms and a staff room the properties
of that lower school. Indeed, in the morning of 12March 2003 the
scholars came at the schools with such utensils. They were numbered
and at about 07.15 am left for Holowa. It is estimated that more than
500 scholars left for Holowa. This number is not merely numerical but
it shows that hat supervision and care was required to manage them
regard being to their age. According to the defence, the instructions
to the scholars were to carry sand which was dug by the parents on
the previous day. It was not to enter into the gully/gorge to dig for the
sand. But in my opinion whether the sand was to be fetched or to be
dug it does not matter. Either way, supervision was a requirement.
The prosecution’s version is that when the scholars arrived at the scene
they did not find any heap of collected sand as they were told. Be as
it may, the scholars are said to have entered into the gully which was
about 9th deep and started to dig sand using sticks. Momentously, the
gully collapsed and some scholars were trapped. 8 of the scholars died
on the spot and another died as he was being rushed to the dispensary.
This happened at about 07.45 a.m.
The accused and Mr. Alponce Nyakunga who was a master on duty
on 12 March 2004 were all arrested and charged for the offence
of manslaughter. Mr. Nyakunga was later discharged after the
prosecution filed a nolle prosequi in his favour. The accused was
charged with the offence of manslaughter of the nine pupils who died
on that fateful day. He has pleaded not guilty to the nine counts.
The Prosecution called five witnesses while the defence called four
including the accused. The substance of the Prosecution evidence
is that the accused let the scholars to go to Holowa without an
appropriate or adequate supervision and that those deaths could
have been prevented if the accused had provided or ensured adequate
supervision and care of the scholars
199
It is not disputed that nine scholars of Kimala Primary School died.
The post mortem reports on the examination of bodies of the deceased
show that the cause of death was asphyxia which is lack of oxygen
to the lugs leading to suffocation and ultimately to death. The fact of
the matter is that the scholars were buried in rubble when they were
inside the gorge. It is not disputed that the over handing earth of the
gorge was water logged and could not withstand its own unsupported
weight. It not disputed either that the scholars entered into the gorge
or were digging sand using sticks. Those facts are not disputed.
I have already said that it is not a dispute that the accused directed
scholars to come with utensils and disclosed the purpose for which the
utensils were to be used. Initially, except during final address, the
prosecution implied that the scholars were not allowed to be engaged
in such tasks. If indeed it was so, then the accused directions and his
conduct was misconduct in a public office. It is so because as a public
officer he wilfully misconducts himself to such a degree as to amount to
an abuse of the public trust without reasonable excuse or justification.
Here the point is that if the law, including any of the delegated
legislation under the Education Act prohibited the use of scholars in
such labour work, then the accused conduct was a breach of such law.
But that would not be the end by itself, the law must be clear as to
make the accused aware of the existence of a duty to act or otherwise
the prosecution must prove that the accused was subjectively reckless
as to the existence of such duty. The test for recklessness applied will
be whether in particular circumstances a duty arose at all as well as
the conduct of the accused if it did. The test will be subjective test
which must be applied both to reckless indifference to the legality of
the act or omission and in relation to the consequences of that act or
omission and in relation to the consequences of that act or omission.
This is a legal issue and a technical on be at that. I am not bound by
Common Law cases decided by courts in England. However, those
divisions have a highly persuasive value in the development of law.
In the case of Attorney General’s Reference (2) the issue arose in a case
where a police officer was acquitted upon charges of manslaughter
and misconduct in public office. The facts in that case were that
a man was assaulted. He fell on the ground hitting his head. He
was taken to hospital where the police officers attended with a view
200
to investigating the assault. He was arrested on the ground of an
apprehended breach of the peace. When asked whether the person
was fit to be detained, the doctor treating him agreed. The police
took him to the police station in a van. On arrival, though still seated
in a position in which he had been placed, he did not respond to the
officers. He was placed on the floor in a semi face down position, not the
recovery position. His breathing was audibly obstructed and several
minutes later he stopped breathing. Attempts on resuscitation failed.
He died. The police officers were charged with manslaughter by a
conduct amounting to gross negligence and misconduct in a public
officer. The specific allegations were that the officers had failed to
put the man in a better position, had failed to ensure that his airway
was clear and had failed to obtain medical assistance. At the close of
the prosecution case the trial judge ruled that there was no evidence
which to found a conviction for misconduct in public office on the basis
of recklessness. He directed acquittal. The attorney General referred
to the Court of Appeal the question of what were the ingredients of the
common law offence of misconduct in public officer and in particular,
whether it was necessary for the prosecution to prove bad faith.
On the issue referred to it the Court held that the test of recklessness
applied to the question of whether in a particular circumstances a
duty arose at all as well as to the conduct of the accused if it did and
the subjective test applied both to reckless indifference to the legality
of the act or omission and in relation to the consequences of the act or
omission.
I have carefully considered this decision. I am impressed by it. I think

it provides for me an entry point to resolve the riddle in this case.
There is evidence of dissenting opinion from members of the teaching

staff objecting to the use of scholars for that task. Some thought the
use of scholars in such tasks was prohibited. The use of the word
‘prohibited’ is in the ordinary sense and not legal sense. I think
the issue whether the use of scholars in labour works such as sand
fetching can be discerned from a circular letter which was tendered
and admitted as EXH (C) for the Court. This circular letter RAS/
IR/E.10/65/101 dated 21 September 1999 addressed to all Head
201
teachers, among others, does not prohibit the use of scholars. This
Circular was issued after 10 scholars of Igomtwa Primary School in
Mufindi District, Iringa Region were buried by landslide when they
were digging sand in a gorge for purposes of building a school toilet.
In that circular letter, the Heads of School were directed as follows:
1. Wanafunzi wa Shule za Msingi na Sekondari wanawajibika

kushiriki kwenye Kazi za Mikono kwa ajili ya Maendeleo ya Shule
zao;
2. Walimu waandae utaratibu mzuri wa kusimamia utekelezaji wa
kazi za mikono wanazopangiwa wanafunzi.
3. Kamwe wanafunzi wasiachwe peke yao kufanya kazi za nje ya
darasa bila usimamizi mzuri wa walimu;
4. Wakuu wa shule/walimu wakuu na walimu lazima waainishe
kazi ambazo zinaweza kufanywa na wanafunzi bila kuleta au
kusababisha athari kwa maisha yao;
5. Wakuu wa shule /walimu wakuu na walimu wahakikishe kuwa
wamekagua vizuri maeneo ambayo wanaunzi watafanya kazi za
nje kabla ya siku ya kazi yenyewe. Hii itasaidia kuweka utaratibu
mzuri wa utekelezaji.
6. Kila mara Mkuu wa Shule/Mwalimu Mkuu ashauriane na Bodi/
Kamati ya shule kuhusu utaratibu mzuri wa kuwashsirikisha
wanafunzi kwenye kazi zinazohusiana naujenzi wa majengo
ya shule. Kwa shule za msingi Serikali kijiji pia wahusishwe.
Hii ni wuwafanya wazazi washiriki kwenye kazi ngumu k.m.
kuchimbamchanga, mawe na wanafunzi wasidie kubeba.
7. Licha ya kazi za mikono, wakuu wa shule/walimu wakuu
wanaagizwa kukagua maeneo yote ya shule na kutambua majengo
namaeneo mengine ya hatari ili kuwazuia wanafunzi wasiende
huko. Ni vema majengo hayo ya hatari kwa maisha ya watu
yakachambuliwa na kutumwa kwenye mamlaka zinazohusika.
202
There is no doubt from the contents of the circular that the greatest
concern of the Regional Education Officer of Iringa was the safety of
a child for which all scholars in the case of Kimala Primary School
were. The child, by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal
protection. This requirement is a universal obligation arising from
the International Convention on the Rights of the Child, a Convention
adopted by the United Nations General Assembly resolution 44/25 of
20 November 1989 and which entered into force on the 2 September
1990. Tanzania is a signatory and did according to Article 63 of the
Constitution duly ratify it. For ratification alone does not make the
Convention party of municipal laws, what the state has done so far
after ratification show that the Convention is a higher order, which
under international customary law read together with the spirit of our
Constitution binds the state and its institutions.
For example, Tanzania has continuously submitted to the

Committee established under Article 43 of the Convention reports on
the measures she has adopted which give effect to the rights recognized
by the Convention and progress made to their realization. Further,
there is now in the set up of the Executive ministerial allocation of
responsibilities a specific ministry responsible for children. State
behaviour in implementing its obligations under a treaty, I think
should be taken into account in determining the status of such a treaty
in the domestic law, the duality practice of some states like Tanzania,
notwithstanding. This is the essence of universality of international
human rights standards which such conventions offer and this is the
implication to ratification of such conventions.
Whatever decision or interpretation we may take or give on

the circular and use of scholars use in manual labour, our primary
consideration should be the best interests of the child. That is the
minimum standard under which we shall not allow ourselves to descend.
In will not traverse the legality or the legal basis of the Circular but
I assume it is consistent with the law governing education. I did not
benefit from the Bar in this regard but having read the relevant law
and regulation thereof I am satisfied that the circular is that it is
not prohibitive. The Convention, in Article 29, direct State Parties
203
to ensure that education of a Child shall be directed to, among other
things:
(a) The development of the Child’s personality, talents and mental

and physical abilities to their fullest potential;
(b) The preparation of the child for responsible life in a free society.
The environment surrounding our scholars requires education for
self reliance. This I think is still the lynch pin of our primary school
education as it should be for secondary and tertiary levels. So I do not
agree that it was illegal or that the Head teacher was prohibited to
use the scholars for the purpose for which they were sent to Holowa.
It was regular. That will settle the issue of misconduct to a degree
amounting to abuse of the public trust. The accused breached no law.
There are a few contentious and serious issues. The first and most
contentious of all is whether the scholars were under supervision while
at the gorge on that fateful morning. The second one will be whether
the accused was the person to provide that supervision, and the child
would be whether the accused was reckless in the supervision or not
supervising the scholars. There are many other side issues connected
to the main issues which I will raise in the course of this judgment.
I will be fast in concluding that as the testimonies indicate there

were no teachers at the gorge on the morning of 12 March 2004.
The accused’s explanation is that he detailed teachers to supervise
scholars at the gorge on 11 March 2004. One of such teachers was
Mr. Alphonce Nyakunga. According to PW1 Telia Malinga and PW2
Christina Kisoma and PW5 A/Insp Nicolaus none of the teachers
were at the gorge on that morning. This is equally confirmed by the
defence in the testimony of DW3 Corwin Mbelwa who was in grade
seven and a head prefect then. He was not on site but was detailed
to supervise safe passage of scholars at the bridge. As there was no
accident at the bridge I assume his was a successful implementation
of the accused directions. I did not see any serious contention to the
accused’s explanation in respect to detailing teachers to accompany
scholars. I therefore taken his version as correct and true.
204
The defence position is that scholars were not expected to enter
into the gorge because the sand was not in the gorge but out of it.
They were also expected not to dig or scratch for the sand but to collect
sand which was dug by villagers on the previous day. This position
is supported by accused and DW 2 Mrs. Mary Ndegela, a member
of the teaching staff at the school; DW 4 Fsesto Mtenga, VEO; PW2
Christina Kisoma and PW1 Telia Maliga. The principle of criminal
law is that where there is a situation like the one here the balance
of scales must tilt to the benefit of the accused. I therefore hold that
the scholars were to collect sand which was dug from the gorge on
the previous day. I have already said that this alone did not make
supervision redundant. Is it reasonably expected of a child not to
wonder in areas of interest to him? We must bear in mind, as I do
here, that a child is mentally immature and his mental faculties will
not stop to take him to spots that a mature person cannot dare go. Of
course chasing hare, birds or venturing into gullies, gorges, hill top,
running or chasing each other are common games for a child. A child
can only be restrained by a supervisor and in case of scholars, their
teachers.
Prefects may do so but for a number of scholars that went to

Holowa, it is a mammoth task for prefects. It is not difficult for a
reasonable man to see how important it was for special safeguards
and care of scholars at the gorge. This special safeguards and care was
not provided. PW2 Christina Kisoma’s testimony is evidence of lack
of this safeguard and care. She testified that ‘we arrived at Holowa
at about 08.00 we were not accompanied by any teacher including the
Head teacher. We found no heap of sand as we were told. Others
scholars picked up sticks and started digging. I did not enter into the
gorge but I was collecting sand left on the pathway. I was joined by
other scholars. The gorge was 9ft deep. We noticed that the gorge was
about to collapse. We alerted our peers who were inside the gorge to
get out but they ignored us. Immediately the gorge collapsed.’’
The warnings by other scholars were ignored. It is possible that there

were many and uncoordinated shouts which confused those who were
inside. These warnings did not come from prefects and were easily
ignored. That is the effect of absence of a leader in a situation like the
205
one we had at Holowa. According to the witness even those prefects
who were around were also mining sand. The unfortunate conclusion
is that there was no supervision. The children were let on their
town in such a risky area. Though teachers expected that sand was
available in a non risk area they were reckless in not accompanying
the children to Holowa. I must infer that whoever was responsible
for accompanying children to Holowa did not do it. This omission and
conduct was nothing but reckless or grossly negligent.
I am thankful to the Bar. Both counsel with the usual zeal and
eloquence argued their positions well. The prosecution argued and
asked the assessors to find that the accused was reckless, meaning he
ought to have foreseen the risks or risk that was facing the pupils at
Holowa and that he did not exercise reasonable care in the supervision
of the pupils there. The case of R.v. Selemani Rashid (4) was cited
as an authority to support this position. I must say here that this
authority does not make manslaughter a strict liability offence. To
the contrary, it seems to me, it requires proof of a state of mind in the
commission of manslaughter. Negligence like recklessness is a state
of mind. As I have shown below, the standard of proof of negligence
in a criminal culpability is not at the same rank as proof of negligence
is a civil tort. In criminal culpability, the standards are higher as
those required to prove any other offence. In the proper context, the
case does not advance the argument made by Mmbando, the Learned
State Attorney. This case as both sides have shown, and as I have
pointed earlier, is centred on the mental element or mens rea known
as recklessness. Mr. Onesmo Francis, the Learned Advocate for
the defence was so kind to provide his written submissions, which
course should be encouraged. In his submissions, which he eloquently
expanded also touched on recklessness as a fundamental issue
here. He cited a paragraph in Watkin L.J. speech in West London
Coroner, experts Gray (8) for which I am grateful. That speech defines
recklessness and set a test that should apply to it. It is one of the
cases that provide a historical perspective of recklessness in England.
But there the matter is statutory unlike the way it is in our own
jurisdiction.
206
I invited the honourable Assessors to determine whether even if
the accused did not intend injury or death of the pupils, he had foreseen
that sending them to Holowa unattended might have caused injury or
death. They dutifully returned a verdict of not guilty in favour of the
accused. I commend them for their time and concentration. I am not
bound by their decision but they have spoken on an issue of fact. The
culpability of the accused on the charge facing him in thus negated by
the assessors.
On the basis of an old English case, Andrews v. DPP (1) a high

degree of negligence such the one I see here or indifference to the
risk that faced scholars, would justify conviction for manslaughter.
That was Lord Atkin’s judgment. At the time, the doctrine of
constructive manslaughter whereby death resulting from unlawful
act, whether intrinsically likely to injure or not, was manslaughter.
But development of the law appears to have overturned this thinking.
R. v. Lowe (6) appears to have given the doctrine a coup de grace.
This omission can support a charge for the offence of manslaughter if
it can be proved that the accused’s recklessness involved foresight of
possible consequences of the omission. In think in spite of the coup
de grace, Lord Aitkin’s judgment is good law where it guides that
negligence in civil law of tort should not be confused with the concept
of recklessness which is a common law concept in mens rea in criminal
law. This is the central theme of this case. Lord Diplock’s speech in R.
v. Sheppard (7) has impression on Lord Atkin preposition and I think
it is relevant here. He stated eloquently that;
‘The concept of a reasonable man as providing the standard by which

liability of real persons for their actual conduct is to be determined is
a concept of civil law, particularly in relation to the tort of negligence,
the obstruction in criminal law of conformity with the notional conduct
of the reasonable man as relevant to criminal liability, though not
known, is exceptional and should not be extended. If failure to use
the hypothetical power of observation, ratiocination and foresight of
consequences possessed by this admirable but purely exemplary to
constitute an ingredient of a criminal offence it must surely form part
not of the actus reus but of mens rea.’’
207
Let me say the obvious that recklessness is a state of mind of the
accused. Intention, recklessness and knowledge are the basis of
liability in criminal law. They all fall under the mens rea window.
All of them will require proof. Recklessness postulates foresight
of consequences and requires either an actual intention to do the
particular kind of harm that was actually or in fact done or reckless
indifference whether the harm could occur or not. It is obvious that
it is neither limited to, nor does it require, any ill-will or bad faith
towards the person injured. Common law cases are many on this
point but the old case of R. v. Cunningham (5) is also worthy reading
for an historical perspective. It may help to decide as a matter of
fact whether, even if the accused did not intend injury or death of the
scholars, he foresaw that sending more than500 scholars unattended
might have caused injury to the pupils.
The accused explanation was that he detailed a teacher on duty

and other teachers to accompany pupils to Holowa. That piece of
evidence has not been contradicted. What the accused is saying is
that he exercised reasonable care befitting a Head teacher to put down
structures of administration and supervision of pupils while they were
proceeding to and while at Holowa. His instructions according to the
evidence were not followed by his fellow teachers. The prosecution
did not give evidence to show that the accused did not give such
instructions. Each of those teachers had a duty of care to the scholars
and the deceased scholars in particular. A charge may stand if it is
proved that they did not exercise that duty as it seems here. This
amounted to a wilful neglect of children, not by the accused but by
those teachers who were instructed by the accused to accompany
the scholars to Holowa and who are not in the dock. I did not see
evidence which indicated that the accused knew that his instructions
would not be honoured by teachers he had detailed. None of them
had demonstrated such a degree of administrative in subordination
in public when the announcement was made. Neither did or do I see
a postulation of foresight consequences that a landslide or the gorge
would likely collapse on the part of the young teacher, the accused.
Culpable negligence on his part, as I discern, will be farfetched.
208
Like Lord Binghasm in R v. G (3), I find and hold that an accused
person could not be culpable under criminal law of doing something
involving a risk of injury to another or damage to property if he
did not genuinely perceive the risk. Applying this rule here, I find
to be a salutary principle that conviction of serious crime, which
manslaughter is, should depend on proof not simply that the accused
caused by act or omission, an injurious result to another but that his
state of mind when so acting was culpable. This is not a new rule. It
is a restatement of actus reus facit reum nisi mens sit rea. It means
that in the absence of exculpatory factors, the accused state of mind is
all important where recklessness is an element of the offence charged.
I think from all of these authorities some principles emerge. They are
as follows:
(a) that a person is reckless in respect of circumstances when he

was aware of a risk that it existed or would exist;
(b) that a person is reckless in respect of a result when he is aware
of a risk that would occur, and it was, in the circumstances
known to him, unreasonable to take the risk;
(c) that it is a salutary principle that conviction of a serious crime
should depend upon proof not simply that the accused had
caused by act or omission, an injurious result to another, but
that his state of mind when so acting was culpable;
(d) that the most obviously culpable state of mind was an intention
to cause injurious result;
(e) that indifference of an appreciated and unacceptable risk of
causing an injurious result or a deliberate closing of the mind
to such risk would be readily acceptable as culpable too;
(f) that it is clearly blameworthy to take an obvious and
significant risk of causing injury to another but it is not clearly
blameworthy to do something involving the risk of injury to
another if, for reasons other than self induced intoxication, one
does not perceive the risk. Such a person may fairly be accused
of stupidity or lack of imagination, but neither of those failings
should expose him to conviction of serious crime or the risk of
punishment.
209
In applying these principles to the case before me, I do not see any
scintilla of recklessness on the part of the accused. The accused
cannot shoulder responsibilities of those teachers that he had detailed
to go to Holowa because the principle of vicarious liability does not
apply in criminal law to the extent that omission of other teachers
subordinate to the accused would be inferred on him. On the facts
of the case and testimonies of witnesses, the accused instructions
were ignored by the Teacher on duty. The Prosecution did not call
him to explain what happened or show the culpability of accused at
least. To me, it seems, he is the person who could be in the dock. But
hypothetically, even if he could be the one to stand trial, evidence on
his means rea would still be a tall hurdle to jump. There is, in my
considered judgment, no evidence which could safely found conviction
on the basis of recklessness or failure to exercise due care.
I find the accused not guilty of the offence of manslaughter as charged.

I subsequently acquit him absolutely.
210
Betekeye Bulinjie v. Republic, Criminal Appeal 151 of 1990 Court of
Appeal of Tanzania at Mwanza (unreported)
(Makame, JA Ramadhani, JA and Mapigano, Ag JA )
(Date of the decision: 14th June, 1991)
JUDGMENT
MAPIGANO, Ag. J.A: On 10/12/85 the appellant Butekeye Bulinjie

shot his elder brother Severino Bulinjie with an arrow and terminated
his life, the event taking plae at the homestead of their father Bulinjie
Majogo at Rusengo in the Ngara District, and puerile or , if you will,
fatuous jealousy lying at the heart of the matter. The High Court,
Munyera, J., sitting at Biharamulo convicted the appellant of murder
on 13/9/90 and consequently sentenced him to death. The appellant
has appealed against the conviction contending that the facts of the
case as found by the learned judge established manslaughter rather
than murder.
The facts as recorded by the judge showed that the deceased and his
other brother P.W.2 Leonard came visiting at the homestead of their
father Bulinjie, who was P.W.1. They found P.W.1 and the appellant
present. A moment later, while the four men were sitting outside,
P.W.1 happened to give the deceased a sum of shs. 100/- asking the
deceased to clear a shamba for him. The appellant felt envious, the
way children do, only that he was hardly a child then and he soon
became violent. He stood up and said that if it was a question of
clearing the shamba he should have been the one to do it since he was
staying with P.W.1, unlike the deceased. Next, he fretfully jumped
upon the money but he failed to wrest it from the deceased’s grasp.
In order to cool the appellant’s bitterness P.W.1 promised to give him

some money too, the way a father would do to a disgruntled child.
It did not however work. There was then mutual fisticuffs between
the appellant and the deceased. P.W.1 and P.W.2 intervened and
succeeded to separate them. As the appellant was the more excited
and appeared to have an edge over the deceased, P.W.1 and P.W.2
caught hold of the appellant and advised the deceased to run off, which
the deceased did.
211
But the appellant managed to tear himself from the grip of P.W.1
and P.W.2. He made a dash into the house to fetch a bow, three
arrows and a knife. He came out and went after the deceased. Sensing
mortal danger, the deceased picked up two stones and throw then at
the appellant in succession, but he missed his mark. And then the
tragedy: the appellant took two arrows shots at the deceased, the first
missing but the second catching him full in the chest, and he slumped
to the ground and died instantly.
Mr. Katabalwa who advocated for the appellant in the High Court
submitted that the appellant killed under provocation and, accordingly,
urged the court to convict him of manslaughter. The judge, after
reviewing the evidence and assessing the same, disagreed. The judge
was satisfied that the charge of murder was clinched up.
Mr. Nasimire, learned advocate, was assigned to represent the

appellant before us. He has advanced only one ground of appeal for
our consideration, namely “that the learned trial judge failed to direct
his mind to the fact that when death occurs as a result of a fight as in
the instant case, unless there are exceptional circumstances, a person
who causes such death is guilty of manslaughter not murder.” On
behalf of the respondent Republic Mr. Magoma, learned senior state
attorney, supported the conviction.
With respect we do not agree with Mr. Nasimire. Having read the
judgment of the learned judge carefully we are satisfied that the judge
did say, though not in so many words, that exceptional circumstances
obtained in this case. The judge found, rightly, that the appellant had
no excuse to work himself up into a homicidal frenzy after he had
himself started a senseless fight and after he had been separated from
the deceased. The judge also found, again rightly, that the appellant
had no excuse to fetch the deadly weapons, pursue the decease and
then shoot two arrows at him.
We entirely agree with the trial judge that the evidence as a whole
established beyond all reasonable doubt that the appellant had formed
a murderous intent at the time he stormed into the house to fetch the
weapon. The appeal is thus dismissed.
212
We wish to conclude by making this observation: Mr. Nasimire’s
proposition in relation to the death penalty that the stipulation of
under age 18 in section 26(2) of the Penal Code should have a reference
to the time of the commission of the crime rather than the time of
sentencing, as is the case in Zanzibar, deserves the legislature’s
serious thought.
213
Charles s/o Jackson v R, (H C Criminal Case 273 of 2017) [2018]
1; (21 February 2018)
(Date of decision: 21st February 2018)
JUDGMENT
MAIGE, J: At the District Court of Musoma (“the trial court”), the

appellant was charged with the offense of rape contrary to section
130(1) and (2) (e) and 130 of the Penal Code, Cap. 16 R.E. 2002 and
preventing a school girl from attending school regularly contrary
to section 4(2) of GN 280/02 read together with section 35 (3) and
(4) of the Education Act, Cap. 353 R.E. 2002). Upon the trial being
conducted, the trial magistrate established as a fact that the offences
against the appellant were established beyond reasonable doubt.
The appellant was thus convicted with the offences and sentenced to
30 years imprisonment in respect of the first offence and 5 years in
respect to the second offence. In addition, he was to pay fine to the
victim at the tune of TZS 500,000/=.
In relation to the first offence, it was alleged in the charge sheet that;
on diverse dates between 19th September 2016 and 21st September
2016 at Kiara area within Musoma District, the appellant raped
ZARASIA D/O FREDY, a girl of 17 years. The factual allegation and
the evidence upon which the appellant was convicted was based on the
presumption under section 130 (2) (e) of the Penal Code that a girl of
under 18 years cannot give consent to a male for sexual intercourse.
It is necessary to state that, according to the charge sheet and evidence,

the appellant was 16 years old when the offence was being committed.
He was a standard six student while the victim was a secondary
school student. In terms of section 14(1) of the Law of the Child Act
therefore, both the appellant and the victim were children. In terms of
rule 49 (1) rule 49 (1) of G.N 182/2016, the appellant was supposed to
be tried by a Juvenile court and/ or in accordance with the procedure
governing trials of a child. More so, in view of his age, punishment by
custodian sentence was a last resort. In any case, he would not be jailed
in ordinary prison as it was in the instant case. Come what may, the
214
proceedings leading to the conviction of the appellant much as it was
his sentence was illegal and thus null and void. Miss FYELEGETE,
learned state attorney who represented the respondent conceded on
this during hearing. She urged the Court to quash the judgment and
the whole proceedings and set aside the sentence thereof. Because the
appellant has served an illegal sentence for a considerable period of
time, she thinks that wisdom requires him to be set free. I agree with
her on this point.
In the nature of this case, I find myself unable to conclude my judgment

without commenting on the conviction of the appellant. As said above,
the charge against the appellant on the first court, was based not
on actual rape but statutory rape which is set out under item (e) of
subsection (2) of section 130 of the Penal Code. Under the respective
provision, a sexual intercourse with a young girl below 18 years is
deemed to be a rape regardless of the consent requirement. The law
presupposes that a young girl below 18 years is incapable of giving
consent for sexual intercourse.
As said above, both the victim and the appellant were at the material
time below 18 years old. What is more is the fact that, the appellant
was younger than the victim. In his judgment, the trial magistrate did
not consider that pertinent fact. He appears to have made use of literal
rule of interpretation. I do not think that he has been able to resolve
the dispute without leading to absurdity. As a matter of common
sense and if everything remains constant, a primary school young boy
of 16 years cannot be in influential position over a secondary school
girl of 17 years. As a matter of statutory interpretation, a statutory
provision should be interpreted so that it does not operate against
common sense.
The policy behind the amendment of the law in question was two folds
as much as I am aware. First, to eliminate sexual discrimination which
was rampant on those days. Two, to protect premature girls from being
sexually abused by adults with influential positions over them. The
law was based on presumption and presupposition that a young girl
below 18 was incapable of consenting for sexual intercourse. Since one
of the equity behind the law was to eliminate gender discrimination,
215
interpreting the same to mean that a young boy of 16 years is mentally
matured than a young girl of 17 years old would not only be against
common sense but discriminatory as well. Any such interpretation
would entail preferential treatment between young girls and young
boys below 18 years old.
In my opinion therefore, incapacity of a young girl below 18 years

in giving consent for a sexual intercourse in the respective provision
was intended to apply against adults and not young boys below 18
years old. For those reasons therefore, the appellant was improperly
charged and convicted in respect to the first offence.
The second offence with which the appellant was charged with was
preventing the victim from regularly attending school. The factual
foundation of the charge was that in the material time herein
mentioned, the appellant had been influencing the victim to abscond
school from attending and take part in sexual intercourse with him.
Just like in the first offence, the conviction of the appellant in respect
to the second offence was based on assumption that the appellant
had much more mentally mataration than the victim to the extent
that he could influence her not to go to school. The assumption, as I
held above, was against common sense. It cannot be accepted. A 16
years primary school pupil in the normal circumstances, does not
possess much mental maturation than a 17 years secondary student
as to influence her not to go to school. Perhaps, it could be possible
if the former used force. On that account: Therefore, I find that the
conviction of the appellant in respect of the second offence was also
improper both in law and fact.
In the final result and for the foregoing reasons therefore, I will agree
with the appellant that he was wrongly convicted and sentenced, the
appeal shall thus succeed to the extent as afore stated. The: Conviction
of the trial court is hereby set aside and the sentence thereof quashed.
The appellant is accordingly set free.
It is so ordered.
216
Clemensia Falima v. Bashiri Ally (Minor) suing by next friend Fatuma
Zabron, Civil Appeal 19 of 1998, Court of Appeal of Tanzania at
Mwanza (unreported)
(Ramadhani, Mroso, and Munuo, JJA.)
JUDGMENT
MROSO, J.A: When this appeal came up for hearing on an earlier
occasion it became apparent that issues arising in it are closely related
to issues arising in Civil Appeal No. 15 of 1998, which the Court had
struck out. The Attorney–General who was the appellant in that
appeal promised he would resuscitate it if given time to do so. Relying
on that undertaking by the Attorney-General the Court considered
that it would be more appropriate to consolidate the hearing of this
appeal with the intended appeal by the Attorney–General. For that
reason, the hearing of this appeal was adjourned to await the refilling
of the appeal by the Attorney –General. The Court said-
The Attorney-General is reminded to take the proposed step promptly

to avoid undue delays in the hearing of this appeal.
The “proposed step” was the resuscitation of the appeal by the

Attorney –General which had been struck out. The order adjourning
this appeal was made on 16th November, 2001.
When this appeal was called up for the hearing again on 18th July,
2003, which is some twenty months after it was last adjourned, the
Attorney–General was yet to revive his appeal. Ms. Sehel, learned
State Attorney, appeared for the Attorney–General and asked for
further adjournment of the hearing of this appeal to allow time for the
Attorney–General to take necessary action to file his appeal because
he was still interested in pursuing it.
Mr. Boaz, learned advocate, who represents the appellant in this

appeal did not have objection to adjournment because he believed
that consolidation of the hearing of this appeal with the one by the
Attorney-General would be in the interests of his client. He said that
217
in the event the Court refused the adjournment it should allow the
Attorney-General to appear as amicus curiae in the present appeal.
Mr. Mtaki, learned advocate, who has appeared for the respondent
put up stiff objection. He said the Court order in the last adjournment
was that the Attorney-General was to act as soon as possible and if in
twenty months he had not acted, it would be an abuse of the process
of the court to allow him more time. He also resisted the plea that
the Attorney –General be heard as amicus curiae. He said to do so
would be tantamount to allowing the Attorney-General to argue his
unfiled appeal through the back door. We disallowed adjournment
and proceeded with the hearing of the appeal. We also refused to allow
the Attorney-General to appear as amicus curiae. We reserved the
reasons which now appear in this judgment.
We intend to be quite brief in our reasons. Ms Sehel had explained

that to-date the Attorney-General had not refiled his appeal because
he has to go over the hurdle of seeking leave to appeal out of time and
that such application is yet to be filed.
We think the Attorney-General has not demonstrated any

diligence on his part. Twenty months is quite a long period especially
when it is considered that this present appeal was filed five years
ago and that it is now seven years since the decision of the High
Court. It would be unconscionable for this Court to allow any further
adjournment. It is only fair that the respondent who obtained
a favourable decree in the High Court should know finally if he is
entitled to the remedy which he sought in court. It is not justice to
further prolong his uncertainty. We therefore decided to refuse the
prayer for another adjournment.
As for the prayer to have the Attorney-General appear in this appeal

as amicus curiae, we agree entirely with Mr. Mtaki that giving the
Attorney-General such opportunity is to allow him to benefit by his
own default by allowing him to urge his appeal without the need to
file it. We, therefore, turned down the suggestion. Now, to the appeal.
218
The respondent Bashiri Ally is a minor who filed a suit by his next
friend, his mother, in the High Court at Tabora. He was born at
Maweni Hospital, Kigoma on 17th July, 1990 by caesarean section.
About four months after he was born his mother began to observe
in him signs of abnormality. He was referred to a neuro-surgeon at
Muhimbili Hospital in Dar es Salaam. The mother was told that the
respondent had suffered brain damage medically known as cerebral
palsy. According to her evidence, she was told that the brain damage
resulted from delayed delivery. She attributed the delayed deliver to
negligence on the part of the appellant. The respondent, therefore,
through his mother, brought a suit in the High Court against the
appellant, the Regional Medical Officer and the Attorney-General
praying for general damages amounting to shs. 25,000,000/=; interest,
costs and any other relief that the court deemed fit to grant.
The learned judge found that the Regional Medical Officer who was
the second defendant at the trial “not a proper or necessary party” and,
therefore, not liable. But he found the appellant and the Government,
which was represented by the Attorney-General, liable. The appellant
was to pay 25% of the total liability of Shs. 15,150,000/= and the
Government was to shoulder 75% of the assessed total liability. The
appellant was aggrieved by that decision, hence this appeal.
Mr. Boaz, learned advocate, filed three grounds of appeal on behalf

of the appellant. In the first ground the complaint is that the learned
trial judge erred in fact and law in holding that the appellant or her
employer owed any duty of care to the respondent who was a foetus at
the material time.
In the second ground the trial judge is criticized for holding that the
respondent’s cerebral palsy or mental retardation was caused by the
negligence of the appellant. In the third ground the appellant says
the trial judge erred in fact and law in assessing general damages at
Tshs.15,000,000/= and nominal damages at Tshs. 150,00/=, claiming
they were illegal or manifestly excessive. However, when arguing
the appeal Mr. Boaz informed the Court that he was not seriously
challenging the quantum of damages as assessed but that if they are
to be paid, the Government should do so on her behalf.
219
Before we discuss the grounds of appeal we think there is need to give
more facts of the case which led to the judgment that is now being
challenged.
The respondent’s mother, Fatuma Zabron, experienced labour pains

and reported at Maweni Hospital, Kigoma at about 7 pm on 15.7.1990.
The appellant was, and perhaps still is, a nurse/midwife at the
hospital. She admitted the respondent’s mother. She examined her
and found that the unborn baby’s pulse was normal but the mother’s
cervix measured only 2cm, which was not open enough for what was
termed true labour. It was said that in true labour the cervix must
be at least 3cm wide. The appellant recorded the findings in a labour
chart which was tendered at the trial as Exhibit P1.
Fatuma said in her evidence that throughout the night she

experienced severe labour pains and she claimed that at midnight the
membranes which cover the foetus ruptured. The appellant examined
her again and told her to exercise her body until her cervix was open
enough. At 3:00 am she was again told that her cervix was still not
open enough. That condition persisted until the following morning
that is on 16th July, 1990 when the appellant completed her night shift
and went home.
At 11:00 am on 16/7/1990 the Doctor was called. He recorded that

Fatuma was with moderate labour pains. He directed that labour
progress should continue to be monitored. The appellant was on
duty again during the night of 16/7/1990. At 10:00 pm she called the
doctor after she observed that Fatuma’s cervix had attained a dilation
of 3cm. the doctor came at 11.30 pm and after examining Fatuma
directed that observation should continue and that he should be
called if complications developed. The doctor also indicated that if
the patient did not deliver normally in the night he would perform
caesarean section at 9:00 am the following day, 17/7/1990.
The appellant examined Fatuma again at 3:00 am and could

not see any positive development. She decided to call in the doctor
again. The doctor came at 3:30 am. He observed foetal distress due
to poor cervical dilation and decided to operate the patient, which he
did along with two other doctors. It was then the respondent was
220
extracted alive. Fatuma could not suckle the baby who was kept in
the labour ward until 6 pm on 19/7/1990. The baby was suckled on the
fourth day and on 27/7/1990 Fatuma and her baby were discharged
from hospital. As mentioned earlier, four months after delivery
Fatuma began to observe that all was not well with her baby, the
respondent. She believed the appellant in particular and the hospital
on the whole were negligent during the period she was in the labour
ward and before the child was born. During that time, according to
her, the respondent suffered mental and physical injuries.
When the respondent was examined by a specialist paediatrician, Dr.

M.R. Fataki, at Muhimbili Medical Centre he was found to be suffering
from impaired vision. The Specialist paediatrician sent a report to the
Regional Medical Officer, Kigoma which in the relevant parts reads-
Physical Exam – GC- moderate

Vision impaired
L-sided hemiplegia with spasticity
EEG – shows paroxysunal bursts of
generalized spike and waves complexes with diffuse theta waves.
Diagnosis: L-sided moderate – severe hemisplegic spastic cerebral
palsy
Associated features: Cortical blindness
L-sided partial seizure disorder.

In discussing this appeal we think that the first thing to ascertain, if
that is possible, is the cause of the cerebral palsy in the respondent.
Dr. Fataki’s report to the Regional Medical Officer is not categorical
as to the cause of the complications. All it says is that there was a
“history of prolonged difficult labour, delivery by caesarean section
with subsequent gross delay in milestones and L-sided seizures.”
221
The Reginal Medical Officer, Kigoma, Dr. Godfrey Mbaruku, a
specialist Obstetrician and Gynaecologist, gave evidence at the trial
and said-
“In my view the child did not develop celebral (sic) palsy due to
medical treatment at the time of delivery, the cause was after that
stage. Celebral (sic) palsy is due to brain damages which could be
caused while the foetus is still developing due to congenital causes.
Secondly, brain damage could be due to intra-utrine (sic) infections
i.e. infection in the uterous (sic) e.g toxoplasmosis which is caused by
contact with domesticated (sic) dogs, cats, thirdly a kind of chicken
pox called rubella which affects adult mother, fourthly, during labour
due to intra-utrine (sic) asphyxia due to loss of oxygen while the
foetus is still in the uterous (sic). Fifth, after birth due to celebral (sic)
malaria, meningitis, convulsions due to high fever caused by malaria
pneumonia.”
From this passage it is apparent that there are many causes for the
cerebral palsy and that the damage could have occurred well before
respondent’s mother was admitted in the labour ward or during the
times she was in the labour ward or at the time of birth or subsequent
to the birth.
Dr. Mbaruku, of course, was called as one of the defendants in the

case and it is conceivable that his evidence was coloured by that fact.
But the respondent’s next friend did not call any independent expert
witness to testify.
The appellant herself said a child can develop cerebral palsy as a result
of a fall or use of herbal medicine or of menengits. According to her,
if the respondent had cerebral palsly at the time of birth he would not
respond to movements around him and would not cry in the normal
way. She believed respondent developed the palsy after he and the
mother were discharged from hospital, otherwise his mother who had
other children previously would have detected the abnormality before
she was discharged from hospital.
222
Respondent’s mother believed the report from Dr. Fataki had
established that the respondent suffered the brain damage during her
prolonged labour. As we said earlier in this judgement, Dr. Fataki did
not say in the report when or what caused the cerebral palsy. He only
gave the history leading to the birth of the respondent.
Dr. Msovu who performed the operation on respondent’s mother

recorded that just before the operation the foetus was experiencing
foetal distress. By foetal distress is meant that the foetus is not getting
enough oxygen and is exhausted. Was that the cause of brain damage
in the respondent?
Dr. Mbaruku said in his evidence that foetal distress of more than six
hours can cause brain damage. But he was quick to point out that in
the case of the respondent it had lasted for only two hours from the
time it was diagnosed to operation. What can be inferred from this is
that the foetal distress which the respondent had suffered before he
was born could not have been the cause of the brain palsy.
The trial judge said of the foetal distress-
…….in the absence of medical proof for the cause of the foetal distress
other than prolonged labour to which PW1 (respondent’s mother) was
subjected, the foetal distress in this case was due to PW1’s prolonged
labour
But the learned trial judge was making an assumption which was
based on a wrong premise. It was for the respondent’s next friend to
prove, if she could, on a balance of probabilities, and on the basis of
evidence that the foetal distress was due to prolonged labour rather
than assume that because there was no clear evidence on what caused
the foetal distress then it must have been caused by prolonged labour.
After anxious consideration of the evidence on record we are unable to

say with any measure of assurance what caused the brain damage or
when it was caused. The probability is that the damage may have been
post-natal. That appears to be consistent with the fact that Fatuma,
who was an experienced mother having given birth to six children
223
prior to respondent, did not notice in the respondent anything out of
the ordinary soon after birth until four months later.
Having reached this conclusion it is not really necessary now for us to

consider whether the appellant was guilty of professional negligence
in the way she attended PW1 – Fatuma, and whether she owed a duty
of care to the unborn baby – the foetus. We will therefore make only
brief observations.
During the first night in the labour ward PW1 apparently experienced
a lot of pains. The fact that those were early labour pains, or false labour
was not of much comfort to her. She was restless and demanded that a
doctor be called. The appellant however would not call a doctor merely
because the patient said so. The labour chart which she maintained
bears her out that there was no immediate necessity to call the doctor
on the first night. On the second night when she observed that the
cervix had dilated to 3cm she duly called the doctor who examined
the patient and directed further observation. She again called the
doctor the same night because the patient did not show any positive
development. It was then the doctor decided he would operate the
patient in order to get the baby out by caesarian section.
There was no expert evidence that the appellant should have acted
otherwise and without ruling out occasional rude replies by the
appellant to persistent demands from the patient, we are unable to
agree with the trial judge that the appellant acted negligently when
attending to respondent’s mother.
Assuming, without so finding, that the respondent suffered the brain

damage when his mother was in labour at the hospital, was the foetus
owed a duty of care which entitled him to sue after he was born?
The learned trial judge relying on English law, that is the Congenital
Disabilities (Civil liability) Act, 1976 and a decision of the House of
Lords in England- Burton v. Islington Health Authority, [1993] QB
204 said-
224
“So in England, at least a child can sue for injuries inflicted on
it when it was in utero. No doubt these are sound principles; I propose
to apply them in the determination of this case.”
He then held that the appellant owed the foetus a duty of care and if
it suffered as a result of the negligence of the appellant it could sue for
damages if, later, it was born alive and with consequent disabilities.
We think the learned judge misdirected himself on the law. The law
here regarding the rights, if any, of a foetus is the common law as it
obtained at the reception date, that is to say on 22nd of July,1920.
The common law position in this regard prior to the reception date is
illustrated in the case of Walker v. Great Northern Rly Co of Ireland
(1891) 28 LR Ir.69 cited in the judgment of Dillon, L.J in Burton v
Islington Health Authority de Martell v. Menton and Sutton Health
Authority, [1993] QB 204.
In the Walker case a mother who was pregnant with the

appellant (Walker) was being carried as a passenger in a train of
the respondent company when she fell because of the negligence
of that railway company. The child she was carrying in her womb
was permanently injured and when it was born it was crippled and
deformed. Later a suit for damages based on negligence was filed.
The court held on demurrer that no cause of action had been disclosed.
One of the reasons for so holding was that pre-natal injuries were not
recognized as giving a right to damages. Another reason which is
not relevant in our present case was that the railway company had
sold only one ticket to the mother and not two. Under current English
statutory and common law the decision in Walker is unsatisfactory
and perhaps unfair. We should say that even today in Tanzania the
decision in Walker would be unsatisfactory. But that is the law.
We think there is dire need for updating the law in this regard in order
to catch up with other countries and statutory intervention is the best
way out. In England although there had been some developments under
common law which departed from Walker, it was found necessary to
have a statute, that is the Congenital Disabilities (Civil Liabilities)
Act, 1976 referred to earlier in this judgment. That Act grants a
225
right of action to a child who is born alive but disabled because of an
occurrence which affected either the father’s or the mother’s ability to
have a normal child or affected the mother during pregnancy.
While statutory intervention is being awaited we think the Court

should provide a respite from the stagnation the law which has
persisted from the reception date in 1920. We think that it is important,
even necessary, that in present day Tanzania a child who is born
alive but with disabilities which were caused before it, was born by
the negligence of a person, should be able to sue such person for the
negligence. That in a way would be consistent with the position in our
criminal law. Section 219 of our Penal Code, Cap.16 recognizes that
an unborn child enjoys the right to life. Thus the section provides in
sub-section (1) that any person who with intent to destroy the life of
a child capable of being born alive by any willful act causes a child to
die before it is born shall be guilty of the offence of child destruction
and shall be liable on conviction to life imprisonment. Of course,
the criminal law speaks as it should of willful act to cause the death
of the unborn child but in civil liability the law should not stop at
“willful act” and “causing death” but should extend to all negligent
acts which cause disabilities to the unborn child. This is regardless
of whether the unborn child is or is not a legal person at the time the
harm is inflicted. For purpose of an action for damages for negligence
the tortfeasor will be taken to have breached a duty of care because
the unborn child will be deemed to be born and clothed with the rights
which would have had it been actually in existence as a person at the
date when harm was inflicted on it while still in its mother.
The Court of Appeal in England took that proactive approach

in the case of Burton v. Islington Health Authority and de Martell v.
Merton and Sutton Health Authority [1992] 3 All ER 820. In Burton
the plaintiff had claimed damages against the defendants for personal
injury, distress and other harm which she suffered as a result of
alleged negligent treatment of her mother when the plaintiff was still
an embryo. The mother had a gynaecological operation at a hospital
which was managed by the defendants. The defendants applied to the
trial court for the action to be struck out for not disclosing a reasonable
cause of action. The court dismissed the application.
226
In de Martell the plaintiff brought action for damages for negligence
by medical personnel when the plaintiff’s mother was in labour
leading to her delivery and his birth. In a preliminary issue, the Court
assuming the allegations of negligence by the medical staff employed
by the defendant to be true, held the defendants were liable in tort to
the plaintiff for the harm which he suffered before he was born.
The Court of Appeal upheld the decisions of the trial courts in both
cases when they went on appeal. The Court of Appeal held that a
child born suffering from disabilities caused as a result of medical
negligence before birth could maintain an action for damages for
negligence in respect of a breach of duty of care, since although not a
person in the eyes of the law at the time when the injury took place,
an unborn child was deemed for purposes of such action to be born
whenever its interests required. It was therefore clothed with all
the rights of action when born which it would have had if actually in
existence at the date of the accident to its mother.
In the present case had the respondent succeeded to prove negligence

on the part of the appellant this court would have been prepared
to recognize his right to damages for the reasons which we have
attempted to give.
This Court having found that there was no proof of negligence on the
part of the appellant and, further, that there was no proof the cerebral
palsy was caused when respondent’s mother was being attended by
the appellant in labour ward at the hospital, we are constrained to
allow the appeal in its entirety. The appellant will have her costs.
227
Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil Appeal No. 1 of
2019, High Court of Tanzania at Kigoma (unreported)
(Date of the Decision: 16th March 2020)
MATUMA, J.: The appellant Denis Elias Nduhiye and the Respondent
Lemina Wilbad at one time were lovers and in the due cause of their
love affairs two issues were born: Eliya in 2011 and Neema in 2013.
In the year 2013 the parties developed some misunderstandings and

thus separated, which is now almost six years. The contention between
them is the maintenance of the said second born Neema. While the
appellant avers that the said issue is not his biological daughter, the
respondent maintains that she is.
At the trial Court, a DNA test was ordered but again the parties
disagreed as who between them should bear the costs. While the
appellant claims that it is the respondent to bear the costs for the
DNA test, the respondent argues that it is the appellant. In the
circumstances that DNA test was not carried on. The trial Magistrate
decided that:
“Since the respondent (appellant) failed to rebut the allegation then

the position remained that the father will remain the father until
proven contrary”.
In that regard the trial Court proceeded to burden the appellant as the
father of the disputed child and ordered maintenance of TShs 50,000/
= per month and TShs 10,000/= per month as custodial support.
The appellant was aggrieved with such maintenance and custodial

orders, hence this appeal with six grounds all challenging the findings
of the trial Court in that the burden of proof to who alleges was shifted
to him instead of the respondent who alleged that the father of the
child is him the appellant, orders for maintenance and custodial
support on the child who is not her biological father and failure to
analyses the evidence properly.
228
At the hearing of this appeal both parties appeared in person and
made general submissions reiterating the rival arguments on the
paternity of the second born Neema.
It is my settled view that in law the trial Magistrate erred to shift

the burden to the appellant to prove that he was not the father of
Neema. It was the respondent with legal obligation to establish such
fact because it is her who alleged the paternity of such child to the
appellant. That is the requirements of section 110(1) and (2) of the
Evidence Act, Cap. 6 R.E. 2002, which provides that:
(1) Whoever desires any court to give judgment as to any legal

right or liability dependent on the existence of fact which
he asserts must prove that those facts exist.
(2) When a person is bound to prove the existence of any fact, it is said
that the burden of proof lies on that person.”
In the circumstances of the herein above cited provisions, it was the

respondent to prove the paternity of the second born Neema to the
appellant and not the appellant to disprove the allegations against
him. Furthermore, the Law of the Child Act, 2009, under section 35(a)
to (e) provides the manner of proving the parentage of a child to be
either of the following; marriage performed in accordance to the Law of
Marriage Act, the name of the parent entered in the registrar of birth
kept by the Registrar General, Performance of customary ceremony
by the father of the child, Public acknowledgment of parentage and
the DNA results.
The trial court ought to have lead these poor innocent litigants to the
requirements of the law in guiding them on the relevant facts to be
proved and the burden of proof thereof. The trial court however failed
to discharge this duty and proceeded on assumptions that: “Since the
respondent (appellant) failed to rebut the allegation then the position
remained that the father will remain the father until proven contrary”.
229
This findings by the trial court was nothing but speculative views
by the trial magistrate which affected his decision. In the case of
Materu Leison & J. Foya v. R. Sospeter [1988] TLR 102 (HC), this
court held that: “the trial court magistrate had erred in his approach
to evaluating the evidence by allowing speculative views to affect his
decision”. Speculative views have thus no room in civil trials and the
trial magistrate in this case erred to rest this case on his speculative
views.
Failure to discharge the duty by the trial court of leading the-Jay

litigants on the requirements of the law presupposes that the parties
were not sufficiently guided to present their respective cases and in
my opinion the hearing thereof was not fair to both parties and thus
the proceedings thereof vitiated.
Even if there would have been proof that the appellant is in fact the
father of Neema still the orders given could not have been issued
without sufficient proof as to the economic status of the parties.
According to the record, the trial Court involved the Social Welfare to
make an inquiry thereof. The Social report in respect of the appellant
established that;
“Baba huyu ni mjasiliamali kutokana na kazi hiyo baba huyu anaweza

kumudu familia yake”.
About the respondent, the Social Welfare report has the same
observations:
“Mama huyu ni mjasiliamali kutokana na kazi hiyo mama huyu

anaweza kumudu familia yake”.
The findings of the Social Welfare report is corroborated by the

evidence of the respondent at the trial who admitted at page 10 of
the proceedings that the appellant has a shop but she did not know
how much he was earning per month. At the hearing of this appeal, I
inquired the respondent about that shop and she replied that it was
a kiosk for selling juice and it was then demolished and therefore the
appellant is now selling that juice by using a “toroli”.
230
In the circumstances that the financial status of the appellant was not
sufficiently established, it was wrong to order him a monthly pay even
if it would not have been in dispute as to the paternity.
Since both parties are small business persons “wajasiliamali” they

are under equal footing of maintaining their issues as provided for
under section 44 (a) of the Law of the Child, 2009, which provides
that the Court in ordering maintenance shall consider the income and
wealth of both parents of the child.
I therefore nullify the proceedings of the trial Court, quash the

judgment thereof and set aside the order for maintenance at TShs.
50,000/= per month and custodial support of TShs. 10,000/=.
I, however, appeal to the parties to mutually cooperate together to

maintain their issue(s). In case either party feels that the other is not
paying attention to the requisite responsibilities towards maintenance
and custody of the child or children, it is open for him or her to go back
to the Court with competent jurisdiction to establish such fact subject
to the requirements of the law herein above as to proof of the alleged
paternity and financial status at the time for necessary orders of the
court. Neither party shall be barred as to time limitation since the
proceedings of the trial court has been herein nullified putting the
parties to their initial position as if there has not been this case before
the court.
No orders as to costs
231
Eliah Bariki v. R (Crim Appeal 321 of 2016) [2019] TZCA 40; (11 April
2019)
(Mwangesi, Ndika, and Kitusi, JJA)
JUDGMENT
KITUSI J.A.: This is a second appeal by Eliah Bariki who was, before
Rombo District Court, charged with and convicted of Rape Contrary
to sections 130 (1) (2) (e) and 131 (3) of the Penal Code, Cap 16 R.E.
2002, as amended by Act No. 19 of 2007. He was sentenced to 30
years’ imprisonment. His appeal to the High Court before Sumari, J.
brought more trouble to him as the learned judge not only upheld the
conviction but enhanced the sentence to life imprisonment.
He appeals hereto against both conviction and sentence.
From the particulars of the offence, the case for the prosecution was
that, on 7th day of August, 2013 at Holili Village in Rombo District,
Kilimanjaro Region, Eliah Bariki had sexual intercourse with one RF,
a girl aged 8 years. The evidence centrally consists of the testimony of
the said RF (PWl), the alleged victim, who gives an account of what is
alleged to have happened.
Here is what she stated on oath, after a voire dire test that satisfied the
trial Resident Magistrate that she knew the meaning of an oath. On
7/8/2013 at 4:00 pm PWl was hanging around the house near to where
she lives when one Hassan sent her on an errand to the appellant
at his place of abode to tell him to tune his radio for the news. She
obliged. On reaching the appellant’s residence, PWl conveyed the
message from Hassan but immediately thereafter she was pulled by
the appellant into his single bedroom residence where he had forced
carnal knowledge of the girl, during which he muffled her possible
screams by shoving a piece of cloth on her mouth.
When the appellant was through, he dressed PWl up and warned her
against disclosing to anyone what had just been done to her. However,
PWl defied the appellant’s warning because immediately she got out
232
from his room she disclosed the incident to her brother, Sele, who in
turn, informed PWl’s mother by phone. PWl was eventually taken to
hospital having obtained a PF3 from the police.
The trail of the information ater the alleged rape is as follows; Ziada
Said (PW3) ran into PWl on 7/8/2013 at around 4.00 P.M and noticed
that the girl was having difficulties in walking. When she raised the
issue with PWl she explained that she got hurt by a stick. At around
the same time PW3 met Sabrina Juma (PW2) and told her about PWl’s
suspicious manner of walking. Since PWl’s mother was not around,
PW2 a neighbor to PWl’s mother, took it upon herself to find out, so
she checked PWl’s private parts in the presence of Mama Naomi, only
to
detect bruises. PW2 inquired from PWl as to what had happened to

her, to which the young girl said she had been raped by “Bonge”, the
name used in reference to the appellant. PW2 and PW3 took PWl to
police, obtained a PF3 before they proceeded to Mawenzi Government
Hospital where they also met Nancy Fredrick Mwanga (PW4),
the victim’s mother.
The account given by PW4 and her son Seleman Salehe (PW5) is that
prior to that date, the appellant had suspicious relationship with PWl.
PW5 said he had ever found the appellant seated with PWl on his bed
at night with the lights off. PW5 informed his mother about this fact
and PW4 warned the appellant to stop seeing her daughter. Back at
the hospital, Dr Eliniokoa Adam Massawe (PW7), examined PWl and
observed that she had wounds in her vagina and she was walking with
her legs spread apart. PW7 completed the PF3 which he tendered as
Exhibit PI.
The appellant offered a surprisingly short defence which consisted of

a denial that he did not commit the alleged rape, and a statement that
at the time of the said alleged rape he was away from Holili village,
as he was in Kenya. In cross examination the appellant admitted
knowing PWl, his neighbor, and nothing more.
In convicting the appellant, the trial Resident Magistrate took PWl’s

word, but not before he had spent a good deal of time discussing the
233
danger of convicting on an uncorroborated evidence of a victim of rape,
even though he appreciated the principle that in such cases the best
evidence comes from the victim. The learned Magistrate referred to
cases from foreign jurisdictions which are, but, considerably old. The
cases are; Sunmonu v. Republic (1957) WRNLR. 23; DPP v. Hester
[1972] ALL ER 1056 (5) and; Republic v. Cherop Arap Kinei and
Another 3 E.A.C.A 124. Finally, the learned Magistrate was satisfied
that PWl was an agent of truth and that her story that she had been
raped by the appellant was acceptable.
On first appeal the Judge believed PWl’s version of the matter and
rejected the appellant’s defence of alibi for having been raised without
the requisite notice under Section 194 of the Criminal Procedure
Act, Cap. 20 R.E.2002, and for lacking details. The Judge upheld
the conviction and enhanced the sentence from thirty years to life
imprisonment.
The appellant has preferred five grounds of appeal, four in the main
memorandum and one in the supplementary, filed on 5th April, 2019.
These are; (1) the charge is defective; (2) the evidence for the prosecution
had contradictions and doubts;(3) there were irregularities in the
proceedings; (4) the burden of proof shifted to require the appellant to
prove his innocence and; (5) that the provisions of Sections 192 (3) and
228 (4) of the CPA were not observed.
Before we address our mind to the competing arguments, we think we

should observe, for the benefit of upcoming magistrates, that while
industry, like the one shown by the trial magistrate in this case, is
commended, it is always good to seek solutions and reference from
within this jurisdiction where the issues under discussion have been
litigated and decided upon, before crossing mountains and oceans
to foreign jurisdictions. We have found it necessary to make that
observation because in this jurisdiction the law on sexual offences
is well ahead of the authorities from foreign jurisdiction, that the
learned trial Magistrate cited. Section 127 (7) of the Law of Evidence
Act, Cap 6, R.E 2002 provides that conviction for rape may proceed on
an uncorroborated evidence of a child victim if the court believes her.
Recently by the Written Laws Miscellaneous Amendments (No.2) Act
234
No. 4 of 2016 even the requirement of a voire dire has been done away
with. See the case of Kimbute Otiniel v. Republic, Criminal Appeal No.
300 of 2011(unreported) which was cited in the recent decision of this
Court in Hassan Kamunyu v. Republic, Criminal Appeal No. 277 of
2016 (unreported).
At the hearing of the appeal, the appellant appeared in person, without

legal representation, whereas the respondent Republic enjoyed the
joint services of Mr Ignas Mwinuka and Ms Akisa Mhando, learned
State Attorneys. The appellant took the floor and passionately
submitted on each ground except the ground concerning violations of
Sections 192 and 228 (4) of the CPA, which he chose not to submit on.
However, we asked Mr Mwinuka, learned State Attorney to comment
on that ground, so we shall, albeit briefly, pronounce ourselves on that
point too.
We begin with the ground that alleges that the charge before the trial
court was defective. The appellant submitted that the Miscellaneous
Amendment No. 19 of 2007 which is referred to in the charge, is non¬
existent. Mr Mwinuka resisted this ground and drew the attention
of the Court to Written Laws (Miscellaneous Amendments) Act No
19 of 2007, hereafter the Act. Section 8 (a) of the Act amends Section
131 of the Penal Code by adding subsection (3) which introduces life
imprisonment for statutory rape involving victims of under the age of
ten years.
On our part having gone through the said Act, and it being a matter
that we only have to take judicial notice of, we are in full agreement
with Mr Mwinuka that this ground is borne out of misinformation and
must be dismissed. We accordingly dismiss the first ground of appeal.
Before we move to the second ground of appeal, we have decided to

address another less involving ground of appeal that was raised in the
supplementary memorandum. This ground alleges that Sections 192
and 228(4) of the CPA were violated. Mr Mwinuka’s submission on this
point is that this ground was not raised on first appeal so the appellant
is precluded from raising it before us. The learned State Attorney cited
the case of Yusuph Masalu @ Jiduvi v. Republic, Criminal Appeal No
163 of 2017 CAT at Dodoma (Unreported). We are in agreement with
235
Mr Mwinuka that this Court may not decide on matters that were not
first put before the High Court for determination, and the rationale is
that this Court only sits on appeals against decisions arising from the
High Court or from Magistrates’ courts in their extended powers, and
this is in accordance with Sections 5 and 6 of the Appellate Jurisdiction
Act, Cap. 141 R.E. 2002. We however hasten to add that this principle
does not apply when the matter involves a point of law. Since the
alleged violation of Sections 192 and 228(4) of the CPA appears to be a
point of law, we had to satisfy ourselves on it. On perusal of the record,
we have found nothing wrong with the preliminary hearing that was
conducted under Section 192 of the CPA nor is there justification for
the complaint that the charge was not read over to the appellant,
which is what Section 228 of the CPA is all about. In the end we find
no merits on this ground, so we dismiss it.
Then there is ground No. 3 which we have to dispose of at once, too. This
ground complains that the procedure was fraught with irregularities.
The appellant did not submit on it, so Mr Mwinuka was at a loss as
to what is it that the said appellant has in mind. The learned counsel
tried to figure out the appellant’s complaint that the trial was not
conducted in camera, and therefore it allegedly violated Section 186 of
the CPA. He however submitted that this point was adequately dealt
with by the High Court, and in any event, that provision is meant to
protect victims of rape rather than the alleged perpetrators. He cited
the case of Godlove Azael @ Mbise v. Republic, Criminal Appeal No
312 of 2007 (unreported). Once again we agree with Mr Mwinuka that
this complaint though it raises a legal point, has no merits because it
does not show how the appellant’s rights were affected. We endorse
the finding of the High Court Judge on this point and dismiss the
third ground of appeal.
The second ground relates to alleged contradictions among the

witnesses for the prosecution. The appellant submitted that PWl,
PW2, PW3 and PW5 are inconsistent as to what happened immediately
after PWl got out of the appellant’s room. He referred to some of the
contradictions as being that PWl testified that she is the one who told
‘Sele’ (PW5) that she had been raped, and that in turn, PW5 telephoned
PW4 to inform her about it. However, PW5’s version is that it was
236
Mama Mwanaidi who intimated to him about the rape by telling him
that PWl was having difficulties walking. Then again, when PWl met
PW3 and when the latter raised issue with the way the young girl was
walking, she explained that she had been hurt by a stick. With this,
the appellant put PWl’s credibility to question.
Still on the second ground of appeal, the appellant raised issues with
the PF3 appearing on pages 21 up to 22 of the record of appeal. He
submitted that it was signed on 6/8/2013 a day before the alleged rape,
then it shows that the victim was examined by the Doctor more than
56 hours after she had been ravished. With this, the appellant invited
us to conclude that this is a fabricated story.
Mr Mwinuka rose to the challenge and submitted that the contradictions

referred to by the appellant do not go to the root of the case, pointing
out that the best evidence of rape always comes from the victim. He
further submitted that the evidence of the victim as to what took place
in this case is cogent and it is supported by other witnesses. When
called upon to respond to the appellant’s attack on PWl’s credibility,
the learned State Attorney submitted that this Court should not
interfere with the concurrent findings of the two courts below as
regards her credibility.
On the issues raised regarding the PF3, Mr Mwinuka submitted, we

think in concession, that there are two dates on it and that it must
have been a slip of the pen that it was signed on 6/8/2013, a day before
the alleged rape. He quickly implored us to proceed with deliberation
of the appeal without that PF3, which he submitted has been done
before by this court in the case of Selemani Makumba v. Republic
[2006] TLR 380.
After hearing the competing arguments for and against this appeal,
we think our determination of the second ground of appeal is going to
be decisive. But first, we agree with both the appellant and the learned
State Attorney that the PF3, Exhibit PI, has no evidential value and
should be discarded. On the settled law in Selemani Makumba (supra),
we shall proceed to determine the second ground of appeal without
referring to that PF3.
237
Now we turn to issue number two concerning contradictions. By
submitting that the contradictions do not go to the root of the case,
Mr. Mwinuka is tacitly admitting that there are, indeed, some
contradictions. We are grateful to Mr. Mwinuka because his concession
helps to narrow the scope of the discussion, so that now the question is
whether the contradictions go to the root of the case or not, instead of
addressing the broader issue, whether there are contradictions or not.
Quite a few times in the past, we have demonstrated that contradictions
in a case are unavoidable. In Armand Guehi v. Republic, Criminal
Appeal No. 242 of 2010 (Unreported) we said:
“We would like to begin by expressing the general view that

contradictions by any particular witness or among witnesses cannot
be escaped or avoided in any particular case.”
What comes out from the evidence and the arguments in the instant
case is that the contradictions are on what happened outside the room
in which the alleged rape took place. PW2, PW3, PW4 and PW5 all
testified on how they came to suspect and eventually to know that
PWl had been raped.
However, the evidence as to what happened in the room, which we

think is crucial, is told by PWl only. She made very bold statements
regarding the sexual intercourse and even described the appellant’s
penis. The appellant did not contradict PWl by cross examination, and
when it was his time to testify in defence, he made that shot account
to which we referred earlier, raising an alibi which did not introduce
any reasonable doubt to the prosecution case. In addition, we agree
with Mr. Mwinuka that we should not interfere with the concurrent
findings of the two courts below as to the credibility of PWl. The reason
for this is found on the settled law that the court sitting on a second
appeal may only re-evaluate evidence if there were misdirection or
non-direction by the first appellate court. [See, Director of Public
Prosecution v. Jaffar Mfaume Kawawa [1981] T.L.R 149, cited in
Sultan Seif Nassor v. Republic, [2003] T.L.R 231]. More importantly,
credibility is the domain of the trial court.
238
There is another feature which is not totally irrelevant and we think
we should refer to it. This is that, prior to the alleged rape that gave
rise to this case, it is alleged that the appellant had been warned by
PW4 to stay away from PWl. PW5 testified that he once found the
appellant and PWl in suspicious circumstances. Again, the appellant
neither cross examined nor alluded to these testimonies during his
defence.
At this point we ask ourselves, whether the contradictions between

PW2 and PW3 have any bearing to the evidence referred to above,
regarding what happened in the room, or what the appellant had
previously been told by PW4. The answer to that question is that
they have no bearing at all. We are of a firm conclusion that the
contradictions are minor and do not go to the root of the matter. In
Dickson Eita Nsamba Shapwata & Another v. Republic, Criminal
Appeal No 92 of 2007 (Unreported), cited in Armand Guehi (supra),
the court held;
“In evaluating discrepancies, contradictions and omissions, it is

undesirable for a court to pick out sentences and consider them in
isolation from the rest of the statements. The court has to decide
whether the discrepancies and contradictions are only minor or
whether they go to the root of the matter.”
For the foregoing reasons, we dismiss the second ground of appeal.

Lastly, we want to make an observation regarding the sentence, by
repeating what we earlier took note of. The law as amended in the
Act imposes life imprisonment for persons convicted of statutory rape
where the victim’s age is below the age of ten years. Therefore, it was
wrong for the trial magistrate to have imposed on the appellant the
sentence of 30 years’ imprisonment, which the first appellate Judge
rightly enhanced to life imprisonment.
Consequently, for the reasons discussed, we dismiss this appeal in its

entirety.
239
Elizabeth Michael Kimemeta alias Lulu v R, Miscellaneous Criminal
Application 46 of 2012, High Court of Tanzania at Dar es Salaam
(unreported)
(Date of the decision: 11st June 2012)
RULING
TWAIB, J.: The principal purpose of the application currently before
me relates to the ascertainment of the correct age of the applicant,
Elizabeth Michael, also known as Lulu. Both parties agree that the
ascertainment is both pertinent and urgent. Its resolution would assist
the Courts and all concerned in determining whether the applicant
is entitled to be treated as a child and therefore to the protections
afforded by the Law of the Child Act, No. 21 of 2009.
The background of the matter is that on 10th April, 2012, the applicant
was arraigned at the Kisutu RM’s Court in PI No. 1 of 2012 for the
murder of one Steven Charles Kanumba. Committal proceedings have
since been going on in the RM’s Court. On 7th May, 2012, the applicant’s
counsel applied to the Court for an order staying the proceedings and
committing the applicant to the Juvenile Court, in terms of section
100 (2) and section 113 (1) of the Act. The RM’s Court presided over by
Mmbando, RM, refused the prayer. It held, inter alia, that the RM’s
Court has no jurisdiction to entertain the application and that “If the
accused has any application to make, the same be made to the High
Court of Tanzania”.
The applicant’s counsel were not satisfied by that decision. They thus
filed the present application. Their chamber summons contains three
main prayers, which run as follows:
1. This Honourable Court be pleased to order the Resident

Magistrates’ Court of Dar es Salaam at Kisutu to stay all
committal proceedings currently pending before it and ascertain
the age of the accused.
240
2. In the alternative and on a strictly without prejudice basis, this
Honourable Court be pleased to stay all committal proceedings
currently pending before the Resident Magistrates’ Court of Dar
es Salaam at Kisutu and ascertain the age of the accused.
3. Upon such ascertainment, all committal proceedings with
respect to the accused be conducted under the auspices of the
spirit and provisions of the Law of the Child Act, 2009.
Before me, the matter was called on for hearing on 28th May 2012.
The applicant’s team of learned counsel is led by Mr. Kennedy
Fungamtama, who is assisted by Mr. Fulgence Massawe and Mr. Peter
Kibatala. The Respondent Republic is represented by Ms. Elizabeth
Kaganda, assisted by Mr. Shadrack Kimaro, learned State Attorneys.
Ms. Joacquine De Mello, Commissioner for Human Rights (as she
then was), appeared as an Observer.
With the consent of counsel for the applicant and upon leave of the
Court, the learned State Attorneys addressed the Court on two points
of preliminary objection. The points are:
1. That the application is misconceived.

2. That there is no provision that empowers this Court to grant the
prayers being prayed for in these proceedings.
Even though counsel have argued the two points of preliminary
objection separately, I find them intertwined. I have thus decided to
combine them in the course of composing this ruling.
Submitting in support of the two points of preliminary objection,
State Attorney Kimaro began by stating that despite the pertinence
and urgency of the matter, it is necessary that the correct procedure
provided by law is applied in respect of the application.
Mr. Kimaro pointed out that in paragraph 9 of the affidavit in support

of this application, the applicant’s counsels expressed the view that
the Court had jurisdiction—which meant that they found the lower
Court’s finding to the contrary erroneous. In such circumstances, the
learned State Attorney argued, the proper course to take was not to
241
re-apply in this Court, as they are doing herein. Rather, it was to
prefer an appeal or revision.
Perhaps in anticipation of the argument that the lower Court’s ruling

was an interlocutory matter and thus non-appealable because it was
interlocutory, Mr. Kimaro argued that the ruling finalized the issue
of ascertaining the age of the applicant at Kisutu Court. By so doing,
the decision was no longer interlocutory and was thus appealable.
Counsel thus opines that the proper course for the applicant’s legal
team to take would have been to appeal against the decision. He also
suggested the alternative procedure of revision.
In support of the second point of preliminary objection, Mr. Kimaro

contended that there is no provision of the law that empowers this
Court to grant any of the prayers sought in the chamber summons.
The application is made under section 102 (2) and section 113 (1) and
(2) of the Law of the Child Act, No. 21 of 2009 (hereinafter referred to
as “the Act”).
At this juncture, I find it in order to state that Mr. Kimaro’s submission

is not premised on the contention that the application is brought under
wrong provisions of the law, but rather, that there is simply no such
provision in law that may cover the circumstances of this case. For that
reason, it is not necessary to discuss Mr. Fungamtama’s proposition
which, though I find to be correct, is not directly relevant to the present
case, to the effect that wrong citation of enabling provisions of the law
is no longer fatal where justice so requires, and that the Courts should
endeavour to do justice rather than allow themselves to be bogged
down by technicalities of procedure.
Mr. Kimaro pointed out that the first prayer seeks for an order directing
the RM’s Court to stay committal proceedings and ascertain the age
of the applicant. Section 113 (1) and (2) does not deal with the issue of
stay of proceedings. Counsel nonetheless admits that section 100 (2)
of the Act does deal with such a situation. He however maintains that
the section places conditions before a Court can make an order for stay
of proceedings.
242
According to counsel Kimaro, the wording in the phrase “When in the
course of any proceedings…” in section 100 (2) is significant. He thus
poses the question whether there are any proceedings in this Court to
enable the Court to order stay under section 100 (2)? If I understood
him well, Mr. Kimaro’s argument is that the relevant proceedings
which are envisaged by subsection (2) of section 100 are the committal
proceedings currently before the RM’s Court at Kisutu. There are no
“proceedings” in this Court that fall within the meaning of the term as
used in subsection (2) of section 100 of the Act.
Referring the Court to the second prayer in this application, Mr.

Kimaro noted that the prayer is in the alternative to the first prayer.
It seeks this Court’s indulgence to stay proceedings in the RM’s Court
and proceed to enquire about the age of the applicant. It is the learned
State Attorney’s contention that the two provisions cited have nothing
to do with the second (alternative prayer), which requests this Court’s
indulgence to take it upon itself and determine the applicant’s age.
On the strength of these submissions, the Republic beseeched the

Court to hold that it is “not enabled and has not been properly moved”
to exercise its jurisdiction. While conceding that this Court has
jurisdiction, in appropriate circumstances, to conduct an enquiry into
the age of a person under section 113 (1), Mr. Kimaro said that in
the circumstances of this case, the applicant has come to this Court
through the wrong procedure. He thus prayed that the application
be dismissed and the applicant be advised to take the proper course
of action, meaning to either prefer an appeal or revision against the
lower Court’s decision.
I wish to make it clear from the outset, without determining the

preliminary objection, that I think that the avenue for appeal is not
available to the applicant because the decision of the RM’s Court’s
order does not finally determine the criminal charge against her: See
section 359 (3) of the Criminal Procedure Act and the case of John
Hilarius Nyakibari v. R. (Crim. Appeal No. 149 of 2007, Court of
Appeal of Tanzania, Dar es Salaam, unreported). Hence, the only way
of challenging the order is through an application for revision.
243
Arguing against the preliminary objections, counsel Fungamtama
submitted that Mr. Kimaro has failed to assist this Court because he
has not cited what he considered to be the proper provisions of the law
under which the application should have been pursued, other than
the ones cited by counsels for the applicant. He said that Annexure
“EML 4” to the supporting affidavit is not a ruling as claimed by Mr.
Kimaro. Rather, it is a Court order. He referred to the last sentence,
which reads: “If the accused has any application to make, the same be
made to the High Court of Tanzania”, and said that it was an order
to his client to make the present application, with which order they
strictly complied. Counsel maintained that by so doing, they have
not committed any wrong. This assertion was also made by another
counsel for the applicant, Mr. Kibatala.
I think this argument needs to be disposed of at this moment. Reading

the learned RM’s order in its proper context gives the unmistakable
impression that the last sentence was not an order. Rather, it was
given in the nature of an advice. And, having found fault in the Court’s
reasoning, it is surprising that counsels could still have decided to
follow that erroneous advice. As Mr. Kimaro opines, being learned in
the law, they should have followed the law by applying for revision.
Making a new application as they have done herein, with due respect
to learned counsel, was not the proper way to call for this Court’s aid
in the circumstances of this case.
Counsel Fungamtama criticized Mr. Kimaro for reading the provisions

of section 100 (2) “upside down” and for suggesting that the said
provisions are inapplicable. He further contended that before me are
proceedings that stand on their own in relation to the applicant. Citing
section 113 (1) of the Act, he submitted:
“The applicant is before you today, not for the purpose of giving
evidence. It’s for purposes of determination of her age. With this
provision in mind, I submit that this is a proper enabling provision
capable of moving the Court to entertain the application before you
and grant the orders sought.”
At this point, the provisions of the law, the interpretation and
244
application of which is the bone of contention between the parties
herein, need to be examined. Section 100 (2) of the Act stipulates as
follows:
“Where in the course of any proceedings in a Court it appears that

the person charged or to whom the proceedings relate is a child, the
Court shall stay the proceedings and commit the child to the Juvenile
Court.”
Section 113 (1) of the Act provides as follows:
“Where a person, whether charged with an offence or not, is brought

before any Court otherwise than for the purposes of giving evidence,
and it appears to the Court that he is a child, the Court shall make
due enquiry as to the age of that person.”
It is true, as Mr. Fungamtama submitted, that the word “Court” is
defined under section 3 of the Act to include the High Court. For
that reason, I agree with counsel Fungamtama that by virtue of the
definition of the word “Court” in section 3 of the Act, this Court has
concurrent jurisdiction with the other Courts mentioned therein to
determine the age of a person in trouble with the law. Furthermore,
as counsel suggests, the term “proceedings”, which is not defined in
the Act or the Interpretation of Laws Act, should be given its ordinary
meaning, to denote any court proceedings.
However, with due respect to learned counsel, I do not think that the
term can be stretched to include a situation, as is the case herein,
where a decision has been made by a lower Court and the aggrieved
party files the same application in this Court, seeking a second bite at
the cherry, as it were. The provision has to be read in the context of Mr.
Kimaro’s contention that even though this Court has powers, under
section 100 (2), to determine the age of a person in certain proceedings,
the Court can only do that in the course of such proceedings, which
must be pending in this Court. However, the Court cannot do that
where it is necessary to commence other proceedings separate from
the main proceedings that are sought to be stayed as has been done
herein, where a separate application has been preferred.
245
In the same vein, I am also of the opinion that where an application
has been made at the lower Court and a party is aggrieved by the
decision of the said Court, then he can only come to this Court by way
of revision.
There is one distinct difference between the two provisions. Whereas

under section 100 (2) the determination as to the age of the person
before the Court is to be made “in the course of proceedings”, under
section 113 (1) the person whose age is to be determined would simply
have been “brought before any Court”. It seems to me that section
113 (1) is wider than section 100 (2). The former can also stand on its
own, and would apply wherever a person is brought before a Court
for any purpose except as a witness. Section 113 (1) does not make
its application conditional upon there being any pending proceedings
before the said Court. And the advantage of section 113 is that under
subsection (2) to subsection (5), it provides for the procedure to be
applied in determining the age of the person brought before it.
However, section 113 does not say under what circumstances it is to

be applied. I am of the view, however, that it does not deviate from the
requirement that there must be a legally acceptable purpose for which
that person is brought to Court (other than for giving of evidence).
There must be a reason as to why a person is brought before a Court of
law in order for the Court to exercise its powers and determine the age
of that person. Otherwise, one could invoke the provision and present
a person in any Court, at any time, so long as the Court is one of those
envisaged by the Act, and request that an enquiry be made on the age
of that person. The legislature could not have intended it to be so wide.
Consequently, I hold the view that section 113 (1) may apply even
where there are no proceedings pending in a particular Court.
However, a person seeking such determination must satisfy the Court
that he is not a mere busy body and that the application is made for
good purpose. For instance, a social welfare officer who is faced with
such a question in the discharge of his functions under the Act, may
wish to call upon the aid of a Court of law in order to find out whether
a particular person is a child or not. In such a situation, the matter
will proceed in accordance with the procedure set out in subsections
(2), (3), (4) and (5) of section 113.
246
On the other hand, a casual reading would at first sight suggest that
the procedures set out in the said subsections do not apply in a case
falling under section 100 (2). Indeed, the Court’s only duty prescribed
under section 100 (2) (the word used is “shall”), once it appears to
the Court that the person before it is a child, to stay proceedings and
commit the child to a juvenile Court. There is no indication as to how
would the Court reach that conclusion. This provision cannot stand on
its own in the face of this obvious lacuna. I am thus of the considered
view that whenever a situation envisaged by section 100 (2) arises,
the Court is enjoined to apply the procedure laid down in subsections
(2) to (5) of section 113 of the Act. Only then can the lacuna be filled
and a proper determination of the age of the person concerned be
determined.
Under section 100 (2), the Court can only act where a child is brought
before it in proceedings that are on-going before it. In the instant
case, the only proceedings that are currently pending in respect of the
applicant are the committal proceedings at the RM’s Court, Kisutu.
There are no pending proceedings in this Court. It is thus clear to me
that this application cannot fall under section 100 (2), as correctly
argued by Mr. Kimaro. Neither can section 113 apply in the absence
of revisional proceedings.
In the final result, given these conclusions, I agree with counsel for
the respondent that this application is not properly before me. But
that alone is not the end of the matter.
Let me now turn to the issue as to whether the RM’s Court was right
in holding that it has no jurisdiction to entertain an application
made under sections 100 (2) and 113 (1) of the Act where the person
concerned is charged with an offence triable by the High Court.
It is to be noted that both counsel hold the view that the RM’s Court
was wrong in holding that it had no jurisdiction to entertain the
application. Counsels for the applicant said so in paragraph 9 of
their affidavit. Fungamtama and Massawe reiterated that belief in
their submissions before me. Through Ms. Kaganda, the Republic
expressed the view that the RM’s Court had jurisdiction to entertain
the application, but should first have left the investigators to complete
247
their work, which would also include an investigation as to the correct
age of the applicant.
With all due respect, I do not agree with the latter proposition. The
provisions of section 100 (2), read together with section 113 (1), clearly
vest in the Court not only the powers, but also the duty, to determine
the age of the person before it, if it has reason to believe that the
person is a child. To leave that role to be performed by the prosecution
or investigators would amount to abandoning of the statutory duty of
the Court. It is also clear to me that the phrase “Where in the course
of any proceedings in a Court…” would mean exactly what it says:
It would apply whenever there are proceedings of whatever nature
before a Court, when the age of an accused is at issue. That obviously
includes committal proceedings.
A similar situation arose in the case of Brown Joseph Undule & 5 Ors
v. Rep. (Misc. Crim. Application No. 34 of 2008 (HC, DSM unreported)
in which Mihayo, J. held that subordinate Courts have powers to grant
bail during committal proceedings, even though they do not have
powers to try the offences charged. (Cf: Ayub Huberth & 6 Ors v. R.,
(Misc. Crim. Appl. No. 22 and 23 of 2006), also per Mihayo, J). Indeed,
even before Brown Undule’s Case, the Court of Appeal (Othman, J.A.,
as he then was) in R v. Dodoli Kapufi & Anor (Crim. Rev. Nos. 1 & 2 of
2008, Mbeya Registry, unreported) had ruled that subordinate Courts
have such powers. His Lordship Othman held:
“It would appear that on a true and contextual reading of sections 148
(1) and (5) (a) of the CPA, which are the principal provisions governing
bail, subordinate courts are empowered to admit accused persons
before them to bail for all bailable offences, including those triable by
the High Court, save for those specifically enumerated under section
148 (5) (a) thereof, for which no bail is grantable by any court.”
With these binding decisions of the higher Courts, it is surprising
that subordinate Courts are still hesitant, to say the least, to exercise
powers in committal proceedings that the law so clearly vests in them.
248
Consequently, I hold that the lower Court was wrong to refuse to
entertain the applicant’s application, thinking that such an enquiry
could only be done by this Court. I accordingly quash and set aside the
decision of the RM’s Court, Kisutu, dated 7th May 2012.
Having said that, what would be the proper course for this Court to
take in the circumstances of the case? That question prompted me
to consider the entirety of circumstances surrounding the applicant’s
case.
The applicant is facing a charge of murder, contrary to sections 196

and 197 of the Penal Code, Cap 16 (R.E. 2002). Murder is the most
serious charge of all known to our criminal law. It is defined as the
killing of a human being with malice aforethought, and is punishable
by a mandatory sentence of death. So long as the charge is maintained
against her, the applicant is by law not entitled to bail and will have
to remain in custody.
Without in any way prejudging the determination of the contentious

issue regarding the applicant’s age, it would be fair to assume that
“the best interests of the child” principle, enacted through section 4 (2)
of the Act, is to be applied presumptively to any person whose age is to
be determined, the applicant being no exception.
With this principle in mind, and considering the situation the applicant
is faced with, I have carefully weighed the options available. There are
only three: One, the matter can be returned to the RM’s Court with
directions for that Court to determine the age of the applicant; two,
the applicant would have to start afresh by filing an application for
revision in this Court against the impugned decision of the Kisutu
RM’s Court; and three, as Mr. Massawe suggested, this Court may
exercise its supervisory powers under section 44 of the Magistrates
Courts Act and examine the record of the RM’s Court for purposes
of satisfying itself as to the correctness or otherwise of the decision
of the RM’s Court. In doing so, it may also proceed to determine the
applicant’s age.
249
I think the nature and seriousness of the charge facing the applicant,
the lack of any possibility for securing bail during the pendency of
the charge and the undisputed urgency of the matter, require that
the controversy about her age be determined, and be determined
sooner rather than later. For those reasons, I am inclined to invoke
the supervisory powers of this Court under section 44 (1) of the
Magistrates’ Courts Act, to remove to this Court the proceedings in
PI No. 1 of 2012 for purposes of determining the applicant’s age. In
Brown Undule’s Case (supra), this Court determined the application
even after ruling that the RM’s Court had jurisdiction to do so. Since
the lower Court’s record is already before me, all that remains for me
to do is to proceed with the revisional proceedings.
As I move to conclude this ruling, I desire to state that I find the

interpretation and application of the provisions of section 100 (2) and
section 113 (1) of the Act in the context of this case to be not entirely
free of ambiguity. Unless read together, each of the sections leaves
one with some unanswered questions: Section 100 (2) does not assist
the Court on how the conclusion that the person standing before it is
a child can be reached.
On the other hand, while the generality of section 113 (1) may be
attractive, it is, in a sense, too general. It is of course open to a Court
to read a cross-reference into the two provisions as I have done herein,
but the legislature in its wisdom would have made matters much
easier if it provided a cross-reference, even if the section may stand
on its own in some instances. That would not take away the useful
generality of the section.
Having said that, I am alive to the possibility that the rather

convoluted discussion that has been necessary in resolving the novel
issues arising in this case may render this decision difficult to fully
comprehend. Hence, to simplify the decision, I would summarise my
most relevant findings and orders, as appears below:
250
1. The applicant could not invoke section 100 (2) of the Law of
the Child Act as she has done herein because the committal
proceedings facing her are not in this Court;
2. The applicant could only have invoked the provisions of section
113 (1) of the Law of the Child Act as part of revisional proceedings
under section 44 of the Magistrates’ Courts Act in order to quash
the RM’s Court’s decision and order the lower Court to determine
her age in terms of section 100 (2), read together with section
113 of the Act or to ask this Court to proceed to determine the
said age itself in terms of section 113 of the Act. But since the
applicant did not file an application for revision, she has come to
this Court through the wrong procedure.
3. The decision of the RM’s Court to refuse to entertain the
applicant’s application was an error of law and an abdication of
the Court’s duty. The same is quashed and set aside.
4. Considering the seriousness of the charge facing the applicant
and the urgency of determining whether or not the applicant is
entitled to the benefits of the Law of the Child Act, and in the
interests of justice, this Court, invoking its supervisory powers
under section 44 of the Magistrates’ Court Act, shall proceed
to determine the correct age of the applicant now before it, in
terms of section 113 of the Law of the Child Act.
5. In the meantime, again pursuant to this Court’s supervisory
powers, the committal proceedings in the Kisutu RM’s Court in
PI No. 1 of 2012 are hereby stayed pending determination of the
applicant’s age by this Court.
6. Consequently, I order the applicant’s counsel to present or cause
to be presented, by way of affidavits and supporting documents,
evidence as to their client’s age, and the Respondent Republic
to present or cause to be presented, any evidence it may have to
support its position. The dates for compliance with these orders
shall be fixed by the Court.
It is so ordered.
Elizabeth Mohamed v. Adolf John Mohamed, Administration Appeal

14 of 2011, High Court of Tanzania at Mwanza (unreported)
251
Elizabeth Mohamed v. Adolf John Mohamed, Administration Appeal
14 of 2011, High Court of Tanzania at Mwanza (unreported)
(Mruma, J.)
(Date of the decision: 17th April 2012)
JUDGMENT
MRUMA J.: Upon the expiry of John Cosmas Magesa, Adolph

John Magesa D, the respondent herein, sought and was appointed
an administrator of the estate he claimed was John Cosmas’s in
Magu Urban Primary Court. Following objections, protestations and
prayers from Elizabeth Mohamed, the appellant herein, the Primary
Court of Magu decided that the three children of the appellant whom
she undisputedly mothered with the late John Cosmas Magesa are
entitled to inherit from their father’s estate,
Adolph John Magesa, who himself is the son of the late John Casmas
Magesa was aggrieved and successfully appealed to the District
Court of Magu which after hearing the parties on appeal reversed the
decision of the Primary Court and observed that:-
“If the respondent and the deceased had such sexual association,
the three children the respondent alleged to have mothered with the
deceased, were born of an adulterous association and therefore they
cannot inherit from the fathers side upon the father dying intestate”
The District Court went on to conclude that:-
“In the event therefore, the order by the trial court to invite the
respondent and her illegitimate children to share the fruits in the
estate of the deceased John Cosmas Magesa is set aside”
In reaching that decision the District Court cited with approval the
decision of the Court of Appeal of Tanzania in the case of Violet
Kahangwa v. Mrs Eudokia Kahangwa (1990) TLR 72.
The appellant Elizabeth Mohammed was aggrieved by the decision of

District Court which quashed and reversed the decision of the Primary
Court and she has appealed to this court.
252
This is therefore the second appeal and this being the second appellate
court is not easily disposed to disturb the findings of the facts except
where it will be necessary and where the findings of the two courts
below will be seem contradicting each other.
Briefly the facts as reflected in the records of the two courts below
are simple and straight forward; the deceased John Cosmas Magesa
contracted a Christian Marriage with Juliana Gerald at Kondoa in
1988. Their marriage was blessed with two issues, Adolf John (the
respondent herein) and Anna John. The deceased who was working as
a medical officer died intestate on 31st December, 2010.
Admittedly also is the fact that before his death the deceased was
living and/or cohabiting with two other women among them Elizabeth
Mohamed (the appellant), with whom he had “contracted’ a customary
law marriage as “evidenced” by payment of a dowry of T.shs 300,000/=
to the appellant’s parents. According to the appellant this was done in
the year, 2002. She was married by the deceased in Magu and lived
there for sometimes but later on they moved and lived at Nyakaboja
village. At Nyakaboja they owned among other assets a medical store
which she operates herself. That is in the undisputed “evidence of
Elizabeth Mohammed. It can also be traced in the It testimony of the
respondent himself who is quoted to have told the trial court that:-
“Marehemu elikuwa na miji mitatue, rnkubwa ukiwa Magu. Katika

mji wa Katikati kuna watoto lakini sipaswi kuwaweka katika faili hili
kwa kuogopa kutenda dhambi kushuhudia watoto wa nje ya Ndoa”
Further this is found in the testimony of Henry Magesa, the deceased’s

elder’ brother who stated in cross-examination that:-
“. ..Alikuwa na wake 3 wa ndoa na wengine wawili. Mke wa tatu

alichiwa assets za mle ndani.”
Therefore the issue of the deceased having another woman and

children is not in dispute at all. What is disputed is whether he three
children whom the deceased begot with the appellant are entitled to
inherit from the estate of their father. The Primary Court was of the
view that they are entitled while the District Court was of the view
that they are not.
253
The appellant is challenging the findings and decision of the District
Appellate Court on four fronts as follows;
1. That the first appellate court misdirected itself in entertaining

an appeal which was not legally/procedurally before the court.
2. That the first appellate court erred in law and fact in including
into the estate of the late John Cosmas Magesa the house in
Bunda and Nyakaboja and other properties which did not belong
to him, rather the appellant Elizabeth Mohamed [sic]
3. That the first appellate court misdirected itself in not considering
the fact that since the appellant was not legally married to the
deceased properties belonging to her could not be included into
the estate of the deceased; and
4. That the first appellate court erred in law and in fact in deciding
that the children born as a result of the appellant and the
deceased’s relationship were illegitimate and therefore not
entitled to part of the estate.
During the hearing of this appeal, Mr. Mhingo, learned advocate who
represented the appellant abandoned his first ground of appeal and
proceeded to argue the 2nd to 4th grounds.
Starting with the fourth ground of this appeal, Mr. Mhingo, contended
that the evidence on record shows that the deceased is survived by
three wives and five children. He said that there is undisputed evidence
to the effect that the deceased married his first wife in accordance
with Christian rites but subsequently he married two other wives
in accordance with customary laws. The counsel further stated that
there was sufficient evidence in the records of the two courts below
that the deceased clan and the society surrounding them recognized
the two other wives together with their- children as the wives and
children of the deceased and that is why, he argues; the clan meeting
held on 6th January, 2011 was attended by all wives including the first
wife Juliana Gerald and the last wife Pendo Zablon and their children.
254
In his reply, the respondent who was unrepresented stated simply
that his father the late John Cosmas Magesa was living a Christian
life and he died and he was buried as a Christian. He said that no
evidence was produced in the primary court for the alleged payment
of dowry so as to legitimize the deceased marriage to the appellant.
He conceded however that there was a family meeting held after the
burial of the late John Cosmas, and that the two other wives including
the appellant attended that meeting together with their children but
he quickly contended that he did not agree and was not happy with
their attendance though he did not challenge it because being a child
he could not be heard by the clan elders.
Now looking at these facts and the arguments of the parties before me,
the basic question I am called to determine by both parties is not real
on the legality of the second marriage (i.e. the appellant’s marriage to
the deceased), but legitimacy of the Issues of that marriage.
Mr. Mhingo’s contention is that the deceased having paid dowry

to the parents of the appellant, and having introduced her and the
appellant having being accepted by the deceased family, she was a
legal wife of the deceased and the children she begot with the deceased
are legitimate children and have rights to inherit from their fathers
estate just like the respondent and his sister Anna. In cementing his
argument, Mr. Mhingo referred me to a decision of this court in the
case of Chacha Mlima v. Mwita Kitogo [1986] TLR 117 at p, 119, There,
Katiti J, of this Court (as he then was), said in relation to legitimating
an illegitimate child that:-
‘’According to the provisions of Rule 181 A and B of the Customary

Law (Declaration) Order 1963/ there are two ways either of which
may serve to legitimate an illegitimate child -each being tied to one
constant denominator condition precedent, and that is, it is the father
of the child whether named by the mother or is acceptably the natural
father-who may leqitimate the illegal child;- (l) by either marrying
the mother or (2) without marrying the child’s mother by paying Tshs
100/=
255
Since the Order referred by Katiti J, speaks of certain relationship, that
is to say; being biological father of the child and/or being acceptably
natural father of the child, without more, on my side, I would infer
that the only relations to be considered when deciding the right of a
child to inherit are those which the law recognizes and that is to say,
one must be either biological farther or acceptably father of the child.
In our case both conditions are present that is to say the deceased was
the acceptably biological father of the three children he begot with the
appellant. This fact was never contested by the respondent during
the trial and actually he conceded it in this court. The respondent
only contention is that because his father lived a Christian life and
buried a Christian, his purported second marriage was a nullity and
the resultant issues are therefore illegitimate.
In order to be able to determine the legitimacy or illegitimacy of the

appellant’s children she begot with the deceased thoroughly, let me
deal albeit briefly, with the issue of the alleged marriage between the
appellant and the deceased.
There can be no doubt that under the provision of Section 38(1)” (c) of
the Law of Marriage Act [Cap 29 R.E. 2002], a ceremony purporting
to be a marriage is a nullity if either party is incompetent to marry by
reason of an existing marriage contracted under Sections 10(l)(a) and
15(1) of the same Act which provides that no man while married by
monogamous marriage, shall contract another marriage.
The respondent’s argument is that the purported marriage between

the late John Cosmas Magesa and the appellant Elizabeth Mohamed
was a nullity because of the subsisted marriage between his mother
Juliana Gerald and his deceased father John Cosmass Magesa. Juliana
Gerald gave her testimony before the Primary court contending that
she was married as a lone lawful wife of the deceased, but she did not
tender any document in terms of a marriage certificate or otherwise
indicating that her marriage with the deceased was monogamous
and subsisting therefore prohibiting the deceased from contracting
another marriage with the appellant.
256
Although this was not seriously challenged during the trial but in
absence of such evidence and bearing in mind that the other party to
that contract (the late John Cosmas) has demised therefore cannot
testify, it was wrong for the District court to declare a nullity the
purported marriage between the deceased and the appellant. It was
not enough in my view, for Juliana to tell the court orally that she
was married to the deceased in accordance with the Christian rites
without substantiating whether her marriage with the deceased
was monogamous marriage or not or whether Christian marriage is
the same thing as Monogamous marriage contemplated under the
provisions of Section 15 (1) of the Law of Marriage Act.
Although the main contentious issue there was not whether the
deceased was legally married to the appellant or whether in view of
his alleged subsisted marriage with Juliana Gerald he could legally
marry the appellant, but whether or not the children he begot with the
appellant are entitled to inherit in his estate, yet as I have observed
hereinabove, it was pertinent for the trial court to investigate the
status of the deceased’s association with the two women so as to enable
it to properly determine the status of the appellant’s children vis-a-vis
their “father’s estate” the way it wanted to do it.
If we take for instance that on the evidence on record the deceased

had a subsisting Christian marriage with Juliana Gerald, the logical
question that follows would be whether that alone could be sufficient
ground to nullify his purported marriage with the appellant and
therefore make the children he fathered with her illegitimate.
As stated hereinbefore, strictly so speaking the issue of Christian

marriage was not an issue in this matter during the trial. But at this
juncture I feel constrained to, first of all, deal with this point which to
my mind is causing great confusion in our courts of law, and secondly,
discuss the rights of children born out of a relation like that of the
deceased and the appellant vis-a-vis their parents, relationship.
In my view marrying in accordance with one’s religion belief is more

of religious faith than legal. Under the law a person has absolute right
on the matters related to the religion she/he professes. This right
is protected by the Constitution of the land. I gather this from the
257
provision of Article 19(1) of the Constitution of the United Republic of
Tanzania which provides that: -
“every person has the right to freedom of conscience/ faith and choice in
matters of religion including the freedom to change religion or faith.”
It goes without saying therefore that marrying in accordance with

one’s religious belief falls within the term “matters of religion which
are protected by our Constitution and are outside the Jurisdiction of
any court of law. For instance, courts of law cannot inquire as to why
a person has decided to change his religion faith or why he is not
observing some or all of the norms of his religion. As stated earlier,
Article 19(1) of the Constitution of the United Republic gives rights
and freedom to a person to choose in matters of religion and/ or even
to change his religion faith completely. I take it that “right to freedom
to faith and choice in matters of religion’ envisaged by Article 19(1) of
the Constitution includes right to observe or not to observe some or all
of the religious norms. For instance a Moslem has freedom and right
to observe or” not to observe the norm that requires him to make five
prayers in a day and his decision cannot be challenged in any court of
law because this freedom and right is protected and guar-anteed by
our Constitution. He however, has no such freedom or rights under
the Quran.
Similarly, a Christian like the late John Cosmas Magesa had the
right and freedom under the Constitution of this country to Observe
or not to observe the Canon norm of one man one wife. That freedom
cannot be challenged in the court of law. That freedom, however,
cannot available under the Canon law because there is a verse that
when Jesus was asked by the Pharisees to tell them whether their law
allows a man to divorce his wife Jesus answered with a question that
“what law did Moses give you?” and when they answered that Moses
gave us permission for a man to write a divorce notice and send his
wife away, Jesus said to them that;
“Moses wrote this law for you because you are so hard to teach. But in
the beginning at the time of creation God made them male and female
...and for this reason a man will leave his father and unite with his
wife.....”
258
When the disciples asked Jesus about this matter later in the evening
Jesus said to them
“A man who divorces his wife and marries another woman commits
adultery against his wife in the same way a woman who divorces her
husband and marries another man commits adultery” [Mark 10:2-11]
Thus; in canon law by marrying the appellant the deceased was

committing adultery, but that is not the avenue of this Court. I
think the deceased’s decision not to observe that norm could only be
challenged by Juliana Gerald (his wife) who was privy to their contract
of marriage and the proper forum would have been in the Canon Court.
Otherwise that right could be available to her under the provisions of

Sections 9(1) and (2) 15(2) and 38(1)(c) of our Law of Marriage Act and
upon producing a certificate of marriage certifying that their marriage
was not only a Christian, but also a monogamous marriage contracted
as per Section 10(1)(a) of the Law of Marriage Act.
If the deceased married Juliana Gerald in accordance with Christian

rites as the respondent testified during the trial and repeated it in
this court, and if marriage under Christian laws prohibits another
marriage while the first marriage is subsisting as he would love this
court to believe, that is squarely the matter for the Church’s Court to
decide. Only Canon courts have jurisdiction to entertain matters of
faith and administer prescribed sanctions.
I think I need to be a bit elaborative in this issue because it has been

a common practice for our courts when dealing with issues touching
marital status of parties to assume that where the parties are married
according to Christian rites, the marriage must be monogamous and
where parties are married in accordance with Islamic law, their
marriage must be polygamous one. That, in my view is not always
the case and courts should never make findings on assumption where
there are specific prescribed procedures for proving the alleged facts.
In law, the existence and status of a marriage could only be proved
by production in court a certificate of marriage to that effect or by
tendering evidence of marriage as prescribed by Section 55 (a) of the
Law of Marriage Act. The said law says :-
259
“The following documents shall be admissible In evidence without
proof in any court or before any person having power under any written
law receive evidence as being prima facie evidence of the fact recorded
therein-,
(a) A Marriage certificate issued under this Act or any law in force
before the commencement of this Act:
It is on this basis I find that in law Christian marriages and monogamous

marriages contracted under Section 10(1) (a) of the Law of Marriage
Act are not necessarily the same thing. My opinion is that courts of
law in this country have no jurisdiction to and should not inquire into
and determine disputes involving Christian in the real sense of the
term because this may normally involve matters of observing or not
observing religious norms. For example, it cannot be a duty of the
court of law to question a Christian man why he has failed to observe
a norm that requires a man to marry one woman only. This is purely
a religious issue which can be inquired by Canon courts. Courts of law
should confine themselves and only inquire and determine marriages
contracted strictly under the Law of Marriage Act regardless whether
they are Christian or non Christian.
The respondent does not accept this view. His main argument as I said
earlier is that his father lived a Christian life and he died a Christian
and was buried a Christian. As a Christian to him, marriage was
a union of a man (his father) and one woman (his mother Juliana
Gerald) to the exclusion of all others. He says that he cannot include
the children of the appellant in list of persons entitled to inherit from
his estate because by so doing he will be committing a sin according to
Christian norms.
I agree with the respondent’s contention that, that is and should

remain the definition of marriage as far as Christian faith is concerned
and a definition of monogamous marriage as far as Section 9 (2) of the
Law of Marriage Act is applicable. However, as 1 have demonstrated
hereinbefore, while a Christian marriage is a moral obligation
governed by Christian norms, Monogamous marriage under Section
9(2) of Law of Marriage Act is a contractual obligation governed by
that law. Under that law Juliana Gerald could have rightly challenged
260
the deceased’s act to marry another wife while their monogamous
marriage was subsisting.
It would appear to me that as of now the only avenue to challenge the

deceased’s “immoral” conduct which is related to his religious faith
will be on the day of resurrection and that is before the God Almighty
where both parties can be heard as we are told that the deceased will
raise from death and therefore be able to appeal and argue his case,
Now back to the contentious issue before me which is whether or not

the appellant’s children are entitled to inherit from the estate of their
deceased’s farther, I have carefully read the authorities cited and
relied upon by the District Appellate Court in its decision. That is
the decisions of the Court of Appeal in the case of Violet Ishengoma
Kahanqwa and Jovin Mutabuzi v. The Adnlinistrator General and
Mrs. Eudokia Kahangwa [1990] TLR 72 and also the case of Seif
Marare v. Mwadwa Salum [19851 TLR 253, where it was held inter
alia that a putative father’s obligation to his illegitimate children is
personal and ends with his death and that it does not survive him and
cannot attach to his estate.
I am mindful of the fact that this court is bound by the decisions of the
Court of Appeal. However, I entertain doubt whether in view of the
provisions Sections 9 and 10 of the recently enacted Law of Child Act,
and Article 3 of the United Nations Convention on the Right of the
Child (which is ratified by our country), the decisions In Kahangwa’s
and Mwadawa’s cases (supra) are still good law.
In Kahangwa’s case for instance the Court of Appeal observed that:
“We must say that we have much sympathy for Mr. Rutashobya’s
further view that the two illegitimate children should be held to
qualify for distribution on the ground that their deceased father had
a moral, as distinct from legal obligation to maintain them. However,
we are regrettably of the view that in the present state of our law on
the subject such a view is equally untenable. .... “
261
The Court went on and stated that it was not called upon to construe
the term “child: in any law governing distribution of the estate of a
deceased person, but to apply the Bahaya Customary Law as set out
in GN No. 436 of 1963 and applied to Bahaya vide GN No 605 of
1963. Paragraph 43 of that law prohibits illegitimate children from
inheriting from the Father’s side where the father died intestate.
The Court thus, held that the facts of Kahangwa’s case fall squarely
within that provision and because the two children Reynold and
Diana were obviously illegitimate, they were not entitled to the estate
of their deceased father under the Bahaya Customary law. That was
in 1990 and as I stated earlier, it was before the Law of Child Act,
2009, was promulgated.
Looking at the observation of the Court of Appeal in Kahangwa’s

case, one can un-hesitantly say that at the time of the decision of that
case, there were still in our society traditional rejection; a customary
means of exclusion of children said to be illegitimate. That custom
for sure, was discriminatory and had adverse effects on the children
dubbed illegitimate children. The Bahaya Customary Law, which was
applied in Kahangwa’s case (supra), excludes the right to inherit from
his father side a child born out of wedlock. That aw simply excluded
a human being called “illegitimate child” from inheriting from his
father’s side. The term “illegitimate child” is neither defined in our
Law of Marriage Act, nor is it defined in the new Law of the Child
Act, but Oxford Advanced Learner’s Dictionary defines it as a child
born of parents not married to each other and who is not allowed by
the law or by the rules. I have no problem with the first definition (i
.e. children born of parents not married to each other), but I think it
is discriminative and inhumane to call a born of parents who are not
married to each other an illegitimate child which in essence means
that he/ she is an unlawful child. In my view the association of the
parents may be illegitimate or unlawfully according to the norms of a
given society and/or religion but the product of such association, that
a human being born as a result of such association cannot by any legal
definition be illegal and/or unlawful in secular state like ours.
262
Fortunately, the law makers in our country have discovered that
colonial mischiefs and have tried to combat such rejection promulgating
the Law of Child Act, 2009. The preamble to that law states clearly
that it was enacted to give effect to International and Regional
Conventions on the Rights of the Child. Tanzania ratified among
other international conventions, the United Nations Conventions on
the Rights of Child.
Article 2(1) of the United Nations Convention on the Rights of

Child requires state parties to respect and ensure rights set forth
in the Convention to each child within their jurisdiction without
discrimination of any kind, irrespective of the child’s or his or her
parent’s or legal guardian’s race, colour, sex, language religion birth
or other status.
Sub-Article (2) of the same Article provides that:-
‘’State parties shall take all appropriate measures to ensure that the
child is protected against all forms of discrimination or punishment on
the basis of the status; activities expressed opinions or beliefs of the
child’s parents; legal guardians or family members”.
And under Article 3 of the said Convention State parties are required
to ensure that in:-
“all actions concerning children whether undertaken by public or

private social welfare, institutions; courts of law, administrative
authorities or legislative bodies; the best interest of the child shall be
of primary consideration.”
The promulgation of the Law of the Child Act 2009 was in compliance
with the requirement of United Nations Convention on the Right of
Child.
Thus, our Law of Child Act provides for reform and consolidation of
laws relating to children which stipulates, protect and maintain their
rights. It was not in force when the Court of Appeal was handing down
its decision in Kahangwa’s case.
263
Section 5(2) of the Law of Child Act prohibits any type of discrimination
against a child. The said section says:-
“A person sha/I not discriminate against a child on the grounds of

gender; race; age; religion language! Political, opinion, disability,
health status; customs ethnic origin ....birth....”
The basis of the decision of the Court of Appeal in Kahangwa’s case was
the Customary Law of Bahaya, which provided that an illegitimate
child cannot inherit from his father’s side. The customary law which
was relied upon by the Court of Appeal were certainly not repugnant to
the laws which were in force by then. I think, however that, customary
law is now repugnant to the law in view of the provisions of Section
5(2) of the l.aw of Child Act, 2009 which outlaws any type of child
discrimination and the District Court ought not to have applied it.
Had the Law of Child Act being in force at the time of Kahangwa’s case
the highest court of the land would have not reached that decision. I
gather that from their lordships own wording at paragraph 2 of pg 79
of that judgment that:-
“However, we are regrettably of the view that in the present state of

our law on the subject, such view is equally untenable” [emphasire
supplied]
That was long before the enactment of the Law of Child Act. Now the
present state of our law on the subject matter does not give any room
for any type of discrimination against a child.
1t also my view that the Customary law relied upon by the District
Court in its decision is also repugnant to the principle of natural justice
in that under that law a child is saddled with a sin which he did not
himself commit. I think it is utterly wrong that a child should be denied
his right to inherit from his father’s side simply because he was born
out of wedlock, the act which he had no control of whatsoever. I hold
therefore, that in view of the provisions of section 5(2) of the Law of
Child Act, and several Articles of the United Nations Convention on
the Right of Child which has been ratified by our country, the District
Appellate court was wrong to hold in 2010 that the appellant’s children
264
were illegitimate therefore not entitled to inherit from their father’s
side.
Section 9 the Law of Child’s Act imposes parental duties and

responsibilities to their children during their life time while Section
10 of the same Act prescribes the rights of a child to parental property
after the parent’s death. The said Section 10 provides: -
“A person shall not deprive a child of reasonable enjoyment out of the

estate of a parent.”
The term “parent” is defined under Section 3 of the Law of Child

Act, 2009 to mean “a biological father or mother, the adoptive father
or mother and any other person under whose care a child has been
committed”
There is ample evidence that the deceased discharged his obligation

towards his three children among others during his life time as
required by section 9 of the Law of Child Act, 2009.
As stated before in the present case the court was called upon to
investigate whether or not under the law the three children the
appellant begot with the deceased are entitled to inherit after their
fathers’ death. The respondent is saying that they are not entitled
because a Christian man cannot marry another life while his first
marriage subsists. The only evidence regarding the marriage of the
respondent’s mother to the deceased was that of the respondent’s
himself who stated that: - “Marerehemu alifunga ndoa na mama enzi
za uhai wake, alifungia ndoa Kondoa Dodoma na cheti cha ndoa kipo
tumekiwakilisha hapa mahakamani”. On the other hand, Juliana
Gerald is on record telling the court that “Mimi ni mke wa marehemu,
tulioona mwaka 1988 kwa ndoa ya Kikristo na ilitolewa mahari ya
shs 50,000/=.” The record does not show that the said certificate
was tendered and/or received by the court and marked as exhibit as
required by Section 55 of the Law of” Marriage Act. Thus, even if we
decide to look this issue from that side, yet like the marriage between
the deceased and the appellant, the status of the marriage between
the deceased and the respondent’s mother is equally not clear.
265
I have already exhaustively dealt with this issue and I think the only
relevance of the Christianity of the late John Cosmas Maige we can
attach to this matter is on which law should govern the distribution
of his estate. The deceased was a Christian, he died and buried as a
Christian (though he decided not to observe some of the Christian
norms) but there is nothing on record to suggest that he intended his
estate to be administered according to his customary law (which was
not even mentioned in these proceedings), therefore his estate should
be administered in accordance with the laws applicable in Tanzania in
the administration of estate of persons professing that religion. Section
88 (2) of the Probate and Administration of Estate Act [Cap.352 R.E.
2002] provides that:-
“If at any time any person to whose estate this Act applies by virtue
of an order, or direction under part 1X thereof professed the Christian
religion and the court exercising jurisdiction over his estate is satisfied
in the manner aforesaid that the deceased intended his estate to be
administered, either whole or in part, according to the law applicable
in Tanzania to the administration of the estate of persons professing
Christian religion then his estate shall be administered either wrote
or in part as the case may be according to that low”.
What are the laws applicable in Tanzania in the administration of a

Christian who died intestate?
Christianity unlike Islam does not have prescribed succession laws

in accordance with their faith therefore the estate of a Christian who
died intestate must be administered according to the laws of the land.
Unfortunately, I am not aware of any law passed by our Legislature to
deal with succession issues for persons who are not covered by Islamic
law of inheritance and/or who cannot seek refugees under customary
law of any tribe in this country, for instance a Christian child born of
a Moslem Luo father and a Digo Christian mother!
266
The only camouflage in a situation like this can be sought under the
provisions of Section 14 of the Judicature and Application of Laws Act
[Cap. 358 RE 2002l which sanctions the application of colonial laws in
our modern society. The said section provides that·-
“The Acts of the governor General of India in Council in the third

column of the Second Schedule hereto (and hereinafter referred to
as Indian Acts) and such amendment of or substitution for the same
as was in force on first December, 1920, are, subject to exceptions
described in the fourth column of the said schedule, hereby applied
to Tanzania.”
When the above quoted law is read together with Section 15 of the
same Act which provides that:-
‘In the application of the Indian Acts the following modifications shall
be made, that is to say-
(a) The word “Tanganyika II shall be substituted for the words
“British India”
(b) The powers of the Governor-General in Council and the local
Government shall be exercised by the President:
(c) The expression “High Court” and “District Court” in any of the said
Acts shall be deemed to be the High Court of Tanzania,”
It goes without saying that the law applicable to Christians in Tanzania

mainland is the Indian Succession Act.
Thus, having found that the late John Cosmas Magesa was a Christian,
and having held that there is nothing on the record suggesting that
he intended his estate to be administered in accordance with his
customary law (his tribe having being mentioned nowhere in the
proceedings), I find that by virtue of Sections14 and 15 of the Judicature
and Application of Laws Act [Cap 358 RE 2002], the applicable law in
administration of his estate is the Indian Succession Act as was in
force on 1st December, 1920.
267
Regarding the appellant’s Children, I find that in terms of Section 3
read together with Section 10 of the Law of Child Act 2009 they are
entitled to inherit from their father’s estate.
Section 10 of the Law of Child Act/ 2009 has prohibited any person
from depriving them reasonable enjoyment of the estate of their
father, while Section 3 of the same Act describes the late John Cosmas
Magesa simply as the parent of the three children he begot with the
appellant and nothing more.
Depriving the children reasonable enjoyment of the estate of their

father on the ground that “Siko tayari kushuhudia watoto wa nje wa
ndoa” cannot be in the best interest of the children as required by
Article 3 of the United Nations Convention on the Rights of Child.
Thus, the decision of the District Court was in contravention of the
requirement of Article 3 of the United Nations Convention on the
Rights of the Child and also contrary to Section 10 of our own Law of
Child Act 2009 and is therefore, untenable.
Regarding depriving them of those rights on the ground of subsisting

Christian marriage, I have already dealt with this issue when I was
dealing with the issue whether or not courts of law have jurisdiction
to inquire into matters relating to observation of religious norms, and
had come to a conclusion that those are matters squarely between the
individual and his almighty God and can be tried by canon or Kadhi’s
courts as the case may be.
The last issue raised by the appellant is the inclusion of her properties
in the estate of her late husband. Unfortunately this has been the trend
and traditions particularly in rural areas. Some traditions are still
very strong regarding ownership of properties by men. The trend has
been that when a man dies all the matrimonial and other properties
are included in his estate as if his wife and/ or wives had also died or
had nothing of her/or their own or there is nothing jointly acquired
with the husband during his life time and during the existence of their
marriage or relationship.
268
Our Law of Marriage Act recognizes the right of a married woman to
acquire and own properties. Section 56 of the Law of Marriage Act
states that:-
“A married women shall have the same right as has a men to acquire,
hold and dispose of property whether movable or immovable, and the
same right to contract, the same right to sue and the same liability to
be sued in contract or in tort or otherwise”.
Section 58 of the same Act separates properties of husband and life.

The law says:-
“Subject to the provisions of section 59 and to any agreement to the

contrary that the parties may make, a marriage shall not operate to
change the ownership of any property to which either the husband or
the wife may be entitled or to prevent either the husband or the wife
from acquiring, holding and disposing of any property”
And Section 60 provides that:-

“Where during the subsistence of a marriage, any property is acquired-
(a) …[not relevant)
(b) In the names of the husband and wife jointly, there shall be
rebuttable presumption that their beneficial interest therein are equal”
From the above quoted provisions of the law there can be no doubt
that a woman has right to own her own properties marriage or even
cohabiting does not change this position of the law unless ,there is
agreement to the contrary. The death of a man does not take away his
woman’s right to her property solely owned by her during the life time
of the man and/or her share in the jointly owned property.
The law therefore requires that when a person applies for Probate and/
or Letters of administration, he/she must include only the properties
of the deceased person otherwise there is a danger of administering
the estate of a person who is alive.
It is my opinion that if there are properties jointly acquired by the

deceased and his/her wife/husband (as the case may be), the share
of the surviving partner must be carefully ascertained and excluded
269
from the list of the deceased’s estate. The estate which is liable for
administration and consequently distribution to heirs is that of the
deceased person and not otherwise.
However, ascertainment of which property belongs to the deceased and

which does not belong to him/her is a matter of evidence which must
be dealt with either in an objection proceedings before the trial court
or in a suit separately instituted for that purpose. Thus, in connection
with this matter, I would advise the appellant to take either course
if she feels that properties which do not belong to the deceased were
listed as forming part of the deceased’s estate.
In the final analysis and for reasons stated hereinbefore, I would allow
this appeal and order that the appellant’s children be included in the
list of heirs of the late John Cosmas Magesa.
Taking into consideration the nature of this dispute and for purposes
of reconciling the parties who are otherwise blood relative I would
order that each party shall bear own costs.
270
Enoka Bujiku v. R, Criminal Appeal 62 of 2015, Court of Appeal of
Tanzania at Mwanza (unreported)
(Date of the decision: 18th May, 2016)
JUDGMENT
MBAROUK, J.A.: In the High Court of Tanzania at Mwanza, the

appellant was initially charged on the information of murder contrary
to sections 196 and 197 of the Penal Code, Cap. 16 Vol. 1 of the Laws
Revised Edition 2002. When the information was read over to the
appellant on 11-12-2012, he pleaded not guilty.
However, on 04-09-2014 when the information was read over to him

again, he pleaded to a lesser offence of manslaughter contrary to
section 195 of the Penal Code. The appellant was then duly convicted
and sentenced to serve twenty (20) years’ imprisonment with corporal
punishment of twenty-four (24) strokes. Undaunted, the appellant
has preferred this appeal.
In this appeal, the appellant was represented by Mr. Stephen Magoiga,

learned advocate; whereas the respondent/Republic was represented
by Ms. Ajuaye Bilishanga, learned Senior State Attorney.
The appellant preferred the following grounds of complaints: -
(1) THAT, the sentence is manifestly excessive.

(2) THAT, the trial High Court Judge did not consider the mitigation
factors in reaching the decision.
(3) THAT, the age of the appellant was not considered as during the
trial the appellants age was below 18 years so a contravention to
Child Act.
4) THAT, the Honourable trial judge erred in law to order the
appellant to be punished with 24 strokes contrary to law.
271
At this juncture, we have found it prudent to disclose the facts of the
case as they were before the trial court. It was stated that on 6-1-
2011, the appellant and Lameck Barabara (the deceased) who were
relatives were at home at Senga, Geita. The deceased saw the appellant
entering their father’s room and stole TShs. 5,000/=. Thereafter, the
deceased told the appellant that he will reveal the incident to their
father. That information made the appellant to be scared and hence
asked the deceased to accompany him to a cassava farm to uproot
some cassava. While at the farm, the appellant retrieved a knife and
cut the deceased by his throat. Thereafter, the appellant fled away.
On 7-3-2011, the deceased’s body was found in the farm after being
traced. The appellant was then traced and when he was found, he
was arrested by police. During the interrogation made by the police,
the appellant confessed to have killed the deceased so as to conceal
the evidence that he stole TShs. 5,000/= of his father. When the
postmortem examination was made, the report disclosed that the
cause of death was due to haemorheogic shock.
Mr. Magoiga further stated that, the record shows that, the trial
Judge was emotional when she sentenced the appellant and that led
her to state aggravating circumstances which were never stated by
the prosecution side and failed to consider each mitigating factor.
For example, he said, things like that it was a brutal killing which
she believed deserves a deterrent punishment was not stated by the
prosecution side. The learned advocate for the appellant then said,
such a failure to consider each mitigating factor when the appellant
was sentenced has led to a miscarriage of justice which allows this
Court to use its discretion and interfere with the sentence imposed on
the appellant by reducing it at least by half.
Arguing the 3rd ground of appeal, Mr. Magoiga requested for the same
to be argued in the alternative. He submitted that as far as the record
shows that at the time when the offence was committed the appellant
was eighteen (18) years of age, the trial court was not supposed to
sentence him to serve punishment of imprisonment. He relied upon
the provisions of section 26(2) of the Penal Code, sections 114, 119,
120 and 121 of Law of the Child Act, No. 21 of 2009, to support his
argument. However, he lastly left the matter to the Court to reach to
a decision which is proper with regard to this alternative ground.
272
As to the last ground, Mr. Magoiga submitted that the sentence of a
corporal punishment imposed on the appellant after he was convicted
of manslaughter was contrary to law. He said, looking at the section 4
of the Corporal Punishment Act [Cap. 17 R.E. 2002] and the Schedule
to the Act does not include manslaughter as the offence which is
punishable with corporal punishment. For that reason, and also as
section 195 of the Penal Code does not provide corporal punishment to
a person convicted of manslaughter, Mr. Magoiga urged us to quash
the order of corporal punishment imposed on the appellant by the
trial court and remain with the imprisonment sentence to which he
proposed to be reduced by half.
On her part, Ms. Ajuaye from the outset indicated to support the appeal
partly and specifically to the last ground of complaint. In her reply in
respect of the 1st and 2nd grounds of appeal, the learned Senior State
Attorney submitted that it was enough for the trial Judge to state that
she has considered the mitigating factors. She then distinguished the
cases referred by the learned advocate for the appellant. Ms. Ajuaye,
added that, according to the circumstances in this case, the sentence
of twenty (20) years imprisonment imposed on the appellant was not
excessive as the maximum sentence, for manslaughter, according to
law, is life imprisonment. She, therefore, urged us to find this ground
of appeal devoid of merit.
In her response to the 3rd ground of appeal, the learned Senior State
Attorney contended that, the issue as to the age of the appellant did
not arise and canvassed at the trial court. After all, she said that the
record clearly shows that the appellant was above the age of eighteen
(18) years when he was convicted. She, therefore, urged us to find this
ground of appeal devoid of merit too.
As to the last ground of appeal, the learned Senior State Attorney

readily conceded that, the trial judge erred in law when she ordered
the appellant to be punished with twenty-four (24) strokes, because
such a punishment is contrary to law. She added that, according to
section 25(c) of the Penal Code, corporal punishment is among the
punishments which may be inflicted by a Court. However, she said,
such punishment maybe imposed on an accused person subject to the
273
directions of the law. She added that, the law clearly states that, a
person convicted of manslaughter is liable to life imprisonment, and
the provisions of the law does not direct that if a person is convicted
with such an offence, the imprisonment sentence to be accompanied
with corporal punishment. For that reason, she urged us to quash
the wrong order of corporal punishment and remain with twenty (20)
years imprisonment sentence imposed on the appellant.
After having examined the rival submissions from both sides, starting
with the 1st and 2nd grounds of appeal, we are of the view that as the trial
judge stated that, she has given due consideration of the mitigating
factors stated by the learned advocate who represented the appellant
at the High Court, we find it enough to show that she considered those
mitigating factors generally. It would have been different if the trial
judge totally failed to have stated that she considered the mitigating
factors. However, we are of the view that to mention each mitigating
factor which has been considered when the appellant is sentenced is
preferable. On the other hand, we fully agree with the learned Senior
State Attorney that considering the circumstance in this case, the
imposition of twenty (20) years imprisonment is not excessive. We,
therefore, find the 1st and 2nd grounds of appeal devoid of merit.
As for the 3rd ground of appeal, we have noted that, the issue of age
was not discussed at the trial court.
However, we took trouble and looked at the original record and found
that, the offence was committed on 6-1-2011 and on 18-1-2011 the
appellant appeared before the District Court of Geita for the first
time. According to the information filed at the High Court of Tanzania
at Mwanza, it was shown that the appellant was 18 years of age.
However, the record is silent as to whether he was 18 years of age at
the time when the offence was committed or when he was sent to court
for the first time during committal proceedings. Generally, we have
noted that the record is silent on the issue of age of the appellant. We
are of the opinion that it is important for a trial court to put special
attention when they encounter a case involving a person appearing as
a child. This is because it may cause a great impact which may lead
274
to injustice. However, as the issue did not arise and discussed at the
trial court, we have found it not proper to indulge ourselves on that
issue at this stage.
As for the last ground of appeal, we fully agree with both, Mr. Magoiga
and the learned Senior State Attorney that the imposition of corporal
punishment after the appellant was convicted of manslaughter was
contrary to law. This is for the reason that, according to section 4 and
the list of offences stated in the Schedule [to] the Corporal Punishment
Act [Cap. 17 R.E. 2002], manslaughter is not in the list of offence
punishable by corporal punishment. For that reason, we quash the
order of corporal punishment imposed on the appellant by the trial
court and remain with the sentence of twenty (20) years imprisonment.
In the event, we find this ground of appeal devoid of merit.
All said and done, we find this appeal devoid of merit to the extent
stated above and we therefore dismiss it.
275
Furaha Johnson v R, Criminal Appeal 452 of 2015, Court of
(Date of the decision: 1st August 2016)
(Rutakangwa, J.A., Kileo, J.A., nd Massati, J.A)
JUDGMENT
RUTAKANGWA, J. A.: The appellant first appeared before the
District Court of Moshi district (“the trial court”) on 27th September,
2010, to answer a charge of rape. According to the charge sheet, dated
the same day, he was seventeen (17) years old. When the charge was
read over and explained to him in open court he unequivocally denied
it. Following this denial, a preliminary hearing was held by the trial
court on 18th October, 2010. At this hearing, the appellant denied all
the allegations put forward by the prosecutor going to implicate him
with the charge of rape. He only admitted his name, age, place of
domicile, etc. His trial eventually took off on 24th January, 2011, at
which the prosecution called three (3) witnesses. The appellant who
testified on oath, on 13th June, 2011, gave his age as 17 years and
called no witness on his behalf.
At the conclusion of the trial, the learned trial Resident Magistrate

found the appellant guilty as charged, convicted him and sentenced
him to life imprisonment. The appellant unsuccessfully appealed the
conviction and sentence to the High Court sitting at Moshi, hence this
appeal.
The appellant lodged a memorandum of appeal containing five (5)

grounds of appeal, which he subsequently supplemented with another
4-point memorandum of appeal, all of which he never elaborated on.
Notwithstanding the appellant’s failure to highlight on his grounds

of complaint, the appeal was supported by the respondent Republic,
but from a different dimension. Ms. GaudensiaJoseph, learned State
Attorney for the respondent Republic, rested her support for the
appeal on a purely legal foundation.
276
It was Ms. Joseph’s strong and only point of contention that the trial
of the appellant was marred by one fatal irregularity. This was failure
to give effect to the mandatory provisions of the Law of the Child Act,
2009 (No. 21) (“the Act”). Her elaboration of this point was admittedly,
formidable.
In perfecting her position, Ms. Joseph pointed out that up to the stage
when the appellant was called upon to defend himself, it was not in
dispute that he was 17 years old. This position never changed until
the conclusion of the trial as no evidence was given to prove otherwise,
she went on to argue. In view of this, the appellant for all intents and
purposes, was a child under the provisions of the Law of the Child Act
(“the Act”), she urged. On the basis of this fact, she stressed, the trial
of the appellant should not have been conducted in the absence of the
social welfare officer. It was her strong argument that the presence
of a social welfare officer is one of the conditions precedent for the
conducting of valid criminal proceedings against an accused child. To
fortify her stance she made reference to section 99 (1) (d) of the Act.
In response to a question posed by the Court, Ms. Joseph further

bolstered her position in support of the appeal by confidently asserting
that apart from the non-compliance with the mandatory provisions of
section 199 (1) (d) of the Act, the appellant was not tried by a proper
court. To her, the proper trial court would have been a Juvenile Court
presided ever by a Resident Magistrate and not a District Court.
On account of the above patent irregularities, Ms. Joseph pressed

us to nullify the proceedings in the trial court, quash and set aside
the appellant’s conviction and sentence and set him at liberty
unconditionally.
After going through the clear provisions of sections 4 (1), 97 (1) and (2)
and 99 (1) (d) of the Act, we have found ourselves in full concurrence with
the paralyzingly convincing submission of Ms. Joseph. Unassailable
as it is, it unerringly points out the incurable irregularities committed
by the trial court which clothed itself with the jurisdiction it did not
have of trying, convicting and imposing an illegal sentence on the child
appellant. We are holding so without any demur as the submission of
Ms. Joseph has the backing of the law as demonstrated hereunder.
277
Section 4 (1) of the Act provides as follows:-
4-(1). A person below the age of eighteen years shall be known as a

child.
It is also provided thus in section 97 (1) and (2):-
97-(1). There shall be established a court to be known as the Juvenile

Court, for purposes of hearing and determining child matters relating
to children.
(2) The Chief Justice may, by notice in the Gazette,designate any

premises used by a primary court to be a Juvenile Court.
It is the Juvenile Court which under section 98 (1) (a) of the Act, shall
have power to hear and determine criminal charges against a child.
It is partly provided as follows in section 99 (1) (d) of the Act:-
99 (1). The procedure for conducting proceedings by the Juvenile

Court in all matters shall be in accordance with rules made by the
Chief Justice for that purpose, but shall, in any case, be subject to
the following conditions-
(d) a social welfare officer shall be present.

[Emphasis provided].
The Court takes judicial notice of the fact that the District Court of
Moshi which tried the appellant is not a Juvenile Court. Since the
appellant at the time of his arraignment and trial was a child, he was
not triable by the district court, but a Juvenile Court. The trial court,
therefore, lacked jurisdiction ratione personae to try the appellant.
This alone rendered his trial a nullity. But even if the appellant had
been tried by the appropriate court, the conduct of the trial in the
absence of a social welfare officer would have equally rendered the
trial a nullity.
278
For the foregoing reasons, we find merit in this appeal but only on the
basis of the legal point raised by Ms. Joseph. We accordingly, under
section 4 (2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2002,
nullify the appellant’s trial, conviction and sentence, and proceed to
quash and set them aside. We order the immediate release from prison
of the appellant, who has been under custody for almost six (6) years,
unless he is otherwise lawfully held.
279
Glory Thobias Salema v Allan Philemon Mbaga, (Civil Appeal No
46 of 2019) [2020] TZHC3794;(13 November 2020)
JUDGMENT
MZUNA, J.: The appellant applied for an order of custody in respect
of one P.A.M (the child to hide his identity) at the Juvenile Court
of Arusha at Arusha Urban Primary Court (trial court). The trial
court having heard evidence from the parties granted custody to the
respondent on the ground that the child was already above seven
years of age and living with the respondent.
Aggrieved, the appellant has preferred this appeal on five grounds

of appeal namely: One, that the trial court erred in holding that the
appellant dumped the child. Two, that trial court erred in ignoring
the fact that the respondent had unjustifiably given the child away to
another woman. Three, that the trial court’s decision was based on
extraneous matters. Four, that the trial court erroneously analyzed
the adduced evidence leading to an erroneous conclusion. Five, that
the trial court erred both in law and in fact in denying the appellant’s
custody of the child. The above grounds bolds down to three issues:-
First, whether the award of custody of the child to the respondent was
supported by the available evidence on record or otherwise? Second,
who as between the two parties deserves to be given custody, if so,
why?
Ms. Magdalena Sylister, learned counsel appeared for the appellant

whereas Mr. Aggrey Kamazima also learned counsel appeared for the
respondent.
The background story is that the appellant and respondent had some
extramarital relationship leading to the birth of the said child P.A.M.
There was no good relationship between the two parents. The situation
became worse when the child was of three months when (according to
the respondent) it was dumped at the gate where the respondent works
but was rescued by the watchmen. The matter had the intervention
of the Social Welfare Officers and sometimes parties reported their
dispute to the police. It is also said that the child had since then been
280
under the care of one Ester who according to the respondent is his
wife, a fact which has been strongly disputed by the appellant. The
appellant says the said Ester had at one time attempted to apply for
adoption of the said child but it became abortive after her intervention.
So, the wrangle between the two (i.e the appellant and the respondent)
is who should be given the custody? Let me start with the first issue.
The question is, are there justifiable reasons to grant custody of the
child to the respondent?
Submitting in support of the appeal, Ms. Magdalena Sylister challenged

the decision of the Juvenile court of Arusha for the reasons:- That there
is no evidence the appellant dumped the child as alleged. That the
father does not live together with Ester as they are not legally married
as they have no marriage certificate. That the attempted adoption by
Ester is proof that they are not legally married. That, a Juvenile court
should not be used to legalize their marriage. That Ester signed the
purported consent pretending to be of the appellant and then erased
it. That, the respondent has a right for custody but never applied for
it. According to her, he must apply for legitimization first citing the
case of Zaina Ismail vs. Said Mkondo [1985] TLR 239. That the child
had been wrongly given a notion that his biological mother is dead.
She touched as well on the affidavit to challenge the aborted adoption
by Ester. The learned counsel invited the court to grant custody to the
appellant.
In reply, Mr. Kamazima for the respondent submitted that the appellant
dumped the child and the allegation of forgery with regard to adoption
consent had not been proved to the required standard. That it is true
the appellant dumped he child twice as well shown in exhibit D2 from
the social Welfare Officer. That the child was never snatched from
her. He insisted that the respondent and Ester are married couples.
That becoming economically stable is not a factor to grant custody to
the appellant. On the issue of legitimization, the learned counsel said
that that is not a governing factor but the best interest of the Child
citing the case of CharlesLunyembe vs. Mwajuma Salehe [1982]
TLR 305. That what matters is the welfare of the child citing the case
of Ramesh Rajiput vs Sunandra Rajiput [1988] TLR 96.
281
He disputed as well the alleged forgery. It was his view that since the
child said does not know her (i.e the appellant) changing custody will
be undesirable and not ideal citing the case of Amina Bakari vs.
Ramadhani Rajabu [1984] TLR 41. It will disturb life of the said
child. It may affect him educationally and psychologically citing the
case of Festo Kimbutu vs. Mbaya Ngajimba [1985] TLR 42. The
respondent invited the court to dismiss the appeal on ground that the
respondent had been taking care of the child ever since when he was
aged 3 months. Now he is aged about 8 years and is schooling at Moshi
International school where he is doing well academically.
In resolving this issue I shall determine whether the trial court

considered the best interests of the child and the adduced evidence.
In order to adequately resolve this issue, the following questions must
be resolved. One, whether the applicant dumped the child at the
respondent’s gate, and, two, whether the trial court evaluated the
evidence adduced by the parties herein.
I have read the submissions by the parties herein in line with the
grounds of appeal filed by the appellant. It is undisputed that the
appellant had disagreement with the respondent over the care and
custody of the child. In that, several cases were reported and some
prosecuted against one another.
The law is well settled that in any event dealing with a child the
primary consideration shall be on the best interests of the child. I refer
to section 4 (2) of the Law of the Child Act, No. 21 of 2009 (hereafter
Act No. 21 of 2009) read together with section 125 (1) of the Law of
Marriage Act, Cap 29. This position has been recited in several cases,
some have been cited by the counsels for both parties. Of course there
is a rebuttable presumption that it is in the best interest of a child
below the age of seven years to be with his mother. This presumption
is stated under section 39 (1) of the Act No. 21 of 2009. However,
in deciding whether the said presumption applies to the facts of a
particular case, the court shall have regard to the undesirability of
disturbing the life of the child by changes of custody. This view is
echoed under section 26 (2) of the Act No. 21 of 2009.
282
I have considered the law governing custody of children. I have also
gone through the record. Under section 39 (2) of the Act No. 21 of 2009
‘the views of the child, if the views have been independently
given’ must be taken into account before making the order of custody
and under paragraph (g) ‘any other matter that the court may
consider relevant’.
The record shows that the appellant filed a case against the respondent
claiming for custody of the child after she was released from remand
on charges of malicious damage to property connected to their dispute
over the child. On the allegation that the appellant dumped the child
at a gate, it is undisputed from the record (see exhibit D2). Based on
the evidence on record, it appears that the trial juvenile court was
right in finding that the appellant in fact dumped the child at the
respondent’s gate.
The record shows that the appellant told the trial court that the child
physically looks different from other children of his age. The appellant
prayed the child be called to testify. To cure that anomaly since the
trial court granted the prayer but same was not complied with, this
court saw it ideal to summon him. He was categorical that he is not
prepared to stay with the appellant because he was told he dumped
him when he was “still young”. The view of the child supports the
finding now being challenged.
There has been long submission on the dispute that Ester should not
be given custody of the child. There is no order to that effect. The
order was given in favour of the respondent. The argument that he
must legitimize him first is not covered under the law of the Child
which as above shown provide the governing factor is best interest and
undesirability factor as well argued by Mr. Kamazima, the learned
counsel. The record shows that the child is schooling at International
School of Moshi. The child was brought in court to express his views.
He looked in a jovial and cheerful mood. He was very happy with
high level of expressing himself independently. To disturb him at this
hour will be not to his best interest. The allegation that the trial court
never considered the evidence and therefore arrived at the erroneous
decision lacks any merit.
283
Now to the second issue. Who as between the appellant and the
respondent should be granted custody of the child in question?
The appellant said should be given custody she being a biological
mother. Most of the cases cited by the appellant supports the idea that
the child under seven years of age be with his mother. Even the cited
case of Zaina Ismail vs Saidi Mkondo (supra) held that:
“...the respondent cannot claim it (child) now as he never legitimized it

in time by application through the Law of Persons, G.N. 279o f1963”.
Issue of legitimization in view of that case and the case of Beatrice
Njowoka vs Evaristus Nambunga [1988] TLR 67 (HC), application
must be made before it weaned. The child was taken and possessed
by the appellant before it weaned. The circumstances never allowed
such application as he was dumped. The cited cases are therefore
distinguishable and not applicable.
To put the record right, the child is now aged eight years and has
ever since when he was aged three months, been staying away from
her. Much as I agree with that proposition that mother has the first
option to stay with a child who is under 7 years, however, each case is
decided depending on its peculiar facts.
Similarly, the allegation that there was blessing of marriage by a back

door is not supported by evidence otherwise there could have been joint
custody which is not the case here. Further, it is not true that the child
was wrongly told his mother is dead. He said very categorically that
he knows her as her mother. He saw her at Ilboru Hotel, a big hotel,
in his words. The appellant admitted had been visiting him even at
school before. There should be close contact to develop relationship, of
course with knowledge of the respondent who I am sure cannot deny
a fact that no one can deny a fact that a child has right to know his
biological mother Glory (not Ester of a European origin).
In the trial court, custody was given to Allan Philemon Mbaga

based on the best interest of the child. The appellant was given full
and unrestricted right to visitation to the child subject to proper
arrangement with the respondent, the right which however should
284
not be unreasonably and unjustifiably exercised. There was also an
order that the appellant should be updated on the wellbeing especially
sickness and health.
I should add to the above orders that the said child should not be
adopted by another person be it Ester or otherwise. Further, the
said child should not be taken outside Tanzania without knowledge,
consent and approval of the appellant. The respondent should monitor
closely on the care of the child including the hair style of the said
child to be in line with the Tanzania Tradition of social life (including
combing his hair).
The order of the trial court granting custody to the respondent is

hereby confirmed. The argument that the child has even changed the
name is not a governing factor to deny the respondent right to custody
based on the overriding principle of best interest of the child. Appeal
stands dismissed with no order for costs
285
Godfrey Wilson v. R, (Crim Appeal 168 of 2018) [2019] TZCA 109; (06
May 2019)
(Mwarija, Mugasha and Mkuye JJA)
JUDGMENT
MKUYE, J.A.: The appellant, Godfrey Wilson, was charged with and
convicted by the District Court of Bukoba at Bukoba of the offence of
rape contrary to sections 130(1)(2)(e) and 131(3)(a) of the Penal Code,
Cap. 16 R.E. 2002. He was alleged to have raped V.D who was aged
ten (10) years old. He was sentenced to thirty (30) years imprisonment.
Aggrieved by the decision of the District Court, he appealed to the High
Court where his appeal was dismissed. Still aggrieved, the appellant
has brought this second appeal to this Court.
Before embarking on the merits of appeal we deem appropriate to

give albeit a brief background of the case which led to the appellant’s
conviction.
The incident took place at Mafumbo, Kashai area within the Bukoba
Municipality in Kagera Region. On the fateful date, on 16/7/2016 the
appellant went to the house of the parents of the victim V.D (PW1). He
found PW1 seated on the chair. He asked her the whereabouts of her
mother and PW1 told him that she had gone to the market. It would
appear that the appellant took that advantage and started undressing
PW1’s underwear and after undressing his clothes as well, he took
his male organ and inserted it into her vagina. When PW1 tried to
shout, the appellant covered her mouth while claiming that she would
awaken the children who were sleeping.
Thereafter, when her mother called and required her to give her a small
bag, she noticed that PW1’s dress was wet. On asking her why the
dress was wet, she told her that it was soaked in water. Incidentally,
her mother smelt something unusual. On further prompting, PW1
revealed to her mother that Godfrey (appellant) had carnal knowledge
of her.
286
PW1’s mother immediately went to call her neighbours who, upon
examining the victim’s private parts, discovered that something
wrong had happened to her. Those neighbours informed her mother
who also related it to PW1’s father. The matter was reported to the
Street Chairman and then to the Police. Later PW1 was taken to the
hospital for medical examination. The appellant was, subsequently,
charged with the offence of rape.
At the hearing of the appeal, the appellant appeared in person and

unrepresented; whereas the respondent Republic was represented by
Ms. Chema Maswi, learned State Attorney.
The appellant fronted eight (8) grounds of appeal to the effect that, one,
the criminal case was neither reported to the police nor investigated;
two, no sufficient evidence was adduced by material witness to the
investigator to support the provision of sections cited in the charge.
Three, the victim failed to mention the appellant in the earliest
possible moment to the person (police) whom she first reported the
rape incident. Four, the voire dire examination was not properly
conducted to establish the truth of the witness of a tender age as per
law. Five, the age of the victim (PW1) was not proved by her parents
in the absence of a birth certificate or any birth’s documents. Six, the
first appellate judge did not consider the appellant’s defence. Seven,
the investigation was not properly conducted; and eight, the PF3 was
defective as the police who issued it did not testify to prove the same.
When the appellant was required to amplify his grounds of appeal he

sought leave of the Court to let the learned State Attorney submit first
and reserved his right to respond later, if need would arise.
In response, Ms. Maswi prefaced by supporting both the conviction

and sentence meted out against the appellant. The learned counsel
essentially argued all eight grounds of appeal in opposition with a
caveat that all the grounds except ground No.4 were new grounds
not dealt with by the High Court. While relying on the case of
Hassan Bundala @ Swaga v. Republic, Criminal Appeal No. 386 of
2015 (unreported) she argued that, this Court has no jurisdiction to
entertain them.
287
Having considered Ms. Maswi’s argument, we agree with her that
grounds Nos. 1, 2, 3, 5, 6, 7 and 8 are new grounds which were not raised
and considered by the High Court. This Court, in the case of Galus
Kitaya v. Republic, Criminal Appeal No. 196 of 2015 (unreported), was
confronted with an issue on whether it can decide on a matter not
raised in and decided by the High Court on first appeal. It stated as
follows:
“On comparing the grounds of appeal filed by the appellant in the High
Court and in this Court, we agree with the learned State Attorney
that, grounds one to five are new grounds. As the court said in the
case of Nurdin Musa Wailu v. Republic (supra), the court does not
consider new grounds raised in a second appeal which were not raised
in the subordinate courts. For this reason, we will not consider grounds
number one to number five of the appellant’s grounds of appeal. This
however, does not mean that the Court will not satisfy itself on the
fairness of the appellant’s trial and his conviction.”
Yet, in another case of Hassan Bundala @ Swaga (supra) cited by
Ms. Maswi, when the Court was confronted with a similar situation,
stated as follows:
“Mr. Ngole, for obvious reasons resisted the appeal very strongly.
First of all, he pointed out that the first and third grounds were not
raised in the first appellate court and have been raised for the first
time before us. We agree with him that the grounds must have been
an afterthought. Indeed, as argued by the learned principal State
Attorney, if the High Court did not deal with those grounds for reason
of failure by the appellant to raise them there, how will this Court
determine where the High Court went wrong? It is now settled that
as a matter of general principle this court will only look into matter
which came up in the lower court and were decided; not on matters
which were not raised nor decided by neither the trial court nor the
High Court on appeal.”
288
(See also Athumani Rashidi v. Republic, Criminal Appeal No.26 of
2016 (unreported)).
On our part, we subscribe to the above decisions. After having looked

at the record critically we find that, as the learned State Attorney
submitted, grounds Nos. 1, 2, 3, 5, 6, 7 and 8 are new. With an exception
of the 6th ground of appeal which raises a point of law, as was stated
in Galus Kitaya and Hassan Bundala’s cases (supra), we think that
those grounds being new grounds for having not been raised and
decided by the first appellate Court, we cannot look at them. In other
words, we find ourselves to have no jurisdiction to entertain them as
they are matters of facts and at any rate, we cannot be in a position
to see where the first appellate Court went wrong or right. Hence, we
refrain ourselves from considering them.
With regard to the 4th ground of appeal where the appellant is challenging
that the voire dire test was not properly conducted by the trial court,
Ms. Maswi argued that such requirement was removed through the
written laws (Miscellaneous Amendments) (No.2) Act, 2016 (Act No. 4
of 2016) which came into force on 8/7/2016. In elaboration, Ms. Maswi
pointed out that, it is no longer a requirement of law to conduct voire
dire test to establish whether the child of tender age knows the nature
of oath or he/she possesses sufficient intelligence for reception of his/
her evidence. She was of a view that, since the witness (PW1) said
she knew the difference between the truth and lies and her evidence
was taken not on oath, it did not vitiate her evidence. She added that,
despite the fact that the trial magistrate did not make a finding on the
witness’ understanding of oath, her evidence was reduced to unsworn
evidence. On being probed by the Court on whether the witness (PW1)
promised to tell the truth as per the law, she said there was no such
promise. Besides that, she said, PW1’s evidence taken without oath
was corroborated by other witnesses. In the end, she prayed to the
court to dismiss the appeal for lack of merit.
On his part, the appellant insisted that the voire dire test was not
properly conducted and he urged the court to allow the appeal and
release him.
289
From the outset, we wish to take off by pointing out that, section 127
(2) of the Evidence Act, Cap.6 R.E. 2002 (evidence Act) prior to the
amendment, required the trial magistrate who conducts voire dire test
to indicate whether or not the child of a tender age understands the
nature of oath and the duty of telling the truth; and if he is possessed
of sufficient intelligence to justify the reception of his/her evidence.
The said provision provided as follows:
“(2) When in any criminal cause or matter a child of tender age called as
a witness does not, in the opinion of the court, understand the nature
of an oath, his evidence may be received though not given upon oath
or affirmation, if in the opinion of the court, which opinion shall be
recorded in the proceedings, he is possessed of sufficient intelligence
to justify the reception of his evidence, and understands the duty of
speaking the truth.”
This position of the law was reiterated in the case of Mohamed
Sainyeye v. Republic, Criminal Appeal No. 57 of 2010 (unreported)
where it adopted with approval the case of Hassan Hatibu v. Republic,
Criminal Appeal No. 71 of 2002 (unreported) and stated as follows:
“From these provisions, it is important for the trial judge or

magistrate when the witness involved is a child of tender age to conduct
a viore dire examination. This is done in order for the trial judge or
magistrate to satisfy himself that the child understands the nature of
oath. If in the opinion of the trial judge or magistrate, to be recorded
in the proceedings, the child does not understand the nature of oath
but is possessed of sufficient intelligence and the witness understands
the duty of speaking the truth, such evidence may be received though
not upon oath or affirmation.”
However, in the wake of the 2016 amendment through Act No.4 of
2016, subsections (2) and (3) of section 127 of the Evidence Act were
deleted and substituted with subsection (2) in the following manner: -
290
“Amendment 26. Section 127 the Principal Act
Section 127 is amended by- (a) deleting subsections (2) and (3) and
substituting for them the following:
‘(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 lies.’”
[Emphasis added].
To our understanding the above cited provision as amended, provides
for two conditions. One, it allows the child of a tender age to give
evidence without oath or affirmation. Two, before giving evidence,
such child is mandatorily required to promise to tell the truth to the
court and not to tell lies. In emphasizing this position, the court in
the case of Msiba Leonard Mchere Kumwaga v. Republic, Criminal
Appeal No. 550 of 2015 (unreported) observed as follows:
“… Before dealing with the matter before us, we have deemed it crucial
to point out that in 2016 section 127 (2) was amended vide Written
Laws Miscellaneous Amendment Act No.4 of 2016 (Amendment Act).
Currently, a child of tender age may give evidence without taking oath
or making affirmation provided he/she promises to tell the truth and
not to tell lies.” [Emphasis added]
In this case, before PW1 who was a child of tender age gave her
evidence, this is what transpired as shown at page 12 of the record of
appeal:
“PW1. [V.D] 10 years standard four student I know the difference

between truth and lies.
Sgd. E.A. Katemana, RM
19/12/2016
291
Then the witness proceeded to testify as follows:
“PW1 XN IN CHIEF
I am ten years old, I study at Mafumbo Primary School, in standard

IV. On 16/7/2016 …”
What we gather from the above passage is that PW1 was answering
questions regarding her profile/particulars such as her name, age and
that she is a school child. On top of that she answered the question on
whether she knew the difference between truth and lies without more.
We think, the aspect of knowledge of difference between truth and lies
was more of testing intelligence of the child, though no finding was
made by the trial magistrate to that effect. This, however, as we have
alluded to earlier on, is currently no longer a requirement of the law.
The trial magistrate ought to have required PW1 to promise whether
or not she would tell the truth and not lies. We say so because, section
127(2) as amended imperatively requires a child of a tender age to
give a promise of telling the truth and not telling lies before he/she
testifies in court. This is a condition precedent before reception of the
evidence of a child of a tender age. The question, however, would be
on how to reach at that stage. We think, the trial magistrate or judge
can ask the witness of a tender age such simplified questions, which
may not be exhaustive depending on the circumstances of the case, as
follows:
1. The age of the child.

2. The religion which the child professes and whether he/she
understands the nature of oath.
3. Whether or not the child promises to tell the truth and not to tell
lies.
Thereafter, upon making the promise, such promise must be recorded
before the evidence is taken.
292
In this case, since PW1 gave her evidence without making prior
promise of telling the truth and not lies, there is no gainsaying that
the required procedure was not complied with before taking the
evidence of the victim. In the absence of promise by PW1, we think
that her evidence was not properly admitted in terms of section 127(2)
of the Evidence Act as amended by Act No.4 of 2016. Hence, the same
has no evidential value. Since the crucial evidence of PW1 is invalid,
there is no evidence remaining to be corroborated by the evidence
of PW2, PW3 and PW4 in view of sustaining the conviction. In the
circumstances, we find the 4th ground of appeal to be meritorious and
hence we sustain it.
As regards the complaint in the 6th ground of appeal that his defence
was not considered by the first appellate judge we do not agree with
him. This is so because the same was considered as shown at page 55
of the record of appeal and the appellate judge found that it did not
cast doubt to the prosecution evidence.
That said and done, we allow the appeal, quash the conviction
and set aside the sentence imposed against the appellant. We further
order for an immediate release of the appellant unless held for other
lawful reasons.
It is so ordered.
293
Haruna Mtasiwa v. R, (Criminal Appeal No.206 of 2018) [2020] TZCA
230; (15 May 2020)
(Mziray, Mwambegele, and Mwandambo, JJA)
JUDGMENT
MWAMBEGELE, J.A.: The appellant Haruna Mtasiwa was charged
before the District Court of Iringa sitting at Iringa with rape contrary
to sections 130 (1) & (2) (e)and 131 (1) & (3) of the Penal Code, Cap.
16 of the Revised Edition, 2002 (now Revised Edition, 2019). The
particulars of the offence are that on 13.06.2016 at Kidilo Village
within the District and Region of Iringa, he had carnal knowledge
of a girl aged eight years. We shall elsewhere refer to the girl as
“the victim” to protect her modesty.After hearing five prosecution
witnesses and the appellant in defence, the learned trial Magistrate
(G. N. Isaya - RM) was satisfied that the charge levelled against
the appellant had been proved beyond reasonable doubt and, as a
result, found him guilty as charged, convicted and sentenced him to
life in prison. The appellant was aggrieved with the decision of the
District Court. His first appeal to the High Court at Iringa (Feleshi,
J.) was unsuccessful. Still protesting his innocence, he has come to
this Court on second appeal. His appeal is premised on eight grounds.
One, the first appellate court should not have upheld the decision of
the trial court which was not properly constituted because a social
welfare officer was not in the coram. Two, the evidence of PW3 (the
Doctor) should not have been relied upon as his testimony showed he
examined the victim on 13.06.2016 at 16:00 hours which was before
the commission of the offence. Three, failure to note that the PF3 was
explained before admission into evidence. Four, the age of the victim
was not proved in that the victim’s mother (PW4) testified that the
victim was born on 26.06.2016. Five, the evidence of the victim was
contradictory and it was not explained if “mdudu” referred to penis.
Six, the contradictions in the testimony of witnesses were not minor
as held by the first appellate court. Seven, the identification of the
appellant was not properly resolved by the prosecution. Finally,
that the first appellate court wrongly dismissed his appeal while the
prosecution did not prove the case beyond reasonable doubt.
294
Briefly, the background facts leading to the appellant’s arraignment
are, in essence, captured in the evidence of the victim herself, Eliza
Malegesi (PW4); her mother and Rajabu Augustino Mtasiwa (PW2);
her grandfather. It goes thus: on 13.06.2016 at midnight, the victim
was fast asleep in a two-roomed kitchen house together with her two
sisters when a person she allegedly identified to be the appellant; her
paternal uncle, forced entrance in the inner room and raped her. Her
attempts to raise an alarm for help were futile as the ravisher gagged
her mouth with a shoe. After the ordeal, she ran outside the kitchen
house and hid at the backyard.
In the meanwhile, PW2 and her wife Veronica Kindole (PW5) arrived
there to complain to PW4’s husband who was a ten-cell leader that the
appellant had attempted to rape their daughter named CM but she
raised an alarm and the appellant aborted the mission and ran away.
PW2, PW4 and PW4’s husband going by the name Jackson Mtasiwa,
went in the kitchen house to check their children. They realised that
the door was broken into and the appellant lay on the floor on the
outer room of the kitchen house pretending to be asleep. PW2 had a
solar torch whose light helped identify the appellant. They entered the
inner room where children slept but the victim was not there. They
searched for her in the vicinity and found her at the backyard of the
kitchen house in great fear. She was crying. She told them that uncle
Haruni had raped her. PW4 examined her private parts with the help
of PW2’s solar torch given to her. She discovered that there were blood
stains and whitish fluid in -the vagina of the victim. They reported
the incident to the Village Executive Officer; a certain Jackson Mdota
who showed up and attempted to arrest the appellant but the latter
resisted. PW2, Jackson Mtasiwa and Jackson Mdota joined forces and,
at the end of the day, arrested him. He was taken to the police station
the very night.
The victim was taken to Ifunda Health Centre where Dr. Norbert Sanga
(PW3) medically examined her and found that she had sustained what
he called “a third-degree tear which broke the wall between the vagina
and anus”. He also found bruises and some sperms in the vagina of
the victim. He filled these findings in a PF3 which was admitted in
evidence as Exh. PI.
295
When put to his defence at the trial, the appellant did not dispute
on being arrested on 13.06.2016 at midnight. His account of what
transpired on the material night dovetails with that of the prosecution
but ascribes the reason for the arrest to a different reason altogether.
He recounted the episode to the effect that on that date, at about 23:00
hours, he was at a pombe shop where PW4 and PW5 were selling local
brew. The appellant did not pay for the brew he bought from them. He
was told to deliver the money to their respective homes. The appellant
went on to narrate the story that he first went to the residence of PW2
and PW5 where he knocked the door to no avail. Nobody opened the
door for him even though the lights were on. He thus decided to go to
PW4 but no sooner had he knocked PW4’s door than PW2 and PW5
arrived claiming that he had attempted to rape their daughter in the
children’s room. That PW2 hit him with a stick forcing him in the
process to enter inside. The Village Executive Officer was phoned and
showed up. That a scuffle ensued involving exchange of blows between
him on the one hand and PW2 and the Village Executive Officer on the
other. The appellant went on to narrate that the children were scared
of the scuffle and ran outside their room. That he was overpowered
and after the altercation, he was taken to the police station where he
was accused of rape.
The appellant challenged the testimony of the victim that she
could not have identified anybody inside the house with the help of
light illuminated from moonlight. He charged that the moonlight
illuminated outside and there was no solar lamps inside the house. He
also stated that there was a discrepancy in the evidence of PW3, PW2
and PW4 in terms of time the victim was taken to the hospital; while
PW3 testified that it was at 08:00 hours, PW2 testified that it was at
16:00 hours and PW4 said it was at 10:00 hours.
The appellant complained before the trial court that the whole thing
was fabricated by PW2 with whom they were in conflict over land.
That they had been in conflict all along and that they could not even
greet each other. However, the District Court found the appellant’s
defence too weak to raise any reasonable doubt in the prosecution’s
case and hence the verdict of guilt followed by conviction and sentence
which were sustained by the first appellate court, hence this second
appeal.
296
When the appeal was placed before us for hearing on 06.05.2020, the
appellant appeared in person, unrepresented at Iringa Prison as the
appeal was heard by video conference; a facility of the Court. The
respondent Republic appeared through Ms. Kasana Maziku, learned
Senior State Attorney, who was in the Court’s premises together with
us.
When we gave the floor to the appellant to argue his appeal, he simply
adopted the grounds in the Memorandum of Appeal and asked the
Republic to respond after which he would make a rejoinder if need
would arise.
In her reply submissions, Ms. Maziku expressed her stance at the very
outset that she supported the appellant’s conviction and the flanking
sentence meted out to him. She also expressed that the first, second,
third and sixth grounds of appeal were not subject of the grounds
of appeal in the first appellate. Except for the third ground which
involved a point of law, the other grounds should not be entertained
by the Court, she submitted. Convinced that the law is settled on the
point, the learned Senior State Attorney proceeded to argue the rest of
the grounds, except for the first, second and sixth grounds.
Responding to ground three which is a complaint that the PF3 was

explained before it was tendered, Ms. Maziku replied that the PF3
was not explained before it was tendered. She argued that no rule
was offended. Neither was any case law offended. That process, she
argued, involved clearing it before admission. The learned Senior
State Attorney did not cite any authority to buttress this proposition.
With regard to ground four of appeal, Ms. Maziku argued that the
testimony of PW4 showing that the victim was born on 26.06.2016 was
but a lapsus calami in that the offence was committed on 13.06.2016
and the witness testified that the victim was aged eight years at the
time. She added that a birth certificate was not relevant in that the
best evidence was that of PW4, her mother. For this proposition, she
placed reliance on our decision in Bashiri John v. Republic, Criminal
Appeal No. 486 of 2016 - [2019] TZCA 89 at www.tanzlii.org. in which,
relying on our previous decision in Issay Renatus v. Republic, Criminal
Appeal No. 542 of 2015 (unreported), we held that proof of age may be
297
by parents, medical practitioner or by a birth certificate. After all, she
added, the appellant never cross-examined the witness regarding age
thus his complaint is an afterthought.
As to five, the learned Senior State Attorney submitted that given

the age of the victim, she could not explain graphically the penis but,
in its stead, she referred to it as “mdudu”. Placing reliance of our
decision in Joseph Leko v. Republic, Criminal Appeal No. 124 of 2013
(unreported), given the young age of the victim, she would not have
been able to say amidst audience that the appellant inserted his penis
in her vagina.
In relation to ground seven which is about the identification of the

appellant, the learned Senior State Attorney submitted that she
identified him with the help of moonlight which illuminated the room
through the window. The victim was firm even in cross-examination
at p. 10 of the record of appeal. When we prodded him on how wide the
window was, Ms. Maziku responded that there was no such evidence
on the record. She added that PW2 testified that he entered the house
and found the appellant lying on the floor and heard the victim crying
from the rear of the house. The learned counsel added that the victim
testified that the appellant raped her and went to lie at the sitting
room of the kitchen and that is where he was found. The evidence of
the victim respecting identification was also corroborated by PW4 who
testified at p. 19 of the record that the appellant was identified with
the help of light illuminated from a solar torch. He was arrested there
and then and taken to the police station, she added.
Finally, the learned Senior State Attorney submitted that the

prosecution proved the case beyond reasonable doubt through the
evidence of PW1, PW2, PW3 and PW4. The learned Senior State
Attorney relied on our decision in Selemani Makumba v. Republic
[2006] T.L.R 379, at 384 where we held that true evidence of rape
has to come from the victim, if an adult, that there was penetration
and no consent, and in case of any other woman where consent is
irrelevant, that there was penetration. She added that PW4 examined
the victim and discovered that she had some whitish fluid in her
vagina. Relying on John Nziku v. Republic, Criminal Appeal No.
298
181 of 2016 (unreported), she submitted that that was enough to prove
penetration. She also referred us to the testimony of PW3 at p. 19
where she said that whitish fluid was sperms.
The learned Senior State Attorney added that the testimony of the
victim, having complied with the dictates of section 127 (2) of the
Evidence Act, Cap. 6 of the Revised Edition, 2019 as amended by the
written Laws (Miscellaneous Amendments) (No.2), Act, 2016 (the
Evidence Act) was sufficient in itself to mount a conviction against
the appellant. She added that even though the evidence of the victim
in itself proved the case against the appellant, it found corroboration
from the evidence of PW2, PW3, PW4 and PW5.
Regarding contradictions in time by the prosecution witnesses,

the learned Senior State Attorney submitted that even though the
witnesses referred to the midnight of 13.06.20126, reading in context,
the witnesses were referring to the night between 12.06.20126 and
13.06.20126 thus PW3 examined the victim after the incident, not
before the incident as claimed by the appellant. With regard to the
contradiction in time as to when the victim was taken to the hospital,
Ms. Maziku relied on Shihobe Seni v. Republic [1992] T.L.R 379 to
argue that in cases of illiterate witnesses, it was not fair or desirable
to tie them down too closely to estimates of time.
Having argued as above, the learned Senior State Attorney impressed

upon the Court that the case against the appellant was proved beyond
reasonable doubt. He implored us to dismiss the appeal in its entirety.
In a short rejoinder, the appellant submitted that identification of

the assailant in the present case was not watertight, for it was not
whether he was identified by means illuminated from the moonlight
or solar power. He argued that it could not be possible for any witness
to identify any assailant in the room with the help of moonlight.
Regarding the PF3, he submitted that it was prepared before the

incident. He also challenged evidence regarding the age of the victim
arguing that a birth certificate ought to have been tendered to prove
the age of the victim. He stressed that the case was manufactured by
PW2 with whom he was in bad terms over a land dispute.
299
The appellant thus stated that the case against him was not proved
beyond reasonable doubt and urged us to allow the appeal and set him
free.
Having summarised the background facts of the case and the

submissions of the parties, we should now be in a position to confront
the grounds of appeal. But before we do that, we wish to acknowledge,
as did Ms. Maziku, that ground one, two, three and six were not
canvassed in the High Court. The appellant so admitted as well. In
the circumstances, in accord with the settled law, we will not entertain
them in this second appeal. That this is the law has been articulated in
a number of our decisions - see: Samwel Sawe v. Republic, Criminal
Appeal No, 135 of 2004, Diha Matofali v. Republic, Criminal
Appeal No. 245 of 2015, Jafari Mohamed v. Republic, Criminal Appeal
No. 112 of 2006, Juma Manjano v. Republic, Criminal Appeal No.
211 of 2009 (all unreported) and George Mwanyingili v. Republic,
Criminal Appeal No. 335 of 2016 - [2018] TZCA 20 at www.tanzlii.org
to mention but a few. In George Mwanyingili (supra), we cited the
following excerpt in Samwel Sawe (supra) which we think merits
recitation here:
“As a second appellate court, we cannot adjudicate on a matter which

was not raised as a ground of appeal in the first appellate court. The
record of appeal at pages 21 to 23, shows that this ground of appeal
by the appellant was not among the appellant’s ten grounds of appeal
which he filed in the High Court. In the case of Abdul Athuman
v. R [2004] TLR 151 the issue on whether the Court of Appeal may
decide on a matter not raised in and decided by the High Court on
first appeal was raised. The Court held that the Court of Appeal has
no such jurisdiction. This ground of appeal is therefore, struck out.”
That is the reason why we allowed the learned Senior State Attorney
to make her response to only the remaining grounds of complaint as
well as ground three which was not raised on first appeal but one of
law which could be raised at any time.
300
In the third ground of appeal, the appellant complains that the PF3 was
explained before it was tendered. Ms. Maziku resisted this argument
with some force and to our mind rightly so. We have scanned the
record of appeal in some considerable detail and have not been able
to see anywhere PW3 explaining the exhibit before it was tendered. If
anything, as rightly put by Ms. Maziku, what was done was clearing
the exhibit before it was tendered in line with what we articulated in
Robinson Mwanjisi and Others v. Republic [2003] T.L.R 218. We
laid that principle in the following terms:
“Whenever it is intended to introduce any document in evidence, it

should first be cleared for admission and be actually admitted, before
it can be read out. Reading out document before they are admitted in
evidence is wrong and prejudicial. “
We thus are in agreement with Ms. Maziku and dismiss the complaint
by the appellant to the effect that the PF3 was explained beforeit was
tendered.
Despite the foregoing finding, we do not think the exhibit was correctly
tendered in evidence given that it was not tendered by PW3 but by the
learned Senior State Attorney prosecuting the case. That is to say, it
is the prosecutor who prayed to tender it. We may let the record at
p.16 paint the picture:
“PW3 - X D by Abel (SSA )

It is the very PF3 I filled. It bears my own handwriting. I pray it be
tendered as exhibit.
Abel (SSA)
We pray to tender the PF3 o f [the victim] as exhibit Accused: I have no
objection
Court: The PF3 o f [the victim] is hereby tendered and admitted as
Exhibit PI.”
301
As can be seen in the proceedings reproduced above, the witness
prayed for the document to be tendered in evidence and the learned
Senior State Attorney prayed to tender it. That was inappropriate.
The Senior State Attorney, not being a witness, was not legally
competent to tender the document. We find solace on this stance in
our unreported decision in Aloyce Maridadi v. Republic, Criminal
Appeal No. 208 of 2016, in which we relied on our previous decisions in
Frank Massawe v. Republic, Criminal Appeal No. 302 of 2012 and
Thomas Ernest Msungu @ Nyoka Mkenya v. Republic, Criminal
Appeal No. 78 of 2012 (both unreported) to observe at pp. 10 - 11:
“... a prosecutor cannot assume the role of a prosecutor and a witness

at the same time. With respect; that was wrong because in the
process the prosecutor was not sort of a witness who could be capable
of examination upon oath or affirmation in terms of section 98(1) of
the Criminal Procedure Act. As it is/ since the prosecutor was not a
witness he could not be examined or cross examined”
See also: Selemani Bakari Makota @ Mpale v. Republic, Criminal
Appeal No.269 of 2018 [2019]TZCA 381 at www.tanzlii.org.
In view of the above discussion, we are settled in our mind that the
PF3 was wrongly admitted in evidence. We expunge it from the record.
We now turn to consider ground four the kernel of which is that

the age of the victim was not proved for failure to tender her birth
certificate. The appellant places heavy reliance on the testimony of
PW4 who is recorded as saying the victim was born on 26.06.2016.
We think this ground should not detain us, for, as rightly submitted
by Ms. Maziku, inserting the year 2016 was but a lapsus calami. It
cannot be gainsaid that the offence was committed on 13.06.2016 and
the witness (PW4) testified that the victim was aged eight years at the
time. The charge sheet to which the appellant pleaded shows that the
victim was aged eight years. We are firm that PW4; the mother of the
victim, who testified that the victim was aged eight years when she
was testifying, meant to say her daughter was born eight years back;
not the same year she was giving evidence and the same year the
offence was committed. In the same token, we agree with Ms. Maziku
302
that a birth certificate was not required in the circumstances to prove
the age of the victim contrary to what the appellant would want us
hold. As we held in Bashiri John v. Republic (supra) in which, relying
on our previous decision in Isaya Renatus v. Republic, (supra), we
observed that proof of age may be by parents, medical practitioner
or by a birth certificate. We find this ground wanting in merit. We
dismiss it.
We now turn to determine ground five which is a complaint that the

victim was not credible, that her evidence was contradictory and that
it was not clear if the “mdudu” she referred to in her testimony meant
penis. The appellant has not explained in material particulars how the
evidence of the victim contradicted. The trial court found the victim
as a witness of truth. So did the first appellate court. In the absence
of the appellant’s explanation, let alone a plausible one, we have no
sound reason to vary this concurrent finding of fact by the two courts
below.
With regard to the complaint that it was not proved that “mdudu”
meant penis, the learned Senior State Attorney argued, and to our
mind rightly so, that given the age of the victim, it was not expected
she would graphically tell the trial court that the appellant inserted his
penis in her vagina. Gone are the times in this jurisdiction when the
victim was expected to graphically explain that the ravisher inserted
his penis in her vagina. In Simon Erro v. Republic, Criminal Appeal
No. 85 of 2012 (unreported), the victim, like here, referred to the penis
as “dudu” and we held that that was sufficient. We also find support in
Joseph Leko v. Republic (supra), the case cited to us by the learned
Senior State Attorney, in which we observed:
“Recent decisions of the Court show that what the court has to look
at is the circumstances of each case including cultural background,
upbringing, religious feelings, the audience listening, and the age
of the person giving the evidence. The reason is obvious. There are
instances and they are not few, where a witness and even the court
would avoid using direct words of the penis penetrating the vagina.
This is because of cultural restrictions mentioned and other related
matters. The cases of Minani Evaristi v. R, Criminal Appeal No. 124
303
of 2007 and Hassani Bakari v. R Criminal Appeal No. 103 OF 2012
(both unreported) decided by this Court in February and June 2012
respectively are some of the recent development in the interpretation
of section 130(4) (a) of the Penal Code.”
[Underlining supplied].
See also: Hassan Kamunyu v. Republic, Criminal Appeal No. 277

of 2016 - [2018] TZCA 259 at www.tanzlii.ora and Baha Dagari v.
Republic Criminal Appeal No. 39 of 2014(unreported).
On the strength of the above authorities, we are satisfied that by

testifying, as recorded at p. 9, that “baba mdogo Haruna inserted his
mdudu into my vagina (showing at her private parts)” she simply
meant the appellant inserted his penis into her vagina. We find this
complaint as without substance. We dismiss it.
We now turn to determine ground seven which is a complaint by the

appellant that the victim could not have identified him with the help of
light of the moonlight illuminating the room through the window. We
agree with the appellant on this complaint. It is doubtful if the victim
indeed identified the appellant in the circumstances explained. There
was led no evidence by the prosecution on the size of the window,
whether it was open or closed, whether it was made of glass or wooden,
et cetera. This doubt, as our criminal law prescribes, must be resolved
in favour of the appellant. We are positive that the threshold regarding
identification of an assailant in offences committed during the night,
as articulated in the oft-cited Waziri Amani v. Republic [1980] TLR
250 was not met. In that case, the Court articulated at pp. 251 - 252:
“... evidence of visual identification, as the Courts in East Africa and

England have warned in a number of cases, is of the weakest kind
and most unreliable. It follows therefore that, no court should act on
evidence of visual identification unless all possibilities of mistaken
identity are eliminated and the court is satisfied that the evidence is
absolutely watertight”.
304
We agree with the appellant that the victim could not have easily
identified an assailant in the circumstances explained. However, even
though we have so found and held, we are satisfied that other evidence
available irresistibly point to the effect that the victim was raped by
none other than the appellant. We shall demonstrate.
When PW2 and PW5 arrived at the residence of the victim’s parents
and complained that the appellant has attempted to rape their
daughter CM, PW2 and PW4 entered the kitchen house wherein they
found the appellant pretending to be asleep. The victim had ran out
of the house but when they found her at the rear of the house she told
them that after the ordeal, the ravisher went to sleep at the outer
room of the house.
That is where the appellant was found pretending to be asleep. PW4

examined her only to find that there were bruises and whitish fluid in
the victim’s vagina. The examination by PW3 who medically examined
her and saw bruises and sperms in her vagina lends support to what
PW4 testified. We must be clear hear that we are referring to the
testimony of PW3 which can be relied upon despite the fact that the
PF3 was expunged - see: The Director of Public Prosecutions v.
Erasto Kibwana and 2 Others, Criminal Appeal No. 576 of 2016
(unreported), Thomas Robert Shayo v. Republic, Criminal Appeal
No 409 2016 (unreported), Abasi Makono v. Republic, Criminal
Appeal no 537 of 2016 - [2019] TZCA 299 at www.tanzalii.org and
Shabani Ng’ombe Kenyeka v. Republic, Criminal Appeal No. 454
of 2016 - [2019] TZCA 463 at www.tanzalii.org. This evidence, in
totality, sufficiently proved in our considered view that the ravisher
was the appellant. We thus find and hold that this ground is without
merit as well.
With regard to the last ground, we are firm that the prosecution
proved the case to the required standard; that is, beyond reasonable
doubt. The victim, a child of tender years, was found by the trial court
to be a witness of truth. In the light of our decision in Selemani
Makumba v. Republic (supra) and as rightly submitted by the
learned Senior State Attorney, the victim need not prove consent;
it is enough proving penetration only. This is what is referred to in
305
legal parlance as statutory rape. We are satisfied that the prosecution
proved penetration through the evidence of the victim. She testified
that the appellant inserted his “mdudu” in her vagina. In terms of
section 127 (2) of the Evidence Act, as amended by the written Laws
(Miscellaneous Amendments) (No.2) Act, 2016, that was sufficient on
its own to mount a conviction against the appellant.
The evidence of penetration was also given by PW4; her mother who
asked her daughter what had befallen her and she told her it was the
appellant (whom she referred to as “baba mdogo”) who inserted his
penis (which she described as “mdudu”) into her vagina. PW4 examined
the victim and found that her vagina had bruises and observed some
whitish fluid. As if to clinch the matter, PW3 who medically examined
her, also found her vagina to have bruises and sperms. It may also
not be irrelevant to interpolate here that the appellant did not cross-
examine the victim on this point. He only cross-examined on whether
there was solar lump illuminating the room and was answered in the
negative. It is the law in this jurisdiction founded upon prudence that
failure to cross-examine on an important matter ordinarily implies
the acceptance of the truth of the witness’s evidence on that aspect.
Authorities on the point are not difficult to seek - see: Damian Ruhele
v. Republic, Criminal Appeal No. 501 of 2007, Nyerere Nyague v.
Republic, Criminal Appeal No. 67 of 2010, George Maili Kemboge
v. Republic, Criminal Appeal No. 327 of 2013 and Bakari Abdallah
Masudi, Criminal Appeal No. 126 of 2017 (all unreported).
In the end of it all, with the exception of few pockets discussed above
in which we have allowed some arguments of the appellant, we,
generally, find no merit in this appeal. We dismiss it.
306
Hassan Kamunyu v. R (Crim Appeal No.277 of 2016) [2018] TZCA
259; (25 July 2018)
(Mbarouk, Ndika and Mwambegele, JJA)
JUDGMENT
MWAMBEGELE, J.A.: Before the District Court of Same sitting

at Same, the appellant Hassan Kamunyu, a Madrasa teacher, was
arraigned for ten counts of unnatural offence under section 154 (1)
and (2) and two counts of sexual assault on a person under section 135
(2) of the Penal Code, Cap. 16 of the Revised Edition, 2002 (hereinafter
referred to as the Penal Code). It was alleged that on diverse dates of
the month of December 2014, at Kihurio-Uzambala Village in Same
District in Kilimanjaro Region, he had sex against the order of nature
with ten pupils, and sexually assaulted two pupils of the madrasa.
In the first, second, third and fourth counts he was alleged to have
had carnally known against the order of nature, SA, KA, SH and MJM
respectively. We wish to interject here that in this judgment, we have
withheld the full names of the victims so as to protect their privacy.
It was alleged in the particulars of the offence that on diverse dates
in the month of December 2014, at Kihurio-Uzambala Village in the
Same District of Kilimanjaro Region, he had sex against the order of
nature with, respectively, SA; a boy aged 13, KA; a boy aged 11, SH;
a boy aged 13 and MJM; a boy aged 11, all contrary to section 154 (1)
(a) of the Penal Code. In the sixth count, he was charged with sexual
assault on a person c/s 135 (2) of the Penal Code it being alleged he
sexually assaulted one Kh.M; a boy aged 7 years.
He was convicted on the first, second, third, fourth and sixth counts
and sentenced to thirty years in jail in respect of the first, second,
third and fourth counts and five years in respect of the sixth count.
The sentences were ordered to run concurrently. He was aggrieved
by the conviction and sentence in respect of the first, second, third
and fourth counts and preferred this appeal. No appeal was preferred
against the sixth count.
307
The appellant filed two Memoranda of Appeal. The first Memorandum
has eight grounds of complaint and was lodged on 24.05.2017. The
second one was lodged on 22.06.2018 through a document titled
“Additional Grounds of Appeal” and has six grounds of complaint. In
total, the appellant has fourteen grounds of complaint against the
conviction on the four counts respecting unnatural offence. As the
fourteen grounds of complaint have been, it seems, drafted by a lay
hand and are in a discursive manner, we think, they boil down to a
general complaint over the case not being proved beyond reasonable
doubt on account of incredibility of witnesses, inconsistent and
uncorroborated evidence of children of tender years.
The appeal was argued before us on 27.06.2018 during which the

appellant appeared in person and the respondent Republic appeared
through Mr. Omari Abdailah Kibwanah, learned Senior State
Attorney.
We wish to point out at the outset that the appeal is in respect of the
first four counts only as reflected in the Notice of Appeal. As already
alluded to above, the appellant was also convicted on the sixth count
and sentenced to serve five years in jail but he did not wish to appeal
against that conviction and sentence. This was made clear to the
appellant and he agreed that was the case.
Fending for himself, the appellant adopted both Memoranda of Appeal.

He argued all the grounds generally. Elaborating, he complained
that the charges against him were not proved beyond reasonable
doubt hinging on the unreliability of prosecution witnesses and failure
to bring material witnesses to prove the fourth count. He complained
that at p. 10 of the record, PW1 referred to a “dudu”, what was that?
He questioned. If the witness was able to mention mkundu, there was
no reason why he should mince words and refer to a “dudu”. By that
testimony, the prosecution did not prove the charge in respect of the
first count.
In respect of the second count, the appellant assailed the testimony of

PW2 to the effect that it was unreliable in that the witness testified
that he joined the Madrasa in 2015 while the offence is said to have
been committed in 2014. The appellant added that the witness testified
308
that in the month of December, 2014 he travelled to Mererani; it could
not be possible that the witness was in Mererani at the same time
being raped in Same.
On the third count, the appellant also assailed PW3 as not credible in
that he could not remember the date when he was sodomized.
Regarding the fourth count, the appellant testified that no witness

was brought to testify in respect of it. PW8 who purported to testify in
respect of the fourth count is not the victim as evidenced by the charge
sheet. In the charge sheet, the victim is MJM while PW8 is MGS. This
count was not proved, he charged.
The appellant also assailed the testimony of PW12 Dr. Casto Mlay;
the doctor who examined the victims that he testified that the victims
were infected with HIV and AIDS and some with STIs but that he
refused to examine the appellant as well. That is a sign, he argued,
that the witness was not credible.
The appellant concluded that the whole case is a frame-up against

him and prayed that the appeal be allowed.
Mr. Kibwanah, responded to the appellant’s grounds of appeal

generally basing on the first general ground which states that the case
against the appellant was not proved beyond reasonable doubt. The
learned counsel admitted that the fourth count was not proved beyond
reasonable doubt because the victim in the charge sheet is said to be
MJM while PW8 who purported to be the victim is MGS. The learned
counsel stated that there was a discrepancy between the charge sheet
in the fourth count and the evidence adduced in its respect. He thus
conceded to the appeal being allowed in respect of that count.
In respect of the remaining counts, the learned Senior State Attorney

submitted that they were proved beyond reasonable doubt. He argued
that the prosecution brought two witnesses to testify in respect of each
count. He conceded that the unsworn evidence of children of tender
years was not corroborated but that the same was apposite at law
as the trial magistrate was satisfied that they spoke nothing but the
truth.
309
Respecting the reference to “dudu” by PW1, the learned Senior State
Attorney submited that the witness used a euphemism for the penis
of the appellant. Regarding PW2 who was assailed by the appellant
as not being credible and reliable for not mentioning the exact dates
he was sodomized, Mr. Kibwanah submitted that there was a lapse of
time between the time of commission of the offence and the time the
witness was testifying. In the circumstances, he added, the witness
could not be exact as to the dates the offence was committed.
On the foregoing reasons, the learned Senior State Attorney submitted

that the appeal in respect of the first, second and third counts be
dismissed.
In a short rejoinder, the appellant reiterated his prayers he made in

the submissions in chief. He added that the offence was allegedly
committed in the month of December 2014 while the witnesses/
victims were examined in January, 2015, were the bruises still
there? He questioned. He reiterated his prayer to have his appeal
allowed.
We have considered the rival arguments by the appellant on the one

hand and Mr. Kibwanah’s on the other. We, wish to determine the
appeal as summarized above and in the light of the manner argued by
the appellant and respondent.
The appellant assailed the first count on the aspect that the victim
did not bring evidence to prove what “dudu” was. He wondered why
mince word by referring to a “dudu” while the victim had the audacity
of mentioning “mkundu” in the same testimony. We agree that in the
first count the victim testified as PW1. In his testimony, at p. 1
is recorded as saying:
“wewe S twende hivi ... baadaye ananipeleka ndani ya msikiti

... thereafter he started to undress my trouser and underpants. He
then started to do sexual intercourse to my anus. That the accused was
doing as that: - Ndipo baada ya kunivua suruali na chupi anaingiza
dudu lake kwenye mkundu wangu, nilikuwa nasikia maumivu makali
sana”.
310
For this testimony the appellant brands the appellant as being
unreliable. The appellant wondered what the “dudu” was. We have
considered the appellant’s complaint which might seem convincing at
first sight. However, given the recent jurisprudence of the Court we are
not convinced by the appellant’s arguments. There is a paradigm shift
in the recent jurisprudence of the Court from the orthodox position
where in offences of this nature; sexual offences, the victims were
supposed to be graphic in narrating the ingredients of the offence.
Luckily, the Court has had an opportunity to deal with the point in
some cases on rape. The current position is that in proving that there
was penetration in a rape case, it is not always expected the victim
will graphically describe how the penis was inserted into the victim’s
vagina. There is a string of cases on this point. These are Hassan
Bakari @ Mamajicho v. Republic, Criminal Appeal No. 103 of
2012, Minani Evarist v. Republic, Criminal Appeal No. 124 of 2007,
Ndikumana Philipo v, Republic, Criminal Appeal No. 276 of 2009,
Minani s/o Selestin v. Republic, Criminal Appeal No. 66 of 2013,
Matendele Nchanga @ Awilo v. Republic, Criminal Appeal No.
108 of 2010, John Martin @ Marwa v. Republic, Criminal Appeal
No. 22 of 2008, Joseph Leko v. Republic, Criminal appeal No. 124
of 2013, Jumanne Shaban Mrondo v. Republic, Criminal Appeal
No. 282 of 2010, Baha Dagari v. Republic, Criminal Appeal No.
39 of 2014, Nkanga Daudi Nkanga v. Republic, Criminal Appeal
No.316 of 2013, Athuman Hassan v. Republic, Criminal Appeal No.
84 of 2013 and Simon Erro v. Republic, Criminal Appeal No. 85 of
2012 (all unreported). The cases above and the development of the law
on this subject have been discussed at some considerable length by
the Court in Baha Dagari (supra). In that case, the Court
observed:
“Several decisions of this Court have expounded the scope of section 130
(4) (a) in so far as proof of penetration in sexual offences is concerned.
This scope is now settled that in proving that there was penetration
it does not in all cases expect the victim of alleged rape to graphically
describe how the male organ was inserted into her female organ.”
311
The new development of the interpretation of the provisions of section
130 (4) (a) of the Penal Code has been brought into being taking into
consideration, inter alia, cultural background, upbringing, religious
feelings, the audience listening, and the age of the person giving
the evidence. Thus, in Joseph Leko (supra) the Court instructively
observed:
“Recent decisions of the Court show that what the court has look at is
the circumstances of each case including cultural background,
upbringing, religious feelings, the audience listening, and the age
of the person giving the evidence. The reason is obvious. There are
instances and they are not few, where a witness and even the court
would avoid using direct words of the penis penetrating the vagina.
This is because of cultural restrictions mentioned and other related
matters. The cases of Minani Evarist v. R, Criminal Appeal No 124
of 2007 and Hassani Bakarl v. R, Criminal Appeal No 103 of 2012
(both unreported) decided by this Court in February and June 2012
respectively are some of the recent development in the interpretation
of section 130(4) (a) of the Penal Code.” [Emphasis supplied].
Thus words like “[he] removed my underwear and started intercoursing
me” in Matendele Nchanga @ Awilo (supra), “sexual intercourse” or
“have sex” in Hassan Bakari @ Mamajicho (supra), “[he] undressed
me and started to have sex with me” in Nkanga Daudi Nkanga
(supra), “kanifanyia tabia mbaya” in Athumani Hassan (supra),
“alinifanya matusi” in Jumanne Shabani Mrondo (supra) or “he put
his dudu in my vagina” in Simon Erro (supra) or “did sex me by force”,
“this accused raped me without my consent”, “While this accused was
sexing me I alarmed” and “fortunately one B s/o T came to my home
and he found this accused still sexing” in Baha Dagari (supra) were,
though not explicitly described, taken by the Court to make reference
to penetration of the penis of the accused person into the vagina of the
victim.
Reverting to the instant case, we think we can safely borrow a leaf

from the above cases. The victims were pupils in a Madrasa; a religious
teaching institution. Given their cultural background, upbringing,
312
religious feelings, the audience listening, as well as their age, it is
not surprising that some of them could not be graphic in describing
the penis. In view of the authorities respecting the offence of rape
from which we have found it apposite to borrow a leaf, by the victim
referring to a “dudu”, PWl was simply referring to the appellant’s
penis. By saying “anaingiza dudu lake kwenye mkundu wangu” he
simply meant the appellant inserted his penis into his (PWl’s) anus.
The appellant’s complaint on this aspect is therefore without merit.
We dismiss it.
The complaint on PW2 is that he was not credible as he testified that

he started pupillage at the Madrasa in 2015 but the incident is alleged
to have taken place in 2014. After all, he went on, the witness testified
that in the month of December, 2014, he travelled to Mererani. He
could not be in Mererani and at the same time being sodomized in
Same. That could not be possible, he argued. This complaint has no
basis as well, for, it stems from not reading the evidence properly and
in context. The piece of evidence complained of by the appellant is
found at p. 14 of the record during cross-examination of PW2:
“In December 2014 I travelled to Mererani area and not Karamba, to

my father one Jumanne. I never disclosed to my father...”
Our reading of the above excerpt has it that the appellant went there
after the incident took place and that is the reason why he testified
not to have disclosed the incident to the said father. In examination-
in-chief he had already testified that he told his father (not the one
referred to above) who took him to Ndungu Hospital for examination.
The appellant’s complaint on PW2 is therefore unfounded.
With respect to the third count, the appellant attacked the credibility
of PW3 as well on account that he did not mention the time, date
and year of the commission of the offence. That could not be possible,
he argued. This complaint is also unfounded. PW4 was aged ten at
the time he testified. Given his age, the lapse of time between the
commission of the offence and the time of testifying, it is not expected
that he could be accurate in every detail. This is allowable at law.
313
Regarding the conviction in respect of the fourth count the appellant
submitted that no witness was brought to testify in support of this
count. While the particulars of the offence in this count are to the
effect that the appellant had carnal knowledge against a certain MJM,
it was MGS who testified as PW8 in support of the fourth count. These
are two different persons, he submitted. This complaint is justified. As
rightly submitted by the appellant and supported by Mr. Kibwanah,
this count was not proved. It was MJM who was alleged to have been
carnally known against the order of nature. However, it was MGS
(PW8) who came to testify in support of this count. It is obvious MJM
is not MGS. We agree with the appellant that this count was not
proved. This complaint has merit.
The above said, we think we still remain with one pertinent issue.
This is that the evidence on which we have found and held that the
respondent Republic proved against the appellant emanated from
unsworn evidence of children of tender years.
We wish to start our determination of this” ground with a note that

the relevant provisions here are those of section 127 of the Evidence
Act, Cap. 6 of the Revised Edition, 2002, before being amended
by the Written Laws (Miscellaneous Amendments) (No.2) Act,
2016 (hereinafter referred to as the Evidence Act). Subsection (2)
thereof, as it stood then, read:
“(2) Where in any criminal cause or matter a child of tender age called
as a witness does not, in the opinion of the court, understand the nature
And subsection (7) of the same section (before being renumbered by
the amending Act) read:
314
“(7) 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.”
At this juncture, we wish to interject what was held by the Full Bench
of the Court in Kimbute Otiniel v. Republic, Criminal Appeal No.
300 of 2011 (unreported) expounding the tenor and purport of section
127(7) [now section 127(6)] of the Evidence Act, the Full Bench of the
Court reproduced the following excerpt from our unreported decision
in Nguza Vikings @ Babu Seya & 4 Others v. Republic, Criminal
Appeal No. 56 of 2005 to the effect that section 127(7) [now section
127(6)] was not intended to override the then section 127(2) [now
section 127(2) as deleted and substituted by a consolidated subsection
with subsection (3)] of the Evidence Act:
“From the wording of the section, before the court relies on the evidence
of the independent child witness to enter a conviction, it must be
satisfied that the child witness told nothing but the truth. This means
that, there must first be compliance with section 127(2) before involving
section 127(7) of the Evidence Act; “Voire dire” examination must be
conducted to ascertain whether the child possesses sufficient
intelligence and understands the duty to speak the truth. If the child
witness understands the duty to speak the truth, it is only then its
evidence can be relied on for conviction without any corroboration
otherwise the position of the law remains the same, that is to say that
unsworn evidence of a child witness requires corroboration”.
315
The Full Bench of the Court went on:
“We fully re-endorse that view. The word “Notwithstanding” in section

127(7) should not be read too legalistically, but more contextually and
purposely. In enacting section 127(7) Parliament could not have
intended to ratify an irregularity section 127(7) only obviates the
need for corroboration, direct or circumstantial where the evidence
taken under section127(2) emanates from a properly conducted
voire dire thereunder; however, it does not dispense with or remove
the requirement of corroboration where the evidence taken originates
from a misapplication or non-direction of section 127(2).
Given that section 127(7) neither details the mode of assessing the
credibility of the only independent child witness nor that of establishing
that the witness is telling the court nothing but the truth, in our opinion
the necessity for corroboration we have just stressed becomes an even
more essential and pressing requirement for evaluating the credibility
of a witness and allocating it the weight it deserves. Moreover, in the
absence of confirmation from other supporting evidence, it would be
too over-confidential, if not risky for the court to be fully satisfied
that a child witness is telling nothing but the truth, without having
positively found out earlier that he or she even knows the duty of
telling the truth ...” [Emphasis supplied].
What we read in the foregoing excerpt from Kimbute Otiniel and
Nguza Vikings @ Babu Seya is that section 127 (7) [now section
127 (6)] of the Evidence Act enacts that, as the law stands now,
corroboration is not necessary to support unsworn evidence of a child
of tender years provided that there is full compliance with section 127
(2) of the same Act.
Coming back to the case at hand, it is apparent on the record that

before taking the evidence of witnesses whose age was tender, the
trial court complied with section 127 (2) to the letter. The record bears
it out at pp. 8-9 that the trial magistrate conducted a voire dire of PW1
and was satisfied that the witness did not understand the nature of
oath but understood the duty to speak the truth. Let the record speak
for itself as to what the trial court stated at p. 9 after voire dire:
316
“Through the interview I have conducted it is apparent that this
witness is a minor or a child person. He do (sic) not the nature and
meaning of Oath but he possess (sic) sufficient knowledge to speak the
truth. In fact, this is the child whose age is under majority age of 18
years.
I therefore warn myself that this is the evidence of the child who is
testifying not under Oath. I so direct that let him adduce his evidence
as per above caution.”
And the witness went on to testify without oath. Despite the fact
that the evidence in the foregoing excerpt was inelegantly recorded,
the message coming out of it is loud and clear that the trial court
was satisfied that the witness did not know the meaning of oath but
understood the duty of speaking the truth to the court. That was
the case in respect of other witnesses: PW2, PW3 and PW4. All the
three witnesses; children of tender age, gave evidence without taking
oath or making an affirmation because, before giving evidence, they
promised, and the trial court was satisfied, to tell the truth and not to
tell any lies.
From what transpired, we are satisfied that the appellant was correctly
convicted on the first, second and third counts on the strength of
unsworn evidence of PW1, PW2 and PW3; children of tender years.
The appellant’s complaint to the effect that their evidence was not
corroborated and therefore illegal is without basis. It is dismissed
entirely.
The above said, we think the prosecution did not prove the case beyond
reasonable doubt against the appellant in respect of the fourth count.
We thus allow the appeal in respect of the fourth count and proceed to
quash the conviction and set aside the sentence of thirty years in jail
meted out to the appellant in respect of that count.
However, we are satisfied that the prosecution brought to the fore
evidence beyond reasonable doubt in respect of the first, second and
third counts. The appellant’s insatiable appetite for sodomy was
therefore deservedly punished. The appeal in respect of the first, second
and third counts is therefore without merit. It stands dismissed.
Order accordingly.
317
Hassan Kide Kandi v. R, Criminal Appeal 165 of 2018, High Court of
Tanzania at Mtwara (unreported)
(Date of the decision: 10th May, 2019)
JUDGMENT
NGWEMBE, J: The appellant Hassan Kide Kandi being
dissatisfied with the sentence of thirty (30) years’ imprisonment
meted by the trial court from his plea of guilty, issued notice of appeal
and appealed to this court armed with five (5) grievances. Briefly it is
alleged that on 6th November, 2018 at different times at Mbekenyera
village, within Ruangwa District in Lindi Region had canal knowledge
with one Mwajuma d/o Bakari @ Miungu, a school girl of 16 years old.
On 9/11/2018 the appellant was arraigned in court charged with the
offence of rape contrary to sections 130 (1) (2) (e) and 131 of the Penal
Code, Cap. 16 R.E. 2002. On the first day when the charge was read,
the appellant had nothing to say, remained silent not knowing what to
say. On 21/11/2018 the charge was read again before him, he responded
by pleading guilty on the first count of rape and pleaded not guilty on
the second count of impregnating a school girl contrary to section 60A
(3) of Education Act, as amended by the Written Laws (Miscellanous
Amendment) Act, No. 2 of 2016. According to the charge sheet, the
appellant was 19 years old by the time he committed the offence
of rape to a school girl aged 16 years. Since the appellant pleaded
guilty to the offence, the court proceeded to convict him, subsequently
sentenced him to thirty (30) years imprisonment. Being dissatisfied
with that conviction and sentence, the appellant timely issued notice
of appeal and appealed to this court.
On the first hearing date of this appeal, the appellant was represented
by learned advocate Alex Msalenge, while the Republic was represented
by learned senior State Attorney Paul Kimweri. The advocate for
the appellant prayed for leave to file supplementary grounds of
appeal prior to hearing of this appeal. Leave was granted and two
supplementary grounds of appeal were filed in court on 29th April,
2019. Consequently, hearing of the appeal was scheduled to continue
on 2nd May, 2019.
318
On the hearing date the learned advocate Anisa Mziray from the
chambers of Alex Msalenge, appeared for the appellant, she abandoned
all grounds of appeal save for the first ground in the supplementary
ground of appeal, to wit, the trial magistrate erred in law and fact in
convicting the appellant based on equivocal plea of guilty. That the
recording of the trial magistrate when the appellant pleaded guilty,
leaves doubt, if at all the plea was unequivocal. She added that the
whole proceedings of the trial court undoubtedly indicates that the
plea of the accused was equivocal and the trial magistrate erred in
convicting him on equivocal plea of guilty. She referred this court to
many cases of this Court and of the Court of Appeal.
In turn, the learned senior State Attorney Mr. Kimweri, clearly

supported the appeal that the recording of the trial magistrate soon
after the appellant pleaded guilty leaves serious doubt, if at all, the
plea was unequivocal. In conclusion, he prayed this court to order trial
de novo for the reasons that:
a) Rape cases is an outcry of the society which has attracted serious

public interest.
b) The time spent by the appellant in jail is less than six (6) months
therefore, ordering retrial is appropriate; and
c) That the errors apparent on the record was done by the trial
court, whereby the parties were not involved and the prosecution
had no hand in it.
For those reasons, the learned senior State Attorney, invited this
court to order trial de novo. In rejoinder, the learned counsel for the
appellant reiterated her submission in chief and prayed the court to
find the appellant not guilty.
Having so heard the elegant legal arguments from the learned

counsel, and looking closely on the face of the appellant, this court was
attracted to inquire the age of the appellant. The reason for asking
that question was obvious: that the appellant looked so young, that
in the eyes of the court, he hardly attained the age of majority. The
appellant hurriedly, responded while trembling, and confused, that
he is 17 years, born in June 2001. This court found necessary to prove
319
his age instead of proceeding with the appeal based on the counsels’
submissions. Since he had no birth certificate and the case was not
heard and determined on merit, then his parents had no opportunity
to prove his age during trial. In the circumstances, this court invoked
section 369 of Criminal Procedure Act, Cap. 20 R.E. 2002, to record
additional evidence from Head Teacher of Mkuti Ngome where the
appellant schooled. Thus, the hearing was adjourned to 6th May, 2019.
That on 6/5/2019, the Head Teacher of Mkuti Ngome Primary School,

Mr. Kibwana Abdallah Kibwana, 52 years old, Muslim, was invited by
the court to testify on the age of the appellant. Prior to testifying in
court, he affirmed, then testified that, according to the school record,
including Pupils’ Register book, the appellant schooled at Mkuti
Ngome Primary School between year 2006 and 2012, from standard
one to standard seven. He joined primary school when he was five
(5) years old and completed standard seven at the age of eleven (11)
years. He produced a register book, which was admitted in court as an
exhibit P1, where the name of the appellant is vividly seen in number
263, whose year of birth was recorded as 2001. Thereafter, both parties
were invited to ask any question to the witness, but had none.
Having heard that additional evidence, proving the age of the

appellant, I now intend to discuss in detail the nature of this appeal
linking up with that additional evidence. In essence and according
to the evidence on record, the appellant when committed the alleged
offence of rape and impregnating the victim, was a child of 17 years,
while the victim (PW1) was 16 years. Therefore, both were children
below the age of majority. I am sure, had the trial magistrate directed
his mind to prove the age of the accused, he would not have convicted
him on statutory minimum sentence of thirty (30) years. Even in this
appeal, I find no logic to consider the ground of appeal, which the
learned counsel have strongly and professionally argued on whether
the appellant’s plea was equivocal or unequivocal plea of guilty. I find
engaging into that marathon of legal arguments saves no purpose,
may be for academic purpose, but I must declare that I am not an
academician and this court is not among the academic institutions
rather is a court of law. Therefore, I will discuss in extensor on the
effect of charging young offenders without proof of their age.
320
From the advent of the Law of the Child, determination of the age
of the accused is now fundamental prior to arresting and arraigning
him in a court of law. The age of the accused person goes to the root
of the case itself; the jurisdiction of the court; and doing otherwise
defeats not only the ends of justice, but also defeats the purpose of
having different laws which govern prosecution of matured offenders
and young offenders.
I have no slight doubt that the Legislature had a purpose to serve in

our society, when enacted the Law of the Child Act and that purpose
must be fulfilled by all law enforcers, judiciary and other similar
institutions. Indeed, ancestors of legal jurisprudence left us with long
living precedents including the well-spoken maxim that courts must
apply the law as it is even if the sky will fall. If the law is a bad law,
amendment or repealing it, is a duty of the Legislature not of the court
of law. Therefore, the prosecution, I think, has additional duty when
dealing with young offenders to prove their age.
The offence of rape, if proved attracts a statutory sentence of thirty

(30) year imprisonment as minimum, while its maximum the limit is
the sky, that is, the limit of human life (life imprisonment). In such
offences, the prosecution and the arresting officers must be extra
careful to verify the age of the accused and subsequently inform the
trial court, the actual and verified age of the accused. Doing otherwise,
I think, inflicts more pain to the society and defeats the purpose of
having different statutes governing matured and children offenders.
Incarcerating the accused person below 18 years in police custody and
or in jail together with adult criminals or accused for the whole period
of trial and later imprisoning a child with hardcore criminals, I have
no slight doubt, defeats the purpose of legislating the Law of the Child.
May be it is a high time, to refer to some of the sections in the Law of

the Child Act with the purpose of comprehending the above assertion.
Section 4(1) of the Law of the Child Act defines a child to mean:-
“a person below the age of eighteen years shall be known as a child”

Section 97 (1) provides:
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“There shall be established a court to be known as the Juvenile Court
for purposes of hearing and determining child matters relating to
children”
In the same vein, Section 98 (3) provides:-
“The Juvenile Court, shall, wherever possible, sit in a different

building from the building ordinarily used for hearing cases by or
against adults”
The resident magistrate sitting at the Juvenile Court shall be assigned
to preside over as per section 97 (3) of the law. The issue is whether
the trial magistrate who tried the appellant was appointed to sit and
determine cases against children (aged 17 years)? Secondly, whether
the trial court was a juvenile court as per the above section? Thirdly,
whether the trial court had jurisdiction to try the case of rape involving
the two children, that is, the appellant and the victim? Finally, whether
the conviction and sentence of the trial court was proper in law? These
questions will be answered in the cause of determining this appeal to
its finality.
Since the prosecution defaulted to record the true age of the appellant
during trial, until the same is established and proved by this court on
appeal by having additional evidence, which proved that the appellant
was a child of 17 years by the time he committed the alleged offence. It
is a simple mathematics that if the appellant was born in year 2001,
then in year 2018 was 17 year old. Unfortunately or by design, the
prosecution recorded the age of the appellant as 19 years old.
According to the cited sections of the Law of the Child Act, the District
Court of Ruangwa had no jurisdiction to try the matter before it,
rather it ought to have directed the prosecution to institute that
criminal cases in the Juvenile Court. Since the prosecution abdicated
that noble role, the question is whether the conviction and sentence of
the accused/appellant was proper in law? I am consciously, convinced
that the trial court lacked jurisdiction to try cases involving children
as defined by the Law of the Child Act, otherwise, would defeat the
purpose of establishing Juvenile Courts in the country.
322
Apart from the Law of the Child, yet the Penal Code recognizes young
offenders as rightly provided for under section 131(2), which for easy
of reference same is quoted hereto:-
Section 131(2) “Notwithstanding the provisions of any law, where the

offence is committed by a boy who is of the age of eighteen years or
less, he shall:-
If a first offender, be sentenced to corporal punishment only;
If a second time offender, be sentenced to imprisonment for a term of

twelve months with corporal punishment;
If a third time and recidivist offender, he shall be sentenced to life

imprisonment pursuant to subsection (1).”
The trial court was not directed by the prosecution to this section, and
since the appellant was alleged to be a first offender, then at most
ought to have been sentenced to corporal punishment, but sentencing
him to minimum sentence of thirty (30) years, means the whole trial
was misconceived, contrary to applicable law.
In the circumstances, I find that the charge sheet did not disclose
proper information of the accused/appellant. Therefore, if the charge
sheet was incompetent for the reasons stated above and if the trial
court lacked jurisdiction to try the cases involving a child offender,
and since the appellant has been imprisoned for about six months
now, then what else do I need to do before the conclusion of this
appeal? Consciously, I find no reason to dwell on the submissions of
the learned counsels on plea of either equivocal or unequivocal, for
same won’t change the already arrived conclusion.
I would add that when dealing with young offenders, always prosecution
has extra duty to inform the court on the actual age of the accused.
The importance of proving age of the accused has become so important
after the advent of the law of child. Failure to ascertain the age of the
accused, result into serious injustice to the children.
323
Having so said and for the reasons so stated, this appeal has merit,
same is allowed. Subsequently, I proceed to quash the conviction and
set aside the sentence meted by the trial magistrate. Since the appellant
has been in jail for more than five months (from November, 2018 to
May 2019), that punishment is more than corporal punishment, hence
order an immediate release from prison unless lawfully held.
Order accordingly.
324
Hassan Mwambaga v. R, Criminal Appeal 47 of 2010, High Court of
Tanzania at Mbeya (unreported)
(Date of the decision: 21st May 2013)
JUDGMENT
CHOCHA, J.: The appellant Hassan Mwambaga was charged before

the District Court of Mbarali with the offence of rape contrary to
section 130 and 131 (2) (e) of the Penal Code, Cap. 16 R.E. 2002. Upon
conviction he was sentenced to 30 years imprisonment. Felt aggrieved
he appealed. The particulars were that on 16th of May 2008 around
12:00 hours at Mabanda area within Mbarali District and Mbeya
Region the appellant had carnal knowledge of Nerry d/o Msiani a girl
of 9 years old.
The appellant raised seven grounds:

1. That, Hon trial magistrate erred in convicting appellant relying
on the evidence of PW2 who never saw appellant caring or raping
PW1(victim).
2. That, Hon trial magistrate erred in law to believe that hymen
perforation was due to rape without considering that it can
be caused by some games such as “sarakasi” “kuruka kamba”
netball, long jump and high jump.
3. That, Hon trial magistrate erred in law to believe that PW1 saw
a steel bed at his room without considering that she might have
seen it outside while exposed to kill “kunquni”.
4. That, Hon trial magistrate erred in law admitting PF3 as exhibit
in the absence of a qualified doctor.
5. That, prosecution witnesses were from the same family. PW2
was a friend of PW1 and PW3 was a mother of PW1. Therefore,
their evidences were supposed to be corroborated by other
independent witnesses.
6. That, the defense of appellant was not considered during the
judgment.
325
7. That, the offence of rape against appellant was not proved by
the prosecution side beyond reasonable doubt.
During the hearing of this appeal, the appellant featured personally and
unrepresented. Being layman, he did not have very useful emphasis of
the grounds of appeal. He honestly stated how he sometimes supported
PW1 financially upon request. He believed he was convicted because
of that generosity.
In endeavour to emphasize ground no. 4 the appellant complained

about the improper admissibility of PF3 against the conditions set out
under section 240(3) of the Criminal Procedure Act. Let me quickly
say that the appellant’s observation is partly valid. It is a legal
requirement to inform the accused person whether or not he desires to
have the maker of a medical report called as a witness. That was not
done. The omission however does not invalidate PF3. It only weakens
its strength for want of interpretation hence corroboration from its
maker. The document is not safe to rely on.
The dispute in ground no. 2 is about what caused hymen perforation.

Having doubted PF3 we are left without direct evidence on how and
when did penetration happen.
The appellant’s complaint contained in ground no. 3 is that PW 1

might have seen the steel bed outside the house.
Mr. Stambuli disputed that. He said PW1’s evidence that she saw it in
the appellant’s room is reliable evidence. The question now is where
PW 1 saw the bed. The appellant’s subsequent admission on cross
examination that he has a steel bed which does not have springs, did
not affect PW1’s testimony that the bed was in his room.
I find it was after all an afterthought. This ground is also dismissed.
In 5th ground the appellant fears that prosecution witnesses may

concoct a story against him because they were from the same family.
As rightly submitted by Mr. Stambuli the evidence does not become
untrue or invalid merely because it is from the witnesses of the same
326
family. What is important is whether the said witnesses are credible.
See the cases of Jumu Choroko v. Republic, Criminal Appeal No. 23
of 1999 CAT DSM and Mahamudu Mbeta v. Republic, Mbeya HC
Criminal Appeal No. 154/ 78 (Unreported). The consensus in all cases
has been that there is no principle of law which says the evidence of
relatives only cannot support conviction.
In the appeal at hand it is after all not correct that all witnesses belong
to the same family. The evidence is that except for being PW1’s friend,
PW2 was a member of a completely different family. This ground is
also dismissed.
The appellant’s complaint vide 6th ground that his defense was not
considered by the trial magistrate in the judgment is not true.
Upon my examination of the record, I find the trial magistrate closely

evaluated the defence too.
All done the next question now is whether or not the left over evidence
may sustain the appellant’s conviction. That is another way of now
considering the appellant’s last ground. Therein he complains that
the case against him was not proved beyond reasonable doubt.
There is no doubt that the weak PF3 contained crucial information
from the medical expert. It turns out however that that was not the
only evidence implicating the appellant with the commission of the
offence which he stood charged. PW1’s evidence having been carefully
recorded, that is, complying among others, with the conditions set out
under section 127(2) of the Tanzania Evidence Act, is very strong. She
clearly stated that the appellant and herself had regular sexual ties.
According to PW1 which the appellant did not dispute, the eventful
day was not their first session. They had had sexual meetings twice
before. Earlier, PW 2 had informed the court how she witnessed the
appellant/ PW1 questionable friendship. Her evidence suggested that
something unusual was taking place between the two. So even without
PF3, there is still overwhelming evidence that the two were engaged
in sexual relations. Considering the age at the time of the commission
of the offence, (9 years), there is no language the act may be described
other than rape.
327
To that end, I am satisfied that prosecution proved the case against
the appellant beyond reasonable doubt. The appeal cannot succeed.
Except what has expressly been declared to be meritorious which is
without gain to the appellant, the remaining grounds are unfounded.
The appeal is dismissed. The sentence was after all a lenient one.
I have noted that the trial magistrate did not address the issue of
compensation as a must in terms of section 31 of the Penal Code. I
order the appellant to pay the victim (PW1) TShs. 500,000/= for
compensation.
It is so ordered.
328
Hussein Rashid v. R, Criminal Appeal 231 of 2018, High Court of
(Date of the decision: 29th October, 2018)
JUDGEMENT
MAGOIGA, J.: The appellant, HUSSEIN RASHID, was charged with
one count of rape contrary to section 130 (1) (2) and section 130 (1) of
the Penal Code [Cap. 16 R.E. 2002] at Temeke District Court upon
which, after full trial, the appellant was convicted and sentenced
to a statutory life imprisonment. Aggrieved by both conviction and
sentence, the appellant has come to this court by way of appeal
armed with 10 grounds of appeal faulting the trial court findings and
eventually asking this court to find merits in his appeal and set him
free.
The facts pertaining to this appeal as can be gathered from the charge
sheet are that: on 24th day of November, 2016, at Mbagala Saku area
within Temeke District in Dar es Salaam Region, the appellant had
unlawful carnal knowledge of a four-year’s old girl (name withheld),
. The rape, upon being detected, was as usual reported to Mbagala
Police Station for investigation and subsequently the appellant was
charged in the District Court of Temeke, hence this appeal, after
conviction and sentence.
The appellant duly filed the Memorandum of Appeal couched in the

following words: -
1. That the learned trial magistrate erred in law and fact by

convicting the appellant relied on un-procedural testimony of
PW 2c(victim) a child a child of tender age four (4) years’ old
while the trial court failed to conduct voire dire test to determine
that, whether PW2 possess sufficient intelligence to understand
the nature of an oath and the duty to speak truth at pages 12
line 1-25 contrary to procedural law.
329
convicting the appellant relied on the discredited and un-
affirmed testimony of PW.2 at pages 12-13.
3. That the learned trial magistrate in law and fact by convicting
the appellant relied on un-affirmed testimony of PW 3 a child
of tender age of four (4) years’ old at pages 15-16 while the
trial court failed to conduct a voire dire test to determine that,
whether PW3 possess sufficient intelligence to understand the
nature of an oath and the duty of spreading the truth contrary
to the procedure of law.
convicting the appellant relied on the discredited testimony
of PW1 (victim’s mother) at page 9 line 7-24 which is a sheer
liar while the trial court erroneously and technically noted the
evidence which was not cross examined by PW1 to the accused/
appellant at page 10 line 14-16, quoted Court: “accused admitted
that PW1 when she come into my house she found her two
children with me I was treating them like my children.”
convicting the appellant relied on the untenable evidence of
PW1 (mother of the victim) who stated her child PW2 to have
been raped on 24/11/2016 at page 8 lines 11-16 and when she
wanted to clean PW2 on her vagina parts she refused while
crying then Dotto (PW3) told her, Hussein (appellant) called
them in his room and took off his clothes and give his penis to
PW2’s vagina at page 9 line 15-29 and she went to the ten cell
leader, police and hospital on the same date 24/11/2016 while
PW4 (medical doctor) stated to have examined the child PW2
on 24//11/20016 and she found no hymen and no any discharges
from the victim’s vagina at page 18 line 15-23 and 19 last line.
convicting the appellant relied on Exh. P1 (PF3) at page 19
while failure to allow medical examination to the appellant for
the analysis of specimen/ samples, semen, spermatozoa, viscid
fluids, DNA tests and sexual transmission diseases, infectious
diseases for the comparison with those findings filed in PF3
330
(Exh.P1) by PW4 to determine that the appellant whether had
committed the charged offence or not contrary to the procedure
of law.
convicting the appellant relied on the discredited evidence of
PW 5 WP 5862 BILICUZA at pages 22-23 while the appellant
denied commit the charged offence before PW5 at pages 22 line
20-222.
8. That the learned magistrate erred in law and fact by convicting
the appellant while prosecution side failed to prove its charge
beyond any reasonable speck of doubts it failed to tender before
the trial court any purported document including birth certificate
or clinical card to prove that, whether the victim (PW2) was aged
four (4) year’s old or above contrary to law.
convicting the appellant while the prosecution side failed to
tender before the trial court the underparts of the victim (PW2)
at page 9 lines 20-22 contrary to the procedure of law.
convicting the appellant relied on the weakness of the defense
testimony of DW1 and Exh.D1 at pages 25-28 contrary to the
procedure of law as the burden of proof did never shift.
When this appeal was called for hearing the appellant appeared in
person and unrepresented and was ready for hearing. The respondent,
was represented by Ms. Clara Charwe, learned State Attorney, and
was ready for hearing. The appellant, when called to prosecute his
appeal, has nothing to say but just informed the court that the court to
look at his grounds as contained in the memorandum and set him free.
The appellant as well attached in his memorandum of appeal list of
authorities to be relied on to determine his appeal. These are Court of
Appeal cases of Sunday Juma v. Republic, Criminal Appeal No 406
of 2007, (CAT) DSM (unreported), Mohamed Abdallah Mkuwili v.
Republic, Criminal Appeal No 235 of 2012, (CAT) DSM, (Unreported),
Charles Mlande v. Republic, Criminal Appeal No 270 Of 2013
(CAT) DSM (unreported) and Christopher Kandidius @ Albinos v.
331
Republic, Criminal Appeal No. 394 of 2015, (CAT) DSM (unreported)
to support his appeal.
On the other hand, Ms. Charwe, for the Republic, informed the court
that she opposes this appeal and supports the conviction and sentence
meted out against the appellant. The learned State Attorney argued
grounds number 1, 2 and 3 together, which grounds boils down to the
failure of the trial magistrate to conduct voire dire, of which, according
to the learned Attorney, following the amendment of the law by Act 2
of 2016 which removed the legal requirement of the conducting voire
dire. What is required of now is the child’s promise to the court to
speak truth and not lies. The learned State Attorney admitted the
law was not followed, but was quick to point out that the omission
renders the evidence equal to unsworn evidence which can only be
acted upon after being corroborated by other evidence. According to
learned Attorney, the evidence of PW2 and PW3 was corroborated by
the evidence of PW1 and PW4. Ms. Charwe invited this court to agree
with her that these grounds are without useful merits and proceed to
dismiss them.
Next was ground number four in essence was discrediting the evidence
of PW1 that she is a liar and her testimony should not be considered
at all. The learned Attorney submitted that even the quoted part of
the question asked by the court if discarded or disregarded still there
is evidence to convict the appellant, therefore, urged the court find no
merits in this ground as well.
Next was ground number five which boils down to different on dates
which according to learned Attorney same is baseless as th record is
clear the date of incidence is on 24/11/2016 and not 34/11/206 which is
nonexistence. The learned Attorney prayed that this court finds this
ground with no merits at all.
On ground number six which boils down for the republic failure to
bring analyzed evidence from several diagnoses, which according to
the learned Attorney all the listed analysis is not requirement of law
to prove an offence of rape. According to the learned Attorney the
contents of exhibit P1 was enough to prove an offence charged. Hence,
he learned Attorney invited this court to find no merits on this ground.
332
Next was ground is number seven which the appellant discredit the
evidence of PW5 the investigator but at the same time the appellant
wants the only the part where he denied to commit the offence be
considered. The learned Attorney called this ground as baseless and
invited this court to find no merit in it.
On ground number eight the appellant is faulting the trial court

for failure to consider that the prosecution never proved the age of
the child by tendering the birth certificated to prove the age of the
victim. The learned Attorney in reply submitted that this ground is
baseless as the age was proved by the mother of the child - PW1. On
ground number nine which fault the failure by prosecution to tender
underparts of the victim, the learned State Attorney was brief and to
the point that this is not a legal requirement of the law to prove the
offence of rape. The learned Attorney in their totality dismissed them
as baseless in the circumstances of this appeal.
The last ground, number ten the appellant is faulting the trial
court that he was convicted based on his weak defense. The learned
Attorney dismissed this complaint by the appellant and argued that it
was not supported by any evidence on record. According to the learned
Attorney, the appellant was convicted because of the strong evidence of
the prosecution case. Conclusively, the learned Attorney invited this
court to dismiss this appeal for want of merits. The learned Attorney
cited no law nor case law to support her stance in both grounds.
The appellant had nothing to reply but simply said he leaves to the
court to decide. This was the end of the hearing of this appeal.
The task of this court after hearing the parties is to determine the
merits or otherwise of this appeal. In doing so, will determine them
one after the other in the way were filed and argued herein above.
Therefore, grounds numbers one, two, and three will be consolidated
for obvious reason that basically they boil down to the testimonies of
PW2 and PW3, children of tender years (4 years), who testified without
conducting a voire dire test and/or affirming them to speak the truth.
To fault the trial court’s findings on these grounds the appellant has
cited the cases of Sunday Juma v. Republic (supra) in which the
failure to conduct voire dire test according to law the evidence of the
333
tender years’ minor was discounted. In another case of Mohamed
Abdallah Mukuwili v. Republic, (supra) cited by the appellant, the
appeal was allowed because the charge was defective and the doctor
was not called so upon expunging the PF3 and the defecting charge
the appellant was set free. Yet another case cited by the appellant
is the case of Charles Mlande v.. Republic (supra) in which the
appellant was set free for defectiveness of the charge and the failure
to follow the procedure in receiving the evidence of a child of tender
age. The fourth case cited by the appellant is the case of Christopher
Kandidius @ Albino v. Republic (supra) in which failure of the trial
magistrate to correctly and properly address himself on section 127(1)
and (2) of the Evidence Act governing competency of a child of tender
years, the resulting testimony was discounted.
Let me point out that I have read the cited cases and the holding
thereon but all are of no help as of now and are distinguishable to our
case, save for the last case of Albinos, which may help in its reasoning
following the changes of the law by the Written Law (Miscellaneous
Amendment) (No.2) Act, No 4 of 2016, which now the position has
changed that voire dire is no longer requirement of the law. Also let
me point out that, each case is a new legal problem that require to be
decided on its own facts. The appellant in ground number one, two, and
three cries and faults the trial court for failure to conduct voire dire.
As already pointed out “voire dire” is no longer a legal requirement
in our laws, hence, these grounds are akin to fail but that will not be
the end of the ball to roll on these points. However, with the new law
in place that amended section127 of Tanzania Evidence Act, by the
above Act reads as follows and for easy of reference I beg to quote here
in extensor:
(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. (emphasis mine)
The learned State Attorney in her submission admitted that the trial
magistrate did not address herself to the provisions of the new one
because this offence was committed on 24/11/2016 after coming into
force of the new law. But according to her, the evidence of PW2 and
PW3 should not be discarded but be treated as unsworn evidence
334
which require corroboration to warrant conviction. The learned
Attorney ingeniously tried to convince the court that the evidence of
PW1 and that of PW4 corroborated the testimonies of PW2 and PW3
to prove the offence of rape. Admittedly, I must confess this issue was
not easy one to decide and it has tasked my mind a great deal. Going
by the new law and reading the law as it stands, the trial magistrate
was legally enjoined to record the promises of children of tender age to
tell the truth before recording their testimony. In the instant appeal,
what happened I leave the record to speak itself as follows: -
“Court: the witness is a minor of 4 years who does not understand the
meaning of the oath. The witness is going to give evidence without
oath.”
The trial court record is clear as day light that the trial magistrate
was dealing with truly very younger witnesses aged 4 years’ old but
the way she dealt with PW2 and PW3 before their testimony were
recorded is not what is required of the law. I said earlier that the
cited cases will not assist as were decided before the amendment but
still there are some principal still maintained within the new law. For
instance, in the last case of Albinos v. Republic (supra) the charge was
proper and everything was okay as in the instant appeal but only that
the child of tender age testified without the trial magistrate following
and addressing to the mandatory requirement of section 127 of TEA.
In that case the evidence was discarded. The question that I have asked
myself is, what is the effect of this omission in appeal? I have read the
above new provision of the law with a very serious legal eye and mind
regarding this issue and am of the considered opinion that still under
the new law failure by the trial magistrate to ask the child and write
the promise as envisaged in the law is fatal to the prosecution case. My
reasons for my stance on this point are not far to fetch. One, the word
used to cast the duty of the court write the promise is “shall before
giving evidence promise to tell the truth to the court and not to tell any
lie” connoting mandatory duty to be performed by the court and record
that promise. It is, therefore, my considered opinion that failure to get
the promise and have it recorded rendered the evidential value of such
evidence equal to no evidence at all. Two, the purpose and intention
of the parliament or legislature was not to do away with the witnesses
335
of tender years to tell the truth but it casted them to promise and that
promise is equal to sworn evidence. Three, if the parliament intended
otherwise it would not have casted a duty to a child of tender age to
promise the court and to my considered opinion that promise must
be reflected in the record of the court that the child of tender years
has promised to tell the truth. Therefore, in the totality of the above,
and in the absence of the promise I am constrained to hold that this
ground has merits and the argument by the learned State Attorney
that the amendment of section 127 of the Tanzania Evidence Act [Cap.
6 R.E. 2002] that has no effect is not tenable.
However, even if for the sake of argument, I tend to agree with her
but still the testimony of PW1 materially contradicts the young girls’
testimonies. According to PW1’s testimony, which basically is hearsay,
she said she was told that the appellant took his “dudu” and gave PW2
to suck but none of the girls testified so. Another contradiction is that
the appellant removed PW2 clothes and did rape her. The testimony of
PW2 and that of PW3 are silent on all these vital elements of how the
offence was committed. The question is who dressed up PW2 after rape
if at all what PW3 told the mother is truth? No answer. Also worth to
note is that PW2 and PW3 testimonies are evidence given without a
mandatory promise to tell the truth and worse still the evidence used
to convict the appellant. In the circumstance I had no option but to
discard the evidence of PW3 from the court record.
The contradiction as seen above takes me to discard as well the

evidence of PW2 from court record for failure to be taken according to
the dictate of the law. The evidence of PW1 is more or less a hearsay
which does not advance the case for republic. For purpose of avoiding
this scenario 1 advise and direct magistrates to read the law and
understand the requirement of the law rather than taking things for
granted. The trial magistrate with due respect to her, it seems she
never address her mind fully to the requirement of the new law before
a tender age witness is allowed to testify. The issue now is not to take
oath or affirmation but just let the child promise and that promise
must be reflected in the court record, period!
336
To this point, the only evidence we remain with in this appeal is that
of oral testimony of PW4- the doctor and exhibit P-PF3 in which she
established that the victim was raped. But I have had time to read the
content of exhibit P1 but it leaves a lot to be desired. According to the
testimony of PW4 she attended the victim on the very day PW2 was
raped. If I were to believe the testimony of PW4 there was a slightly
or penetration that made the vagina wide open but to my dismay
no blood was see, from a girl of 4 years! No, hymen of 4 years’ girl
be broken a mother and a doctor failed to see even a blood. Even no
single drop of the blood was traced on the very day. This has made
me think twice along with the old saying that it better to acquit 99
murderers than convicting one innocent person for want of evidence.
Even a slight penetration to PW2 4 years old could have a serious
injury to PW2 and am sure she could not be able to walk properly.
But more so, PF3- exhibit P1 according to the testimony of PW4 filled
the result of examination on the very day that is on 24/11/2016, but
looking at it, same was signed after four days later on 28/11/2016. Now
the exact question is, when was it examined and filed on 24/11/2016
or 28/11/2016? PW4 in her testimony did not clarify this to clear the
air of this doubt. In the absence of clear explanation of this very vital
evidence it is unsafe to mount conviction on such glaring doubts. All
these cumulative doubts, it is trite law in our jurisdiction that, are to
be decide in favour of the appellant.
It is on the totality of the above, I find that the trial magistrate

misapprehended the evidence on record of PW1, PW2, PW3 and
PW4 altogether with the contents of exhibit P1 and as such arrived
at wrong conclusion in her analysis. My own conclusion after re-
evaluation of the evidence does not conclude that the appellant raped
PW2. The testimony of PW4 is wanting and the contents of Exhibit P1
are doubtful. He failed to explain beyond doubt how he conducted the
examination that lead to say that the hymen of PW2 is not intact or is
no complete there. Another reason am saying that the trial magistrate
misapprehended the evidence on record is his conclusion on exhibit
D1. According to exhibit D1 there is nowhere the appellant confessed
to have sex with PW2. In exhibit D1 the appellant is totally denying
raping, but how that advance prosecution case is uncalled for under
that exhibit.
337
That said and done and for the reasons given above, I decline to agree
with the learned counsel who took lightly grounds numbers one, two
and three of the Memorandum of Appeal in the light of new law and its
requirement, instead I find that the said grounds are merited and an
appeal can succeed on those ground alone. In the absence of evidence
of PW2, PW3 and PW4, which are full of doubts, the case for thev
prosecution has to crumble in the circumstances. The prosecution did
not prove their case to the standard require in criminal case. Without
much ado and without going into other grounds which becomes
redundant I hereby allow this appeal by quashing the proceedings of
the trial court, set aside conviction and sentence meted out against the
appellant. I further order his immediate release from prison unless
held for another lawful cause.
It is so ordered.
338
Issa Salum Nambaluka v. R, (Criminal Appeal No.272 of 2018)
[2020] TZCA 10; (21 February 2020)
(Mwarija, Kwariko and Mwandambo, JJA)
JUDGMENT
MWARIJA. J.A.: In the District Court of Lindi, the appellant, Issa

Salum Nambaluka was charged with and convicted of the offence of
incest by male contrary to section 158(1) (a) of the Penal Code [Cap.
16 R.E. 2002] (the Penal Code). It was alleged that on diverse dates
between the months of November and December 2016, he had a carnal
knowledge of “R.N.” a girl aged 14 years (hereinafter “the child”) while
having knowledge that she is his daughter.
Initially, the charge sheet contained two counts of incest by male

as the 1st count and rape contrary to s. 130(2) (e) of the Penal Code
as the 2nd count. However, on 31/1/2017, before the appellant was
arraigned, the 2nd count was dropped and the appellant was thus
called upon to plead only to the 1st count. He denied the charge and
as a result, the case proceeded to a full trial. At the conclusion of the
trial, the trial court found the appellant guilty. He was convicted and
sentenced to thirty years imprisonment. He was also ordered to pay a
compensation of TZS 500,000.00 to the child.
The facts leading to the arraignment and the ultimate

imprisonment of the appellant are not complicated. The appellant is a
biological father of the child who was, at the material time, a standard
VI pupil at Wailes Primary School in Lindi Municipality. She was
living with the appellant and her step mother. This was because
her biological mother, Fatuma Hamisi (PW3) and the appellant had
divorced. Sometime in January 2017, the child showed reluctance in
continuing to stay with her father. She approached her uncle, one
Mussa Hassan Nampeleche (PW7) and asked him to provide her with
her mother’s telephone number. Having got the telephone number,
the child called and asked PW3 to arrange for the latter’s transfer
to another school in Mtwara. The child’s intention was to leave her
father’s residence and shift to Mtwara to stay with her mother.
339
Incidentally, the appellant learnt about the arrangement which
was being made by the child’s mother through the assistance of PW7
and in turn, reacted by halting the process on account that the child’s
school administration informed him that the transfer of standard VI
and VII pupils was prohibited. Meanwhile, the child became sick and
failed` to attend school. In the midst of these incidences, information
reached the police that the child might have been subjected to sexual
assaults by her father thus the cause for her intention to leave her
father’s residence and join her mother at Mtwara. On that information,
the police conducted investigations which resulted into the levelling of
the charge against the appellant as shown above.
At the trial, apart from the evidence of PW3 and PW7, the
prosecution relied on the evidence of five other witnesses, including
the child who testified as PW1. In her evidence which she gave on
affirmation, she narrated how the appellant had carnal knowledge
of heron three different occasions. She told the trial court that the
appellant used to molest her when her step mother was away from
home. Another witness, ASP Vicent (PW4), who was at the material
time the OC-CID, Lindi Municipality, testified that after the police
had received information on the alleged conduct of the appellant,
he caused his arrest and directed that PW1 be taken to hospital for
medical examination. On25/1/2017, WP 9203 D/C Kibibi (PW5) and
WP 8222 D/C Sakina (PW6) took PW1 to Sokoine Hospital, Lindi
for that purpose. At the hospital, she was medically examined by
Mashaka Alinis (PW2), a Clinical Officer. He found that her hymen
had been perforated. As to the object used to perforate her hymen,
PW2 remarked on the PF.3 (Exhibit P.l) that she was penetrated by a
blunt object.
In his defence, the appellant did not deny that PW1 is his
biological daughter. He however denied the allegation that, he had a
carnal knowledge of her. According to his evidence, on 25/1/2017 he
was arrested at his residence and taken to the police station where he
was informed of the offence with which he was later charged.
In convicting the appellant, the trial court relied solely on the

testimony of PW1 whose evidence the trial Magistrate found to be
340
credible and reliable. The learned trial Resident Magistrate stated as
follows in the judgment at page 48 of the record of appeal:
“As far as the evidence in record as already summarized above, seems

to me only PW1 (the victim) has adduced evidence of proving sexual
intercourse inflicted to her by her own father the accused. Other
witnesses only gave hearsay evidence as to what had been told by
PW1....”
The trial magistrate was of the view that, although the medical
examination report (Exhibit P.l) tendered by PW2 was the only
evidence which could corroborate the evidence of PW1, that evidence
is doubtful, given the lapse of time between the date on which the
offence was allegedly committed and the date of conducting medical
examination on. That notwithstanding, the trial magistrate relied on
inter-alia, the case of Selemani Makumba v. R, [2006] TLR 379 and
after having warned himself in terms of s. 127(6) of the Evidence Act
[Cap. 6 R.E. 2002] as amended by the Written Laws (Miscellaneous
Amendments) (No. 2) Act, No. 4 of 2016 (hereinafter the Evidence
Act), he was satisfied that the evidence of PW1 had proved the case
against the appellant beyond reasonable doubt.
The appellant was aggrieved by the decision of the trial court and
thus appealed to the High Court. His appeal was unsuccessful. The
learned first appellate Judge dismissed the appeal rating the trial
court’s decision as “one of the best judgments from that court.” He
agreed with the learned trial Resident Magistrate that, although
the prosecution case depended wholly on the evidence of PW1, her
evidence was 5 watertight. His re-evaluation of that evidence led him
to conclude that it was “a strong evidence against the appellant/’ He
thus dismissed the appeal.
341
Aggrieved further by the decision of the High Court, the appellant
preferred this second appeal which is predicated on the following
three grounds:
1, That both courts erred in law by admitting exhibit P.l

as evidence un-procedurally in contravention of section 210(3) of
Criminal Procedure Act (CAP 20 R.E 2002). The trial magistrate
failed to address the appellant on his rights under section 210
(3) before its admission (PI).
- The alleged exhibit was not read in court prior to its
admission which led the appellant not to object it because
the appellant never knew the contents of the document.
- Further the alleged document (Exhibit PI) was not cleared
before tendering. The document was never identified by PW2
(before being tendered).
2. That the trial court as well as the High Court Judge erred in law
by failing to comply with mandatory provisions of the Tanzania
Evidence Act section 6127(2)(5) and (7) as amended by Written
Laws(Miscellaneous Amendments) No. 2 Act of 2016.Since the
alleged victim was child of tender age (as per sub-section 5 of
section 127 of the Act) both courts were supposed to ensure that
the trial court was supposed to comply with sub-section 2 of section
127 before receiving evidence of PW lf the alleged victim.
Therefore the evidence of PW1 was to be expunged.
3. That the trial magistrate as well as the High Court Judge erred
in law by failing to disclose that the appellant was unfairly tried.
The appellant failed to enter the correct defence due to the fact
he didn’t grasp the charge which he was to enter defence against.
During trial\ the prosecution side dropped 2nd count the trial
magistrate dropped the 1st count of rape, to this juncture the
defence (the appellant) could not have known the count that
the trial magistrate had amended in order to enter the correct
defence.”
342
At the hearing of the appeal, the appellant appeared in person,
unrepresented whereas the respondent Republic was represented by
Mr. Joseph Mauggo, learned Senior State Attorney.
When the appellant was called upon to argue his grounds of

appeal, he decided to hear first, the respondent’s reply to the grounds
of appeal with the option of making a rejoinder if the need to do so
would arise. In his submission, Mr. Mauggo began by expressing
the respondent’s stance that it was supporting the appeal. In his
brief submission, the learned Senior State Attorney agreed with the
findings of the two courts below, that the appellant’s conviction was
solely based on the evidence of PW1. However, he conceded to the
appellant’s contention in the 2nd ground of appeal that the evidence of
PW1 was taken in contravention of s. 127 (2) of the Evidence Act. For
that reason, he argued, the principle stated in the case of Seleman
Makumba (supra) is not applicable given the circumstances of the
present case. In that case which was relied upon by the trial court,
the Court laid down the following principle on the evidence which is
required to prove asexual offence:
“True evidence of rape has to come from the victim if

an adult, that there was penetration and no consent
and in case of any other woman where consent is
irrelevant that there was penetration.”
The learned Senior State Attorney submitted that, in the particular
circumstances of this case where the recording of the only evidence
which was relied upon to found the appellant’s conviction, did not
comply with the requirements of the law, that evidence should not
have been acted upon to convict the appellant. He therefore, submitted
that the appeal may be allowed because the appellant’s conviction was
founded on invalid evidence.
The appellant welcomed the stance taken by the learned Senior State
Attorney to support the appeal. He urged us to allow his appeal and
order his release from prison.
343
Having heard the learned Senior State Attorney and the appellant,
it is plain that the determination of this appeal lies on the validity
or otherwise of the evidence of PW1. It is an undisputable fact that
at the time of giving her evidence, PW1 was a child of tender age.
Section 127(4) of the Evidence Act defines who a child of tender age is.
It states as follows:
“For the purpose of sub-section (2) and (3), the expression ‘child of tender
age’ means a child whose apparent age is not more than fourteen years”
According to the record, at the time of giving her evidence, PW1 was
aged 14 years thus fitting the definition of a child of tender age. Her
age was not more than 14 years. The procedure for taking the evidence
of a child of tender age is provided for under s. 127(2) of the Evidence
Act which states that:
“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 lies.”
From the plain meaning of the provisions of sub-section (2) of s. 127
of the Evidence Act which has been reproduced above, a child of tender
age may give evidence after taking oath or making affirmation or
without oath or affirmation. This is because the section is couched in
permissive terms as regards the manner in which a child witness may
give evidence. In the situation where a child witness is to give evidence
without oath or affirmation, he or she must make a promise to tell the
truth and undertake not to tell lies. Section 127 of the Evidence Act is
however, silent on the method of determining whether such child may
be required to give evidence on oath or affirmation or not.
It is for this reason that in the case of Geoffrey Wilson v.

Republic, Criminal Appeal No. 168 of 2018 (unreported), we stated
that, where a witness is a child of tender age, a trial court should
at most, ask few pertinent questions so as to determine whether or
not the child witness understands the nature of oath. If he replies
344
in the affirmative then he or she can proceed to give evidence on
oath or affirmation depending on the religion professed by such child
witness. If such child does not understand the nature of oath, he or she
should, before giving evidence, be required to promise to tell the truth
and not to tell lies. In the above cited case, we observed as follows:
“ We think, the trial magistrate or judge can ask the witness o f a tender
age such simplified questions/ which may not be exhaustive depending
on the circumstances of the case as follows:
1. The age of the child.

2. The religion which the child professes and whether he/she
understands the nature of oath.
3. Whether or not the child promises to tell the truth and not to tell
lies.”
In another case, Hamisi Issa v. The Republic, Criminal Appeal
No. 274 of 2018 (unreported), the Court approved the procedure which
the trial court followed before the witness of tender age gave her
evidence in accordance with s. 127(2) of the Evidence Act. The trial
magistrate started by asking the child witness whether or not she
understood the nature of oath. Having replied to the question in the
negative, the child’s evidence was taken upon her promise that she
would tell the truth and upon her undertaking that she would not tell
lies.
In the case at hand, PW1 gave her evidence on affirmation. The

record does not reflect that she understood the nature of oath. As
stated above, under the current position of the law, if the child witness
does not understand the nature of oath, she or he can still give evidence
without taking oath or making an affirmation but must promise to tell
the truth and not to tell lies. In the circumstances therefore, we agree
with both the appellant and the learned Senior State Attorney that in
this case, the procedure used to take PWl’s evidence contravened the
provisions of s. 127 (2) of the Evidence Act. For these reasons, we allow
the 2nd ground of appeal. As a result, the evidence of PW1 which was
received contrary to the provisions of s. 127(2) of the Evidence Act is
hereby expunged from the record.
345
Since the appellant’s conviction was solely based on the evidence of
PW1, there is no gainsaying that the effect of expunging that evidence
is12 to render the prosecution case lack a leg to stand on. Obviously,
this finding suffices to dispose of the appeal. In the event, the appeal
is hereby allowed. The appellant’s conviction is quashed and the
sentence is set aside. We consequently order his immediate release
from prison unless he is otherwise lawfully held.
346
Jacob Mayani v. R, (Criminal Appeal .558 of 2016) [2020] TZCA 1744;
(24 August 2020)
(Mwarija, Mwambegele, Kerefu, J.J.A.)
JUDGMENT
KEREFU, J.A.: This is a second appeal by JACOB MAYANI,
the appellant, who was before the District Court of Shinyanga at
Shinyanga, charged with and convicted of rape contrary to sections
130(1)(2)(e) and 131(3) of the Penal Code, [Cap.16 R.E. 2002] (the Code).
He was then sentenced to life imprisonment with ten (10) strokes of
the cane and ordered to pay a compensation of TZS 300,000.00. It is
noteworthy that the alleged victim was a child aged seven (7) years
old and in order to disguise her identity, we shall henceforth refer to
her by the pseudonyms of ‘XYZ’ or simply ‘PW1’.
It was alleged that on 25th day of April, 2013 at Mwasele area

within the Shinyanga Municipality in Shinyanga Region the appellant
had carnal knowledge of XYZ a girl of seven (7) years of age.
In a nutshell, the prosecution case as obtained from the record

of the appeal indicate that, on 25th April,2013 Lucia Marcel (PW5) the
mother of PW1 left home early in the morning and went to shamba to
harvest rice. She left PW1 and her young brother at home playing.
In her unsworn evidence, PW1 testified that, at about noon, the
appellant, a street hawker, who she described as ‘Chinga’ came to
their home with his bicycle carrying cosmetics/decorations, convinced
PW1 to accompany him to a certain lady who wanted to buy an under
garment commonly call skintight. PW1 agreed, but instead of going to
where she was promised, they stopped at the shamba owned by one Dr.
Kunze. The appellant gave PW1 a skintight and started to decorate
her nails. A moments later, he undressed her starting with her skirt
and then the pants. He then unzipped his trouser and raped her.
Thereafter, PW1 managed to escape and ran to a nearby house which
belonged to Skolastica Shabani (PW2). PW1 narrated the incident
to PW2 and told her that Chinga had raped her. PW2 accompanied
PW1 to the scene of crime where they found the appellant leaving the
347
shamba. PW2 confronted the appellant, seized his bicycle and raised
an alarm, as a result a number of villagers responded. According to her
evidence, PW2 sent her daughter to call Tabu Shija (PW3) a member
of the village council. After being informed of the incident, PW3
called Neema Seseja (PW4) the street chairperson. PW4 testified that
when she arrived, she interrogated the appellant and directed that
the victim be taken to the nearest dispensary. PW4 testified further
that she called James Petro (PW5) the Militia Commander who came
and joined them. PW4 said, when she was in the process to call the
police, the appellant asked for apology. The record indicates what he
said in Kiswahili, thus “Mama naomba unisamehe tu kwa kuwa huyu
mtoto nilikuwa bado hata sijamtoboa macho.” Literary translated in
English to mean, ‘mother please forgive me as I was even yet to pierce
the eyes of this child’.
PW4 testified further that, she asked the appellant if he had raped
other girls. In response, the appellant said, he had raped other three
girls and if he could have TZs 5,000.00 he would have given them to
let him free. Again, the record indicated that the appellant stated in
Kiswahili that, “Nilishawahi kubaka wengine watatu ambao ni watoto.
Tena kama ningekuwa na shilingi elfu tano ningewapa ili mnisamehe
tu. Huyo alikuwa ni shetani. Jamani naombeni tu mnisamehe
kwani nikifikishwa Mahakamani nitafungwa miaka thelathini.” The
appellant’s words can be literary translated in English to mean, “I
have raped three other children. If I could have five thousand shillings,
I would have given it to you to forgive me. I was tempted by the devil,
please forgive me, because if you take me to court, I will be imprisoned
to thirty years.”
PW4 went on to state that she declined to accept the appellant’s

apology and instead she called the police officer who came and arrested
the appellant and took PW1 to hospital for medical examination after
they had obtained a PF3. At the hospital, PW1 was examined by Dr.
Fredrick Malwilo Mlekwa (PW7). PW6 among others, testified that,
on the following day after the incident, that is on 26th April,2013, she
saw PW1 walking with some difficulties.
348
In his defence, the appellant did not agree or deny the charge levelled
against him. He basically gave a narration on how he was arrested.
He challenged the evidence of PW1 that she gave untrue story and
he also said, PW2, PW3, PW4, PW5 and PW6 gave hearsay evidence
because they did not witness the incident.
After a full trial, the trial court accepted the version of the prosecution’s
case and the appellant was found guilty, convicted and sentenced as
indicated above.
Aggrieved, the appellant unsuccessfully appealed to the High Court

where the trial court’s conviction and sentence were upheld. Still
aggrieved, the appellant has preferred the present appeal. In the
Memorandum of Appeal, the appellant raised seven (7) grounds of
appeal which can be conveniently paraphrased as follows: -
1. That, the trial court and the first appellate court erred in law
to admit the appellant’s cautioned statement and relied upon it
to convict the appellant while it was not supported by an extra
judicial statement and recorded out of the prescribed time;
2. That, the unsworn testimony of PW1 was wrongly relied upon
as it was not corroborated, hence unreliable and incapable of
sustaining the appellant’s conviction;
3. That the testimonies of PW2, PW3, PW4, PW5 and PW6 were
wrongly relied upon as were hearsay thus cannot corroborate
the testimony of PW1;
4. That, there was no valid confession of guilt by the appellant as
the same was not recorded anywhere thus hearsay evidence;
5. That, on the material date the victim claimed to be given a
skintight by the appellant but the same was not tendered before
the court as an exhibit;
6. That, the prosecution’s evidence relied upon by the trial court did
not sufficiently establish positive identification of the appellant;
and
7. The Exhibit P1 (PF3) and the testimony of PW7 were
contradictory, hence unreliable.
349
At the hearing of the appeal, the appellant appeared in person without
legal representation through a video facility linked to Shinyanga
District Prison. The respondent Republic had the services of Mr.
Nassoro Katuga and Ms. Salome Mbughuni, both learned Senior State
Attorneys assisted by Mr. Nestory Mwenda, learned State Attorney.
When given an opportunity to amplify on his grounds of appeal, the

appellant adopted his grounds of appeal and preferred to let the
learned Senior State Attorney to respond first but he reserved his
right to rejoin if need to do so would arise. We respected his choice
and we thus invited Mr. Katuga to commence his submission.
On taking the stage, Mr. Katuga from the outset, declared their
stance that they are opposing the appeal. He then proposed to begin
with the first, fourth, fifth, sixth and seventh grounds of appeal. The
second and third grounds were argued jointly by Ms. Mbughuni.
In response to the first ground of appeal, Mr. Katuga, though conceded

that the cautioned statement (ExhP3) by the appellant was recorded
out of the prescribed time he argued that there were exceptional
circumstances and plausible reasons which justified the delay as
provided under section 50 (2) of the Criminal Procedure Act [Cap. 20
R.E. 2019] (the CPA). To elaborate on this point, he referred us to
pages 54 to 55 of the record of appeal and argued that the appellant
had other criminal cases related to rape and piercing of the eyes of the
victims which cases were also being investigated. Thus, he said, it was
impracticable for the appellant’s cautioned statement to be recorded
within four hours. To bolster his argument, he referred us to the cases
of The DPP v. James Msumule @ Jembe and 4 Others, Criminal
Appeal No.397 of 2018 and Chacha Jeremiah Murimi and 3 Others v.
Republic, Criminal Appeal No. 551 of 2015 (both unreported).
Upon being probed by the Court as to whether or otherwise the

Exhibit P3 was properly tendered an admitted in court, Mr. Katuga
conceded that the record shows that the same was un-procedurally
tendered for admission because it was tendered by the prosecutor and
not the witness. He however, argued that the said irregularity was
not fatal and the appellant was not prejudiced.
350
Arguing on the fourth ground related to the appellant’s oral confession,
Mr. Katuga referred us to section 3 (1) of the Evidence Act [Cap. 6 R.E.
2019] which defines confession as words or conduct or combination of
both. He thus disputed the appellant’s claim to have no merit because
the law does not prescribe that a confession should be recorded. He
argued that the appellant made an oral confession to PW4 in the
presence of PW2, PW3 and PW5. That, during the trial when PW2 and
PW4 were testifying on the said confession the appellant did not cross
examine them on that aspect. For this proposition, Mr. Katuga cited
and supplied to us the cases of Gozbert Henerico v. Republic, Criminal
Appeal No. 114 of 2015 and Posolo Wilson @ Mwalyego v. Republic,
Criminal Appeal No.613 of 2015 (both unreported).
As regards the fifth and sixth grounds of the appeal, Mr. Katuga
referred us to the appellant’s grounds of appeal at the High Court
as reflected in the Petition of Appeal found at page 105 of the record
of appeal and contended that the said grounds were not part of the
grounds canvassed and determined by the High Court on first appeal.
On that account, he implored us to disregard them.
Responding to the seventh ground, Mr. Katuga argued that Exh

P1 (PF3) has no evidential value because after its admission it was not
read over in court for the appellant to understand its contents. He
thus urged us to expunge it from the record, but was quick to submit
that, even if it is expunged, the testimony of PW7 is still sufficient to
corroborate the evidence of PW1 as it explained in detail what was
contained in the PF3. He relied on the case of Issa Hassan Uki v.
Republic, Criminal Appeal No. 129 of 2017 (unreported).
In responding to the second and third grounds of appeal, Ms.

Mbughuni contended that the two grounds of appeal are baseless
because, PW1’s testimony was taken after a voire dire test was
conducted and found not to understand the nature of oath but
knows the duty of speaking the truth. Ms. Mbughuni argued that
PW1 clearly testified how she was abused and managed to escape to
PW2’s house where she told PW2 that the appellant had raped her.
Ms. Mbughuni forcefully argued that, the fact that PW1 mentioned
the appellant immediately after the incident proved that she was a
351
truthful and credible witness. She argued further that, the testimony
of PW1 was corroborated by PW2, PW3, PW4 and PW5 who were in
the team of people who arrested the appellant thus they did not give
a hearsay testimony. To bolster her proposition, she cited the case of
Hassan Kamunyu v. Republic, Criminal Appeal No. 277 of 2016
(unreported). Based on their submissions, Ms. Mbughuni prayed for
the entire appeal to be dismissed for lack of merit.
In rejoinder submission, the appellant did not have much to

say other than praying the Court to consider his grounds of appeal,
allow the appeal and set him free as he said, he had been in prison for
eight (8) years.
On our part, having carefully considered the grounds of appeal, the
submissions made by the parties and examined the record before us,
we wish to start by reiterating a settled principle that, this being a
second appeal, the Court should rarely interfere with the concurrent
findings of the lower courts on the facts unless there has been a
misapprehension of evidence occasioning a miscarriage of justice or
violation of a principle of law or procedure. See: Director of Public
Prosecutions v. Jaffari Mfaume Kawawa, [1981] TLR 149; Mussa
Mwaikunda v. The Republic, [2006] TLR 387 and Wankuru
Mwita v. Republic, Criminal Appeal No.2019 of 2012(unreported).
Specifically, in Wankuru Mwita (supra) the Court stated that:-
“…. The law is well-settled that on second appeal, the court will not
readily disturb concurrent findings of facts by the trial court and
first appellate court unless it can be shown that they are perverse,
demonstrable wrong or clearly unreasonable or are a result of a
complete misapprehension of the substance, nature or non-direction
on the evidence; a violation of some principle of law or procedure or
have occasioned a miscarriage of justice.”
We shall be guided by the above principle in disposing this appeal.
Moving to the merit of the appeal, we wish to begin with the point
raised by Mr. Katuga pertaining to the fifth and sixth grounds of
appeal urging us to disregard them because they are new and were
not canvassed by the first appellate court. Having examined the said
grounds, we are in agreement with Mr. Katuga that the said grounds
352
are new and should not have been raised at this stage. There is a long
list of authorities on this point, some of them include, Abdul Athuman
v. Republic [2004] TLR 151, Sadick Marwa Kisase v. Republic,
Criminal Appeal No. 83 of 2012 and Yusuph Masalu @ Jiduvi v.
Republic, Criminal Appeal No. 163 of 2017 (both unreported). In
Sadick Marwa Kisase (supra), the Court emphasized that: -
“The Court has repeatedly held that matters not raised in the
first appeal cannot be raised in a second appellate court.”
In this regard, this Court will not entertain the fifth and sixth grounds
of appeal for lack of jurisdiction as per the dictates of the provisions
of section 6(2) of the Appellate Jurisdiction Act, [Cap. 141 R.E. 2019]
which specifically empowers this Court to deal with appeals from the
High Court. See also George Maili Kemboge v. Republic, Criminal
Appeal No. 327 of 2013 and Abedi Mponzi v. Republic, Criminal
Appeal No.476 of 2016 (both unreported). Therefore, we will only
consider the first, second, third, fourth and seventh grounds of appeal.
The first ground is straightforward and should not detain us.

Mr. Katuga had since conceded that as per the record of the appeal,
Exh P3 was un-procedurally tendered for admission because it was
tendered by the prosecutor and not the witness. We are mindful of the
submission by Mr. Katuga that the said irregularity was not fatal. With
respect, we are unable to agree with his position because a person who
is competent to tender an exhibit is a witness to whom the document
was in his possession, custody or authored it or had knowledge of
its existence. In other words, it is the witness who had dealt with it
in one way or another. Therefore, since ExhP3 was tendered by an
incompetent witness the same deserves to be expunged from the record
as we hereby do. Having done so, the need of considering the first
ground of appeal and the point raised by the Mr. Katuga concerning
exception as regards the time of recording such an exhibit does not
arise.
As regards the second and third grounds, it is clear that the

appellant’s complaint is no the testimonies of PW1, PW2, PW3, PW4,
PW5 and PW6 that they were not credible witnesses. To ascertain
353
this complaint, we have revisited the testimonies of these witnesses
and found that, PW1, the victim being a child of tender age, unsworn
evidence after the trial court had properly conducted a voire dire test
in terms of sections 127 (2) of the Evidence Act before being amended
by the Written Law (Miscellaneous Amendments) (No.2) Act, 2016.
The court found that PW1 did not understand the nature of oath but
she knew the duty of speaking the truth. (see pages 12-14 of the record
of appeal). Thus, she properly testified without oath.
As for corroboration, we wish to emphasize that, it is settled law that

corroboration is not mandatory in cases involving sexual offences, so
long as the trial court is satisfied that the witness is telling nothing
but the truth. His is provided under section 127 (7) of the Evidence Act
which states that:-
“Notwithstanding the preceding provisions of this section, where in

criminal proceedings involving sexual offence the only independent
the credibility of the evidence of the child of tender years or as the case
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 a tender years or the victim of sexual offence is telling
nothing but the truth.”
See also the cases of Kimbute Otiniel v. Republic, Criminal Appeal
No. 300 of 2011 and Yusufu Mgendi v. Republic, Criminal Appeal
No. 148 of 2017 (both unreported).
Therefore, pursuant to section 127 (7) and as correctly submitted by

Ms. Mbughuni, in cases involving sexual offences the best evidence is
that of the victim. The sole evidence of the victim can be safely relied
upon by the court to sustain a conviction.
354
In the instant appeal, both the trial and first appellate courts properly
applied the above principle and found PW1 to be a reliable, credible
and truthful witness. For instance, the trial court at pages 98-99 of
the record held that:-
“I am of the firm view that PW1 proved penetration of the accused’s

male sexual organ into her female sexual organ. She also proved that
the accused procured sexual intercourse with her without her consent.
The accused lured PW1 to give her a skintight and decorated on her
nails with coloured cosmetics (rangi za kupaka kucha). Though there
are ample evidence to corroborate PW1’s testimonies, but I am of the
opinion that the evidence of PW1 alone suffices to convince this court
to rely on as the same I find it safe to bank thereon to convict the
accused person without, in my opinion, even requiring corroboration.”
In addition, and as argued by Ms. Mbughuni that PW1 was a

credible witness as she mentioned the appellant immediately after
the incident. On this point, we wish to refer to our earlier decision in
Marwa Wangiti Mwita & Another v. Republic [2002] T.L.R 39,
where we observed that:-
“The ability of a witness to name a suspect at the earliest opportunity

is an important assurance of his reliability, in the same way as
unexplained delay or complete failure to do so should put a prudent
court to enquiry.”
In any case, the testimony of PW1 was well corroborated by the
testimony of PW7 who medically examined her private parts and found
that there was an evidence of phallus penetration and torn hymen.
PW6 also testified that, on the following day, after the incident, she
noted that PW1 was walking with difficulties. It is also on record that
testimonies of PW2, PW3, PW4 and PW5 gave a detailed account on
how they arrested the appellant at the scene of crime after he confessed
and asked for an apology. All these witnesses, in our view, proved the
prosecution case and thus, the second and third grounds of appeal are
devoid of merit.
355
As regards the fourth ground of appeal, upon our perusal of section
3(1) of the Evidence Act on the definition of confession relied upon by
Mr. Katuga, we find the said ground to have no legal basis as in terms
of that section, it is not mandatory for a confession to be deduced into
writing. As argued by Mr. Katuga, it is on record that, in the course of
being arrested, the appellant made an oral confession to PW4 in the
presence of PW2, PW3 and PW5.
It is on record that, the appellant did not cross examine PW4 on

that aspect. It is trite law that, a party who fails to cross examine a
witness on a certain matter is deemed to have accepted and will be
estopped from asking the court to disbelieve what the witness said,
as the silence is tantamount to accepting its truth. We find support in
our previous decisions in Cyprian Athanas Kibogoyo v. Republic,
Criminal Appeal No. 88 of 1992 and Hassan Mohamed Ngoya v.
Republic, Criminal Appeal No. 134 of 2012 (both unreported). In
the circumstances, we see no reason to differ with the lower courts’
concurrent findings in respect of the evidence of PW2 and PW4 which
were so descriptive and coherent on the appellant’s oral confession.
On the last ground, we are alive to the fact that, after observing that
ExhP1 (PF3) has no evidential value, Mr. Katuga urged us to expunge
the same from the record, which we hereby do. However, we need to
observe that, as eloquently argued by Mr. Katuga, even without Exh
P1, the testimony of PW7 is quite sufficient to cover the contents of the
PF3 as it explained in detail what was contained in that document.
Likewise, the evidence adduced by other witnesses such as, Pw1,
PW2, PW3,PW4 PW5 and PW6 is sufficient to sustain the conviction
against the appellant. This is so because, in rape cases, a PF3 is not
the only evidence to prove rape, other evidence on the record can as
well do so. In Ally Mohamed Mkupa v. Republic, Criminal Appeal
No. 2 of 2008(unreported). We stated that: -
“It is true that PF3 (Exh. P1) would have supported the commission
of the offence but rape is not proved by medical evidence alone. Some
other evidence may also prove it.
356
In totality, we are satisfied that both lower courts adequately evaluated
the evidence on record and arrived at a fair and impartial decision.
For the foregoing reasons, we do not find any cogent reasons to disturb
the concurrent findings of the lower courts, as we are satisfied that
the evidence taken as a whole establishes that the prosecution’s
case against the appellant was proved beyond reasonable doubt.
Accordingly, we find the appeal devoid of merit and it is hereby
dismissed in its entirety.
357
Jamali Ally Salum v. R, (Crim Appeal 52 of 2017) [2019] TZCA 32; (28
February 2019)
(Juma CJ, Mziray and Wambali, J.J.A.)
JUDGMENT
JUMA, C.J.: The Appellant JAMALI ALLY @ SALUM was

arraigned before the District Court of Lindi at Lindi, tried and found
guilty of the offence of rape of his 12-year-old niece who we shall refer
to in her initials, “BHD”. The Statement of the Offence showed this
to be contrary to Section 130 and 131 (1) (e) of the Penal Code Cap 16
[R.E. 2002].
The appellant denied the offence, prompting the prosecution to call

three witnesses who were, the victim of the alleged rape (PW1), the
appellant’s nephew, Jafari Hamisi Bakari (PW2) and Ahmani Said
Hashomu (PW3) who was a nurse midwife at Nyangamara health
centre. The appellant was the sole witness in his defence.
PW1 recalled how the event unfolded that day of 05/08/2013. It all
began when the appellant’s wife informed PW1 that the appellant
wanted to see her, which she complied. The appellant asked her to
follow him right to his farm to uproot cassava tubers for food “futai”.
But events turned to the worse when, after uprooting the tubers,
the appellant, while wielding a knife and a machete, ordered her to
undress, which she refused. He forcefully peeled off her clothes, laid
her down to the ground. After unzipping his trousers, he proceeded to
insert her penis into both her anus and vagina. After completing his
sexual gratification, he gave her some local herbs supposedly to take
back home to cure her baby sibling’s habit of crying endlessly at night.
The appellant warned her not to tell anyone.
The following day, when she decided to disclose to his brother (PW2)
what had happened to her in the bush.
358
PW1 also disclosed about another day when the appellant invited her
to his house, where they had sexual intercourse. This other day, the
appellant also gave her local herbs (medicine), this time to
protect her from bewitchment.
The incident of 05/08/2013 was reported to the police station and

a Police Form No. 3 (exhibit PI) was issued to enable her to seek
treatment. At Nyangamara Health Centre PW3 examined PW1, and
saw bruises and slippery fluid at her private parts. PW3 formed an
opinion the bruises were caused by a blunt object, possibly a penis.
When put to his defence, the appellant stoutly denied the offence. He
recalled how, when he was asked about the rape in the presence of
his in-laws, he had denied. He wondered why when PW1 was asked
about the rape in his presence and others, she had said nothing. The
appellant believed that PW1 had merely made up the incident of rape
in order to punish him for forcing her to regularly attend school.
The learned trial magistrate, E. PHILLY—RM, convicted the appellant

for the rape of PW1, and sentenced him to serve thirty (30) years in
prison.
Aggrieved by the outcome of his trial, the appellant appealed to the

High Court at Mtwara, which dismissed it.
Still aggrieved, the appellant has come to this Court with a total of
nine (9) grounds of appeal which may be summarized into the following
heads of complaints:
1) He was convicted on the basis of prosecution evidence which

failed to indicate points for determination, decision thereon and
the reasons for the decision.
2) Prosecution failed to carry out DNA tests to prove beyond
reasonable doubt that it was the appellant who committed the
offence.
3) The appellant should not have been convicted on the strength of
evidence of PW1 and PW2 who were members of same family.
359
4) Failure to consider the significance of the passage of time,
separating when the offence which was committed on 05/08/2013,
and the medical examination of the victim the following day on
06/08/2013. Secondly, the two courts below did not consider the
possibility that the bruises found on victim’s private parts could
have resulted from another blunt object other than the penis.
5) The two courts below erred in law for relying on the evidence of
PW1 despite the irregularity of the trial that was not conducted
in camera as the law requires.
6) The appellant was convicted because of the weaknesses of his
defence.
7) Failure to consider the appellant’s defence.
8) Failure to bring the victim’s mother to testify as a witness.
9) Failure to consider the reasonable doubt arising from the
evidence of the victim regarding the two separate incidents of
rape.
At the hearing of the appeal, the respondent was represented by two

learned Counsel, Mr. Abdurrahman Mohamed, Senior State Attorney
and Mr. Yahya Gumbo, State Attorney. The appellant appeared in
person and brought a supplementary memorandum of appeal. He
urged us to consider these additional grounds of appeal together with
the grounds in the memorandum of appeal which he filed earlier on
11/01/2017.
The supplementary memorandum of appeal contained five grounds,

which he expounded with submissions reproduce as follows. In the first
ground the appellant complained that the charge sheet is incurably
defective for failure to cite in the statement of offence, the appropriate
sub-section of section 130 of the Penal Code. He expounded this ground
by contending that the failure by the prosecution, to cite appropriate
subsection to section 130 of the Penal Code, prevented him from
proper understanding the nature and seriousness of the offence. It
also prevented him from entering his defence. On this complaint, he
sought the support of the case of Mussa Mwaikunda v. R., Criminal
Appeal No. 174 of 2006 (unreported).
360
In the second ground, the appellant complains that the charge sheet is
incurably defective for citing section 131 (1) (e) which does not exist in
the Penal Code. Similarly relying in the case of Mussa Mwaikunda v.
R (supra), the appellant submitted that since section 131 (1) (e) does
not exist, he was prevented from knowing what offence he was being
charged with, and which provision he contravened.
In the third count, he complained about procedural irregularity which

he regarded as fundamental. This is where the medical prescription
card “exhibit PI” was wrongly admitted in court by PW1 who did
not in the first place prepare it. He submitted that this irregularity
prevented the appellant from cross-examining or challenging exhibit
PI. The fourth ground complained over what the appellant describes
as fundamental procedural irregularity. This is when the medical
examination report, exhibit P2, was tendered by a person who did
not prepare it. This, appellant complains, prevented the appellant
from cross examining or challenging the exhibit PI. He further
complained that exhibit PI shows that the name of the maker is one
“Athumani Hashim” while it was tendered by PW3 named “Ahmani
Said Hashomu”.
In his fifth ground the appellant complains that the two courts below
erred for relying on the evidence of PW1 who was a child of tender
age after a voire dire Examination which was in any case conducted
unsatisfactorily.
Mr. Mohamed, Senior State Attorney opposed the appeal on behalf

of the respondent. He combined, argued together grounds number 1
and 2 of the supplementary Memorandum of Appeal which faults the
defective charge sheet. He admitted that the charge sheet is defective
in the Statement of Offence which cites “section 130 and 131 (1) (e)”
of the Penal Code. The victim subject of this offence was a 12-year-
old girl, he submitted, in that respect the statement of the offence
should have cited “section 130 (2) (e)”. Further, the learned Counsel
agreed with the appellant that “section 131 (1) (e)” which is cited in the
charge sheet does not exist. He submitted that the only issue which
this Court should determine from the conceded defects is whether the
appellant was prejudiced.
361
The learned Counsel hastened to urge us to find that the appellant
was not prejudiced because the particulars of the offence drew the
appellant’s to who the victim of the offence was, together with her age.
That, the appellant was further not prejudiced because he knew what
he was facing and he was not in any way distracted by the defective
citations of the applicable provisions of the law in the statement of
offence. In support of this line of argument, he referred us to a decision
of the Court in Deus Kayola v. R., CRIMINAL APPEAL NO. 142 OF
2012 (unreported) where the appellant was charged for the rape of a
twelve year-old girl and the statement of offence cited “sections 130
and 131 of the Penal Code.” The Court made the following observation
which the learned Counsel before us would like us to regard as
illustrative:-
“We have taken note of the fact that the charge against the appellant
was preferred under sections 130 and 131 of the Penal Code instead
of sections 130 (2) (e) and 131 (1). However, we are of the firm view
that the irregularity is curable under section 388 of the CPA, the
particulars of offence having sufficiently informed the appellant that
he was charged with the offence of raping a girl of 12 years old.”
The learned Counsel next submitted, on grounds 3 and 4 of the
supplementary Memorandum of Appeal, wherein the appellant faulted
the admission of the medical prescription card which was admitted
as exhibit PI, and the medical examination report (PF3) which was
tendered as exhibit P2. Responding to the complaint that the exhibit PI
was admitted by a wrong person hence denying the appellant a chance
to cross examine or challenge this exhibit, the learned Counsel while
conceding that indeed that the medical prescription card was tendered
by the victim (PW1) but not a medical officer, referred us to page 15 of
the record where the appellant himself opted not to cross examine the
person who had prepared the report. In so far as the learned Counsel
is concerned, section 240 (3) of the Criminal Procedure Act, Cap. 20
[R.E. 2002] which gives the accused person the right to cross examine,
was complied with.
362
We would like to pause for a moment and express our agreement
with the learned Counsel that the appellant has no good cause to
belatedly complain. The appellant was indeed asked whether he had
any objection if PW1 tendered medical prescription card (exhibit PI).
The appellant replied:
“No objection, I opt not to cross-examine the person who made the
report.”
Turning to the complaint over the medical examination report (exhibit

P2) the learned Counsel referred us to pages 21 and 22 of the record
of appeal where “Ahmani Said Hashomu” (PW3) a Nurse Midwife
tendered this report. He argued that there had been mixing up of
names because the name of “Athumani Hashimu” who signed exhibit
P2 as medical practitioner is the same person as PW3. He urged us
to ignore what he described as typographical error. When we pressed
him whether a Nurse Midwife is a medical practitioner within the
requirements of medical examination reports, he conceded that PW3
was not a medical practitioner. He urged us to expunge exhibit P2. We
obliged and expunged this exhibit.
The learned Counsel urged us to dismiss the fifth ground of appeal

in the supplementary memorandum which claimed that the evidence
of PW1 was not properly admitted in evidence because the voire dire
procedure was not properly followed to establish whether this witness
of tender age understood the duty of speaking the truth and understood
the nature of oath as the Evidence Act Cap 6 requires. He referred
us to page 13 of the record of appeal where, after conducting the
examination the learned trial Magistrate expressed his satisfaction
over the capacity of PW1 to testify under oath:
“After voir dire test, it is the courts opinion that this witness
understands the nature of oath and possesses sufficient intelligence
to justify the reception of her evidence, [she] also understands the
duty of speaking the truth. Hence her evidence will be adduced under
oath.”
Reverting to the complaints in the memorandum of appeal which

the appellant filed on 11/01/2017, the learned Counsel urged us to
disregard grounds number 5, 6 and 7 which he submitted are new
363
grounds. The appellant did not raise these grounds in the High Court
and were not considered by the first appellate court. He urged us to
strike them out. He submitted further that jurisdiction of this Court
is provided under section 4 (1) of the Appellate Jurisdiction Act, Cap.
141, which is to hear and determine appeals from the High Court and
from subordinate courts with extended jurisdiction. He referenced to
us a decision of the Court in Bakari Abdallah Masudi v. R., Criminal
Appeal No. 126 Of 2017 (unreported) this had restated that the Court
cannot deal with grounds that were not discussed in the first appellate
court. We agreed with the learned Counsel to disregard these grounds
in our determination of this appeal.
The learned Counsel combined and argued together grounds number

2, 4 and 8. Through these grounds the appellant claims that the
prosecution’s case was not proved beyond reasonable doubt. According
to the appellant, failure to conduct DNA to establish the appellant’s
participation, medical examination being conducted a day after the
event, failure of one Mama Ajira to testify, and reliance on evidence
of the victim (PW1) all serve to confirm that the prosecution did not
prove its case beyond reasonable doubt.
The learned Counsel rejected this line of the appellant’s submissions.

He gave the example of the evidence of PW1 which can stand alone to
prove the appellant’s guilt beyond reasonable doubt. He referred to a
decision of the Court in Selemani Makumba v. R [2006] TLR 379 to
reinforce his submission that in sexual offences, the best evidence is
that of the victim. He urged us o look at page 14 of the record of appeal
where the victim (PW1) gave a detailed account on how she was lured
to the bush, where she was threatened, forcefully raped and forced to
endure much pain.
The victim’s detailed account, he submitted, proved sexual penetration

beyond reasonable doubt. He urged that proof by DNA is not a
precondition, especially like in the instant case, where the evidence of
the victim is overwhelming. He submitted further that neither the fact
that the victim was examined by the medical personnel the following
day, nor the failure to call one Mama Ajira to testify, takes away the
weight of the evidence of the victim of rape.
364
On a similar note, the learned Counsel submitted that the ninth ground
of complaint should be dismissed because, even if the date when the
second incident of rape has not been ascertained, the evidence of the
victim is sufficient to convict. Thus, he completed his submissions by
urging us to dismiss the first ground in the original memorandum of
appeal which claimed that prosecution did not prove its case beyond
reasonable doubt.
The appellant had nothing to add to the written submissions he had

mixed up with his grounds of appeal.
As stated by this Court in so many occasions, generally, a second

appellate court should not disturb the concurrent findings of fact
unless it is clearly shown that there has been a misapprehension of
the evidence or a miscarriage of justice or a violation of some principle
of law or practice: see for example Hamisi Mohamed v. R., Criminal
We have examined the record of appeal including the decisions of

the trial and first appellate courts. We have also considered all the
fourteen grounds of appeal which the appellant brought to support his
second appeal. We found no cause for us to interfere with concurrent
finding of facts by the trial and the first appellate courts.
We think that in light of the submissions of the appellant and those of

the learned Senior State Attorney, this appeal can be disposed of by
our determination of two issues. The first issue relates to the failure
by the prosecution, to cite section 130 (1), (2) (e) and 131 (2) of the
Penal Code. That is, whether this defect arising from wrong citation
and citation of inapplicable provisions; prevented the appellant from
understanding the nature and seriousness of the offence of rape and
prevented him from entering his proper defence thereby occasioning
him injustice.
After expunging the medical examination report (exhibit P2), the

second arising issue for our determination is with regard to the probity
of the evidence of the 12-year old victim of rape; whether it can sustain
a conviction for rape against the appellant.
365
With regard to the first issue for our determination the learned
Counsel for the respondent placed reliance in the decision of the Court
in Deus Kayola v. R. (supra), which he employed to urge us to find
that the irregularities in the statement of the offence arising from
wrong and inapplicable citations are curable under section 388 of the
CPA because the appellant was fully informed by the particulars of
offence that he was charged with, that is, the offence of raping a girl
of 12 years. On his part, the appellant referenced us the decision of
the Court in Mussa Mwaikunda v. R (supra) to argue that he was so
prejudiced that he could not marshal a proper defence.
However, read closely, the decision of Mussa Mwaikunda v. R., which

found that the charge against the appellant could not be cured under
section 388 (1) of the CPA, is not of much help to the appellant’s cause
in the appeal before us. We say so because the particulars of the
offence facing Mussa Mwaikunda had omitted essential ingredients
of the offence of attempted rape. In addition, the complainant against
Mwaikunda did not say in her evidence that Mussa Mwaikunda had
threatened her, which was an essential element in that offence. The
Court had stated the following on page 393:-
“Having said so, the issue is whether the charge facing the appellant
was curable under section 388(1) of the Criminal Procedure Act, 1985.
With respect, we do not think that it was curable. We say so for two main
reasons. One, since threatening was not alleged in the particulars
of offence the effect was that an essential element of the offence of
attempted rape missed in the case against the appellant Two, at any
rate, as already stated, the complainant did not say anywhere in her
evidence that she was threatened by the appellant.” [Emphasis added].
In the instant appeal before us, the particulars of the offence were
very clear and, in our view, enabled the appellant to fully understand
the nature and seriousness of the offence of rape he was being tried
for. The particulars of the offence gave the appellant sufficient notice
about the date when the offence was committed, the village where
the offence was committed, the nature of the offence, the name of the
victim and her age:
366
“JAMALI S/O ALLY @ SALUM on 5th day of August, 2013 at
Nahukahuka Village within the District and Region of Lindi, did had
carnal knowledge of one (PW1) a girl of 12 years old.”
Similarly, in her evidence which the trial magistrate recorded on page
14 of the record, PW1 gave a detailed account on how the appellant
raped her:
“... the accused wife came and told me that I was called by the accused
person. After that I went to the accused person who asked me to
escort him to his shamba to uproot cassava for Yutai’he carried on
his bicycle into the bush by then he had knife and panga on his hand.
Upon reaching the bush, he asked me to uproot the tree, I did so. He
then asked me to put off my clothes, I refused. He then used force and
removed my dressing gauni’ and then laid me down. After that he
unzipped his trousers and pulled out his penis and inserted into my
anus and vagina. I received painful and cried but he asked me not to
cry on the reason that the local medicine will not work.”
It is our finding that the particulars of the offence of rape facing the
appellant, together with the evidence of the victim (PW1) enabled
him to appreciate the seriousness of the offence facing him and
eliminated all possible prejudices. Hence, we are prepared to conclude
that the irregularities over non-citations and citations of inapplicable
provisions in the statement of the offence are curable under section
388(1) of the CPA.
With regard to the second issue about probity of the evidence of 12-
year old PW1, the Evidence Act Cap 6 regards her to be both a child
of tender years and a victim of the sexual offence. The appellant has
questioned the propriety of the voire dire examination of PW1. But this
ground need not detain us. We agree with the learned Counsel for the
respondent that pages 12 and 13 of the record show how the voire dire
examination was in our view properly conducted before the learned
trial magistrate, before he concluded that PW1 not only understood
the nature of oath, but had sufficient intelligence which enabled her
to understand the duty to speak the truth.
367
The record of appeal shows that the trial and the first appellate courts
made a concurrent finding of fact that the evidence of PW1 proved the
offence of rape beyond reasonable doubt. The first appellate Judge
went further, by referring to section 127 (7) of the Evidence Act to
reiterate the position of the law that the evidence of the 12-year-old
PW1 did not require corroboration to sustain the conviction:
“Reading the provision of section 127 (7) of the Evidence Act, it

provides that such evidence of a child of tender years may be received
even without corroboration after assessing her credibility provided
that it is recorded by the court that the court is satisfied that the child
of tender or victim of sexual offence is “telling nothing but the truth”.
Reading the record, the trial Magistrate warned himself and saw no
danger to convict (see page 9 and page 12 of the typed judgment).
The trial Magistrate after observing PWl’s demeanour in her voire
dire test and the examination in chief said that: “I am satisfied that
what she said was meaningful and was nothing but truth. “I see not
sufficient ground to find otherwise. He made a note as well that she
recognized him as her uncle after a walk together to the shamba/
forest.”
For the foregoing reasons, we find no merit in this appeal and is hereby
dismissed. It is so ordered.
368
James Mapuga v. Jesca Ntonya, Civil Appeal 12 of 2006, High Court
of Tanzania at Dodoma (unreported)
(Date of the decision: 25th March 2008)
JUDGMENT
LILA, J.: This is a second appeal. The respondent, JESCA NTONYA,

instituted the suit at Dodoma Urban Primary Court against
the appellant, JAMES MAPUGA, claiming TShs.500,000/= as
compensation for maintaining the appellant’s child.
The Primary Court granted the claim but reduced it to TShs.

250,000/=. The District Court of Dodoma, upon an appeal thereto by
the appellant, upheld the amount awarded by the primary court. The
appellant still felt aggrieved, hence this second appeal.
It is a common ground that the appellant got married to the

respondent’s daughter Pilika Nhonya who on 28/1/1999 died of a
disease leaving a three days old baby Richard James. Immediately
thereafter a meeting was held between the appellant, his parents and
the respondent and his husband Sephania Nhonya (SM2) whereat it
was agreed that the little baby should remain with the respondent
basically on two reasons that she had milk to feed the child and the
appellant’s parents were very old.
According to evidence in record, by the time the respondent

instituted the suit the little child was six years old. The respondent
and her two witnesses asserted that it was agreed that the appellant
should provide maintenance to his child but the appellant did not do
so. On his part, the appellant and his witness asserted that it was
agreed that he could provide maintenance to his child at will and that
he did so. This is what forms the focal point of contention between the
parties.
The appellant entered appearance and argued his side of the matter
himself while the respondent was represented by Mr. Kuwayawaya,
learned counsel.
369
The appellant preferred three grounds of appeal, which were:
1. That the honourable Resident Magistrate erred in law and in

fact for not considering the evidence adduced during the trial
before reaching such decision.
2. That the honourable Resident Magistrate erred in law and in
fact for not considering that the appellant was contributing the
money and food to keep my (sic) child who living to her grand
mother.
3. Thar the honourable Resident Magistrate erred in law and in
fact because she didn’t follow up well civil procedure before
reaching such wrong decision.
On a comprehensive view, the grounds of appeal raised by the
appellant, who clearly looked a layman, calls for nothing other than
the need for this court to re-assess and evaluate the evidence in the
trial court record and determine the appeal. I will, for interest of
justice, do so.
I heard and followed the arguments by both sides which I will refer to
them in the due course of this judgement.
With respect, I would allow this appeal on two main grounds.

Firstly, the claim by the respondent was allegedly based on an
agreement between her and the appellant that she would stay with
the child and the appellant would provide maintenance. Such an
agreement or arrangement is strongly disputed by the appellant.
Looking at the evidence in record there are no clear and certain
conditions set to back such an arrangement. It was not stated as how
much money, quantity of food or clothing the appellant should provide
to the child Richard James. It was also not agreed as for what period
the child was not be in the respondent’s custody. In very brief words
the respondent suggested that there existed a contract between her
and the appellant whereby the child Richard James was to be in the
appellant’s custody on condition that the appellant should provide
maintenance. A contract is an agreement enforceable at law. For a
contract to be valid and legally enforceable there must be, among other
things, valuable consideration and sufficient certainty of terms. These
370
mattes were wanting in what transpired between the appellant’s
family and that of the respondent. Terms and conditions of custody
of the child Richard James were not clearly and certainly spelt out.
There was therefore, no agreement between the parties which could be
breached. It can therefore safely be held that the respondent’s custody
of the child Richard James was unconditional and the appellant was
entitled to behave the manner he did.
Secondly, in line with the above is the question of quantum of

maintenance awarded to the respondent. The trial Primary Court
held the appellant responsible in not maintaining his child and basing
on Gogo customs it awarded the respondent TShs. 350,000/=. The
District Court upheld the amount on the ground that under section
129 (1) of the Law of Marriage Act, 1971, the appellant had a legal
duty to maintain the child while was in the custody of the respondent.
I am in total agreement with the District Court finding that in the

spirit of the provisions of section 129 (1) of the Law of Marriage Act, a
man has a duty to maintain his children when they are in his custody
or the custody of any other person, either by providing them with such
accommodation, clothing, food and education as may be reasonable
having regard to his means and station in life or by paying the costs
thereof. As indicated, the trial Primary Court nor the District Court
indicated how such amount was arrived at. I have also perused
the trial Primary Court’s records and I have seen none. All that the
respondent told the trial court during examination in chief is that,
“… kwa sasa namdai shs. 500,000/= kama chakula cha mtoto,

matibabu na mahitaji mengine ya mtoto.”
And when cross-examined by Assessor No. II she said;
“… Nimepata gharama kubwa sana kwa mtoto wake. Kwa sasa mtoto
ana miaka 6.”
It is clear from the above that the respondent’s claim of TShs. 500,000/=
was out of speculation. There was no proof, let alone strict proof, of the
expenses incurred by the respondent in the maintenance of the child
Richard James. The late Mwakasendo, Ag. J. (as he then was) said,
and I respectfully agree with him, in Murisho v. Halima [1971] HCD
NO. 256:
371
“While I concede that there may be circumstances in which it is possible
for this court to order one party to a suit to reimburse the other for
expenses incurred for advancement and maintenance of the children
of the marriage, this court cannot agree that it would be entitled or
justified to do so capriciously. Evidence must be led to establish
the specific claims lodged and it would, in my judgement, be
absolutely wrong in principle to make an order for maintenance
merely on the unsubstantiated word of the claimant.” (Emphasis
mine).
In this case, as clearly indicated above, there was only the
unsubstantiated word of the respondent on the claim. The trial court,
though said to be the Gogo custom, ought to have realized that the
claim was unsubstantiated. The appellate district, ought to have
similarly realized so. Both the two lower courts ought to have rejected
the claim in its entirety. The district court ought to have allowed the
appeal.
I accordingly allow the appeal quash and set aside the order for the
appellant to pay the respondent TShs. 250,000/= as compensation for
maintaining the child Richard James. In the circumstance of this
case and bearing in mind that the respondent is the mother-in-law of
the appellant and so as to promote harmony and the need to enhance
relationship between the parties, I make no order as to costs of this
appeal.
372
Joseph Lazaro and 2 Others v. R, Court of Appeal of Tanzania at
Mwanza 118 of 2014, (unreported)
(Date of the decision: 24th March 2014)
JUDGMENT
MASSATI, J.A.: Before the District Court of Bunda in Mara Region,
the appellants were charged with four counts, three under the
National Parks Act (Cap 282 R.E. 2002,) and one under the Wildlife
Conservation Act NO.5 of 2009. Counts, two, three and four were also
economic offences, under the Economic and Organized Crimes Act
Cap 200 (R.E. 2002).
The trial ended on 11/6/2012 when the following sentences were meted
out onto the appellants. For the first count of Entering a National
Park without a written permit, contrary to section 21 (1) and (2) of
the National Park Act, they were sentenced to pay a fine of 20,000/=
or 6 months imprisonment in default. For the second count of being
in unlawful possession of weapons in a National Park contrary to
section 24 (1) (b), and (2) of the National Parks Act read together with
paragraph 14 (c) of the first schedule to the Economic and Organized
Crimes Act, they were sentenced to pay a fine of 30,000/=Tshs each, or
serve one year imprisonment in default. In the third count of unlawful
hunting in a National Park contrary to section 23 (1) of the National
Parks Act read together with paragraph 14 (a) of the first schedule to
the Economic and Organized Crimes Act, they were sentenced to three
years imprisonment, each. And, as for the fourth count of unlawful
possession of government trophies contrary to sections 86 (1) and (2)
(b) of the Wildlife Conservation Act, read together with the Economic
and Organized Crimes Act, the appellants were sentenced to 20
years imprisonment each. There was also an order for the forfeiture
of one knife, one bush knife, a spear, and a motor cycle, make Toyo,
registration no. T. 156 BDM.
373
Before the trial court, it was alleged that on the 15th June, 2011, the
appellants were found with one carcass of a zebra, at Rwanshagi
area, within Serengeti National Park, together with a knife, a spear,
a bush knife, and a motor cycle, with which they hunted the animal
and had no permit to do so. As the appellants pleaded not guilty,
the prosecution fielded PW1 and PW3 to prove how and where they
arrested the appellants, and PW2, testified as to how he prepared and
evaluated the trophy and prepared the inventory which he tendered as
Exh. P4. In their defence, all the appellants denied to have committed
the offences, and tried to explain, what they were doing in that area
when they were arrested. But the two courts below disbelieved them,
and found the prosecution case proved, beyond reasonable doubt.
Undaunted, the appellants have come to this Court on a second appeal.
Each of the appellants filed a separate memorandum of appeal, but we

agree with Mr. Castus Ndamugoba, the learned State Attorney who
appeared for the respondent/Republic that those grounds, generally
gravitate around three major ones, namely: -
1) That the prosecution case was not proved beyond reasonable

doubt.
2) That the lower courts did not consider the defence cases, and
3) That the 3rd appellant’s age was not considered.
In the course of his submission, Mr. Ndamugoba conceded two

shortcomings which will also form the backbone of our present decision.
In the first place, the learned counsel conceded that no convictions

were entered in respect of the third and fourth counts. In addition,
there was no finding at all in the fourth count. Both the trial court
and the first appellate courts overlooked this. It was therefore wrong
for the trial court to have sentenced the appellants on the third and
fourth counts without first convicting them. It was equally wrong for
the High Court to have confirmed both convictions and sentences on
those counts.
374
The appellants themselves did not have any meaningful response to
this legally technical aspect of the appeal.
We agree with Mr. Ndamugoba. It is now settled law that for a

judgment in a criminal case to be complete it must comply with section
235 (1) of the Criminal Procedure Act (Cap 20 R.E. 2002) (the CPA)).
That provision is reproduced below for ease of reference.
S. 235 (1) The court, having heard both the complainant and the
accused person and their witnesses and the evidence, shall convict
the accused and pass sentence upon or make an order against him
according to law or shall acquit him or shall dismiss the charge under
section 38 of the Penal Code.
In several of its recent decisions, this Court has held that failure by
a trial court to enter a conviction invalidates the judgment, and that
it follows that the High Court could not validly uphold a non-existing
judgment. (See Paul s/o Emmanuel @ Ntorogo and Another v.
R., Criminal Appeal No. 19 of 2008, James Siagi Mathayo v. R.,
Criminal Appeal No. 123 of 2011 (both unreported)). The situation
in the present case is however different. In the judgment of the trial
court, of the four counts, the trial court entered convictions for the
first two counts. We find nothing procedurally wanting in them. So,
we have no reason to fault that part of the trial court’s judgment.
Mr. Ndamugoba has also conceded that when the third appellant was
sentenced to imprisonment in June, 2012 he was only 17. So, under
section 4 of the Law of the Child Act No. 21 of 2009, he was only a
“child” by definition, and under section 116 (1) of that law, he could
not undergo a custodial sentence for any offence other than homicide.
We partly agree with the learned counsel there, that the Law of the
Child [Act] applies to all trials relating to a child. And that takes
us to another level because section 116 (1) of the Act referred to by
the learned counsel, refers to a juvenile court. A juvenile court is set
up under section 97 of that Act. Under section 98 (1) (a) of the Act,
a Juvenile Court has jurisdiction to hear and determine criminal
charges against a child. Its procedure is prescribed under section 99.
The conditions governing trials of juveniles include, among others,
375
that the proceedings be held in camera, in the presence of a social
welfare officer, and the right of a parent or guardian to be present.
In the present case, the trial court sat as an ordinary, and not as
a juvenile, court. The record is silent whether the trial court was
aware that it was dealing with a child and whether it complied with
the conditions set down in section 99 of the Law of the Child Act.
However, since the second limb of this argument was not argued by
the parties, we shall make no further comment. But all the same, the
imprisonment of the third appellant, is illegal, not in terms of section
116 (1) as suggested by Mr. Ndamugoba, but in terms of section 119
(1) of the Act which provides that:-
“119 (1) A child shall not be sentenced to imprisonment.”
Under sections 119 and 120 of the Law of the Child Act, the only
permissible punishments on a convicted child are a discharge, a
repatriation order, a custody order to a fit person or institution, or
committal to an approved school.
In view of our above observations, we have had to exercise our

revisional powers and revise the proceedings of the High Court by
quashing and setting aside all the proceedings of the first appellate
court for erring in confirming convictions and sentences on the third
and fourth counts and part of the judgment of the trial court for not
entering convictions on those counts. As there were no convictions on
those counts, the sentences were illegal in respect of all the appellants.
The logical order therefore is for the trial case file to be remitted to the
trial court for it to enter appropriate convictions in accordance with
the law in respect of the first and second appellants.
As for the third appellant, much as we have our doubts on whether

he received a fair trial as expected under the Law of the Child Act,
we have no doubt that under section 119 of the Act, which prohibits
custodial sentences against a child, the sentence of imprisonment
meted out against him was illegal. To that extent we allow his second
ground of appeal.
376
With the above analysis, and in the peculiar circumstances of this
case we are forced to order the immediate release from custody of the
third appellant, while the other two should remain in custody while
the case file is remitted to the trial court for it to make a finding on
the fourth count and enter convictions on the third and fourth counts
in accordance with the law. The case file should then pass through the
High Court for a rehearing of the appeal before another judge. If the
appellants would still be aggrieved by any decision of the High Court
they may re-appeal to this Court.
Order accordingly.
377
Joseph Leko v. R, Criminal Appeal 124 of 2013, Court of Appeal of
Tanzania at Arusha (unreported)
(Kimaro, Luanda and Mmila JJA)
(Date of the decision: 4th December 2013)
JUDGMENT
KIMARO, J.A.:- Joseph Leko, the appellant, was convicted by the

District Court of Monduli for the offence of rape contrary to section
130(1), (2) (b) and 131 of the Penal Code [Cap. 16 R.E. 2002]. A sentence
of thirty years imprisonment was imposed on him. He appealed to the
High Court of Tanzania at Arusha but his appeal was dismissed. He
is now before the Court with a second appeal.
He filed four grounds of appeal challenging the first appellate court

for upholding his conviction and the sentence. The first ground is
his identification and the credibility of the prosecution witnesses. He
contended that he was not identified and the prosecution witnesses
were not credible. The second ground faults the learned judge for
upholding the admission of the PF3 while there was non- compliance
with the law. In the third ground the complaint is on his defence
that it was not considered. Lastly, the appellant contends that the
evidence of the prosecution considered in its totality did not prove the
offence of rape against him.
This is a second appeal. A rule of practice established by case law in

respect of second appeals is that an appellate court should not interfere
with findings of facts by the courts below unless the evaluation of
evidence was not done properly hence resulting in a miscarriage of
justice to the accused person or there occurred a violation of principle
of law or procedure. For an elaboration on this position see the cases
of DPP v. Jafari Mfaume Kawawa [1981] T.L.R.149, Dr Pandya v. R,
(1957) EA.336, Salum Mhando v. R [1993] T.L.R.170 and Benjamin
Nziku v. R (Criminal Appeal No.151 of 2010 (unreported).
378
The foundation of this rule of practice comes from the assessment
of the credibility of the witnesses. It is the trial court which sees
the witnesses. The trial judge or the magistrate is the one having
an opportunity to see the witnesses as they give evidence. He/she is
better placed in terms of assessment of their demeanour. See the case
of Shabani Daudi v. R Criminal Appeal No.28 of 2001 (unreported).
From the established rule of practice, an appellate court may interfere
with findings of facts made by the lower court in limited circumstances
as was stated by the Privy Council in the case of Antimodias Caldera
v. Fredrick Auofus (1936) All ER. (PC) that:
“Where the trial judge has come to a conclusion upon a pure question
of fact, the appellate tribunal cannot , merely .because the question is
one of fact it has been decided in one way by the trial judge, abdicate
their duty to review his decision and to re-evaluate if they deem it to be
wrong, but the functions of the appellate tribunal when dealing with
pure questions of fact on which questions of credibility are involved
are limited in their scope and character.”
The issue before the Court is whether the courts below erred in the
assessment of the evidence of the witnesses so as to entitle the Court
to interfere with their finding of facts.
To answer the question, we find it pertinent to first revisit the evidence
upon which the appellant’s conviction was founded.
Dorothea Raphael (PW1), a girl aged 11 years testified on oath that on

25th July, 2001 after school she went to an area known as Tindigani
to collect good soil for planting flowers. The witness was staying at
Magomeni Mtowambu where the soil is unsuitable for that purpose.
On arrival at the place she met the appellant whom she knew before
by appearance only. She did not know his name. The witness told
the trial court that the appellant asked her whether she was the one
who was stealing sugar cane and bananas from that “shamba”. PW1
refuted being a thief. The appellant then told her that they should go
to see the owner of the “shamba” of which PW1 declined. According to
PW1 the appellant got hold of her, and pulled her into the bush. He
then removed her under pants by force and threatened to cut her with
a knife if she shouted or raised an alarm. The appellant had a knife.
379
He then fell her down. PW1 slept on her back. The appellant covered
her mouth with a “shuka” to prevent her from shouting and he then
raped her until he satisfied his desire. PW1 said while the rape was
taking place she felt serious pains. When her sister followed her, the
appellant ran away. She reported to her sister what the appellant did
to her.
The matter was reported to the ten cell leader of the area and to
Ramadhani Hamisi (PW2) the Village Chairman. With the assistance
of militiamen, the appellant was arrested and was found with a knife.
PW2 also issued a letter to the complainant which she took to the
police. At the police station PW1 was issued with a PF3 and she went
to hospital for medical check up.
The last prosecution witness was No.D.4612 D.Cpl Samwel (PW3).

He was the one who attended PW1 when she reported the incident at
the police station. He issued her a PF3 which was admitted in court
as exhibit P1. He also visited the scene of crime and drew a sketch
plan of the area which was admitted as exhibit P2. He recovered the
knife which was alleged to be in possession of the appellant at the
time of the commission of the offence and was admitted in court as
exhibit P3. According to the testimony of PW3 the sketch map showed
that the grass at the scene of crime indicated that something laid on
it. In substance that was the prosecution evidence adduced to support
its case.
The appellant in his sworn defence denied the commission of the offence
and raised the defence of alibi which was rejected by the trial court.
He told the trial court that at the time the offence was alleged to have
been committed he was at Mtowambu township where he went with
Mzee Iddi Mohamed (DW2). He admitted having a knife but he said
the knife was the property of DW2 who gave it to him for preparation
of cabbage. DW2 corroborated the evidence of the appellant. They
went together with him to Mama Zainabu at Mtowambu town to
collect their money and they parted at 5.00 p.m. DW2 also admitted
having given the appellant the knife for preparing cabbage.
380
With this evidence the trial court was satisfied that the appellant was
guilty and convicted him. As already stated the first appellate court
sustained the conviction and the sentence.
Before us the appellant appeared in person. He was not defended.

The respondent/Republic was represented by Mr. Zakaria Elisaria
learned Senior State Attorney. The appellant felt more comfortable
to elaborate on his grounds of appeal after the learned State Attorney
had replied to his ground of appeal.
On his part the learned State Attorney supported the appeal. He opted
to support the first and fourth grounds of appeal by the appellant.
The learned State Attorney attacked the first court on appeal for not
making a finding that the evidence to support the prosecution case
was not properly analyzed. He said that the evidence of PW1 was
wrongly accepted because there was no compliance with section 127(2)
of the Law of Evidence Act, [CAP 6 R.E.2002]. He said PW1 was a
child witness of 11 years old. The law required the trial magistrate to
conduct a “voire dire examination” in order to ascertain whether the
witness knew the meaning of oath and her capacity to testify. He said
the trial magistrate did not conduct the examination properly as the
questions the trial court put to PW1 were not reflected on the record.
His opinion was that the recorded answers of PW1 in the “voire dire
examination” were not indicative of whether the witness knew the
meaning of oath and the duty to speak the truth. The learned State
Attorney said the evidence of PW1 should not have been accepted. He
requested the Court to discount the evidence of PW1.
He said even the sister of PW1 who was mentioned by PW1 to have gone
to the scene of crime and saw the appellant running, and assisted her
to have the matter reported to the police station was not summoned
to testify. The learned State Attorney said there was no sufficient
evidence to sustain the conviction. He prayed that the appeal be
allowed, the conviction quashed and the sentence be set aside.
The appellant was contented with the positive submissions made by

the learned State Attorney to support his appeal. He prayed that the
Court determines the appeal justiciably.
381
Coming to the question we paused concerning the right of the Court
to interfere with the findings of fact by the courts below we will start
with the first ground of appeal on the “voire dire examination” of PW1.
The complaint in this case is that it was not conducted properly in
that there was omission by the trial court to show the questions that
were put to the child witness. The record of appeal at page 7 supports
the learned Senior State Attorney. The trial court did not record
the questions that were put to PW1 in the” voire dire examination”.
Apparently, this ground was not raised in the High Court. It is a new
ground. The Court has on several occasions held that a ground of
appeal not raised in first appeal cannot be raised in a second appeal.
See the case of Seleman Rashid @ Daha v. R Criminal Appeal No.
190 of 2010 and BIHANI NYANNKONGO &ANOTHER v. R Criminal
Appeal No.182 of 2101(both unreported) among others.
But did the omission to record the questions put to the child witness
vitiate the finding of the trial court on the competence of the witness
to testify? Our answer is no. From the “voire dire examination” that
was conducted, PW1 answered as follows:
“I am in STD IV Shule ya Msingi Mtowambu I am a Christian. I am

a Catholic. I normally go to Church. God stays in heaven. If one
speaks lies he gets sin. If you are a sinner you go to hell. It is required
for a man to speak the truth. We normally do examinations. We are
thirty in our class. I normally hold the 5th position in my class.
Order: - It appears that, the child is very intelligent. He knows the

meaning of speaking the truth as well as the meaning of oath. So, let
her give evidence on oath.”
The answers PW1 gave to the questions that were put to her shows
that she knew the meaning of oath as well as the duty to speak the
truth. Black’s Law Dictionary Abridged Sixth Edition at page 739
defines oath as
“Any form of attestation by which a person signifies that he will be

bound in conscience to perform an act faithfully and truthfully... “
382
Rule 2 of The Oaths and Statutory Rules (made under section 8 of The
Oath and Statutory Declarations Act) the first schedule, sub- rule 1 of
Rule 2 describes how an oath by Christian witness should be taken.
The sub-rule says that a Christian shall, subject to paragraph 4, be
required either to hold the New Testament in his right hand or to
hold the right hand uplifted and in either case repeat the following:-
“I swear that what I shall state shall be the truth, the whole truth and
nothing but the truth; so help me God.”
Taking the meaning of oath as defined in the Black’s Law Dictionary
and how an oath is administered in Judicial Proceedings, the answer
by PW1 that if one tell lies he gets sin and if you are a sinner you go
to hell and that it is required of a man to speak the truth is a clear
indication that PW1 knew the meaning of oath and the duty to speak
the truth. In the case of Mohamed Sainyenye v. R, Criminal Appeal No.
57 of 2010 (unreported) the Court showed the kind of questions which
should be put to the witness so as to ascertain whether the witness
knows the meaning of oath and the duty to speak the truth. Such
questions would include the age of the child witness, his/her religion
and his /her understanding of the nature of oath and its obligation
based on his/her religious belief. From what was recorded, the trial
magistrate asked all the questions required to ascertain whether PW1
knew the meaning of oath and the duty to speak the truth. PW1
rightly answered the questions. Regarding her age, PW1 said she was
11 years. Under the circumstances we do not agree with the learned
State Attorney that the evidence of PW1 should be expunged from the
record for failure by the trial court to conduct “voire dire examination”
properly. On the contrary we hold that the “voire dire examination”
was properly conducted and the trial magistrate correctly made a
finding that PW1 was an intelligent child who knew the meaning of
oath and the duty to speak the truth and allowed her to testify on
oath. However, we wish to emphasize that in future the questions put
to the witness should be recorded.
The learned State Attorney said there was no evidence to show that
penetration did take place simply because PW1 did not say that the
appellant inserted his penis in his vagina. He cited to us the cases
of Godi Kasenegale v. R Criminal Appeal No.10 of 2008 and Hamisi
383
Shabani v. R Criminal Appeal No.452 of 2007 (both unreported) to
augment his submission. With respect to the learned State Attorney
we disagree with him on this aspect. As we will show later in this
judgment the circumstances under which the offence was committed
in the cases cited by the learned State Attorney can be distinguished
from the circumstances of this case. Recent decisions of the Court
show that what the court has to look at is the circumstances of each
case including cultural background, upbringing, religious feelings, the
audience listening, and the age of the person giving the evidence. The
reason is obvious. There are instances, and they are not few, where
a witness and even the court would avoid using direct words of the
penis penetrating the vagina. This is because of cultural restrictions
mentioned and other related matters. The cases of Minani Evaristi
v. R, Criminal Appeal No. 124 of 2007 and Hassani Bakari v. R,
Criminal appeal No.103 of 2012 (both unreported) decided by this
Court in February and June 2012 respectively are some of the recent
development in the interpretation of section 130(4) (a) of the Penal
Code. The cases cited by the learned State Attorney were decided
earlier, in September, 2010 and July, 2009.
We agree that PW1 did not say that the appellant took his penis
and inserted it in her vagina. However, our firm stand is that the
evidence of PW1 narrating on how the offence was committed clearly
established that the offence of rape was committed.
Her testimony was to the following effect:-
“As I arrived at Tindigani, I saw the accused this Baba here. He called
me. From here-outside-distance of 4 to 5 paces. I went. He asked
me! Are you the one who steals sugar cane, and bananas? I told him
that I am not a thief for I came to collect soil. He told me Let us go
to the owner of the shamba. I did not like to go. He then got hold of
my right arm and pulled me into the bush. He started removing my
underpants by force. He told me that if I shout or raise an alarm I
shall cut you. He had a knife. He fell me down. I slept with my back.
As I fell down he covered my mouth with his “shuka” to protect (sic)
me to shout. He then raped me. I felt much pain. He accomplished
his desire.”
384
In the case of Seleman Mkumba v. R, Criminal Appeal No.94 of 1999
(unreported), the Court held that:-
“True evidence of rape has to come from the victim if an adult, that
there was penetration and no consent, and in case of any other woman
where consent is irrelevant there was penetration.”
Our considered opinion is that the evidence of PW1 who was a witness
aged 11 years that the appellant approached her first by threats that
she was a thief and would take her to the owner of the “shamba” was
aimed at scaring the witness. Followed by those threats the appellant
actually held her arm and pulled her to the bush. The undesired part
of what the appellant did thereafter was to forcefully remove PW1’s
underpants, pull her down, making her lie in a suitable position for
the rape to take place because PW1 lay on her back. To satisfy
his sexual desire, the appellant then covered her mouth with his
“shuka” to prevent her shouting or raise an alarm by threatening her
with a knife. He then proceeded to rape the helpless little girl to his
satisfaction. PW1 said she felt much pain as the sexual intercourse
was taking place. At the time the offence was committed the appellant
was aged 36 years.
With that explanation from PW1, can a reasonable person properly

directing his mind and giving a truthful inference to the evidence of
PW1 say that the offence of rape was not committed? With respect to
the learned State Attorney, we cannot succumb to his thinking. First,
we have taken note that the trial took place in the District Court.
The language the witnesses use in giving their evidence is Kiswahili.
According to TUKI English–Swahili Dictionary Second Edition page
649 the word rape in Kiswahili means “ubakaji”. Although section 13
(2) of the Magistrates’ Courts [Cap. 11 R.E.2002] allows the District
Court to use either Kiswahili or English language in recording the
evidence, the trial magistrate recorded the evidence of PW1 in English
language. The word rape used in the proceedings means “kubaka”
which does not differ with that given in the TUKI Dictionary.
Second, PW1 said she felt pain as the act of rape was committed. If
the appellant’s penis was not inserted in the vagina of PW1 why did
she suffer pains? Logically she suffered the pains because the penis
of the appellant was inserted in her vagina and as PW1 said it was in
the process of the commission of the rape that she suffered the pains.
385
The record of appeal at page 7 shows that the trial was conducted by
a male magistrate and the prosecutor was also a man. The appellant
in this case is a man. At that time he was 36 years. PW1, the victim
of the offence was 11 years. The trial magistrate raised concern about
the young age of the victim of the offence under the circumstances.
Bearing in mind the African tradition or customs, that PW1 would be
scared to testify, he required the presence of her mother in the court
room. On our side we appreciate the fact that the complainant (PW1)
was young and it would have been difficult for PW1 to say straight
away in that audience that the appellant inserted his penis in her
vagina.
We are mindful that the evidence of PF3 admitted in court as exhibit

P1 was relied upon to sustain the conviction. We agree with the
appellant that it was erroneously admitted in evidence because
there was non-compliance with the procedure. Section 240(3) of the
Criminal Procedure Act was not complied with in that the appellant
was not informed of his right to have the doctor summoned for cross
examination. That omission was fatal. See the case of Juma Masudi
v. R @ Defao v. R Criminal Appeal No. 164 of 2005 (unreported)
among other cases. The PF3 was also admitted in evidence without
the appellant been afforded any opportunity to comment on it before
its admission. The same mistake was also committed in respect of
the knife, admitted in court as exhibit P2. The courts below are
reminded that an accused person has to be treated fairly in all stages
of the proceedings filed in court. He/she has a right to be shown all
the exhibits which are sought to be relied upon in proof of the case
against him/her and say whether or not he/she has any objection to
their admissibility. In other words trial courts have a legal and moral
obligation of always conducting the trials before the courts fairly. This
has always been the procedure prescribed by the law. We fault the
learned judge on first appeal for the omission made in correcting the
mistakes made by the trial court on this aspect. Exhibits P1 and P2
are expunged from the record for having been unlawfully admitted.
Third, the appellant said that he was not identified. We disagree
with him on his identification. The question of identification was
thoroughly dealt with by the learned judge on first appeal. PW1 said
in her evidence that she used to see the appellant for a long period
before the offence was committed and she repeated that in her cross
examination by the appellant. Although PW1 did not mention the
time when the offence was committed, the evidence of PW2 was that
386
the matter was reported to him at 6.30 p.m. The charge sheet shows
that it was committed at 18.00 hours. We see no reason for faulting the
learned judge’s finding on this ground. The question of the mistaken
identification of the appellant does not arise in this case.
We also note a defect in the charge sheet in that the appellant was
charged under section 130(2) (b) which talks of commission of rape
without consent. In this case the question of consent was immaterial
as the victim of the offence (PW1) was aged 11 years hence she was
under the age of 18 years. An offence committed to a woman falling
in this category does not require consent of the victim. The appellant
ought to have been charged under section 130 (2) (e) of the Penal Code.
See the case of Musa Mwaikunda v. R [2006] T.L.R. 387. The learned
judge on first appeal ought to have corrected the mistake made by the
trial court. The defect in the charge sheet however, did not occasion
any miscarriage of justice on the part of the appellant because when
PW1 testified she mentioned her age to be 11 years and the appellant
did not raise any question on this aspect. This omission on the part
of the prosecution is curable under section 388(1) of the Criminal
Procedure Act, [CAP 20 R.E.2002].
Lastly is the complaint by the appellant that his defence was not
considered. This complaint is not supported by the record of appeal.
At page 18 of the record of appeal it is clearly indicated that his
defence was considered but the trial court found that it failed to raise
any doubt to the prosecution case. We do not see any merit in this
complaint.
Having thoroughly gone through the grounds of appeal, the record

of appeal and the submissions made by the learned State Attorney
and the appellant in support of the appeal respectively, we entirely
disagree with them that the offence of rape against the appellant
was not satisfactorily proved. According to section 127(7) and 143
of the Evidence Act, and the case of Selemani Makumba (supra) the
prosecution sufficiently proved the offence against the appellant.
The offence was proved on the standard required, namely beyond
reasonable doubt. Eventually we find the appeal by the appellant
lacking merit and we dismiss it in its entirety.
387
Jovitus Johansen v. R, Criminal Appeal 509 of 2015, Court of Appeal
of Tanzania at Bukoba (unreported)
(Date of the decision: 20th February, 2016)
(Kileo, Mjsari and Mmila JJA)
JUDGMENT
MMILLA, J A.: On 9.8.2013, the appellant, Juvitus Johansen was

charged before the District Court of Karagwe with the offence of rape
contrary to section 130 (1) (e) and 131 (3) of the Penal Code Cap 16 of
the Revised Edition, 2002. He was tried, convicted and sentenced to a
term of 30 years imprisonment. He was aggrieved and unsuccessfully
appealed to the High Court of Tanzania at Bukoba (Khaday J). Before
that Court however, the sentence was enhanced to life imprisonment.
Still aggrieved, he preferred this second appeal which is against both
conviction and sentence.
The facts leading to this case were briefly that, on 21.8.2013 at
about 10.00 am, Neema Andrew (PW5), then a pupil at Kambarage
Primary school, was on her way to school when she met the appellant.
The latter, who was her brother purported that he was also going to
that school where he intended to collect some money from one Nelly.
Surprisingly, on arrival at a semi-finished house at which the appellant
was dwelling, the appellant turned on her and dragged her into the
said house. He undressed her underwear and raped her. Although the
appellant had covered the victim’s mouth with his palm, somehow she
managed to raise alarm which attracted some people who were not far
from the said house. They included PW2 Johnson Joseph and one Diot
Derick who were constructing a house near the appellant’s residence.
They rushed to that house, broke the door and rescued her. The victim
told her rescuers that the appellant raped her. They arrested the
suspect.
The appellant’s defence was that on 17.6.2013 he visited his uncle

who was living at Kayanga where he stayed for about two months.
He alleged that his uncle chased him away after he refused to sell the
farm left to him by his late father, which is why he decided to stay
in the said semi finished house. On 21.8.2013 at about 10.00 pm he
388
came back to his house from the river where he was fetching water.
Surprisingly, he found two persons at his place who were joined by his
uncle. The latter ordered those persons to arrest him.
When this matter was before us for hearing, the appellant appeared in
person and unrepresented, while Mr. Hashim Ngole learned Principal
State Attorney represented the respondent Republic.
The memorandum of appeal raised two grounds; one that the first
appellate court judge erred when he substituted the sentence of 30
years to that of life imprisonment whereas the prosecutrix’s age was
not proven; two that the first appellate court judge erred by failing to
consider that the prosecution evidence was loaded with contradictions.
The appellant chose for the learned Principal State Attorney to begin,
undertaking to respond thereafter if necessary.
Mr. Ngole’s stand was clear that he was supporting conviction, but did
not mince words that he was against the sentence which was imposed
against the appellant.
To begin with, Mr. Ngole submitted generally that PW5 who was the
victim of rape testified that the appellant, whom he knew very well
because he was his brother, was the one who raped her. She said he
pulled her into a semi finished house in which he put her on the bed,
removed her underwear, undressed his trouser and raped her. Mr.
Ngole submitted similarly that the evidence of PW5 was corroborated
by that of PW2 who said he saw the victim running away from that
house, and that when they went with her to that house he showed them
the appellant as the person who raped her. PW3 said the same thing.
There was yet the evidence of PW4, Sara Kazimoto who examined the
complainant and found some blood and sperms in her female organ,
also that he saw bruises thereat.
On his part the appellant insisted that he did not commit the alleged
offence, but that PW1 faked the case against him.
389
After carefully going through the proceedings and judgments of the
courts below, the memorandum of appeal and the submission before
us, we hasten to say that we agree with Mr. Ngole that the victim girl’s
evidence was explicitly that the appellant had sexual intercourse with
her, a fact which was cemented by PW4 who found some blood and
sperms in her female organ, also that there were bruises on that part
of the body. That was proof that she was raped. The evidence of PW2
and PW3 was important because it corroborated the evidence of PW5
that she was raped by no other person but the appellant. As such, we
agree with Mr. Ngole that the lower courts correctly found that those
witnesses were credible, believable and reliable. In the circumstances,
the appellant’s appeal against conviction is without merit and we
dismiss it.
On the other hand however, Mr. Ngole contended that he was not
supporting the sentence which was imposed against the appellant. He
challenged that because the charge sheet indicated that the appellant
was
18 years of age at the time he committed the charged offence, his
sentence ought to have been corporal punishment in terms of section
131 (2) (a) of the Penal Code. Once again, we agree with him.
Certainly, section 131 (2) (a) of the Penal Code precluded a person
who may have been 18 years of age at the time he committed the
offence of rape, if convicted, from being awarded a custodial sentence.
Section 131 (1) and (2) (a) of the Penal Code provides that:-
“131. - (1) Any person who commits rape is, except in the cases provided
for in the renumbered subsection (2), liable to be punished with
imprisonment for life, and in any case for imprisonment of not less
than thirty years with corporal punishment, and with a fine, and shall
in addition be ordered to pay compensation of an amount determined
by the court, to the person in respect of whom the offence was committed
for the injuries caused to such person.
(2) Notwithstanding the provisions of any law, where the offence is

committed by a boy who is of the age of eighteen years or less, he shall-
390
(a) if a first offender, be sentenced to corporal punishment only;
(b)...
(c)...” [Emphasis provided].

See also the case of Tatizo Juma v. Republic, Criminal Appeal No. 10
of 2013 CAT (unreported).
On the basis of the above, the proper sentence against him ought to
have been corporal punishment; therefore the sentence he is currently
serving is illegal. We quash it and set it aside.
We ought to have substituted the requisite sentence of corporal
punishment in terms of to section 131 (2) (a) of the Penal Code,
however since the appellant has been in prison for about two (2) years
counting from the date of his sentence on 30.1.2014, we think that is
more than what he deserved. As such, we order his immediate release
from prison unless he is held for some other lawful cause.
Order accordingly.
391
Judith Patrick Kyamba v. Tunsume Mwimbe and 3 Others, (Probate
and Administration Cause 50 of 2016) [2020] TZHC 1364; (28 May
2020)
JUDGMENT
MLYAMBINA,J.: This is a probate and administration cause

in respect of the estate of the late Patrick Saul Kyamba, who died
interstate at Kairuki Hospital, Kinondoni District Dar es Salaam City
on the 19th April, 2016. The Petitioner Judith Patrick Kyamba is the
first issue of the deceased Patrick Saul Kyamba is the first issue of
the deceased Patrick Saul Kyamba. According to the petitioner the
deceased left surviving him the following relatives:
i. Lennah Bargubosa Kaliko a wife and resident of Dar esSalaam.

ii. Judith Patrick Kyamba, a daughter and resident of Dar es
Salaam.
iii. Jessica Patrick Kyamba, a daughter and resident of Dar es
Salaam.
iv. Joycelyne Patrick Kyamba, a daughter and resident of Dar es
Salaam.
v. Olipa Ipape, a deceased’s Mother and resident of Kyela, Mbeya.
It was the belief of the petitioner that the assets with estimated total
value at TZs 200,000,000/= which are likely to come to her hands will
be:
i. One Storley building on Plot No. 89 Block “F” at Tegeta,

Kinondoni Municipality
ii. A four rooms house at Kyela Urban Area
iii. A two acres farm at Rufiji
iv. Toyota Land Cruiser T115 AMG
v. NMB BANK Account KYELA BRANCH, No. 60902500884, in
the name of Olipa Ipape/Patrick Saul Kyamba
392
vi. CONVENANT BANK Account No 012990039831 in the name of
Patrick Saul Kyamba
vii. STANDARD CHARTERED BANK Account No.
0150520960600 in the name of Patrick Saul Kyamba
viii. Employment benefits from CONVENANT BAN
ix. Employment benefits from PPF
x. Any other property as may be discovered in the process of
administration.
The petition was lodged together with the affidavit of the petitioner
as to domicile being Probate Form No. 45, Administrator’s Oath
being Probate Form No. 46, Administration Bond with sureties being
Probate Form No. 48, certificate as to sureties’ Financial Position
being Probate Form No. 54 and consent being Probate Form No.
56.
The petition, however, was contested by the Caveators who had in

common grounds of objection. One, that the petitioner left eight issues
who are lawful children of the late Patrick Saul Kyamba including: (i)
Janeth Patrick Kyamba (ii) Saulo Patrick Kyamba (iii) Gaspar Patrick
Kyamba (iv) Jacquline Patrick Kyamba. Two, that the estimated
value of the deceased estate was wrong. Three, that the clan meeting
at Kyela Mbeya appointed the 1st Defendant/Caveator and the
Petitioner to apply for grant of the letter but secretly the petitioner
filed the present petition.
At the commencement of hearing of the suit (in terms of Section 52 (b)

of the Probate and Administration Act Cap 352 (R.E. 2002), the Court
framed three issues for determination:
1. Whether the Petitioner is competent to be appointed as
adminstratrix of the estate.
2. Whether the Caveators have legal interests against the
deceased’s estate.
3. To what relief (s) are the parties entitled to.
393
At the hearing, the Petitioner called four witnesses to wit: Thomson
Kyamba (PW1) William Kyamba (PW2), Judith Kyamba (PW3), and
Lennah Kaliku (PW4). To support the petition, five exhibits were
tendered and admitted; Exhibit PI was the Death Certificate of the
deceased, Exhibit P2 was the Birth Certificates of Judith Patrick
kyamba, Jessica Patrick Kyamba And Jocelyne Patrick Kyamba,
Exhibit P3 was the Deceased’s Academic Certificates, Exhibit P4 was
the Marriage Certificate of the deceased and PW4, Exhibit P5 was the
answers to the petition in respect to Matrimonial Petition No. 25 of
2014.
The Defence Case (Caveators) reigned six witnesses namely; Janeth

Kayamba(DW1) Upendo Mwimbe (DW2) Olipa Ipape (DW3,) Tunsume
Mwimbe (DW4) Gaspar Kyamba (DW5) and Doris Mwandemani
(DW6).
Before addressing the issues before the court in line with the evidence
and the applicable law, I have noted that the following facts are not
in dispute about the Petitioner. One, she is an adult of sound mind
and legitimate daughter (fist born) of the deceased. Two, she is an
advocate and thus conversant with the law and procedure regarding
administration of the deceased’s estate.
There is a fact that the Petitioner was one of the two proposed by
the clan meeting to administer the estate. This later fact was denied
by the Petitioner who contended that she was the sole proposed
administratrix.
As regards the first issue, the Petitioner has been deemed incompetent
to administer the estate of the deceased for among other reasons,
excluding the other five issues allegedly born out of wedlock by the
deceased. There are Gaspar Kyamba, Janeth Kyabma, Saulo Kyamba
Jacline Kyamba and Julileth Kyamba.
However, in the Petitioner’s case, it was maintained that during his

life time, the deceased, in Matrimonial Cause No. 25 of 2014 in which
he was the 1st Respondent, in his answer to the petition (Exhibit P5),
he stated at paragraphs 2, 7 and 8.
394
2. That, the contents of paragraph 3 of the amended petition are
disputed and the Petitioner is put to strict proof thereof. I state that
I live myself at my House, Plot 89 Block F at Tegeta, Kinondoni
Municipality and the 2nd recipient is not my concubine as
alleged by the petition.
7. That, the contents of paragraph 8 of the amended petition are

admitted to the extent of the number of issues of marriage and
their names are correct. The ages of the three issues are Judith 23
years, completed 1st degree, Jessica 20 years old completed Form
Six now at National Service, Jocelyne 18 years old in Form Six
now.
8. That, the contents of paragraph 9, 10, 11 and 12 of the

amended petition are strongly disputed and the Petitioner is put
to strict proof thereof That there are no such child’s referred
to as Janeth and Saul, and the alleged Mbutolwe is not
known to the 1st respondent. Emphasis supplied.
In her testimony, the Petitioner (PW3) told the Court that she don’t
know the existence of marriages between her late father and other
women. It was the testimony of PW3 that her late father separated
with her mother. That, her mother was living at Madale and her
father at Ununio since 2013. PW3 told the court that her parents had
a matrimonial proceeding at Kisutu and when they were to file deed
of settlement her father died.
The evidence of PW3 was further amplified by PW4 who tendered

exhibit P5. PW4 told the court that she sued Patrick (deceased) and
Dorris Mwandemane because there was allegation that her husband
had extra marital affairs with Doris and he was blessed with two
issues, namely; Jackline and Julieth. But Patrick and Doris denied to
have had marital relationship.
DW6 in her testimony before this court stated that she was blessed
with two issues with the deceased born out of wedlock as she never
married to the deceased. I have noted, however, in her affidavit,
DW6 termed the two issues to be of her marriage with the deceased.
395
DW6 tendered Birth Certificate Entry No. 1000772824 for Jacquline
Patrick Kyamba born on 4th November, 2004 and Birth Certificate
Entry No. 1002696443 for Julieth Patrick Kyamba born on 8th
December, 2010. The two certificates were admitted as exhibit D 3
collectively.
DW1 was Janeth Patrick Kyamba. She testified that she was born on
23rd June, 2020. She tendered exhibit Dl being her Birth Certificate
indicating that her father is the late Patrick Saul Kyamba and her
mother is the late Mbotolwe Njagala Mwandingala. DW1 testified
that, to her knowledge, her late father was blessed with eight issues
namely; Gaspar Patrick Kyamba, Saul Patrick Kyamba, Jacquline
Patrick Kymba, Judith Patrick Kyamba, Jessica Patrick Kyamba.
Jocelyne Patrick Kymba, Keneth Patrick Kyamba and Julieth Patrick
Kyamba.
DW2 testified that the Petitioner is incapable of handling the estate

as she left other issues of the deceased. DW2 told the court that the
clan meeting proposed the Petitioner and Tunsume Mwimbe (1st
Caveator) to administer the estate.
DW3 was the mother of the deceased. She testified that her late son
Patrick Saul Kyamba left eight issues. She joined hand with other
Defence Witnesses that the clan meeting proposed two people to
administer the estate. These are the Petitioner and the 1st Caveator.
DW4 was the sister of the late Patrick Kyamba. She recognized the
issues born out of wedlock including Jacqueline and Julieth whose
mother one Doris was living with the deceased since 2011 after the
deceased separated with the mother of the Petitioner.
DW5 told the court that he is one of the deceased issues. He was born
on 16th June, 1984. He tendered his birth certificate as exhibit D2.
In her final written submissions, the petitioner told the Court that,
even if it is true that the deceased left behind other issues, the said
issues must have been born out of wedlock and hence illegitimate
children as there is no proof that their mother were legally married
to the deceased. That, there is no child or witness who produced any
396
marriage certificate except the Petitioner’s mother (PW4) whose
marriage because a Christian marriage excludes any other form of
marriage post its existence.
It was the contention of the Petitioner that, under the law, illegitimate
children have no right to inherit the deceased’s estate and therefore
cannot have any legal interest over the deceased’s estate. To back up
such view, the petitioner cited the case of Violet Ishengoma Kahangwa
and Jovin Mutabuzi v. the Administrator General and Mrs. Eudokia
Hakangwa (1990) TLR 72 in which the Court of Appeal stated:
The problem arose, though not directly, in the English case of in re-
Harrington (1908) Ch. 687 which we find to be persuasive. There
it was held that a putative father’s obligation under a
bastardy or affiliation order ends with his death, that such
obligation is personal and the arrears under such an order
are not recoverable against his estate. So that even if the word
“children” in Section 129 (1) of the Law of Marriage Act were
to be enlarged to include illegitimate children and hence to say
that the deceased in the instant case had a duty under the law
to maintain his two illegitimate children then on the strength of
Harringtons case duty or obligation being only personal, would
not service him would have ended with his death. (Emphasis
applied)
The Defendants (Caveators) on their part, filed final written

submissions contending that the Petitioner is not suitable for
appointment because she is not impartial and fit to administer the
estate of the deceased. To that effect, they cited the case of Sekunda
Mbambo v. Rose Ramadhani (2004) TLR 439. They also cited inter alia
section 9 (1) and 10 of the Law of the Child Act, 2009 which requires
no body to deprive the rights of any child to inherit the estate of their
parent.
397
The defendants went further to state that the Petitioner has proved
failure before the assignment; to collect, administer and distribute
the estate of the deceased because she denied the lawful issues of the
deceased as lawful heirs. They therefore cited the case of Elizabeth
Mohamed v. Adolf John Magesa (2016) TLS LR 114 in which the High
Court held:
Although there are decisions of the court to the effect that a putative
father’s obligation to his illegitimate children is personal and ends
with his death and that it does not survive him and cannot attach to
his estate, however, with the enactment of Sections 9 and 10 of the
Law of Child Act, such cases are no longer good law.
The other two authorities relied by the defendants were; one, a book
by W.M. Musyoka titled: A Casebook on the Law of Succession, Law
Africa Publishing (T) Ltd, 2010 at page 264 where he stated:
The law of succession act seeks to protect and provide for all the
biological children of the interstate, regardless of whether they are
born within or outside wedlock.
Two, Concise Law Dictionary 7th edition at page 164 which defines
the word heir to mean; he who succeeded by right of blood to the real
property of an ancestor on intestacy. The defendants, therefore, were
of submission that the Caveators have a lawful interest of the deceased
estate as they are collateral heirs of the estate.
I have deliberately considered the entire evidence and main

arguments of the parties in their final written submissions. With
profound respect, I don’t agree with the argument of the Petitioner
that children born out of wedlock are illegitimate and they have no
right to inherit the deceased estate. I find the Petitioner’s arguments
to be far away and out of touch of justice and realities. In fact, such
argument is barbaric and discriminative in nature. The Constitution
of the United Republic of Tanzania,1977 guarantees equality
of all human being under its Article 12 (1) and equality before the
law under its Article 13 (1) and (2). For reference, Article 12 (1) and
13 (1) and (2) of the Constitution of the United Republic of Tanzania
provides:
398
12.-(1) All human beings are born free, and are all equal.
13.-(1) All persons are equal before the law and are entitled, without
any discrimination, to protection and equality before the law.
(2) No law enacted by any authority in the United Republic shall make
any provision that is discriminatory either of itself or in its effect.
(Emphasis applied)
Further, Section 5 (i) of the Law of the Child Act, 2009 prohibits
discrimination to the child. It provides:
A child shall have a right to live free from discrimination (non

discrimination).
Equally, section 10 of the Law of the Child guarantees a child a right
to property of the parent. It provides child has the right to enjoy the
right of parental property.
Needless the above position, Tanzania has ratified International

Human Rights Instruments that guarantee the rights of the child.
These includes the United Nations Convention of the Rights of the
Child of 1989 and the African Charter on the Rights and Welfare of
the Child of 1990. The substantive part of the conventions has been
domesticated through the Law of the Child Act, 2009.
Again, Tanzania has ratified without any reservation to the

International Covenant on Civil And Political Rights (ICCPR) of
1966, the International Covenant on Economic, Social And Cultural
Rights (ICESCR) of 1966, the Convention on Elimination of All forms
of Discrimination Against Women of 1979 (CEDAW) and the African
Charter on Human and People’s Rights of 1981 (Banjul charter).
Article 27 of the Convention of the Right of the Child recognize

the principle that both parents have common responsibility for the
upbringing and development of a child. The preamble of CEDAW
reaffirms that:
.... upbringing of children requires a sharing of responsibility between

men and women
399
Again Article 16 (d) of CEDAW calls upon state patties to establish
measures to eliminate discrimination against women and ensure
equality of men and women and the same rights irrespective of their
marital status, in caring and maintaining their children.
With the afore development of national and international law, children

born out of wedlock are no more referred to as “bastards”. They
are equal children like those born in wedlock sharing equal rights
including inheritance rights.
Even if it is argued that the alleged children born out of wedlock are
of majority age, and so are not protected by the cited law of the Child
Act which under its Section 4 (1) defines a child to be a person below
18 years, it is the found view of the Court that the Tanzania Indian
Succession Act, 1865 aims at protecting for all the biological children
of the interstate whether born within or out of wedlock.
The Court is of further profound view that exhibit P5 alone is not a

conclusive proof that the issues born out of wedlock are not of the
deceased. After all, exhibit P5 was not established in court by way of
proof at a hearing or by way of consent decree.
The law of evidence is very clear on standard of proof and who alleges
must prove as per Section 110 (1) and 112 of the evidence Act, Cap 6
(R.E. 2019). The Petitioner in this case did not prove that the issues
born out of wedlock were not of the deceased. Worse, the petitioner
was not even ready to undergo DNA Test.
Though the issues born by Doris leaves much to be desired as were

born with the deceased while she had not divorced/ terminated her
first marriage, there are plenty of evidence that all the five issues left
out by the Petitioner are issues of the deceased Patrick Soul Kyamba.
First, PW3 in her evidence told the court that she was aware that her
husband had extra marital status with Doris whom were blessed with
two issues. Second, all the five issues born out of wedlock used the
surname of the deceased in their life including at school and none did
question on it. Third, it was evident from all Defence Case Witness
that when the deceased was alive, he was responsible for the education
and welfare of all the eight issues including the five issues born out of
400
wedlock. Fourth, the issues born out of wedlock were introduced to the
mother and relatives of the deceased in the home village. Fifth, all the
issues born out of wedlock have tendered birth certificates containing
the date and their birth. It is my found view, that the contents of the
tendered birth certificates remain unchallenged in absence of evidence
to the contrary, the records therein are true. The same were issued
by the person (RITA) who is entrusted to do so. It therefore, follows
that the tendered birth certificates of the issues of the deceased are
conclusive proof that the person named therein were born on the date
stated and the parents are those spelt out in the certificate. That fact
alone is decisive in settling the issue.
Sixth, it is true that none of the witness produced marriage certificate

with the deceased except PW4 who had Christian marriage with the
deceased, however, that is not a conclusive proof that the deceased
has no illegitimate issues. Seven, the issues born out of wedlock are
innocent creatures. There is a Swahili phraseology “kitanda hakizai
haramu,” which literally means there are no bastard children. But
there are bastard parents. The child is not culpable for its parents’
shortcomings nor can he or choose the situation they are born into.
Thus, it is not a child’s fault being born in the situation. Children
born out of wedlock are the biological children just like those born
within the matrimonial home. They are entitled to equal shares of
their common father with fellow siblings.
It is the findings of this court that the legal heirs of the deceased
Patrick Soul Kyamba are:
1. Lennah Bargabosa Kaliko (legal wife)

2. Judith Patrick Kymba (issue)
3. Jessica Patrick Kyamba (issue)
4. Jocelyne Patrick Kyamba (issue)
5. Gaspa Patrick Kyamba (issued)
6. Janeth Patrick Kyamba (issue)
7. Saul Patrick Kyamba (issues)
8. Julieth Patarick Kyamba (issue)
9. Olipa Ipape (Mother of the deceased).
401
There is another argument that the Petitioner under estimated the
value of the property or left out some of the estate. I must observe
that the Caveators have not advanced good evidence to counter the
estimation. Rather the Caveators came up with a mere gossip that
the value of the property at Ununio is higher. This Court cannot
act on a mere estimation or gossip. Indeed, it will be the duty of the
administrator to collect all the properties of the deceased.
The point that the 1st Caveator was one of the two proposed
administrators remained unproved as she did not exhibit the family
meeting counter book which is in their home village at Katumba
Songwe. There was further no proof on the allegation that the
Petitioner forged the family meeting minutes.
To answer the second issues, the interests of the Caveators are

through the five issues born out of wedlock only. It is clear from the
evidence that the deceased had celebrated Christian Marriage which
was not annulled till his death. Therefore, a bastard parent cannot
claim interest over the deceased estate.
As to what reliefs are the parties entitled, I find there is a

misunderstanding of the heirs in this case. For the best interest of
the heirs, of the beneficiaries and estate itself, the court doeth hereby
appoint the Administrator General to administer the estate of the late
Patrick Saul Kyamba in terms of Section 5 (1) (e) of the Administrator
General (Powers and Functions) Act, Cap. 27.
In the end, this court require the Administrator General to collect,

distribute and pay of debt of the deceased (if any) and file inventory
before this court within six (6) month from the grant of the letter of
probate administration as per Section 107 of Cap. 352 (supra).
402
Juma Mahamudu v. R, Criminal Appeal 47 of 2013, Court of Appeal
of Tanzania at Mbeya (unreported)
(Rutakangwa, Bwana, and Mandia, JJA)
(Date of the decision: 12th May 2014)
JUDGMENT
BWANA, J.A.: The appellant, Juma Mahamudu, was charged

with and convicted of the offence of rape contrary to sections 130 and
131 of the Penal Code, Cap 16. The trial court, the Mbarali District
Court at Rujewa, sentenced him to thirty (30) years imprisonment.
His first appeal before the High Court of Tanzania at Mbeya, was
unsuccessful, hence this second appeal. Before this Court, the appellant
appeared in person while the respondent Republic was represented by
Mr. Achilles Paul Mulisa, learned State Attorney.
Discerned from the court record, the facts of the case are as
follows: On 24 March, 2011, some children were playing outside their
homes. They included Ester Zacharia, PW1, a child, aged seven years
then. PW1 was in the company of Tabia Mogha, PW2, who was twelve
years old then, and one Eda.
The appellant is said to have lured PW1 with a Sh.500/= note

telling her that with that money she could buy ice cream at school.
He asked her to follow him to a place near some banana plantations.
At that place instead of giving her the sh.500/=, the appellant pushed
her towards the banana trees and undressed her by removing her
underwear. He himself undressed as well and inserted his penis into
PW1’s vagina. In the process, the appellant squeezed PW1’s neck,
ostensibly to prevent her from raising an alarm. After completion of
his desire, he left the scene, riding a bicycle. Left behind crying with
blood oozing from her vagina, was PW1.
Eda and Tabia heard PW1 crying. They rushed to the scene and
witnessed what had transpired. They took PW1 to her aunt, Witness
Kapwela, PW3. Upon learning what had happened to PW1 and upon
being told by PW1 that it is the appellant who had raped her, PW3
403
took some steps and reported the matter to village authorities and
eventually to the police. Consequently the appellant was arrested and
charged accordingly.
Meanwhile PW1 was taken to hospital where Dr. Jeremia

Sambi, PW4, attended and examined her. His medical report, Exh.P2,
revealed that there was penetration of her vagina; perforation of the
hymen; fresh blood oozing from the vagina mixed with sperms; and
some bruises. PW4 also found a piece of cloth placed deep inside PW1’s
vagina to avert blood from further oozing out. The medical doctor, in
his evidence, confirmed that PW1 had, indeed, been raped.
The appellant denied to have raped PW1.
Before us, the appellant raised eight grounds in his memorandum of
appeal. The eight grounds can be summarized as follows:-
• That PW1 and PW2, being children of tender age, a proper

voire dire examination was not conducted before taking their
evidence.
• That PF3 (Exh.P2) was not conclusive proof that he raped PW1
as no DNA test was conducted.
• That the prosecution evidence was that of relatives, therefore
the trial court should have not used it in convicting him without
other independent evidence from another person.
• That PW1’s age was not established.
• That there were glaring contradictions between what was
recorded during Preliminary Hearing and what the prosecution
witnesses said in their evidence.
• That the prosecution did not prove its case to the required
standard and further, that his defence evidence was not
considered by the trial court.
We start by considering the alleged contradictions between the
Preliminary Hearing (the PH) and the evidence on record. It suffices
to state here that a PH is not and cannot be taken as part of the
evidence during trial. The purpose of incorporating Section 192 into
the Criminal Procedure Act, Cap 20, and the Accelerated Trial and
404
Disposal of Cases Rules, 1988, was to expedite criminal proceedings,
as was rightly stated in Efraim Lutambi v. The Republic (2000) TLR
265 thus:-
“… We wish to observe that the provisions of section 192 of the Act

are very useful in the administration of criminal justice. They were
intended by the legislature not only to reduce the costs of criminal
trials in the country, but also to ensure that those trials are, without
prejudice to the parties, conducted expeditiously….”
(See also: Anthony Samwel v. The Republic, Criminal Appeal No.48 of
2010 – unreported).
Therefore. any apparent contradictions, as alleged by the
appellant, would not successfully form a ground for appeal as the
court relies on the evidence produced before it to arrive at its decision.
A PH is not part of that evidence.
Another issue raised by the appellant is that in the absence

of a DNA test, a PF3 report alone is not conclusive proof. With due
respect, even if we are to hold that a DNA test may reveal better
results than other forms of examination conducted on a victim of rape,
we are of the considered view that the law as it is presently, does
not lay conditions for DNA test in proof of rape cases. Not only that
the country (Tanzania?) may not possess sufficient DNA test facilities
but we are convinced that the procedures provided for under Section
240 (3) of Cap 20 suffices to establish and provide fair and correct
results in examining victims of offences like the one the appellant was
charged with. Therefore, we see no basis to differ with the findings of
the two courts below based on the argument of DNA.
The other point which draws our attention is whether evidence
of relatives need corroboration before a trial court can rely on such
evidence in convicting an accused person. First, it is settled that there
is no law which determines a number of witnesses to be called to
testify in a given case (section 143 of the Tanzania Evidence Act, Cap
6) (see also: Yohanis Msigwa v. Republic, (1990) TLR 148). Second,
with regard to witnesses who asre related, it is now settled that the
fact that witnesses are related to each other is not legally sufficient to
discard their evidence. (Samwel Wilfred Mushi v. Republic, Criminal
Appeal No. 236 of 2007- unreported). What is important is the
credibility of the said witness, (see: Abas Seleman Mbing v. Republic,
Criminal Appeal No. 250 of 2008; Juma Senga v. Republic, Criminal
405
Appeal No. 164 of 2008 – both unreported).
In the instant case, there were other witnesses who testified

and who were not blood relatives of PW1. Therefore, the appellant’s
arguments on this point have no merit.
The first appellate court considered the issue of the age of the
victim, PW1, and came to the conclusion that the prosecution did
not produce sufficient evidence on the matter. There is a photocopy
of a clinic card produced as an exhibit which shows that PW1 was
born on 10th October, 2003. It means therefore, that when the offence
was committed she was about 8 years old. However the provisions
of sections 67 and 68 of Cap 6, seem not to have been complied with.
These are provisions that govern production of secondary documents-
when and which procedure to be adopted. Even if we were to accept
PW1’s clinic card as containing the exact date of her birth, yet the
procedure of admitting into evidence the said did not comply with the
requirements of the law. It would not, therefore, be relied upon. In
the absence of PW1’s age being proved, the benefit of doubt ought to
be extended to the appellant. In the instant case, determining the age
of PW1 was very crucial as it affected the kind of punishment to be
imposed on the appellants- either life imprisonment or the thirty years
jail sentence. The first appellate court judge extended the benefit of
doubt to the appellant by not interfering with the thirty years prison
term. We agree with him.
The other claims by the appellant are that the prosecution case
was not proved to the required standard and that his defence case
was never considered. We had an opportunity of studying the court
record and came to the considered conclusion that the case against
the appellant was proved beyond reasonable doubt. This is even after
due regard of his defence case having been considered. We are equally
convinced that the trial court fully complied with the mandatory
provisions of s. 127(2) of Cap. 6 before receiving the evidence of PW1
and PW2.
Therefore, we uphold the conviction and for reasons stated
herein, the sentence of thirty years imprisonment is undisturbed.
This appeal is dismissed in its entirety.
406
MA v. R, Miscellaneous Criminal Application 95 of 1999, High Court
of Tanzania at Mwanza (unreported)
(Date of the decision: 21st July 1999)
Criminal Law – Criminal responsibility – Defence – Immature
RULING
MREMA, J.: I have heard the learned State Attorney, Mr. Kabonde,
submitting in this revisional proceeding, as amicus curiae, in respect of
the conviction and sentence to life imprisonment of the child of 9 years
of age, one Mohamed Abdalla. The accused was on 15/6/99 charged with
and convicted of “Rape c/ss 130 (1) & (2) and 131- (2) (a) of the Sexual
Offences Special Provisions Act, Act No. 4 of 1998” at Magu District
Court. The record of the lower court shows that he pleaded guilty to
the charge and the facts adduced purporting to support the alleged
charge of rape. In the result the trial Magistrate, Mr. Kamalamo, in
sentencing the accused, made the following observation inter alia as
follow:
“But regarding the gravity of the offence as it has been

prescribed under the sexual Offences especial Provision my hands are
tied up and I can’t fold them on my head thinking about Statute which
it is life imprisonment. In such circumstances under section 131(3) of
the Sexual Offences Special Provisions Act. No. 4 of 1998, Accused is
hereby sentenced to life imprisonment.”
Then the Magistrate directed the sentence to be confirmed by this
court. But before this court received the file from the lower court, or
was aware of what had taken place in the District Court, the Learned
Principal State Attorney, Mr. Magoma, made a formal complaint
to the District Registrar with request that the same be brought to
the attention of the Judge in-charge concerning the illegality of the
conviction and sentence passed against the accused. Appropriate
action was accordingly taken and the matter was placed before me to
deal with the matter by way of revision, apparently under section44-(1)
of the Magistrates’ Courts Act, Act No.2 of 1984.
407
Submitting, as a friend of court, on behalf of the victim accused,
Mr. Kabonde, Learned State Attorney, stated that following the
Amendment of section15 of the Penal Code by Act No.4 of 1998, it is
manifestly obvious that the conviction and sentence are not tenable
under the circumstances and accused should be set free immediately
because he is serving an illegal sentence. As this matter did not
require a second consideration for being too obvious to waste even
not a minute, I fell in with Mr. Kabonde’s views entirely and as a
consequence I ordered the immediate release of the accused from the
prison, quashed the conviction and set aside the sentence.
I am now giving reasons for my decision. Before the enactment

of the Sexual Offences Special Provisions Act, Act No.4 of 1998,
offences against morality are as provided under chapter XV, sections
130,131,132 to 162 inclusive. Under the new Act, some sections in the
Penal Code and (2), 131-(2) (a) and 15 of the Penal Code as amended
by Act No. 4 of 1998. Before the amendment it was plainly provided
under section 15 of the Penal Code, Cap 16 of the Laws, to the effect
that “A male person under the age of the twelve years is presumed
to be incapable of having carnal knowledge.” The same law has
been retained under the new Act, which is now section 15-(3) of Act
No.4/1998. And not only that: section 15-(1) of the new Act makes a
general provision which stipulates that “A person under the age of ten
years is not criminally responsible for any act or omission.” The Law is
therefore very clear that any person who is charged with any criminal
offence and his/her age is proved to be under the age of ten years the
Court of Law should find him/her not criminally responsible for any
act or omission. In this case the accused was, as per the accused’s PF3
admitted as exhibit P.“B” confirmed to age 9 years the same reading
as follows:
“I have examined the named above and found that He is =9

years old and he is physically and mentally fit” (apparently signed for
and on behalf of the District Medical Officer, Magu).
Under the said law it is immaterial whether or not the offence is under
the Sexual Offences Special Provisions Act, Act No. 4 of 1998 so as to
invoke sub-sections 15-(1) and (3) of the Act. The governing principle
408
under sub-section (1) is that once a trial court is satisfied on the
evidence, or by a general observation of the person charged, that he/
she is under 10 years of age then it (the court) should immediately find
the person charged not criminally responsible for the act or omission
he/she is alleged to have committed. There should be no more proof,
nor waste time even a minute, to ask whether or not the accused
should proceed to stand the trial. The court should make a special
finding to the effect that the accused by reason of his or being under
10 years of age he/she is not criminally responsible for the alleged act
and on that account the Sexual Offences Special Provisions, such as
the present case, courts are guided by sub-section 3 of section 15 of
the Penal Code, as amended, and the question that has to be asked by
the trial court is whether the person charged is a male person, and if
he is, whether he is under the age of twelve years for the Law (under
sub-section 3 of section 15) presumes him to be incapable of having
sexual intercourse.
In the instant case I cannot see, even by stretch of imagination,

how this trial district magistrate, did not know that under the
Tanzanian Penal Code there has always been a provision that takes
care of persons under immature age. I would not have expected a
Magistrate of the calibre of Mr. Kamalamo, as the latter holds an
ordinary diploma in Law, to have failed to have taken cognizance of
that obvious stand of the law and in my view, such failure tends to
attract such curiosity leading to a question as whether the act by the
Magistrate was either deliberate/ design or an error apparent on the
face of the record! Indeed the answer is always with the maker and I
am not entitled, in Law, to speculate.
Be that as it may, the question that is before me is whether
the accused was convicted and sentenced illegally. As it is already
observed above both the conviction and sentence were illegal as they
contravened the mandatory provisions of section 15 (1) and (3) read
together with section 13-(1) and (2), and 131-(2) (a) of the Penal Vode
as amended by Act No. 4 of 1998. Again, even if the accused, say, was
above the age of 12 years, but he was not, the trial magistrate ought to
have put into view the circumstances provided under section 131-(2) of
the Penal code as amended. Section 131-(1) provides for punishment
as follows:
409
131- (1) Any person who commits rape is except in the cases
provided for in the renumbered subsection (2), liable to be punished
with imprisonment for life, and in any case for imprisonment of not less
than thirty years with corporal punishment and with fine and shall in
addition be ordered to pay compensation of an amount determined by
the court, to the person in respect of whom the offence was committed
for injuries caused to such person.” (Underlined provides emphasis).
Yet, a trial court cannot read sub-section (1) of section 131 (supra) in
isolation of sub-section 2 of the same section which provides:
131-(2) Notwithstanding the provision of any law, where the offence

is committed by a boy who is of the age of eighteen years or less, he
shall:-
If a first offender, be sentenced to corporal punishment only;
If a second time offender be sentenced to imprisonment for a term of

twelve months with corporal punishment;
If a third time and recidivist offender he shall be sentenced to life

imprisonment pursuant to sub section (1).
My understanding of the law is that if a male person is 18 years and
below, but not below the age of 12 years, and he is charged with and
convicted of the offence of rape he will not enjoy the immunity provided
under section 15-(3) of the Penal Code (as amended). Instead, the Law
protects him from custodial sentence provided under section 131-
(1) of the Penal code as per the amendment by Act No.4 of 1998, so
that if he is a first he is a second offender then the punishment will
be imprisonment term for a period of twelve months with corporal
punishment.
But that is not the end of the matter.

A male offender at the age of 18 years and below up to twelve years
(but not below) automatically loses the statutory relief he would have
been accorded and enjoyed under item (a) or (b) of sub section 2 of
section 131, as the case may be if the rape is committed to a girl under
410
the age ten years (emphasis provided): for sub-section 3 of section 131
provides:
131-(3) Notwithstanding the preceding provisions of this section
whoever commits an offence of rape to a girl under the age of ten years
shall on conviction be sentenced to life imprisonment (underlined is me
to provide emphasis).
What do the words “whoever commits an offence” mean under the sub-
section? I have posed this question following what I have gathered
from the proceeding in the record of the district court. From the record,
it is disclosed that after the accused was convicted on his own plea of
guilty on 15/06/99, the trial magistrate made the following Order:
“Order: After read the Act (sic) which it is contradictory,

sentence has been reserved till after consultation with High level
authority. In such circumstances sentences will be delivery (sic) after
received report from High court Mwanza.
D.M.F. Kamalamo
Sgd.
DM”
Pausing here briefly, I would like to make it clear that at the material
date to this case it happened that I was alone at the station and among
my duties I was acting as judge in charge. It is needless to say there was
not such a consultation made to me, not even a whisper that there was
such a problem at Magu District court. As already pointed out earlier
the complaint regarding the conviction and sentence of a male boy
under the age of 10 years was inflamed to this Court by the Principal
State Attorney, Mr. Magoma, who was also incited to the matter by
the DPP, Dar es Salaam. I am also given to understand that even the
then Ag. DR, Mr. Kihiyo (PRM), was not consulted on the matter as
per the allegation cited above. May be the trial magistrate had his
own secret agenda actuating him to operate the way he conducted
himself contrary to the well written statutory provisions (as shown
above).
411
There is another absurdity which I think one should not turn blind
to avoid looking at it. It is apparent from the record that after the
trial magistrate made the order I have just cited above, made another
order but the next day 16/06/99. The said order reads:
“Order: Case has been adjourned till 22-06-1999. Accused shall be

released on bail of Tshs. 300,000/= with one surety in the same of
amount alike in words not money (sic).
D.M.F. Kamalamo
Sgd.
16.06.99”
I note that this order was prompted upon application apparently for
bail from the mother of the accused-child, one Ashura Abdallah, as
the same appears to be confirmed by a letter of introduction given to
her by the Village Chairman of Nyalikungu - dated 16-06-1999. And
the same is indicated to have been received and acknowledged by the
magistrate as confirmed by his handwriting and signature dated 16-
06-1999.
I have taken the trouble to point out this because: first, accused was
never released on bail; second, if the reason to reserve the sentence
was to await clarification from the High court for what accused claimed
were contradictions in the relevant provisions of the sexual offences,
why then making a subsequent ridiculously unreasonable, if not
incongruous order before he received clarification on the matter from
the High court? Order granting bail was made on 16/6/99 and six days
later accused was thrown into jail – life imprisonment. Throughout
my experience, and from massive case law I have chanced to read,
save for the treason cases, it is amazing that the district magistrate
is the first judicial officer in the country [who] has ever passed a life
imprisonment sentence. Even this frightening sentence would have
loathed him to act as swiftly as he did before he sought advice from
those above him in the administration of justice. Having said what
I have commented about the unbecoming of the magistrate as to his
judicial conduct, I need say no more.
412
I now revert to my earlier discussion. It is clear from the Law, therefore,
in my view, that the provision of section 131 of the Penal Code, read
as one with Act No.4 of 1998, do not cover male accused persons under
the age of ten years in terms of section 15-(3) of the amended section
of the penal code. If the Magistrate was judiciously diligent and had
minded to read carefully the relevant law under which accused was
charged he would not have succumbed to this serious blunder which
has sparked out public outcry and criticism, indeed, no doubt against
Judiciary generally.
In the upshot, the conviction and sentence were gravely illegal and
the same has been quashed and set aside, in that order, which also
resulted to the immediate acquittal of the accused. In other words,
the conviction and sentence by the district court have been revised by
virtue of the powers conferred upon this court by section 43-(1) and
44-(1) of the M.C.A, 1984.
413
MMN (Child) v. R, Criminal Appeal 173 of 2019 High Court of
Tanzania at Musoma (unreported)
(Date of the decision: 25th February, 2020)
(Kisanya, J.)
JUDGMENT
KISANYA, J.: In the District Court of Serengeti at Mugumu, the
appellant was charged with the offence of unnatural offence, contrary
to section 154(1) (a) and (2) of the Penal Code [Cap. 16 R.E. 2002].
The particulars of the said offence were that, on 25th October, 2019
at Borenga Village within Serengeti District in Mara Region, the
appellant did have carnal knowledge to one DEH (name withheld)
aged four years, against the order of nature.
When the charge was read over and explained to the appellant, he
pleaded guilty to the charged offence. Thereafter, the prosecution read
to him the facts of the case. The appellant admitted the said facts to
be correct. Therefore, he was convicted on his own plea of guilty, and
sentenced to imprisonment for life.
Aggrieved, the appellant has filed this appeal on grounds which are
summarized as follows:
1. That, the trial magistrate erred in law in convicting and

sentence the appellant who did not know the nature of plea to
the charged offence.
sentence appellant without considered that he was below
eighteen years.
3. That, the trial magistrate erred in law in convicting the
appellant who did not know the some of the statement issued by
the trial court.
sentencing the appellant without requiring evidence to prove
the charges.
414
Before me, the appellant appeared in person, legally unrepresented
while the Respondent was represented by Mr. Nimrod Byamungu,
learned State Attorney.
Upon reading and explaining the grounds of appeal to the appellant,
I called him to argue and address the Court on his petition of appeal.
In his brief submission, the appellant added that the plea was not
entered voluntarily. He also claimed to have been beaten by the
police officers before being taken to the Court. Further, the appellant
opted to adopt his petition of appeal. He urged this Court to allow the
appeal.
In his reply submission, the learned State Attorney did not support
the appeal. He argued that, since the appellant was convicted on his
own plea, the present appeal against conviction contravenes section
360 of the Criminal Procedure Act [Cap. 20, R.E. 2002]. Mr. Byamungu
argued further that, the appellant’s plea was unequivocal and that he
admitted the facts read by the prosecution. As for the ground that,
the plea was equivocal because the appellant had been beaten at the
police, Mr. Byamungu submitted that the plea was taken in the Court
and that he ought to raise that issue in the trial Court.
Citing the case of Issa Ramadhan v. the Republic, Criminal Appeal
No. 4 of 2017, Court of Appeal at Arusha (unreported), the learned
State Attorney argued that this Court cannot impose lesser sentence
because sentence of life imprisonment imposed by the trial court is a
statutory sentence.
On ground that, the trial court failed to consider the appellant’s age
before imposing a sentence, Mr. Byamungu submitted that the
appellant admitted the particulars of the charge sheet, which indicated
that he was 18 years old. It was submitted further that the appellant
did not raise that issue during mitigation.
Upon being probed by this Court, Mr. Byamungu conceded that all
exhibits were tendered after the appellant had admitted the facts of
the case. However, the learned counsel was quick to argue that even
if the said exhibits are expunged, the facts read over and admitted by
the appellant disclosed the offence. Therefore, he urged me to dismiss
the appeal.
415
It is trite law as provided for under section 360 of the Criminal
Procedure Act [Cap. 20, R.E. 2002) that, a person convicted on his
own plea, can only appeal against the sentence, and not conviction.
However, the position that appeal cannot be filed against conviction
applies if a plea is unequivocal. Where the plea is equivocal,
conviction arising thereto cannot stand on appeal.
Having considered the petition of appeal and submissions of both

parties, I find that, this appeal can be disposed of by addressing two
issues. These are, whether the appellant’s plea was equivocal and
given in accordance with the law; and whether the sentence imposed
by the trial court was proper.
As for the first issue, the procedure for taking plea of the accused
person who admits the truth of the charge is provided under section
228(2) of the Criminal Procedure Act, that:
“If the accused person admits the truth of the charge, his admission
shall be recorded as nearly as possible in the words he uses and the
magistrate shall convict him and pass sentence upon or make an
order against him, unless there appears to be sufficient cause to the
contrary”.
The required procedure was well elaborated in Adam v. Republic
[1973] cited with approval by the Court of Appeal in the case of Issa
Ramadhan v. R. (supra) that:
“Where a person is charged, the charge and the particulars

should be read out to him so far as possible in his own
language, but if that is not possible, then in a language which
he can speak and understand. The magistrate should explain to
the accused person all the essential ingredients of the offence charged.
If the accused then admits all those essential elements, the magistrate
should record what the accused has said as nearly as possible in his
own words and then formally enter the plea of guilty.
416
The magistrate should next ask the prosecutor to state the
facts of the alleged offence and, when the statement is
complete, should give the accused person an opportunity to
dispute or explain the facts or to add any relevant facts. If the
accused person does not agree with the statement of facts, or
asserts additional which if true, might raise a question as to his
guilty, the magistrate should record a change of plea to “not
guilty” and proceed to hold a trial. If the accused person does
not deny the alleged facts In any material respect, the
magistrate should record a conviction and proceed to hear any
further facts relevant to sentence. The statement of facts and the
accused’s reply must, of course, be recorded.”
In order to establish whether the above procedures were complied
with in the case at hand, I find it pertinent to reproduce what
happened when the appellant was arraigned before the trial court, on
31st October, 2019.
“Court: Charge is read over and well explained to the accused

person who is asked to plead thereto:
Accused’ Plea:- “Ni kweli nilimlawiti mlalamikaji.” Signed
Court: Plea of guilty is entered
Signed
RM
31/10/2019
P.P.: I pray to continue with the facts of the case.

Signed
RM
31/10/2019
Court: Prayer granted for reading the facts
Signed
RM
31/10/2019
417
FACTS BY PP
The particulars of the accused person are as indicated in the

charge sheet. On 25/10/2019 at 01.00 PM at Borenga Village
within Serengeti District in Mara Region, the accused person did
have canal (sic) knowledge a victim DEH a child aged 4 years
against order of nature in his house. On the same day about
03:00 pm the accused person was arrested and taken to
Borenga Police and on 27/10/2019 he was brought to Mugumu
Police Station where he was interrogated and admitted the offence.
On 30/10/2019 the accused person was brought to the justice of peace
he also admitted to commit an offence. Today 31/10/2019 he is brought
to court to answer the charge and he also admits the offence. That is
all.
Signed
RM
31/ 10/2019
COURT: The accused person is asked about the facts adduced

by the prosecution if they are true and correct and he replies.
Signed
RM
31/10/2019
Accused: “The facts are true and corrects”
Signed
Accused person
Signed RM
31/10/2019...”
418
Thereafter, the prosecution tendered the cautioned statement of the
accused person, the extrajudicial statement and PF3 as exhibits Pl,
P-2 and P-3 respectively. The appellant did not object all documents.
The Court read over and explained the contents of cautioned and
extra-judicial statement. He was then convicted on his own plea of
guilty.
At this juncture, I find that the trial court erred by admitting
documents after the appellant had admitted facts read by the
prosecution. The trial court should ensure documents are tendered
before the accused is called upon to state whether he admits the
facts read by the prosecution or otherwise. Documents or exhibits
tendered after the accused has admitted the facts cannot form part
of the facts admitted by the appellant. Therefore, I will not consider
Exhibits P-l, P-2 and P-3 to have been admitted by the appellant.
However, even if the said exhibits are not considered, I find that,
the procedure of taking plea of a persons who admit the truth of the
charge was complied with by the trial court as follows: First, the
charge was read over and explained to the appellant There is no law
which provides that accused person must be asked three times as
stated in the grounds of appeal. Second; the accused reply to the
charge that “Ni kweli, nilimlawiti mlalamikaji” was unequivocal.
This was clear and unambiguous statement. Third, the facts which
the accused person admitted without qualification constituted the
offence charged. Therefore, the first issue is answered in affirmative.
The appellant’s plea was unequivocal and was taken in accordance
with the law.
The appellant’s ground that, he was beaten before being taken to

the Court has no merit. He ought to state that fact before the trial
magistrate. Further, that issue was not stated in his petition of
appeal.
The second issue is whether the sentence imposed by the trial court
is proper. According to the facts of this case, the victim was 4 years
old. The provision of section 154(2) of the Penal Code cited in the
statement of offence of the Charge Sheet provides that, if the
419
offence of unnatural offence is committed to a child under the age of
eighteen years, the offender is liable to statutory sentence of life
imprisonment. Unlike section 131(2) of the Penal Code, for offence of
rape, there is no lesser punishment where the offence of unnatural
offence is committed by boy of 18 years.
However, pursuant to section 2 of the Minimum Sentences Act [Cap.

90, R.E. 2002], the minimum sentence does not apply to a person
below 18 years. Therefore, where an offence is committed by person
below 18 years, the applicable procedure is provided for under the
Law of the Child Act, 2009 (as amended). According to section
119(1) of the said Act, imprisonment sentence cannot be imposed to
a person below 18 years, because he is regarded as a child. The said
provisions provide that:
“Notwithstanding any provisions of any written law, a child shall not

be sentenced to imprisonment.”
The Law of the Child Act, 2009 is superior legislation on matters
related to the promotion, protection and maintenance of the welfare
and rights of the child. It overrides other laws when it comes to
issues related to children. This is also reflected in the above cited
provisions where the words “Notwithstanding any provisions of any
written law” have been used. Thus, even if the penal law provides for
imprisonment, that sentence will not be imposed if the offender is a
person below 18 years
Therefore, age is important element in charging the accused person,

especially in sexual offence case because it has implication
on the sentence. Hence, if the accused person pleads guilty to the
offence, his age must be stated in facts of the case apart from being
specified in the charge sheet. This will enable the Court to impose
sentence which serves the best interest of the child as required by
the law.
420
In the case at hand, the appellant submits that he was sentenced to
life imprisonment while he was below 18 years. Mr. Byamungu
argues that the appellant admitted to be 18 years old.
I have shown in the facts reproduced herein that age of the

appellant was not stated. It was stated in the facts of the case that,
particulars of the appellant “are as indicated in the charge sheet.”
However, it is not clear whether the particulars of the charge sheet
were read over to the accused. Further, it is not known whether the
appellant was given copy of the charge sheet. Therefore, in absence
of evidence to such effect, it cannot be held that the appellant
admitted to be 18 years. Likewise, the prosecution did not state the
appellant’s age during its submission on the aggravating factors. It is
my considered view that, the appellant being a lay person, who was
legally unrepresented, could not appreciate the importance of stating
his age during mitigation.
Even if the issue of age is not raised by the prosecution or accused

person, the Court is mandated, where the need arises, to inquire into
the age of the accused person. This is based on section 236 of the
Criminal Procedure Act that:
“The court may, before passing sentence, receive such

evidence as it thinks fit, in order to inform itself as to the proper
sentence to be passed.”
It was also held in Republic v. JN (A Child) [1977] HCD, No. 269,
where a person is alleged to be a person just on the borderline
between a young person and an adult, medical evidence should be
called for to determine the precise age of the accused person, to
assure proper procedure and sentencing.
I have a time of observing the appellant when he appeared before me.

He appeared to be on the borderline between a young person and an
adult. Since his age was not determined accordingly before passing
the sentence, and for the interest of justice, I quash the proceedings on
the sentence. By virtue of section 373 of the Criminal Procedure Act
[Cap. 20 R.E. 2002], I order that the file be returned to the trial court
421
to for inquiry on the age of the accused person and pass sentence in
accordance with the law. The procedure for determining age of the
person who appears to be a child is provided for section 113 of the
Law of the Child Act. The trial court is advised to ensure that this
provision is complied with accordingly.
For the aforesaid reasons, the appeal is partly allowed in that, appeal
against conviction is hereby dismissed. On the other hand, appeal
against sentence is allowed to extent that the sentence is set aside
as the trial court is directed to determine age of the appellant before
imposing a sentence. Considering that the appellant age is uncertain,
his name has been withheld in this judgement.
Order accordingly.
422
Magina Kubilu alias John v. R, (Criminal Appeal 564 of 2016) [2020]
TZCA 1750; (26 August 2020)
(Mwarija, Mwambegele and Kerefu, JJA)
JUDGMENT
MWAMBEGELE, J.A.: Before the District Court of Maswa, the

appellant Magina Kubilu @John was arraigned for rape contrary
to sections 130 (1), (2) ( e) and 131 (1) of the Penal Code, Cap.16 of
the Revised Edition, 2002 (the Penal Code). The accusation against
him, as gleaned from the particulars of the offence part of the charge,
was that on 30.03. 2014 at about 1800hrs at Kapilima Street within
Maswa District in Simiyu Region, he raped a girl aged thirteen years.
To conceal her identity, we shall refer to the girl as simply “PW1” or
“the victim”.
The appellant pleaded not guilty to the charge levelled against him.
After a full trial comprising four prosecution witnesses and one in
defence (the appellant himself), the appellant was found guilty,
convicted and sentenced to a prison term of thirty years and ten
strokes of the cane. He was also ordered to compensate the victim
Tshs. 500,000/=. The conviction and sentence for obvious reasons, did
not amuse the appellant. He unsuccessfully prosecuted his appeal in
the High Court before Makani, J. Still aggrieved, he has preferred this
second appeal in his quest to assail the verdict of the High Court.
The material background facts leading to the appellant’s arrest are
found in the testimonies of the prosecution witnesses. They go thus: on
30.03.2014 at about 1800hours the victim was no her way back home
from school when the appellant called her and asked her to enter his
room. Upon the victim’s resistance for quite some considerable time,
the appellant forced her in and, there, he raped her. The appellant,
for what he did to the victim, promised to give her Tshs.5,000/= on the
following day. That day the victim proceeded with her journey back
home.
423
On the following day, the victim went to the appellant’s residence to
collect the money she was promised by him. Indeed, there, the appellant
walked the talk. He gave her the money as promised but at school,
little did the victim know that some few days later; on 02.04.2014 to
be particular, Devota Japhet Soko (PW4); a teacher at Nyalikungu
Primary school where the victim schooling, would be inquisitive. PW4
saw the victim with Tshs.4,000/= which she reckoned was rather too
much for her. Smelling a rat, she embarked on interrogating the victim
on the source of the money. Upon enquiry, the victim fumbled. At first
she said she was given Tshs.2,000/= by her grandmother and another
Tshs.2,000/= by her uncle. PW4 found the answers unsatisfactory and
therefore wanted to pursue the matter a little bit further. She thus
phoned and subpoenaed Bahati Benjamin (PW2); the victim’s mother
who upon showing up, she was told about the victim having in her
possession some money which, to them, was too much for the pupil
and had given no sufficient and plausible explanation. The appellant
was chastised with some strokes of the cane and that is the point in
time when the cat was let out of the bag. She told PW2 and PW4 that
she was given the money by his lover going by the name John; the
appellant.
The victim, after obtaining a PF3 from the police, was taken to the
Hospital on 03.04.2014 where Dr. Lugaga Vedastus (PW3) examined
her and found that she had bruises in the labium minora parts of
her vagina. The PF3 was tendered and admitted in evidence as Exh.
P1. On the following day, the appellant was arrested. He was later
arraigned, stood trial, found guilty, convicted and sentenced in the
manner already alluded to above.
The hearing of this appeal was conducted through the virtual court
services of the Judiciary of Tanzania. The appellant appeared in
person, remotely at Shinyanga District Prison. Mr. Nassoro Katuga,
learned Senior State Attorney and Ms. Edith Tuka, learned State
Attorney joined forces to represent the respondent Republic.
When we called upon the appellant to argue his appeal, he did no more
than adopt the memorandum of appeal he earlier filed. He preferred
the Republic to respond to his grounds of appeal after which he would
exercise his right of rejoinder in case that need would arise.
424
It was Ms. Tuka who responded to the appellant’s grounds of appeal.
In her response, the learned State Attorney expressed her stance at
the very outset that she resisted the appeal. She combined the first
and second grounds of appeal in her response. On the first ground,
the appellant faults the first appellate court that it erred in convicting
him on the strength of uncorroborated evidence. The learned State
Attorney submitted that the record of appeal shows at pp.8 to 9 that
a voire dire test was conducted on the victim and at p. 10, the trial
court made a finding that the victim possessed sufficient intelligence
and knowledge of the duty of speaking the truth and was thus sworn
before giving evidence. Such evidence she submitted at law does not
need corroboration and may be used to convict an accused person. To
buttress this proposition the learned State Attorney cited to us Hassan
Kamunyu v. Republic, Criminal Appeal No. 277 of 2016 (unreported).
The gist of the second ground, Ms. Tuka argued, is a complaint that
the victim was not credible. She submitted that this complaint is far
from truth because the victim eloquently narrated what transpired
from p.10 to p.11 of the record of appeal how the appellant raped her
after she was coming from school and promised to be given money for
that occurrence on the following day. The victim collected the money
from the appellant as promised and she was found in possession of
part of that money at school. The learned State Attorney added that
at p. 47, the learned trial magistrate found the victim as a witness
of truth. Ms. Tuka relied on our decision in Selemani Makumba v.
Republic [2006] T.L.R. 379, at p. 384 where we held that true evidence
of rape has to come from the victim. She submitted that the victim
herein, a child of tender years, proved that there was penetration and
found by the trial court to be a credible witness.
The complaint on the third ground of appeal is that the appellant

was denied of his right to call his witnesses. Ms. Tuka submitted that
the record shows at p. 27 that the appellant wished to call witnesses in
his defence. He asked for summonses to issue to his witnesses and the
prayer was granted, she submitted. However, at p. 35, Ms. Tuka went
on the appellant prayed to close his case efforts to trace his witnesses
having failed. In the premises, she argued, the trial court did not deny
him the right to call his witnesses. This complaint on denial of the
right to call witnesses is therefore unfounded, she contented.
425
The learned State Attorney combined grounds five and six which
challenge the way the PF3 was received in evidence and that without
it, the witnesses should not have been believed. She admitted that the
PF3, undoubtedly, was not procedurally adduced in evidence in that
it was read and explained before admission. That, she submitted, was
a fatal error as the Court held in Robinson Mwanjisi and others v.
Republic [2003] TLR 2018. She added that the exhibit (the PF3) was
tendered in evidence by the public Prosecutor which was also fatal.
The learned State Attorney thus had no qualms if the PF3 would be
expunged from the evidence. However, she argued the contents of the
PF3 were covered by the oral testimony of Dr. Lugaga Vedasto (PW3)
who prepared it. That sufficiently proved the evidence that would
have otherwise been found in the PF3 because expert opinion does not
override the oral evidence of the witness who physically examined the
victim, she submitted. For this proposition, the learned State Attorney,
relied on our decision in Masalu Kayeye v. Republic, Criminal Appeal
No. 120 of 2017 (unreported) - [2020] TZCA 302 at www.tanzlii.org, at
p. 20 of the typed judgement at which we observed that expert opinion
or production of a PF3 does not override the evidence of a witness who
physical examined the victim. This complaint is also without merit,
she contended.
In response to ground seven; a complaint that the appellant was not
taken to court timely contrary to section to section 32 of the Criminal
Procedure Act, Cap.20 of the Revised Edition, 2019 (the CPA), Ms.
Tuka submitted that, indeed, the record bears out that the appellant
was arrested on 04.04.2014 and taken to court on 14.04.2014. That,
she submitted, offended against the provisions of section 32 of the
CPA. However, the learned State Attorney was quick to submit that
the provision relates to investigation procedure under Part II of the
CPA; the complaint therefore had no bearing on the trial. It should be
disregarded, she submitted.
The last ground is a general one; that the case for the prosecution was
not proved beyond reasonable doubt. Ms. Tuka responded that, in view
of the arguments fronted in the above grounds, the case against the
appellant was proved beyond reasonable doubt through the evidence
of the victim supported by PW2, PW3 and PW4. Ms. Tuka thus
submitted that the appeal was without merit; it should be dismissed.
426
In a short rejoinder, the appellant lamented that he was framed. He
did not disclose the reasons why he was so framed. He added that his
name was not John but agreed that it was the name of his grandfather.
He submitted that he has never worked with Ndegesera Company as
claimed by the appellant who said she was raped by a certain John
who worked with Ndegesera Company. The appellant thus prayed to
be released from prison custody by allowing his appeal.
In determining this appeal, we shall confront the grounds in the order

they appear. The first ground of appeal is a complaint that the first
appellate court erred in convicting the appellant on the strength of
uncorroborated evidence. We take the complaint on this ground as
hinging on the argument that the testimony of the victim needed
corroboration. Let us, first, expound the law as it stood then; when the
offence under consideration was committed. We wish to acknowledge
that we grappled with the point at some considerable length in Hassan
Kamunyu (supra); a case cited and supplied to us by the respondent
Republic. As we are certain that the position of the law that was
applicable then in that case is relevant in the case at hand, we shall
reiterate that position here.
The law applicable then was section 127 (2) and (7) of the Evidence
Act, Cap.6 of the Revised Edition, 2002, before being amended by
the written laws (Miscellaneous Amendments) (No.2) Act,2016 (the
Evidence Act). Subsection (2) thereof, as it stood then, read:
“(2) Where in any criminal cause or matter a child of tender age called
as a witness does not, in the opinion of the court, understand the nature
427
And subsection (7) of the same section (before being renumbered by
the amending Act) read:
“(7) Notwithstanding the preceding provisions of this section, where

in criminal proceedings involving sexual offence the only independent
the credibility of the evidence of the child of tender years of as the case
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.”
In Nguza Vikings @ Babu Seya & 4 others v. Republic, Criminal Appeal
No. 56 of 2005 the Court interpreted the tenor and import of the then
subsection (2) and (7) of section 127 of the Evidence Act:
“From the wording of the section, before the court relies on the
evidence of the independent child witness to enter a conviction, it must
be satisfied that the child witness told nothing but the truth. This
means that, there must first be compliance with section 127 (2) before
involving section127 (7) of the Evidence Act; “Voire dire” examination
must be conducted to ascertain whether the child possesses sufficient
intelligence and understands the duty to speak the truth. If the child
witness understands the duty to speak the truth, it is only then its
evidence can be relied on for conviction without any corroboration
otherwise the position of the law remains the same, that is to say that
unsworn evidence of a child witness requires corroboration.”
The foregoing stance was re-endorsed by the Full Bench of the Court
in Kimbute Otiniel v. Republic, Criminal Appeal No. 300 of 201
(unreported) in the following terms:
428
“… section 127 (7) only obviates the need for corroboration, direct
or circumstantial where the evidence taken under section 127 (2)
emanates from a properly conducted voire dire thereunder; however,
it does not dispense with or remove the requirement of corroboration
where the evidence taken originates from a misapplication or non-
direction of section127 (2).”
Reverting to the case at hand, the record bears out at p. 8 that the
trial court conducted a voire dire test to first ascertain if the victim
knew the nature of oath so that she could be sworn before adducing
evidence. That was compliance with section 127(2) of the Evidence
Act after which the trial court found at p.9:
“The child knows God and knows about the nature of

oath. So her evidence will be taken on oath”
The learned trial court magistrate did not stop there. He took yet a
second step to test the intelligence of the victim by another voire dire
and at p. 10, he made the following finding:
“I find that basing on the above examination, a child is intelligent

enough and she knows the duty to speak the truth.”
Flowing from the above, we must confess to our being unable to
comprehend the complaint by the appellant on the first ground of
appeal. If anything, we are satisfied that the learned trial court
magistrate strictly complied with the provisions of sections 127(2) and
(7) of the Evidence Act, as they stood then. Indeed, this is one of the
cases in which a trial magistrate complied with those provisions to the
letter. Hon. T.J. Marwa, Resident Magistrate, deserves a pat on the
back for this job well done. It is an example to be emulated.
In view of the above, we are settled in our mind that such evidence could
stand alone and capable of mounting a conviction of the appellant. We
find no merit in the first ground of appeal.
429
On the second ground of appeal, the appellant seeks to impugn the first
appellate court for believing the victim who, to him, was not a credible
witness. With due respect, we find ourselves unable to agree with the
appellant. With equal due respect, we agree with Ms. Tuka that the
victim was but a credible witness, for she eloquently recounted what
befell her with considerable consistency. She narrated on how the
appellant raped her on the material day in the evening when she was
returning home from school and how she was promised to be given
Tshs. 5, 000/= on the following day. Indeed, on the next day, the victim
was hypnotized by the Tshs. 5, 000/= she was promised; she went to the
appellant’s residence and collected the money. She also narrated how
her teacher (PW4) saw her with part of the money, how her mother
(PW2) was called and how some strokes of the cane were administered
on her which made her unveil the truth and the immediate arrest of
the appellant. Such eloquence, in our considered view, does not put
the victim in the realm of witnesses who are not credible. She was
a credible witness and the trial court was quite in the right track to
take her as such. As we held in Selemani Makumba(supra); the case
cited to us by Ms. Tuka, true evidence of rape has to come from the
victim, if an adult, that there was penetration and no consent, and
in case of any other woman where consent is irrelevant, that there
was penetration. We are satisfied that the victim in the case at hand
discharged her duty as required by Selemani Makumba (supra). This
being a statutory rape, she proved penetration in her testimonial
account and on that aspect, the testimony of PW3; the Doctor who
medically examined her, gave credence to her testimony. The second
ground of appeal is also without merit.
Next for consideration is the third ground of appeal which is founded
on the complaint that the appellant was denied of his right to call
his witnesses. The record has it at p. 27 that the appellant wished
to call Petro Mgasa, Mama Tugema, Mary Makonda, Mama Masha
and Kiserya Charles of Wambura Street in Maswa Township as well
as a certain Amos who worked with Ndegesera Company. He asked
summonses to issue to them. It is not apparent on record that the said
summonses were issued to the appellant’s witnesses but the appellant
prayed to close his case on account that efforts to trace his witnesses
was barren of fruit. We will let the appellant’s words appearing at
p.32 of the record paint the picture. He is recorded as saying:
430
“I am ready to defend my case today and I will defend myself as
my witnesses seem not to respond to witnesses’ summonses.”
We agree with Ms. Tuka hat it is shown nowhere on the record of
appeal that the appellant was denied of his right to call his witnesses.
The blame on the trial court denying him of the right to call witnesses
is not backed by the record of appeal and thus dismissed.
We now turn to consider grounds five and six which are that the PF3
was not procedurally received in evidence and that in its absence, the
witnesses should not be believed. Ms. Tuka conceded to the fact that
the procedure was flouted in the reception of the PF3. We also agree.
As we observed in Robinson Mwanjisi (supra):
“Whenever it is intended to introduce any document in evidence, it

should first be cleared for admission, and be actually admitted before
it can be read out. Reading out documents before they are admitted in
evidence is wrong and prejudicial.”
We made corresponding remarks in Lack Kilingani v. Republic,
Criminal Appeal No. 402 of 2015 (unreported) in which we alluded to
the three stages expounded in Robinson Mwanjisi (supra) of clearing,
admitting and reading out which evidence contained in documents
invariably pass through before they are exhibited in evidence.
In the case at hand, the PF3, as appearing at p. 21 of the record,

was read and explained before its admission. That, on the authority
of Robinson Mwanjisi (supra) and Lack Kilingani (supra), was a fatal
infraction. We acquiesce to arguments by both parties and expunge
Exh, P1 from the evidence.
However, the foregoing notwithstanding, as rightly submitted by Ms.

Tuka, the contents of the PF3 were eloquently covered by the oral
testimony of Dr. Lugaga Vedasto (PW3) who prepared it. We agree
that the testimony of PW3 sufficiently proved that evidence that would
otherwise have been found in the PF3. As we observed at p.20 of the
typed judgment in Masalu Kayeye (supra), relying on our previous
unreported decision in Edward Nzabuga v. Republic, Criminal Appeal
No. 136 of 2008, an expert opinion cannot override oral evidence of a
431
person who witnessed the incident and physically examined a victim.
We added that penetration can be proved orally by the victim and
other witnesses; without an expert opinion or oral evidence by experts.
We therefore find and hold that penetration in the present case was
proved even without the expunged PF3. The fifth and sixth grounds
of appeal are therefore without merit.
The seventh ground of appeal will not detain us. It is a complaint that
the appellant was not taken to court timely contrary to the provisions
of section 32 of the CPA. As rightly put by Ms. Tuka the record shows
that the appellant was arrested on 04.04.2014 and taken to court on
14.04.2014. That was contrary to section 32 of the CPA which requires
that an accused person should be taken to court within twenty-four
hours after being taken into custody. However, we agree with Ms.
Tuka that this had no bearing on the trial. We therefore disregard this
ground of appeal.
Last for consideration is ground eight which is a general complaint

that the prosecution’s case was not proved beyond reasonable doubt
against the appellant. We agree with Ms. Tuka that the prosecution’s
case was proved beyond reasonable doubt through the testimony of the
victim supported by PW2, PW3 and PW4. For the avoidance of doubt,
we are not prepared to buy the appellant’s episode that the victim said
she was raped by a certain John who worked with Ndegesera Company.
The record of appeal does not back the appellant’s contention. This
assertion if found in the testimony appellant himself.
In the upshot, we find and hold that this appeal is wanting in merit. It
is consequently dismissed entirely.
432
Mathias Nyorobi v. Peter Zacharia (A minor by his next friend), (DC)
Civil Appeal 28 of 1995, High Court of Tanzania at Tabora (unreported)
(Date of the decision: 30th July 1996)
(Katiti, J.)
JUDGMENT
KATITI, J: Before Shinyanga District Court, went ZACHARIA
MADUHU the father, as the next friend, of a Minor PETER
ZACHARIA, then aged 15 years, herein to be called the respondent,
suing MATHIAS NYOROBI, hence to be called the appellant for
having allegedly willfully, wrongfully and unlawfully assaulted, the
respondent which assault necessitated a medical surgical operation,
and removal of the respondent’s spleen, and that for reason thereof he
was on the minor’s behalf, claiming shs. 5,000/= per week, for special
food and meat, eggs, bananas for 24 months =shs 120,000/= -2- shs
36,500/= pure medical expenses (all special damages) and -3- shs.5,
000,000/= as general damages, for injury, pain and suffering. As the
claim attracted a demur, by the appellant, in his written statement
of defence, the trial magistrate drew the issues, had the trial take its
usual course that culminated into the respondent winning judgment
and an omnibus amount, of shs. 1,156,500/= as damages.
The appellant, unamused and aggrieved, by the verdict, has appealed

against the same, to this court, through Mr. Boaz, a Tabora based
Advocate who had three fronts, from which to attack, the trial
Magistrate judgment. Such fronts are as follows:-
(i). That the trial court erred in law and fact in not finding that no
tort was committed by the appellant.
(ii). That in the alternative, the trial court, should have awarded
nominal damages, in the circumstances.
(iii). That no allowance, was given to the fact, that the appellant
assisted, in treating the respondent.
433
The facts that gave birth, to this case, are straight forward, and defying
challenge, as follows. On the morning of 18/7/1993 at about 8.30 am the
appellant went to his sugar-cane shamba only to find children including
the respondent in the same. Scampering, upon being surprised, the
children hid, in the middle of the sugar-cane shamba’s leafy labyrinth.
The appellant, probably suspecting that such children, had so hidden
themselves therein, to steal sugar cane, picked and threw stones into
the said shamba, to dislodge them therefrom. However, at about 11.30
am same day, the appellant while going to the Water Pump, met the
respondent, who complained to him that while he, respondent, was
hiding in the sugar-cane shamba one of the stones, that the appellant
threw, hit him in the stomach region and hence the severe stomach
pains. The appellant took the respondent to the Police Station for the
PF3 Exhibit “A”, for treatment, and informed the respondent’s father.
The respondent was admitted, operated on, raptured spleen removed
hence Annexture “C”, and discharged after seven days. The appellant
contritely, contributed shs. 15,000/= towards the treatment of the
respondent upon intervention of the Elders. This being, in the view
of the father of the respondent, not enough compensatory solace, he
activated, and propelled ,the Criminal Law into motion whereby vide
Criminal Case No. 14 of 1994, the appellant was convicted on his own
plea of guilty, on a charge I could not lay my hands on, and fined Shs
5,000/= or nine months imprisonment. With the above evidence, and
in particular his plea of guilty, there cannot be any doubt at all, that it
was the appellant who stoned the respondent, and therefore occasioned
the subsequent operation, removal of spleen and attendant pain, and
sufferings. And still unsatisfied, and aggrieved, the respondent’s
father on behalf of the respondent, enthusiastically and optimistically
put in motion the civil litigation, that has culminated into this appeal.
After such travelling, such straight terrain, the stage is
opportunely reached, where in terms ground of appeal No. (1), it
should be posed, whether assault occasioning bodily harm, which
the respondent suffered, and now clearly indisputably at the hand
of the appellant, was or is a tort. Although, I am not here invited to
define, what a tort is, having clear meaning of it, is, in my view in the
circumstances of this case, a good starting point. While many attempts
at defining tort, have been made, without professing to be original,
WINFIELD, says that “tortious liability arises from the breach of a
434
duty, primarily fixed by the law, this duty is towards persons generally,
and its breach is redressible, by an action, for unlimited damages”.
Thus tortious liability is fixed by law and does not arise by way of
agreement though -1- in certain circumstances, it may by agreement
be excluded and -2- both the tortious and contractual liability may
arise from the same set of facts. It is therefore clear that, it is an
actionable wrong, to cause bodily harm to another person, either, -1-
intentionally and without lawful justification, which is assault and
battery or -2- negligently and in breach of a duty to use care for the
safety of that person, (tort of negligence), or -3- even accidentally, in
some cases in which the law has imposed absolute liability. On this
aspect, Lord Denning, MR. (as he then was) in Letang v. Cooper (1964)
3W.L.R.537 had this to say:-
“The truth is that, the distinction between trespass and case, is

absolute. We have, a different sub-division altogether. Instead of
dividing actions for personal injuries into trespass, (direct damage)
or case, (Consequential damage), we divide the cause of action
now, according as the defendant did the injury intentionally, or
unintentionally. If one man intentionally applies force, directly to
another, the plaintiff has a cause of action in assault to the person.
“The least touching of another, in anger is a battery”. If he does not
inflict injury intentionally, but only unintentionally, the plaintiff has
no cause of action to-day, in trespass. His only cause of action, is in
negligence, and them only on proof, of want of reasonable care. If the
plaintiff cannot prove want of reasonable care, he may have no cause
of action at all. Thus it is not enough nowadays, for the plaintiff, to
plead that “the defendant shot the plaintiff”. He must also allege, that
he did it intentionally, or negligently. If intentional, it is the tort, of
assault and battery. If negligent and causing damage, it is the tort of
negligence.”
Thus from the above, it can easily be discerned and held that, where
one inflicts bodily injury upon another, whether such conduct amount
to a tort of assault and battery, or a tort of negligence, will depend
on whether or not, such conduct was intentional or unintentional, -
if it was intentional, the tort is of assault and battery, and if on the
other hand, negligence was involved and damage caused, it is the tort
of negligence –in either case, tort all the same. Thus, although the
435
trial Magistrate never directed his judicial attention to the issue, the
appellant on hitting the respondent with a stone, he thereby could be
said to have committed a tort.
The question, that may naturally, properly and opportunely
be posed here, is as to which the two torts could be said to have
been committed? Summarily recapitulated, the evidence is that
the appellant, picked and generally threw stones, into the shamba
to scatter the children from his shamba and not particularly at the
respondent, though it was quite clear in the appellant’s mind, that
the children were in the direction, he was throwing stones. So that, it
would seem to me, that the appellant had no direct intention to hit the
respondent as such, I think verily that heedlessly and negligently and
in breach of duty of care for the safety of others, and the respondent,
threw stones and hence stoning the latter, and even one CHARLES
according to the respondent who had gone on to his shamba. In my
humble view, hitting the respondent was not intentional as did find
the trial Magistrate.
But if I may hurriedly add, the appellant, had among others
pleaded inevitable accident an aspect that was a victim of oversight,
on the part of the trial Magistrate. I do not myself intend to maginalise
this aspect, as did the trial Court. It is my view, though modest, that
as the onus of proof of intention, or negligence, on the part of the
defendant, lies upon the plaintiff not only to allege, and state the facts,
which constitute intention, or negligence, but also prove the same,
equally a person relying on inevitable accident as did the appellant,
must show, that something happened, over which he had no control,
and that the effect of the same, could not have been avoided, even by
the great care, and skill. This aspect, of burden of proof, has withstood
the test of time, and defied erosion, in the course of law development.
In so saying, I find animating solace and comfort, in the cases of Fowler
v. Lanning (1959) ALL ER 290 at page 297 the Court summarized the
law as follows:-
“ I can summaries the law, as I understand it, from my examination

of the cases, as follows: (1) Trespass to the person, does not lie if the
injury to the plaintiff, although the direct consequence of the act of
the defendant, was caused unintentionally and without negligence on
the defendant’s part. (2) Trespass to the person on the high way, does
436
not differ in this respect, from trespass to the person, committed in
other places.(3) if it were right to say with BLACKBURN J in 1866
that negligence is an necessary, ingredient of unintentional trespass,
only where the circumstances are such as to show that the plaintiff
had taken upon himself the risk of inevitable injury, (i.e., injury,
which is the result of neither intention, nor carelessness on the part
of the defendant) the plaintiff must to-day in this crowded world, be
considered as taking upon himself, the risk of inevitable injury, from
the acts of his neighbor, which in the absence of damage, to the plaintiff
would not in themselves be unlawful, -of which discharging a gun
at a shooting party in 1957, or a trained band exercise, in 1617, are
obviously examples. For Blackburn, J., in the passage I have quoted,
from Fletcher v. : Rylands, was in truth doing no more than, stating
the converse, of the principle referred, by Lord Macmillan, in Read v.
J, Lyons & Co, Limited (1947)AC 156, 170. That a man’s freedom of
action, is subject only to the obligation, not to infringe any duty of care,
which he owes to others. (4) The onus of proving negligence, where the
trespass is not intentional, lies upon the plaintiff, whether the action
be from trespass or in negligence. This has been, the unquestioned
law, in high way cases, ever since Holmes v. Mather, and there is no
reason in principle, nor any suggestion, in the decided authorities, why
it should be any different in other cases. It is indeed, but an illustration
of the rule, that he who affirm must prove which lies at the root of our
law of evidence.”
Thus, as already pointed out, and for our purposes here were the
defendant, in a trespass to the person cause of action relies on the
defence of inevitable accident, occasioning injury, - i.e., the same
being caused by or through the act of the defendant intentionally, and
without negligence, he has, the onus of showing not only that something
happened over which he had no control, but too, that the effect of the
same, could not have been avoided by the greatest care and skill.
Applying the above to the case in point, with respect to the appellant,
I shudder to agree with him, leave alone in the circumstances, to even
surmise about answering the same positively. For the appellant, having
appreciably seen children including the respondent in his shamba,
and having deliberately and willfully picked stones, not one, but many
and thrown them at the said children, and hit some, the respondent
437
seriously to say that this, was accidental would be a serious abuse of
language. Whether there was negligence will be considered herein, at
opportune time, if it here suffices to say, that, the appellant’s conduct
was not accidental at all –he having failed to discharge the onus on
the aspect.
The above, smoothly lands us on a comfortable ground, whereby it may

be posed, whether or not the respondent was not after all a trespasser
on the appellants land an aspect that escaped specific mention by trial
Magistrate? With such a pose, in my view, the question for the meaning
of a trespasser seems to be nagging. The word trespasser, being an
ordinary word, the glimpse of its meaning, easily comes to mind but it
would be sheer folly, and senseless to use a wood-hammer, when there
is a more effective a steel hammer for the process. I shall therefore go,
by the authoritative definition of it, as per Lord Dunedin in the case of
Ddie v. Dumbreck (1929) AC. 371. In this case, his eminent Lordship,
defined trespasser as one who goes on another land without invitation
of any kind, and whose presence is either unknown to the land owner,
or proprietor or if known, is practically objected to. Having on my part
having seen and considered the evidence, as I am enjoined to do, I am
satisfied without any shadow of doubt that the respondent was on the
appellant’s land, as a trespasser.
Now posable logically is the question, whether the appellant as the

proprietor, and occupier of land has a duty of care, owed towards a
trespasser, as was the respondent here. And if I may opportunely
interject, the duty we are talking about here is the legal duty. For
as it was pointed out, in the case of Union Pacificry v. Cappier, by
the Supreme Court of Kansas 1903, 72 Pac 281 – “it is the omission,
or negligent discharge of legal duties, only which come within the
sphere of judicial cognizance.” For withholding relief the suffering for
failing to respond, to the calls of worthy charity, or for faltering, in the
bestowment of brotherly love, on the unfortunate, penalties are found
not in the laws of men, but in the higher law, the violation of which is
condemned by the voice of conscience, who sentence of punishment for
the recreant act is swift and sure…” With the above I verily respectfully
agree that unless the law imposes a duty there is no obligation to act.
The comprehensible principle should therefore be, that, whenever a
438
person is placed in such a position, with regard to another, that it
is obvious that, if he does not use due care, in his own conduct, he
will cause damage, or injury to that person, the duty at once arises,
to exercise care commensurate with the situation, in which he thus
finds himself, and with which he is confronted, to avoid such danger
and negligent failure to perform the duty, renders him liable for the
consequence of such negligence. This embraces the neighbor principle
pronounced in Donoghue v. Sevenson (1932) AC 562.
The above may be good legal thesis, but as already pointed
out, the respondent then fifteen years of age was a trespasser, on
the appellant’s shamba, a curious dimension, not to be ignored, as
did the trial Magistrate. And as to how much duty of care if any the
land owner, has towards such trespasser is the nagging issue, that
should still engage us hence. The assistance, I opportunely come
across, is from the case of Robert Addie and Sons (Collieries) Limited
v. Dumbreck (1929) AC. 358 in which it was held, that, (1) in cases of
trespass, there can be no difference in the case of children, and adults,
because if there is no duty to take care, that cannot vary, according to
who is the trespasser, -2- that if a person is a trespasser, then the only
duty land owner, has towards him, is, not maliciously to injure him.
This above case, is in consonance, with the case of Ratham v. Johnson
(1913) 1 K.B. 398 at 410, where Hamilton L.J pronounced thus:-
“Where a question arises, not between parties who are both present,
in the exercise of equal rights inter se, but between parties, of whom,
one is the owner, or occupier, of the place and the other, the party
injured is not there as of right, but must justify his presence there,
if he can, the law has long recognized three categories of obligation.
In these, the duty of the owner or occupier, to use care, if it exists at
all is, graduated distinctly, though never very definitely measured,
… Contractual obligation of … stand apart.The lowest, is the duty
towards a trespasser. More care, though not much, is owed to a licensee
more again to an invitee…….The owner of property is under a duty,
not to injure the trespasser willfully, not to do a willful act, in reckless
disregard of ordinary humanity towards him, but otherwise, a man
“trespasses at his own risks”.
439
From the above I would deductively hold, what has rock-firmly been
said many a time, that, in so far as the land owner or occupier, is
concerned, his duty of care towards those who come on his land,
are of three different classes namely -1- invitees (ii) licensees and
(iii) trespassers, and -2- that the said land owner or occupier has no
duty of care to trespassers, save the duty of not maliciously inflicting
injury, upon such trespasser. It follows therefore that in this case, the
appellant had no duty of care, towards the respondent, apart from
that of not maliciously injuring him.
While such duty to the trespasser is limited to not maliciously

inflicting injury, to the said trespasser, in this case the respondent
the occupier, is not without extra judicial remedies, to prevent a
trespasser from entering unto the land, or as in this case, to eject
him, after entry. In other words, it is not necessary in all cases, to
resort to judicial proceedings, to seek protection, or redress, in respect
of injuries threatened, or committed against him. The law in many
instances, grants a person, liberty to help himself, by his own act,
and strength without the section of any judicial declaration, of his
rights. Thus, it is lawful for any person, to use a reasonable degree
of force, for the protection of himself, and or his property. And in my
view, force would not be reasonable, if it is either, –a- unnecessary i.e
greater than is requisite, for the purpose, or (b), is disproportionate to
the evil, to be prevented. And in trespass, except when the trespass
is committed by actual force, it is trite law that the trespasser cannot
be forcibly repelled, or ejected, until he has been requested to leave,
and a reasonable opportunity, of doing so, has been afforded him – See
Green v. Goddard Queen’s bench. 1704 Salk.614: 91 E.R.540.
How did the appellant vis-a- vis the respondent, in this case,
fair, is opportunely, an inevitable question, to ask. Having given
the evidence commensurate consideration, contention whether
the appellant stoned and serially the respondent would been an
unnecessary time wasting indulgence, for even in the criminal case
No. 14/1994, the appellant pleaded guilty, to stoning the respondent,
occasioning the rupture of the respondent’s spleen. It would, on the
evidence also seem to me that the inference, that the stone thrown,
must home been of considerable size, and thrown from proximity
440
close enough, as to be so injuriously and damagingly effective, is not
wild speculation. And on reflection, if it were posed, whether it was
necessary for the appellant to throw stones, when his own physical
appearance, would have been enough, the answer would hardly be in
the affirmative, and while it is as above pointed out, not easy to say
he deliberately so did, that he acted recklessly, as to tantamount to
maliciously acting, is no over statement. Thus although the law gives
him leeway and liberty, to eject a trespasser, even if reasonable force
is used in this case,-1- the respondent was not given opportunity, to
flee which for a fearing child would have been easy to do, -2- the force
used was disproportionate, to the needs of the occasion, and -3- the
injury suffered demonstrates, what is not less than malice, thereby
catapulting the appellant beyond his rights of – (1) of having no duty
of care towards a trespasser except that of maliciously wounding,
-2- of even using reasonable force to eject him, unto the realm, of
recklessly injuring him, thereby breaking the duty of care of not
negligently occasioning harm to him. I have therefore, no qualms, nor
the slightest doubt, in concluding that as the trial Magistrate found,
the appellant committed an actionable wrong of causing bodily harm,
negligently.
The next stage, is therefore the question of damages, an aspect

of considerable difficulty. For, while the common law objective, of
awarding damages is that, such damages, must be such, and to the
extent, money can compensate the injured party for the natural and
direct consequences, of the wrongful act, by the defendant, it seems
to me, that prefect compensation is hardly possible as it is hardly
possible, as it is hardly possible, to put the plaintiff back again into,
his original position. For example, in the case at the bar, the short and
long term consequences, of the removal of the spleen, in the absence
of expert opinion, which would hardly be definitive, any-way, are
unknown, and indulgence in speculation, in the awarding of damages
could be an element, easy to avoid. All the same, I think that the
Court, will have reasonably taken, the view of the case, if it takes into
account, -1- the bodily injury sustained -2- the pain undergone, -3-
the effect of injury on the health of the sufferer, -4- according to the
injury’s degree, and its probable duration, as likely to be temporary or
permanent etc. but at the same time, avoiding remoteness of damage,
441
for as it was pointed out by, Lord Wright in Liesbosch Dredger v. Edson
(1953 A.C.449 at 460:-
“The law cannot take account, of everything that follows, as wrongful

act, it regards some subsequent matters, as outside the scope of its
selection, because, “it were infinite for the law, to judge, the cause of
causes, or consequence of consequences.”
The defendant, should not be held responsible, for all the consequences
of his wrongful act, however remotely related as these may be endless.
In this case, the trial Magistrate, awarded shs. 1,000,000/=, as general
damages, having scaled it down, from shs.5, 000,000/=. Mr. Boaz did
contend, in support of ground of appeal No. (2) that, nominal damages
should have been awarded instead of the sum, the trial Magistrate
did award. The trial Magistrate awarded, such damages, after taking
into consideration, the following facts, -1- that the respondent and
other children, were found stealing the appellant’s sugar-cane, -2-
that he chased them, but the respondent hid in the said garden and
hence being stoned, -3- that, the respondent’s thievish behavior, was
partly the author of the incident. In other words, the trial Magistrate,
imputed contributory negligence, to the respondent and hence his
reduction of the damages.
As I understand it, contributory negligence, is a failure to take

reasonable care of one’s own safety, and one is guilty of contributory
negligence, if he ought reasonably to have foreseen, that, if he did
not act as a reasonably prudent man he might hurt himself. Thus
under such circumstances, and where contributory negligence, has
been established, the negligent defendant is liable to the plaintiff
but the damages recoverable from him have to be reduced, when the
plaintiff’s damage has been suffered, partly as a result of his own
negligence. Having seriously considered the evidence, I tend to agree
with the trial Magistrate, in on one thing, that the respondent acted
heedlessly in trespassing onto the appellant’s land of sugar-cane, at
his age, knowing that the owner might catch him, or appear anytime,
and suspect him to intent to steal. I would however, not go to the
extent of saying, that it was proved by the appellant, while he was
bold enough to assert theft of sugar-cane in his examination- in-chief,
he never confirmed it in cross-examination, when he only said, “I
442
met the children in my shamba, some of them run away, but others
hid themselves amongst, the sugar-cane, that is when I threw stones
with intention of ordering them out.” (2) no sugar-cane stolen or the
remains thereof were produced, –and -3- even in Criminal Case No.
14/1994 proceedings Annexture “B,” the appellant was not heard even
mentioning sugar cane even in mitigation. The gravitating of the so-
called theft evidence against the respondent, to unreasonable extent,
as did the trial Magistrate does seem, to be without justification.
Reverting to Mr. Boaz, the said Advocate submitted in support
of round of appeal No. (2), that in the circumstances only nominal
damages, should have been awarded. I do not agree while, not daring
to venture upon the uncharted sea of anatomy, where the learned
gentlemen in that science, are more comfortable than I am, considering
the spleen’s function, in the metabolism of the body, and the attendant
pain and suffering, and bearing in mind as above held, that excessive
violence was used and further bearing in mind, that only 24% the
damages claimed was awarded reducing the same further, is uncalled
for, as the appellant is already emerging better off. In fact, if there
had been a cross –appeal, I would have been tempted to enhance the
damages on this head. It shall therefore leave the awarded general
damages uninterferred with.
The respondent, also claimed shs. 156,000/=, as special damages
-1- shs.36,500/= as medical expenses, -2- shs.120,000/= as a sum total
of shs. 5,000/= claimedly spent per week to buy special food for twenty
four months, for the respondent on the instructions of the Doctor. As
such damage, is not presumed to have been suffered, it must not only
be expressly alleged, but too proved, the question is whether the same,
was proved. The trial Magistrate, awarded the same but this does
not kill, the legitimacy of the question, in fairness. On the evidence,
the respondent’s father conceded, getting free medical treatment,
from the employer, and if that is, the case I am puzzled by Annexture
“C”, headed “Habari za Mwadui”, hardly a Hospital Card, itemizing
medical expenses as Shs. 36,000/= juxtaposed to this Annexture,
is the respondent’s father’s reaction, to cross examination when he
answered thus:-
“As an employee I am entitled to free treatment, just as I am entitled

to claim damages from you, for having wounded my child.
443
It would seem to me, that Mwadui Mines, provides free medical
treatment, and that the respondent was treated free, stands the
test for credibility, and annexture “C” can only be partly a false
document. The purpose of awarding damages is to compensate the
injured party, as far as possible in monetary terms to put in his
original position –it is neither meant to overcompensate – the injured
party nor calculated to enrich him exgratia. I shall therefore disallow
Shs.36,000/= as unacceptably proved. It is also meet, and just, to take
into consideration, the Shs. 5,000/=, the appellant had paid towards
the treatment of the respondent, as it is directly connected with the
incident, and not a charitable offer, - the special damages therefore
stand as; Shs.156,000/= -(Shs.36,000/= +Shs.15,000/= +105,000/=),
which sum is accordingly awarded, and as so reduced. The appellant
shall pay the respondent Shs. 5,051, 500/=.
The last ground of appeal by Mr. Boaz, is that the trial Court
did not take into account, that, the appellant assisted in the treating
the respondent. I do concede that, if Mr. Boaz, had the contribution
of Shs.15, 000/=, by the appellant in mind he is very right, and it has
above been taken care of. But if he is saying that, the appellant was
morally contrite, penitent and sympathetic, that is not fall within
the domain of law, for the law imposes no such obligation at all. The
biblical Good Samaritan may be moved by such sentiments, but not
the law.
In summary the appeal is partly dismissed with costs.
444
Moses Sanjinto v. R, Criminal Appeal 64 of 2016, Court of Appeal of
Tanzania at Dodoma (unreported)
(Luanda, Mwarija and Mkuye JJA)
(Date of the decision: 23rd May 2017)
JUDGEMENT
MWARIJA, J.A: The appellant was charged in the District Court of

Mpwapwa with the offence of rape. It was alleged that on 15/9/2014
at about 20.30 hrs at Mwanakianga village within Mpwapwa District
in Dodoma Region, the appellant did have a carnal knowledge of one
Mariam d/o Mbatiani, a girl aged 16 years. After a full trial, the appellant
was convicted and sentenced to 30 years imprisonment. Dissatisfied
with the conviction and sentence, the appellant appealed to the High
Court. The appeal was transferred to the Resident Magistrate’s Court
of Dodoma under S.45 (2) of the Magistrates’ Courts Act [Cap. 11
R.E.2002] to be heard by W.E. Lema, a Principal Resident Magistrate
with Extended Jurisdiction (Ext. Jur.). After hearing the appeal, the
learned Principal Resident Magistrate (Ext.Jur.) found the same to be
lacking in merit. She dismissed it in its entirety. Aggrieved further,
the appellant preferred this second appeal.
The factual background of the appeal can be briefly stated as follows:
On 15/9/2014, the victim of the offence, Mariam Mbatiani who was
at the material time a Form II student at Mazae Secondary School,
was at home studying with her friends and her sister, Julia Mbatiani
who resided in the same house. The study was later interrupted by
deceptive act of the person who, according to the victim, raped her.
At about 20.30 hrs one child by the name of Simon Ndaga who stayed
in the same house, arrived and informed Mariam Mbatiani that her
friend, Angelina Mhondokwa wanted to see her. Maria went with him
but despite having walked for about ten metres, the said Angelina was
nowhere to be seen.
The victim who gave evidence at the trial as PW1 testified that to
her surprise, instead of meeting Angelina as expected, she saw the
appellant who was known to her. The appellant told her that her
friend Angelina was at the shop but had left for home. According to
the victim, on what transpired to her to be the appellant’s stratagem,
445
he volunteered to escort her so that she could meet Angelina. After
having walked for a distance of almost 15 metres, the appellant
revealed his intention. He told her that he was in fact deceiving her.
His intention was to get the opportunity of letting her know that he
loved her. He wanted to have a sexual intercourse with her but she
refused.
According to her evidence, the appellant reacted by beating her.
Thereafter, he removed his shirt and used it to cover her mouth
followed by the act of tearing her skirt and underpants. He then fell
her down and had a carnal knowledge of her. She explained that,
without using a condom, the appellant molested her sexually for about
30 minutes after inserting her penis into her vagina thereby causing
her to suffer pain as she had never had sexual intercourse before.
PW1’s evidence was supported by that of Julian Mbatiani (PW3). She
testified that while in their study group with PW1 and their friends,
Simon Ndaga arrived there and told PW1 that she was being called by
Angelina. The said child went out with PW1. Simon Ndaga was also
called as a witness (PW6) but in the course of his testimony, he was
declared a hostile witness.
The incident was reported to police on 16/9/2014 whereupon PW1 was
issued with a PF3 by a police officer, E. 4919DC Ramia (PW4). She
was medically examined on the same day. According to the evidence
of the Doctor who examined her, Dr. Arsen Onesmus Michael (PW5)
of Mpwapwa District Hospital, although she was not found with
spermatozoa, she had bruises on her right leg and her vagina was
found to have been penetrated by a blunt object. She had a painful
vaginal examination.
In his defence the appellant denied the charge. He disputed the
prosecution evidence that he met and raped PW1 on the material
date. He testified that for a period of a whole week from 9/12/2014,
he was at home making bricks with one Erasto Sanjito (DW2). In his
evidence, DW2 supported the appellant’s version that he was with
him at home making bricks for the whole week as from 9/12/2014. It
was the appellant’s account further that on 16/9/2014, he met PW4
who required him to report to police station following an allegation
against him that he raped PW1. He went to police on 26/9/2014 and
found there PW1 who allegedly took the advantage of reminding the
appellant about his (PW2’s) claim for compensation. He said that
446
PW2 wanted to be paid sh.70, 000/- as compensation arising from a
motorcycle accident caused by the appellant. PW2 had claimed that he
was knocked down by the appellant. He said that he was threatened
to be charged with the offence of rape if he did not pay PW2. After
consultation with her mother, the appellant refused to pay and as a
result he said, he was charged with the offence of raping PW1.
The appellant’s memorandum of appeal consists of two main grounds:
1. That the learned Principal Resident Magistrate (Ext. Jur) erred

in upholding the sentence of 30 years imposed by the trial court
on the appellant who was at the material time of the offence
aged 18years.
2. That the learned Principal Resident Magistrate (Ext. Jur) erred
in upholding the appellant’s conviction which was founded on
the charge which was defective.
At the hearing of the appeal, the appellant appeared in person and

unrepresented while the respondent Republic was represented by Mr.
Angaza Mwipopo, learned Principal State Attorney. When he was
called upon to argue his appeal, the appellant opted to hear first the
learned Principal State Attorney reply to the appeal and if need be,
respond thereafter.
Mr. Mwaipopo stated at the outset that the respondent supports the
appeal. Starting with the 2nd ground of appeal, he argued that the
charge sheet is indeed defective as contended by the appellant. The
learned Principal State Attorney submitted that from the particulars
of the offence, the appellant was not charged under the proper section
of the Penal Code. He explained that whereas S.130 (1) of the Penal
Code creates the offence of rape, S.131 (2) gives several descriptions of
that offence. Since the victim was a girl under the age of 18 years, Mr.
Mwipopo went on to argue, the appellant should have been charged
under s.131(2) (e) which applies to a statutory rape, whereby consent
to sexual intercourse is immaterial. He added that s.131 (1) and (2)
(a) is inapplicable in the circumstances of this case because it carters
for a situation where consent is an essential element in proving the
offence of rape.
447
On the effect of charging the appellant under the provision which
specified a different type of rape, Mr. Mwipopo submitted that the
infraction prejudiced the appellant because he was denied the right of
preparing his defence based on the proper description of the offence
facing him.
As stated above, the appellant was charged under sections 130(1) and
(2) (a) and 131(1) of the Penal Code. With regard to the provisions of
s.130 (1) and (2) (a), as correctly argued by Mr. Mwipopo, whereas sub-
section (1) of s. 130 creates the offence of rape, sub-section (2) gives
description or types of the offence of rape. S.13(1) states as follows:-
“130. – (1) It is an offence for a male person to rape a girl or a woman.”
As o for sub-section (2) of S.130 the same provides as follows:
“(2) A male person commits the offence of rape if he has sexual
intercourse with a girl or a woman under circumstances falling under
any of the following description:
a) Not being his wife or being his wife who is separated from him
without her consent to it at the time of the sexual intercourse.
b) With her consent where the consent has been obtained by use of
force, threats, or intimidation by putting her in fear of death or
of hurt or while she is in unlawful detention.
c) With her consent when he consent has been obtained at a time
when she was of unsound mind or was in a state of intoxication
induced by any drug, matter or thing, administered to her by
the man or by some other person unless proved that there was
prior consent between the two.
d) With her consent when the man knows that he is not her
husband, and that her consent is given because she has been
made to believe that he is another man to whom, she is , or
believes herself to be lawfully married.
e) With or without the consent when she is under eighteen years of
age, unless the woman is his wife who is fifteen or more years of
age and is not separated from the man.”
448
From the particulars of the offence, description of the offence rape
subject of the charge in this case is clearly not applicable. The type of
rape envisaged under paragraph (a) of S.130 (2) of the Penal Code is
committed when there is lack of consent by a girl or a woman. When
the girl is under the age of 18 years it is immaterial whether there was
a consent of not. As argued by Mr. Mwipopo, the applicable provision
under the circumstances is paragraph (e) of S. 130(2) of the Penal
Code. The Court stated as follows in the case of Amos Palanzi v. The
Republic, Criminal Appeal No.137 of 2012 (unreported) cited by the
learned Principal State Attorney:
The offence of rape consists of two scenarios. One is statutory rape

where the victim is below 18 years of age in which case consent becomes
immaterial. The scenario falls under S.130(2) ( e)…. The second
scenario is where the victim is 18 years of age or above where the lack
of consent must be proved before a conviction of rape is entered.
In the present case, whereas the appellant was charged under S.130
(1) and (2) (a) of the Penal Code under which, as pointed out above,
consent is material, the particulars of the offence refers to a statutory
rape whereby consent is immaterial. In the circumstances, we agree
with the learned Principal State Attorney that the charge is defective.
We also agree that the defect is fatal because it was of such a nature
that it prejudiced the appellant in preparing his defence. In the case
of Amos Palanzi (supra) the appellant was charged under S.131 (1) of
the Penal Code. However, sub-section (2) of that Section was not cited.
The Court observed as follows:
The appellant was entitled to know from the beginning under which
scenario he was charged so as to enable him to put up an informed
defence. Failure to specify the exact provision of the law that under
which the accusation of rape against appellant fell in the circumstances
of this case prejudiced the appellant’s trial.
In another case Simba Nyangura v. Republic, Criminal Appeal No.
144 of 2013, also cited by Mr. Mwipopo, the Court had this to say
on the requirement of citing in the charge sheet, a specific provision
under sub-section (2) of section 130 of the Penal Code.
449
We think that in a charge of rape an accused person must know under
which of the descriptions (a) –( e) in section 130 (2) of the Penal Code
the offence he faces falls, so that he can prepare for his defence….
we agree with Mr. Mwipopo that, this lack of particulars unduly
prejudiced the appellant in his defence…..
On the basis of the foregoing, we find that the nature of the defect in
the charge sheet vitiated the trial.
Our finding in the 2nd ground of appeal suffices to dispose of the

appeal. We, however, find it apposite to consider briefly and by way
of reiteration, the law on sentencing as raised in the 1st ground of
appeal. The appellant’s complaint is that he was wrongly sentenced
to imprisonment because he was aged 18 years at the time when the
offence was committed. In support of that ground of appeal, which he
argued in the alternative to the 2nd ground, Mr. Mwipopo submitted
that the sentence of 30 years imprisonment imposed on the appellant
was illegal.
According to the learned Principal State Attorney, the fact that the
appellant was aged 18 years is apparent from the charge sheet. That
the appellant was of that age was not disputed both at the preliminary
hearing and during the defence, added Mr. Mwipopo. For that reason,
the learned Principal State Attorney submitted, since the appellant
was 18 years of age and because he was a first offender, by virtue of
the provisions of S.131 (2) of the Penal Code, he should not have been
imprisoned.
We respectfully agree with Mr. Mwipopo that the sentence was illegal.
Section 131(1) and (2) (a) of the Penal Code provides as follows:
131. (1) Any person who commits rape is, except in the cases provided
for in the renumbered subsection (2) liable to be punished with
imprisonment for life, and in any case for imprisonment of not less than
thirty years with corporal punishment and with a fine, and shall in
addition be ordered to pay compensation of an amount determined by
the Court, to the person in respect of whom the offence was committed
for the injuries caused to such person.
450
(2) Notwithstanding the provision of any law, where the offence is
committed by a boy who is of the age of eighteen years or less, he shall-
If a first offender, be sentenced to corporal punishment only.
……………..………………”
The Court had the opportunity to consider that section in the case of
Biko Emmanuel v. The Republic, Criminal Appeal No. 590 of 2015
(unreported) also cited by Mr. Mwipopo. It stated as follows:
Section 131(2) of the Penal Code bars imprisonment for boys of 18

years or less in cases of conviction for rape unless they are recidivists.
Giving sentence in this case, the learned trial Resident Magistrate
observed that the appellant was aged above 18 years. That is not
correct. As submitted by Mr. Mwipopo, according to the record, it is
undisputed that the appellant’s age was 18 years. Even if his age was
to be considered as at the date of the sentence, in law that would be
wrong. Under S.131(2) of the Penal Code reproduced above, it is the
age which had been attained by the convicted person at the time of
commission of the offence which determines the type of sentence – see
for example, the case of Mohamed Hamis v. The Republic, Criminal
(i) If a first offender, be sentenced to corporal punishment only

(ii) …………….
(iii) ………….
The Court had the opportunity to consider that section in the case of
Biko Emmanuel v. The Republic, Criminal Appeal No. 590 of 2015
(unreported) also cited by Mr. Mwipopo. It stated as follows:
451
Section 131(2) of the Penal Code bars imprisonment of boys of 18 years
or less in cases of conviction for rape unless they are recidivists.
Giving sentence in this case, the learned trial Resident Magistrate
observed that the appellant was aged above 18 years. That is not
correct. As submitted by Mr. Mwipopo, according to the record, it is
undisputed that the appellant’s age was 18 years. Even if his age was
to be considered as at the date of the sentence, in law that would be
wrong. Under S.131(2) of the Penal Code reproduced above, it is the
age which had been attained by the convicted person at the time of
commission of the offence which determines the type of sentence – see
for example, the case of Mohamed Hamis v. The Republic, Criminal
That said and done, on the basis of the finding in the 2nd ground of
appeal, we allow the appeal. The conviction is quashed and the
sentence is set aside. The appellant shall be released from custody
forthwith unless he is otherwise lawfully held.
452
Omari Mahita v. Rehema Shabani, Civil Appeal 149 of 2009, High
Court of Tanzania (unreported)
(Date of the decision: 24th June 2011)
JUDGMENT
Twaib, J.: This is an appeal from the judgment and decree of the
District Court of Kinondoni District at Kinondoni in Affiliation Cause
No. 9 of 2007 (Kihawa, RM). In the original case, the Respondent,
REHEMA SHABANI, filed a petition for orders that the Appellant,
OMARI MAHITA, be declared the putative father of her male child
JUMA OMARI MAHITA. According to her, she gave birth to the child
in March 1997.
In his Reply to the Petition, the Appellant, through learned Counsel

Charles Semgalawe, who represented him both in the lower Court
and in this Court, raised a preliminary point of law to the effect that
the Petition was time-barred, and that it contravened section 3 of the
Affiliation Act, Cap. 273. The RM’s Court dismissed both points of
preliminary objections. The matter thus proceeded to hearing on merit.
In its judgment, the trial Court found for the Respondent. It declared
the Appellant the putative father of the child and ordered him to pay
to the Respondent TShs. 100,000 per month, plus compensation at the
same monthly rate, effective 2003 until date of judgment.
Aggrieved, the Appellant has preferred this appeal. In the

Memorandum of Appeal filed on behalf of his client, Mr. Semgalawe,
learned Advocate who represented him both in the trial Court and in
this Court, raised four grounds of appeal. I will deal with each of them
seriatim. The first one states as follows:
“The trial Magistrate erred in law in deciding that the Affiliation

Cause is not time barred.”
Learned Counsel Mkatambo for the Respondent has objected to the
raising of this issue in this appeal because the Appellant did not
appeal against the decision when it was delivered. However, I think
the issue can be determined on appeal because the decision to dismiss
453
the preliminary objection did not finally determine the case at the
District Court and, therefore, the Appellant could not have appealed
at that time.
I would thus take it that Mr. Semgalawe is challenging the lower

Court’s finding that the matter was not time-barred. In support of his
argument, Mr. Semgalawe pointed out that the original Petition was
filed in the Resident Magistrate’s Court on 14th March 2007. Quoting
section 3 of the Affiliation Act, Cap. 278 (R.E. 2002), Mr. Semgalawe
argued that a woman who is not married may file an affiliation cause
within 12 months after the birth of the child. He said that the present
action was filed after nine years of the child’s birth. This, according to
him, is completely beyond the time prescribed by law.
Mr. Semgalawe said that the lower Court’s record shows that when
the Respondent was being cross-examined on 1st July, 2008, she was
asked as to why she did not file the case before. She said that it was
difficult for her to contact the Appellant, as she was working as a
Maalima at a Madrasa.
Counsel submitted that the Respondent had prayed for payment

effective the year the child was born. The Respondent cited three
different occasions when she was given money by the Appellant:
She was paid TShs 40,000/= when she was 5 months pregnant; TShs
50,000/= for fare and the child’s maintenance when she went to the
Appellant in Arusha with the child; and TShs 20,000/= sometime
thereafter for transport.
Mr. Semgalawe argued that the Respondent was never given any
money for the child’s maintenance since the child was born. Hence,
there was no evidence that the Appellant ever maintained the child so
as to bring the case within the framework of section 3 of the Affiliation
Act.
Mr. Mkatambo, learned Counsel for the Respondent, gave two reasons
why he did not agree with Mr. Semgalawe on this point: One, that
the Appellant had on a number occasions after the child’s birth given
money to the Respondent for, inter alia, maintenance of the child.
This, he said, had the effect of renewing the time limit.
454
Secondly, section 3 is permissive, as it uses the word ‘may’. That
means, Mr. Mkatambo submitted, that a woman was free to bring an
action within 12 months. But if she does not, then she does not have to
do so. He also said that the various payments show that the Appellant
knew that the child was his. I think Mr. Mkatambo was referring to
clause (a) of section 3 of the Affiliation Act.
I will dismiss this ground of appeal. However, with respect, I do

not agree with Mr. Mkatambo the permissive nature of section 3(a)
of the Affiliation Act means that a woman may choose to bring an
action against the alleged father within twelve months and any time
thereafter. It is, however, true that there is ample evidence from the
record that the Respondent was paid some money by the Appellant,
part of which was for the child’s maintenance. Reading section 3
of the Affiliation Act in the context of this case, it is clear that the
Respondent was free to invoke clauses (a), (b) or (c) of the section,
which means she could bring an action either:
(a) before Juma’s birth; or

(b) at any time within twelve months from Juma’s birth; or
(c) at any time after Juma’s birth, upon proof that the Appellant
had within twelve months next after Juma’s birth paid money
for his maintenance.
The Appellant did so under clause (c), i.e., at any time. She brought proof
that she had received money from the Appellant for the maintenance
of the child during the first twelve months of the child’s birth. It is my
considered view, and I so hold, that where a woman seeks to rely on
clause (c) it does not matter when the action is commenced, so long as
the petitioner can prove that the alleged natural father had, within
twelve months after the child’s birth, given her money for the child’s
upkeep, however little it may be. In this case, it was proved during the
trial that the Appellant did give the Respondent money after Juma
was born. For these reasons, the first ground of appeal is devoid of
merit, and I dismiss it.
455
In support of the second ground of appeal, Mr. Semgalawe argued that
it was wrong for the trial Court to hold that the Appellant was the
putative father of the child basing on the Respondent’s evidence and
the fact that the Appellant refused to undergo a DNA test, while the
Respondent did not refuse.
Mr. Semgalawe referred the Court to the trial proceedings of 1st July
2008. He submitted as follows:
“[I]f the Respondent really gave birth to the child in March 1997, and
she said that she left for home in October 1996, then she was pregnant
in May 1996. Mr. Mahita’s evidence is that in 1995 he was in Moshi,
where the Respondent says she met and had sexual intercourse with
the Appellant. In 1996, he was transferred to Arusha. It is therefore
not possible that she went to bed with the Appellant in May 1996 in
Moshi when he (the Appellant) was already appointed IGP and was
living in Dar es Salaam...The Appellant had already been transferred
from Moshi to Arusha by 1996.”
Mr. Semgalawe contended that if the learned trial Magistrate

had taken these dates into consideration, she would have seen the
contradictions he has pointed out. There are, indeed, contradictions
in the dates as testified before the trial Court. The Respondent told
the Court that Juma, the child, was born in March 1997 and that she
was working for the Respondent when she got pregnant. That would
presumably be sometime in May 1996. However, the Appellant told
the trial Court that the Respondent had worked for him in Moshi
between June and November 1995. She could not possibly have been
working for him in May 1996 because he had by then already moved
to Dar es Salaam as Inspector General of Police.
I agree with Mr. Semgalawe that this piece of evidence shows some
contradictions in the dates. However, the Appellant’s own statement
during cross-examination clears the air and actually supports the
Respondent’s position, even though the dates she had given were clearly
wrong. The Appellant told the Court that when he was appointed IGP,
he conducted a “maulid” and the Appellant showed up at the ceremony
with the child. He denied having chased the Respondent away “with
the child so that my wife should not see her.” So, if it is true that
456
the Respondent was appointed IGP in 1996 (and I see no reason to
contradict that fact), and that, according to the Appellant himself, the
Respondent had somehow learnt that he was having “Maulid” and
went to Arusha with the child on that day, then the child had been
born by that time (1996). That supports the Respondent’s version of
events.
Consequently, while the Respondent may not have got the dates right,
at least her allegation that she got pregnant when she was working
for the Appellant in Moshi around the time that she got pregnant
corresponded to the dates as given by the Appelant’ himself. For that
reason, I hold, with due respect to learned Counsel for the Appellant,
that the contradictions are capable of being resolved by reference to
the evidence in its totality as I hope I have shown above. Once that is
done, no further contradictions as to dates would remain.
The second limb of this second ground of appeal would have provided
us with a more reliable way of determining the issue of the question
whether the Appellant is the biological father of the child Juma. The
Appellant complains about the trial Court’s conclusion that he had
refused to take a DNA test, while in fact he did not. In her judgment
(pages 7 to 8), the learned trial Magistrate narrates how the attempt
to have the parties take a DNA test was frustrated by the Appellant’s
failure to attend before the Government Chemist. The Court’s
position is supported by the proceedings (pages 19 to 24 of the typed
proceedings).
Mr. Semgalawe submitted that the Appellant did not refuse, and that
even the Doctor’s Report did not say that he refused. It is true it did
not specifically say so. But what the Report said was revealing enough.
In his letter to the Court dated 5th May 2009, the Chief Government
Chemist wrote:
“This is to inform you that we cannot fulfil your order as the third-
party Omari Iddi Mahita did not report to this office ... The two
other individuals namely, Rehema Shabani and Juma Omar Mahita
reported to this office on 24th April 2009, 27th April 2009, 30th April
2009, 4th May 2009 and 5th May 2009...”
457
In such circumstances, I think the trial court was entitled to draw an
inference against the Appellant and find that his conduct amounted
to a refusal to have samples taken from him for purposes of the DNA
test. Even though there was no express refusal, his conduct amounted
to a constructive refusal.
I would therefore dismiss the second ground of appeal.
In the third ground of appeal, the Appellant is challenging the

lower Court’s order that the Appellant should pay the Respondent a
monthly maintenance of Tshs. 100,000/=. Citing the Affiliation Act,
Mr. Semgalawe submitted that the law provides for only Tshs 100
and that even after the latest revision of our laws, made in 2002, that
amount has remained the same. The court should therefore have
confined itself to the same amount, if it thought it should grant a
maintenance order.
While conceding that TShs. 100 is not sufficient to maintain a child,

Counsel said that so long as that remains the law, we are bound to
follow it. The law, according to him, has nothing to do with morality
or mercy.
In response, Mr. Mkatambo submitted that while it is true that the law
provides for that meagre figure, the court should look at the intention
of the legislature, namely, to protect children born out of wedlock. He
cited the case of Jerome Chitumba v. Amina Adam (1989) High Court
of Tanzania, Mtwara, in which Maina, J., considered the financial
capacity of the father in ordering maintenance, and held that the law
must be construed upon consideration of the actual situation. Hence,
the sum awarded herein considered the economic situation (e.g., the
cost of living) and the Appellant’s capacity to pay.
I agree. I think the law should not be interpreted so as to result in

absurdity. In taking this view, I am inspired by the principle applied
by the Court of Appeal in the case of Judge in Charge, High Court at
Arusha & Attorney General v. Munuo Nguni [2004] TLR, 44, in which
it agreed with the High Court that the fees being given to advocates
who are assigned criminal sessions cases to be grossly inadequate and
did not go in tandem with the cost of living and other real-life factors.
458
It considered the amount fixed by law in relation to the exchange rate
of the Tanzanian shilling to the US Dollar. In the present case, the
learned trial Magistrate simply put the figure, considering the cost of
living, at TZS 100,000/= per month. In that regard, even Counsel for
the Appellant concedes that the statutory amount is excessively low.
He has not said that the amount granted by the Court is too high,
given the circumstances. In the absence of such an objection from the
Appellant, and in view of my finding that the monthly sum of TZS
100/= is grossly inadequate, I see no need to interfere with the trial
Court’s assessment.
I therefore do not see the merits of this ground of appeal and I would
dismiss it.
In his fourth and last ground of appeal, the Appellant complains against
the lower Court’s order to require the Appellant to pay compensation
from 2003 to date of judgment.
Counsel argues that the court record does not show that the Respondent
had ever been paid or the Appellant had been maintaining the child
at any time that the Respondent herself was paying for maintenance
since 1997, when the child was born and that it is not clear where the
Magistrate got the year 2003. Counsel particularly attacked the lower
Court’s finding on page 2 of typed judgment that said: “before 2003,
there was no problem as she was going and take the money, but since
2003, the Respondent used FFU to chase her out”.
Mr. Semgalawe submitted that this finding contradicts the statements
that since 2007, the Respondent had not been going to the Appellant
to get money, and wondered where the learned Magistrate got the
information that it was only since 2003 that the Respondent did not
get money from the Appellant.
If I got Mr. Semgalawe correctly, he seems to be saying that the learned
Magistrate was in error for finding that there were no problems for
her in getting money from the Appellant from the time the child was
born, that the Respondent was getting paid by the Appellant before
2003. The year 2003 was only the year that the Appellant chased her
away for the last time and from then on, she has been following up of
her legal rights.
459
But is this line of argument by Mr. Semgalawe of any help to his client
after the dismissal of the first ground of appeal? With respect, I do not
think so. If anything, it goes to show that the learned trial Magistrate
should have ordered compensation from the date of the child’s birth to
date of judgment, less the amounts paid to her from the date of birth
to 2003 (about TShs. 110,000/=). I would thus dismiss this ground as
well.
All in all, I find this appeal without merit. I dismiss it in its entirety
with costs.
460
Owen Mkwemba v. General Manager, Friends Corner and Tandale
Hotels Ltd, Civil Case 332 of 1988, High Court of Tanzania at Dar es
Salaam (unreported)
(Date of the decision: 3rd July 1992)
JUDGMENT
BAHATI, J: This is a suit filed by Owen Mkwemba, the father of

Andrew Mkwemba, now deceased. The suit is brought under the
provisions of the Law Reform (Fatal Accidents and Miscellaneous
Provisions) Ordinance Cap. 360. The plaintiff is suing on behalf of
his family as dependants of the plaintiff’s late son Andrew Mkwemba.
The suit is based on negligence of the defendant and the relief sought
are general damages not exceeding 600,000/= plus costs and any other
relief the court deems fit.
The plaintiff adduced evidence to the effect that on 20/2/88, he
got a report that the deceased had been hit by a wall of the defendant
which had collapsed. The plaintiff was living very close to Friends
Corner and Tandale Hotels Ltd., about 10 metres away. He went to
the scene and found that the wall had indeed collapsed. This wall was
being rebuilt and the place where the deceased was crushed, the wall
was not very high, and the wall had holes. Andrew Mkwemba died
because of the wall falling on him. He was aged 8 and was in Standard
I and he was doing very well in class. The deceased’s mother, brothers
and sisters were still alive. Some were in employment but others were
still in school. The plaintiff was praying for damage for the loss of his
son.
PW2 Lukusa Mkundolwa said that on 20/2/88 he was a neighbor
of the plaintiff and only a few metres from Friends Corner. He saw
the wall of Friends Corner collapse. He went there and in the rubble
he found the deceased and so he sent for his father. On that day of
the accident there was music at Friends Corners. He could see some
children playing at the bottom of the wall while others would climb
up the wall. The wall had a crack in the middle and the place which
collapsed was the one with the crack.
461
No. C.7145 Detective Constable Laurent was the last witness
(PW3). He said that on 20/2/88 he was assigned to go to the scene at
Friends Corner where a wall had collapsed and one child had died.
He could see some cracks on the other part of the wall which had not
collapsed.
In defence, the defendant Tadei Siliyamaka Massawe said that

he was one of the partners of Friends Corner and Tandale Hotel Ltd.
He conceded that music and cultural dances were performed at this
hotel. The hall is surrounded by a wall of cement blocks. The wall
was strong as it had been constructed with cement blocks. No one was
allowed to climb the wall.
On 20/2/88 there was a cultural dance. The defendant got a

report that a child had fallen from the wall and had died. The wall
was in good condition. Children were not in the habit of climbing on
the wall. The wall used to be guarded whenever there was an activity
going on.
In cross examination, he said that the wall was built in 1982
and that it had no defects.
The other witness for the defence was Morandi Mtei who said
that he was working at Friends Corners Hotels as General Manager.
He said that the wall fell down at one time but this was not due to
cracks. The wall was overwhelmed by the weight of children who had
climbed on it. There were Policemen and security guards on duty but
still children climbed on the wall. He was in his office on 20/2/88 when
the wall collapsed. Children used to climb the wall even before 20/2/88
although security guards were there to stop them from climbing.
At the conclusion of the evidence, Mr. Marandu, Leornad

counsel for the defendant, submitted that this action appeared to
have been commenced against the defendant by the plaintiff either
as administrator by reason of the provisions of the law Reform (Fatal
Accidents Miscellaneous Provisions) ordinance. He went on to argue
whether defendant had any liability in the matter. I will deal with the
submissions of both counsels in the process of answering the issues.
462
In view of the provisions of section 2 of the law Reform (Fatal
Accidents and Miscellaneous Provisions) Ordinance as amended by
Act No. 5 of 1971 and in view of sections 3 and 4 of the said Ordinance
in particular, the plaintiff is the rightful and lawful person to sue and
the action is well founded and maintainable.
I propose now to deal with the issues. The first issue is whether
the deceased was an invitee to the defendant’s promises. The evidence
was that there was a cultural dance at the defendant’s hotel. The
deceased was living kindly ten paces away from the defendant’s
premises. There is no evidence on whether the deceased was one of
the boys who climbed on the wall. What is definite is that the deceased
must have been in the vicinity of the wall. When the wall fell down,
the deceased lay unconscious and he later died. Was he an invitee?
There is no evidence that he was because the plaintiff did not give
evidence to show that the deceased had money to pay for the ticket to
enable him to enter the hall where he would watch the cultural dance.
The defendant according to the evidence expected those coming to the
cultural dance to buy a ticket so that they are allowed in the hall.
These would be the invitees. I would therefore answer the first issue
in the negative. The deceased was not an invitee.
The second issue is whether the deceased was a trespasser to

the defendant’s premises. The evidence which was adduced was that
there was a wall around the defendant’s premises. No one was allowed
to climb on this wall and that these who came for the purpose of seeing
the cultural dance were supposed to buy a ticket and enter the premises
through the entrance where they were to show their tickets. Many
people came to the cultural dance some of whom especially children
never bought any tickets. The wall was meant to keep those who had
no ticket out of the show. Moreover, there were security guards who
saw to it that no one climbed the wall to watch the show. Mr. Marandu
concluded that on those facts it was clear that the deceased was a
trespasser.
On the other hand, Mr. Mhina Leornad, counsel for the plaintiff,
in his submission said that it was important to realize that the deceased
was a mere child of 8 years and that the wall was an attraction to
463
him in that it was of a climbable height and there was the cultural
show going on. He said that there was an allurement created by the
defendant so that technically the deceased was trespasser but no in
reality. He cited the old case of Lynch v Nurdin (1841) IQ 29. The facts
there were that an egg merchant who used to send his servant round
Soho (a place) with a cart to deliver eggs to his customers had his
servant out with the cart as usual. The servant imprudently left the
cart for half an hour in a street drawn up by the side of the pavement.
While he was away some little children began playing about the cart,
climbing into it etc. The plaintiff was in the act of climbing the cart
whom another boy pulled at the horse’s bridle. The horse moved on
and the plaintiff was thrown to the ground and hurt. The child
successfully brought an action for damages against the egg-merchant,
it being considered that he was not guilty of contributory negligence
as he had only obeyed a child’s instinct in playing with the cart.
Mr. Mhina also cited the case of Buckland v. Guildford Gas

Light & Coke Co., [1948] 2 All E.R.1086, which concerned a tree-
climbing thirteen year girl who was electrocuted by over – head high-
voltage wires. It was held that even if it were to be assumed that she
was a trespasser upon the land, the defendants should have known
that it was dangerous to have high voltage wires immediately above a
tree which could easily be climbed thereby constituting an attraction
to children, and therefore that as the girl was a person whom the
defendants ought to have had in contemplation as being directly
affected by their failure to take proper precautions, they were guilty
of duty amounting to negligence.
Mr. Mhina cited also the case of Davis v. St Mary’s Demolition

and Exeavation Co. Ltd. [1954] 1 All E.R.578, which involved a
trespassing 12 years old boy who was injured by a collapsing wall to
which he had been allowed. It was held that although the plaintiff
minor was a trespasser on the land, the presence of children on the
site was so likely an occurrence that the plaintiff came within the
class of “neghbours” as defined by Lord Atkin in the case of Donoghue
v. Stevenson, to whom the defendants owed a duty of case and the
plaintiff was entitled to succeed.
464
Mr. Marandu however referred the court to the case of Robert
Addio & Sons (Colliorios) Ltd. v. Dumbrock [1929] A.C.358, which is
discussed in Cecil A Wright Cases on the Law of Tort pages 656-657.
He referred in particular to pages 658-659 where it is stated that “in
cases of trespass there can be no difference in the case of children and
adults, because there is no duty to take care, it cannot vary according
to who is a trespasser.” In this case (Dumbrock’s case) there was a
contrivance actually dangerous to children in a field surrounded by
a hedge totally inadequate to keep out the public. The field itself
was used as a playground by young children and the contrivance was
dangerous and attractive to children. The accident occurred because
the contrivance (a wheel) was set in motion without any precaution
being taken to avoid an accident to persons frequenting the field. Some
of the children were warned at times and the injured boy had been
warned by his father, but no adequate fencing existed nor were any
deficiencies continuously renewed. It was hold that the boy, though
only four years old, was a trespasser and went on the premises at his
own risk.
Mr. Marandu also referred to the case of Eduard v. Railway

Executive [1952] 2 All ER430. In that case the facts were that the
plaintiff’s son was run over by an electric train on a line the property of
the respondents. The boy was aged 9 years. The railway line was laid
on an embankment at the foot of and adjacent to which was situated
a public recreation ground. Between the foot of the embankment and
the recreation ground the company had created a fence consisting of
concrete posts between which ran strands of wire fixed to the posts
by split pins. For many years children had been accustomed to climb
through the fence by pulling out the split pins and removing the wire,
and toboggan down the embankment. The fence was repaired by the
company’s servants whenever it was seen to have been interfered with.
On the day of the accident the boy went through the fence to fetch a
ball and while crossing the railway lines slipped and fell between the
lines and was subsequently struck by a train, suffering the loss of an
arm. The boy had been warned by his father not to go through the
fence. The Court of Appeal held him to be a trespasser and as such the
company did not owe him any duty which they would have owed to a
licensee. The House of Lords agreed with the decision of the Court of
Appeal.
465
Lord Porter said, inter alia, that there was no allurement in
this case “because the appellant had never been through the fence and
never know of the gaps in the fence or of the tobogganing and never
wanted to nor did toboggan when he got there. He knew that the fence
was there to keep him and the other children out, that it was wrong to
go on the embankment, and that he had no right to do so. He further
knew that it was dangerous to cross the lines.”
Further down in his speech Lord Porter said, “I cannot see that
the respondents were under any obligation to do more than keep their
premises shut off by a fence which was duly repaired when broken and
obviously intended to keep intruders out.”
But, it is my view that the case of Gough v. National Coal

Board [1954] IQ191, also cited by Mr. Mhina for the plaintiff is the
most relevant and close to the facts in the case before me. In Gough
v National Coal Board, the defendants operated a colliery tramway
which ran over their land through a mining village with houses on
both sides. It was unfenced and unguarded, and unattended journeys
of slow-moving trucks passed up and down who track at frequent
intervals, being worked by an engine at the top of an incline. For many
years the public had been tacitly permitted to cross the tracks, and
children played near it, and sometimes rede on the trucks, though
that practice was not tolerated by the defendants, who know of it.
The infant plaintiff, aged six and half years, rode on a truck and
was severely injured while trying to jump off. He brought an action, by
his father, alleging negligence against the defendants. At the hearing
he admitted that he was not supposed to play on the trucks and that
his father would punish him if he did so. The trial judge found that
the infant was a licensee over the whole of the land. He held that the
train way was an allurement which the defendants were under a duty
to protect; and that the infant’s knowledge that he was doing wrong
made no difference because he was too young to appreciate the real
danger.
466
On appeal it was held that the infant had a general license to
go on the track and that license could not be limited in such a way as
either (a) to make him a trespasser ab initio because he had gone on
the track to play, or (b) to reduce him from a licensee to a trespasser the
moment he climbed on to the truck, for the truck was an allurement,
and the defendants were under the duty to take reasonable care to
protect him as a licensee against an object on their land which they
know was both attractive and dangerous to a child of his age, who
was doing exactly what they should have foreseen he would do. The
infant’s knowledge that he was disobeying his father’s warning did
not postulate in him either a complete or partial knowledge of the
danger of what he was doing such as to change the character of the
truck form a concealed to an obvious danger and thereby to absolve
the defendants from their duty to guard it, and they were accordingly
liable in damages.
The above cited case is, as mentioned above almost on all

fours with the facts in this case. The deceased was not prohibited
by the defendant from going to the wall of the defendant’s premises
just like in Gough’s case. There was nothing to prevent the deceased
reaching the wall just like in Gough’s case. However the deceased
was not allowed to climb on the wall, again just like in Gough’s case;
and the wall was of a climbable height like in Gough’s case where the
trucks could be climbed. The deceased was too young to realise that
it was dangerous to climb the wall, just like in Gough’s case. In our
case it is even better because there is no evidence that the deceased
climbed on the wall.
If we go by the reasoning in Gough’s case with which I agree,

then the deceased was not a trespasser if he was standing or playing
near the wall which collapsed, and even if he had climbed the wall
because he was not a trespasser ab initio and he could not have become
a trespasser just because he climbed on the wall (if at all he did so).
In Gough’s case the infant was held to be a licencee rather than a
trespasser. I would hold the deceased in this case to have a licensee as
well.
467
The third issue is whether the defendant owed any duty to
the deceased. Since the deceased was a licensee then obviously the
defendant owed him a duty especially because there was a concealed
source of danger. The authorities cited above clearly show that the
defendant owes a duty to a licensee. Gough’s case held so.
The fourth issue is whether the wall collapsed as a result of

excessive force applied to it or whether it collapsed due to an inherent
defect. Evidence was given on behalf of the plaintiff that the wall had
cracks and was defective. The defendant on the other hand averred
that the wall was not defective. Mr. Mhina for the plaintiff, submitted
that the weight of a handful of children would not make a strong
wall collapse and that it collapsed because it was defective. I would,
with respect, agree with Mr. Mhina that the wall was defective as the
witnesses for the plaintiff stated because it is common knowledge that
a wall would not collapse so easily because of the weight of a handful
of children.
The last issue is on damages. The plaintiff is asking for damages

not exceeding shs.600, 000/=. The plaintiff is certainly entitled to
damages. In Buckland v. Guildford Gas Light and Coke Co. Ltd, the
plaintiff was awarded $200. That was in 1949. The learned judge
considered that deceased who was a girl assisted her parents in the
home and it was anticipated that her gifts would later have enabled
her to contribute financially as well by services to the household.
In Spitalali v. Washbourne (unreported) cited at paragraph 31-

051, chapter 31 of Kemp & Kemp – The Quantum of Damages, Volume
1, the deceased was a 14 year old boy and the case was decided in
1975. The sum of $800 was awarded.
In Muwanga v. Jiwani [1964] EA 171, the deceased was a 13

year old girl. The Court took judicial notice that African children
while at school are expected to assist in domestic work and after
school on gaining employment to contribute towards the maintenance
of the family; accordingly the mother and the girl’s grandparents were
entitled to damages for loss of service. The sum of shs. 13,740/= was
awarded. This was in 1963.
468
In the present case, the accident occurred in 1988. The same
principle as in the cases cited above apply in this case. To-day is
1992 and the plaintiff is praying for general damages not exceeding
shs.6000, 000/=. In all the cases cited above, what was awarded would
be well over shs.600, 000/= today. The deceased was in school and he
would be expected to have obtained employment just like the members
of his family. The sum of shs.600, 000/= would not in my view be on
the high side considering the circumstances in this case. I therefore
enter judgment for the plaintiff in the sum of shs. 600,000/= plus costs
and interest at court’s rate from the date of judgment till payment.
469
Paulo Nuru Mgonja v. R, Criminal Appeal 190 of 2012, Court of
(Msoffe, Oriyo and Mussa, JJ.A.)
(Date of decision: 19 June 2012)
JUDGMENT
MSOFFE, J.A.: The High Court of Tanzania (Mzuna, J.) sitting at

Moshi upheld the conviction of the appellant for rape contrary to
section 130 (1) and (2) (a) of the Penal Code entered by the District
Court of Rombo (Lusewa, RM.) upon being satisfied that the evidence
on record established that on 30/03/2005 at about 16.00 hours the
appellant raped the complainant PW1 Ester Leonard aged 9 ½½
years at the material time. PW1 testified and told the trial District
Court that on the material date and time she and one Miriam Kilonzo
went for prayers at the appellant’s house. Apparently, the appellant
was a pastor with the SDA Church near Mabatini, Kinamfua, Rombo.
While in the house there was a time when Miriam went out with one
Emanuel leaving behind the appellant and PW1. That was the time
when, according to PW1, the appellant:-
“... told me to lie on the coach and took out my pant and pushed my
skirt up then he took petroleum baby care jelly and put/applied on my
private parts, on my vagina. Then lied on top of me and put his private
part in my vagina then to my anus. I felt pain and screamed but no
one came. Thereafter he took my underskirt and rub off the blood …”
On arrival at home, PW1 narrated the ordeal to her mother PW2 Frida
Jackson. PW2 “opened her skirt and found her underskirt dirtened with
blood and some discharges...” PW2 alerted her neighbour PW3 Clara
Kessy and both decided to report the incident to the police. The police
issued a PF3 to PW1. According to the record before us, on 18/09/2008
PW4 Dr. Wilbrod Kejo produced in court the PF3 showing that upon
examination PW1’s vagina had bruises and pus oozing therefrom.
Apparently the observations in the PF3 were made by Sr. Dr. Salesia
Safari. So, when the appeal came before the High Court for the first
time an order was made to the District court to record the evidence of
Dr. Safari. On 14/2/2011 the latter’s evidence was recorded as ordered.
470
In her testimony Dr. Safari, who also testified as PW4, confirmed her
observations as reflected in the PF3.
In both his memorandum of appeal and in his oral submissions before

us the appellant has essentially canvassed two grounds of complaint.
One, the prosecution witnesses were not credible. Two, there were
material contradictions in the prosecution case against him.
We propose to begin with the first complaint. Ms. Lilian Mmassy,

learned State Attorney for the respondent Republic, contended that
given the sequence of events as narrated by the prosecution witnesses
there is no basis for saying that the prosecution witnesses were not
credible. With respect, we agree with her.
Our starting point will be section 6(7)(a) of the Appellate Jurisdiction

(CAP141 R.E. 2002) under which we are mandated to deal with matters
of law(not including severity of sentence) but not matters of fact. In a
second appeal we can only interfere with findings of fact by the courts
below if they are perverse, or the courts below misapprehended the
evidence, or where there were misdirections or non-directions on the
evidence, etc. The issue is whether there is basis for us to interfere with
the concurrent findings of fact by the courts below that the appellant
committed the offence on the material day and time.
As shown above, PW 1 narrated the events of the day in such manner

that, like the courts below, there is no reason for us to fault her. In
our view, a look at her evidence in its entirety shows that she was
testifying on an incident she properly knew and had proper grasp of
what it was all about. Her evidence was to an extent supported by her
mother PW2 who upon examining PW1, saw the blood stained shirt
and some “discharges.” The testimony of PWl was also supported by
the doctor’s observation in the vagina i.e. that it had bruises and pus
oozing out. In the totality of the above evidence, we too are satisfied
that the prosecution witnesses were credible.
In the second complaint, the appellant argued before us that there

were contradictions in the evidence on the time(s) the said PWl was
referred to and examined in hospital. Fortunately, the judge on first
appeal addressed this issue thus:-
471
“... there is the issue of the PF.3, Exhibit P.1. The appellant has argued
that PW.1 said they went to the Hospital on 30th March, 2005 that is
on the same day of the incident while PW4 said she received them on
the following day. This, according to him, shows some contradictions
in the evidence while PW4 said she received them on the following
day. This, argument, with due respect, does not match up with the
evidence. True, PW.1 was taken for medical examination on 30th
March, 2005. PW.4 said received them on that day at evening time
but she filled the PF.3 on the following day. At no point in time did she
say she was brought to her on 31st March, 2005 as alleged. This is a
mere conjecture having no support from the evidence ...”
With respect, we agree with the learned judge in his findings and
conclusions on the above point and we propose to say no more on it.
In law, the essence of rape is (a) lack of consent in the case of an adult
or with or without consent in the case of a victim below the age of 18
years of age, and (b) penetration. In this case PW1’s given age was
below 10 years so whether or not there was consent was immaterial.
On the aspect of penetration, her evidence above is clear testimony to
the fact that there was penetration.
The issue of sentence has exercised our minds to a certain extent.

The District Court sentenced the appellant to a term of 30 years
imprisonment. The High Court enhanced it to life imprisonment
because section 131(3) of the Penal Code provides for such sentence.
We note that the age of PW1 given in the charge sheet was 9 ½ years.
In her testimony PW2 said PW1was born in 1996, without more. We
think that in the justice of this case which attracts a severe sentence
PW2 ought to have been more forthcoming and thereby state exactly
on which date and month PW1 was actually born. By so doing, the
sentencing court would have been in a better position to know whether
or not PW1was 9 ½ years old at the material time.
For the above reason, we have decided to give the appellant the benefit
of doubt on the aspect of sentence and accordingly restore the sentence
of 30 years imprisonment meted by the trial District Court. Except for
the above variation, the appeal against conviction is dismissed.
472
R v. Chepe Kalangali [1973] LRT No 77
JUDGMENT
MNZAVAS, J.: The accused, Chepe s/o Kalangali, stands charged

with manslaughter c/s 195 of the Penal Code. It is the Republic’s
case that the accused on or about the 26/12/71 at Chosi Village in
the District and Region of Mbeya, unlawfully killed one, Edward s/o
Chepe, his son. The accused pleaded not guilty to the charge.
The deceased who was, according to the evidence, between 11/2 and 2
years old, disappeared from his parents on the night of 26/12/71. A
search was mounted and the deceased was found lying a river already
dead on 28/12/71.
It is the prosecution’s argument that it was due to the accused’s gross

negligence that the deceased strayed from him to the river where he
met his death.
The defence, on the other hand, argued that the deceased was with his
mother when he strayed to the river where he was found dead.
In support of the Republic’s case seven main prosecution witnesses
gave evidence as to how the deceased disappeared and how his body
was found in a river two days later.
Insyile Kapande, (PW2) the wife of the accused and mother of the
deceased chose to give evidence notwithstanding the fact that she is
not a compellable witness. [The court considered at length the evidence
of the witnesses and continued]
After summing up to the gentlemen assessors; they were both of the
opinion that the child was in accused’s custody when it disappeared and
later to be found dead in the river. They were also of the opinion that
the accused was grossly negligent in that he left the child unattended
and as a result the child strayed to the river where he nit his death.
They therefore, found the accused guilty of manslaughter is charged.
In this case the accused is charged with manslaughter. It is the
Republic’s case that the accused, by his negligence, unlawfully caused
the death of his son, Edward Chepe.
473
Before I deal with the issues of negligence, I will first try to answer the
question in whose custody was the deceased when he was found to be
not in the house and later to be found dead in the river?
The prosecution’s argument is that the deceased was in the custody

of the accused when he got lost. The accused however argued that the
deceased was with his mother when he disappeared. With respect I
tend to agree with the learned State Attorney’s argument that on the
evidence the only reasonable conclusion is that Edward Chepe was
with his father when he disappeared and later to be found lying in
the river dead. In support of this conclusion, we have Insyile (PW 2),
the accused’s wife, who told the court that the accused had assaulted
her. Her evidence is fully supported by Borahesabu (PW5) Afyusisye
(PW6) and Maulid (PW8) who gave evidence to the effect that they
were sent by Abibu to go to accused’s house and collect the child and
that on arrival they saw the accused with the child.
All the three witnesses told the court that they asked the accused to
surrender the child to them so that he could join his mother who was
at Abibu’s house but that the accused refused to surrender the child to
them. This was on the night of 26/12/71. We also have the testimony of
Abibu, accused’s uncle; he told the court that next morning (27/12/71)
he sent one, Jeremiah go and call the accused. The accused came to
Abibu’s house and, on being interrogated as to the whereabouts of
Edward, he replied that Edward was at home. Later when Abibu,
Msunguru (P.W.8) and other people went into the accused’s house for
the child the accused changed his story and told them that the child
was with his mother. The child was, on the next day, found in the river
already dead.
There is no reason to suspect, and the defence has suggested no

reason, why the accused’s wife should cook up such a serious story
against her husband. Nor is there any reason why Msunguru (P.W.7),
a cell leader, and a well respected person by the local gentry should
have decided to come to the court and manufacture a story against
the accused. And what is more the accused’s own brother, Afyusisye
(PW6) supported the prosecution case. The accused on being cross-
examined by the prosecution admitted that there was enmity between
him and his brother.
474
The accused’s defence that there was bad blood between him and
his uncle Abibu and also with Maulid may be true. But there is no
reason why the other witness should tell lies against him. Indeed, the
accused’s behavior and contradictory answer on 27/12/71 regarding
the whereabouts of the deceased showed that he was hiding something
from the searching party.
On the evidence I am fully convinced that the deceased was in the

hands of the accused when he disappeared from the house and later
to be found dead in a river. The vital question, however, is whether
on the evidence before this court, the accused can be convicted of
manslaughter by negligence.
The rule as laid down in the famous case of Rex.v Bateman (19 CR.
APP R 8) is that before a conviction for manslaughter by negligence
can stand the following ingredients must be proved:
(i) “It must be proved that the accused had a duty to take care”.
(ii) “Failure to discharge that duty has to be proved”.
(iii) That death was due to that default”. And
(iv) “The negligence must go beyond a mere matter of compensation
and show such disregard for human life and safety of others as
to amount to a crime against the state and conduct deserving of
punishment”.
On the evidence the only reasonable conclusion is that the deceased
strayed from the custody of the accused to where it was found lying
dead. The deceased was a child of tender age, who had just started
walking. The accused as father of the deceased had a duty to take
care that the deceased did not leave the house and wander about to
his detriment.
The accused totally failed to discharge this duty and the child strayed
to the river where he was found dead.
475
As to the question whether the death of the deceased was due to the
accused’s failure to take care, we have the evidence of the doctor (PW1).
According to his evidence he performed post mortem examination on
the deceased’s body and that on inspection of the lungs he suspected
pulmonary tuberculosis. To ascertain his clinical finding he sent
specimens of the deceased’s lungs to the central laboratory in Dar es
Salaam for histopathology.
The report of the pathologist (exhibit B) is to the effect that the

deceased was suffering from broncho-pneumonia. After this report
the doctor came to the conclusion that the deceased died of broncho-
pneumonia.
In support of the argument that the deceased’s death was a result

of the failure of the accused to take care the learned State Attorney
referred to the court sections 206 and 207 of the Penal Code. With
respect to the learned State Attorney, I am not in the least convinced
that sections 200 and 207 are relevant in this case. Bot sections speak
of the duty of every person having charge of another- (Section 206)
and every person who is head of a family-(Section 207) to provide for
that other person the necessaries of life-section 206- And to provide
the necessaries of life for such child – (Section 207).
In this case there can be no doubt that the accused is covered by section
207 in that he was the father and as such head of his family. Equally
there can be no doubt that his deceased child was under the age of
14 years. He was estimated to be about 2 years old. But there is no
evidence to suggest, leave alone to prove, that he failed to provide the
necessaries of life to the deceased and that such failure consequently
affected the life or health of the deceased. These two sections are in
my view inapplicable in this case.
Having commented on the learned State Attorney’s submission, I now

come to the question as to whether the accused’s negligence in failing
to keep watch on the movements of the deceased contributed to the
death of the deceased.
476
The doctor told the court that the deceased died from broncho-
pneumonia. That the deceased was suffering from chest ailment is
evident from on lesser a person than the accused himself. He told the
court that the deceased was suffering from a cough a few days before
his disappearance and that he had taken him to a local dispensary for
treatment out that he was still coughing when he disappeared.
We have the evidence of Abibu that on the night the accused took the
child from its mother it rained heavily. From the evidence the deceased
must have strayed from the house that same night and no doubt must
have been exposed to cold and, most probably to the heavy rain. The
doctor, on being interrogated by the court, replied that exposure to
cold of a child suffering from pneumonia may aggravate its condition.
On the evidence the deceased’s health on the night he disappeared
from the house was far from being sound, he had a cough a few days
before is disappearance from the accused, and was still coughing when
he disappeared. Post mortem examination showed that he died of
bronchopneumonia. This would suggest that the deceased must have
been suffering from pneumonia when he disappeared. His exposure
to cold must have speeded is death. Under Section 203(d) of the penal
Code “A person is deemed to have caused the death of another person
although his act is not the immediate or sole cause of death” –“If by
any act or commission he hastens he death of a person suffering under
any disease or injury which apart from such act or omission would
have caused death”.
In the present case the accused failed to take care his child and as a
result the child who was known to the accused to be suffering from a
cough strayed away and was exposed to cold. The exposure hastened
the deceased’s death. The accused is therefore under Section203 (1) of
the Penal Code deemed to have caused the death of his child, Edward
Chepe.
As to the question whether the accused negligence went beyond a

mere matter of compensation, I would say it did. As a father in charge
of a sick child, and having refused to surrender the child to its mother,
it was his duty to take care of the child in every respect. His omission
to do so which led to the child being exposed to cold which no doubt
477
hastened its death was such disregard for human life as to amount to
a crime against the state.
If I do not refer to the learned defence counsel’s submission in detail,

it is not through lack of respect for the learned counsel, who has
argued this case with clarity and restraint. I am satisfied however
that the Republic has proved the charge against the accused beyond
all reasonable doubt.
Like the unanimous opinion of the gentlemen assessors, I find the

accused guilty as charged; and I accordingly convict him of the offence of
manslaughter as charged. [After taking into account all the mitigating
factors the accused was sentenced to 8 months imprisonment].
478
R v. Majuto Ngailo, Criminal Case No. 19 of 2014, High Court of
Tanzania at Njombe (unreported)
(Date of the decision: 14th December, 2014)
(Kihwelo, J.)
JUDGMENT
KIHWELO, J.: The accused, MAJUTO NGAILO, in the dock is facing
a trial on information of murder contrary to section 196 of the Penal
Code, Cap. 16 Revised Edition 2002 (henceforth “the Penal Code”)
which to date he stands charged.
It is alleged by the prosecution that on the 5th June 2012, at

Kiwe Village, within Ludewa District in Njombe Region the accused
killed one DANIEL NGAILO (henceforth “the deceased”).
It is further alleged that the accused and the deceased were son and
father respectively and they were residents of Kiwe Village within
Ludewa District in Njombe Region. In the fateful day the deceased
was in the kitchen together with his wife and their two grand-
children enjoying their supper when suddenly two unidentified men
stormed inside their house slapped the wife on the face and ordered
her to go outside with the little ones something which she obeyed by
running outside the house along with the two children leaving
behind the deceased and the intruders.
Upon the wife’s running outside the house along with the children,
the assailants brutally attacked the deceased and wounded him in his
head something which led to his sudden death. According to the Post
Mortem Examination Report, death which was medically examined
by the medical examiner was established to be due to Internal &
External Bleeding due to being beaten with a heavy object on the
head was almost instant. It is alleged that the accused killed the
deceased believing that the deceased was about to sacrifice him
on witchcraft grounds and that is why the accused organized with his
friend to get rid of the deceased.
479
On 2nd March 2016 when the matter came for preliminary hearing
and the charge was read over to the accused, he pleaded not guilty. The
accused has since maintained his innocence all along. The following
issues were agreed as matters not in dispute. One is the accused’s
name, two is the accused’s address, three is the accused’s tribe, four is
the fact that the deceased was a father of the accused and finally the
fact that the accused was fifteen years at the time he was arrested.
The rest of the issues were left for the prosecution to prove.
The most disputed facts in this case were whether or not the deceased
died, whether he died a violent death, whether the death of the
deceased DANIEL NGAILO was perpetrated by the accused, MAJUTO
NGAILO. In order to prove the guilty of the accused the prosecution
Republic led by Mr. Apimaki Mabrouk, Learned Senior State Attorney
assisted by Ms. Radhia Njovu, Learned State Attorney as well as Ms.
Nura Manja, Learned State Attorney produced four witnesses to
prove that the accused was responsible for the deceased’s murder.
These witnesses were as follows DR. FRANK MWAMBASANGA

(PW1), MARIA RHOBI OMAR (PW2) the Justice of Peace who took
the extra judicial statement of the accused MENURUFU NGAILO
(PW3) and E.5330 D/CPL ROBERT (PW4). The Prosecution tendered
in evidence three documentary exhibits namely Sketch Map of the
Scene of Crime (EXHIBIT “P1”), Post Mortem Examination Report
(EXHIBIT “P2”) and Extra Judicial Statement (EXHIBIT “P3”).
Upon the closure of the prosecution case on 3rd November 2017 the
Court pursuant to the provisions ofsection 293(1) of the
Criminal Procedure Act, Cap 20 Revised Edition (Henceforth“CPA”)
ruled out that the accused had a case to answer as the prosecution
had made a prima facie case and therefore was required to defend
according to the law.
480
Mr. Mussa Mhagama, Learned Counsel for the defence called the
accused to testify on his own. The accused elected to testify under
oath. He was the sole defence witness. It is important to stress at this
juncture that in terms of the requirement of the Law of the Child Act,
2009 Mr. Gerold Komba, Social Welfare Officer participated the
trial in order to safeguard the best interest of the child pursuant
to section 4 of the Law of the Child.
Pursuant to the provision of section 285 of the CPA the trial was
conducted with the aid of assessors and the selected assessors were
Mr. Conrade Mwalongo as first assessor, Ms. Annamary Mgimba as
the second assessor and Ms. Jenifa Mwanzalila as the third assessor.
Upon the conclusion of both the prosecution and defence case I summed
up the evidence for the prosecution and the defence to Honourable
Assessors as required by the provision of section 298(1) of the CPA and
required each of them to state their opinion orally as to the case
generally and as to any specific question of fact addressed to the court
and both of them dutiful did it. In particular I requested them to take
into account the following principles namely the onus of proving the
charge is upon the prosecution and not on the accused,
the degree of proof is proof beyond reasonable doubt.
The burden never shifts. I referred to section 3(2) of the
Evidence Act, Cap 6 Revised Edition 2002 (henceforth
“the Evidence Act”). Weaknesses of the defence is not a blessing to
the prosecution side in the contrary the prosecution is duty
bound to prove the case and the accused is not bound to prove
his innocence. The accused is only required to raise reasonable
doubt on the evidence of the prosecution. Where a reasonable doubt
has been established in the minds of the court, the same
has to be resolved in the benefit of the accused person.
The rationale of this lies in the constitutional principle in which

everyone is presumed innocent until proved guilty.
I also pointed out to the Honourable Assessors that all the

evidence presented by the prosecution’s witnesses were
circumstantial evidence and it is elementary law that where
481
circumstantial evidence is relied on the principle has always
been that facts from which an inference of guilt is drawn
must irresistibly lead to the conclusion that it is the accused and
no one else who committed the crime. The inculpatory facts must
not be capable of any other interpretation than that the person in
the dock is the guilty of the offence; See Mswahili Muhugara
v. Republic [1997] TLR 25, Jonas Bulai v Republic, Criminal
Appeal No. 49 of 2006 (unreported) and finally I pointed out to
them the position of the law that in criminal cases suspicion alone
however grave it may be is not enough to warrant a conviction of
the accused person. See Hakimu Mfaume v. Republic [1984]
TLR 201 and D. Mapunda v. Republic, Criminal Appeal No. 2
of 1989 (unreported).
Let me first of all address my mind to some of the predominant

legal principles that are relevant to the case before hand which will
ultimately guide me in the course of making the decision.
As usual these cardinal principles are very core in criminal

justice system and they are borne out of the Constitution of the
United Republic of Tanzania 1977 (henceforth “the Constitution”),
the Law of Evidence Act, CAP 6 Revised Edition 2002 (henceforth
“the Evidence Act”), the CPA and the Penal Code as well
as precedents. In essence these principles are set as safeguards
to people facing criminal trials in order to ensure that no innocent
person is convicted on freak or flimsy evidence as the old adage goes
by the saying “it is better to acquit a hundred guilt person than to
convict one innocent person”.
The first and foremost cardinal principle in criminal liability is that

the onus of proving the charge is upon the prosecution. In a murder
charge, the prosecution has to prove beyond reasonable doubt that the
person who is the victim of murder in the case is dead, that the death
of the victim was not a natural death, that the accused is the person
responsible for the victim’s death and finally that the accused committed
the offence with malice aforethought. This is a long established
principle in a criminal justice system. See Joseph John Makune v.
482
The Republic [1986] TLR 44 and Mohamed Haruna @ Mtupeni &
Another v. The Republic, Criminal Appeal No. 25 of 2007 (unreported).
It is therefore a requirement that, the evidence must be so convincing

that no reasonable person would ever question the accused’s guilt.
See the cases of Mohamed Haruna @ Mtupeni & Another v. The
Republic (supra), Mohamed Said Matula v. Republic [1995] TLR 3,
Anatory Mutafungwa v. Republic, Criminal Appeal No. 267 of
2010, Court of Appeal of Tanzania (unreported) and Festo Komba
v. Republic, Criminal Appeal No. 77 of 2015, Court of Appeal of
Tanzania (unreported).
The third cardinal principle is the one which has been consistently
laid down by the Court of Appeal of Tanzania that where a case rests
squarely on circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and circumstances are
found to be incompatible with the innocence of the accused or the guilt
of any other person. See R v. Kipkering arap Koske [1949] EACA
135 at p 136 and Simon Musoke v. Republic (1958) EA 715.
The fourth cardinal principle worthy of consideration states that

although there may be strong suspicion against the accused,
suspicion however strong is not sufficient evidence to convict. See
Hakim Mfaume v. Republic [1984] TLR 201.
The fifth cardinal principle is in relation to admissibility of a Cautioned

Statement. This was clearly stated in the case of Shija Luyeko
v R, Criminal Appeal No. 43 of 1999, Court of Appeal of Tanzania
(unreported) in which the Court in dealing with the cautioned
statement stated that:-
“It is trite law that for a cautioned statement to be admitted in

evidence, it must be proved affirmatively by the prosecution
that it was voluntary made. If the Court is satisfied that the
statement was made voluntarily and was recorded correctly then
it should proceed to admit it in evidence, but if it is not so satisfied,
then it should accordingly hold it inadmissible.”
483
The Court of Appeal of Tanzania in Shija Luyeko v. R (supra) has
by extension held this to apply to a controverted extra judicial
statement. Arguably, even if the confession is held to be voluntary, it
must also be established that it is true and for this purpose it would
be necessary to examine the confession and compare it with the rest
of the prosecution evidence and the probabilities of the case.
Lastly there is another cardinal principle in our criminal justice
system and that is in relation to burden of proof which is to the effect
that an accused ought not to be convicted on the weaknesses of his
defence but on the strength of the prosecution case. See the case of
Christian Kale & another v. R [1992] TLR 302.
It is with those principles in mind that I will now turn to summarise

the evidence that went on record for both the prosecution and the
defence before I can finally dispose the issues.
FRANK ABRAHAM MWAMBASANGA (PW1) testified before

the Court as the first prosecution witness. He said that he was an
Assistant Medical Officer (AMO) at the time of the incidence and that
on 7th June 2012 around evening he received a phone call from the
District Medical Officer and was required to accompany the police
to Kiwe Village where he was to carry out a post mortem
examination of a person who was murdered. According to PW1 they
went straight to the house of the deceased who was an adult male
person and they were told his name was DANIEL NGAILO. He then
medically examined the body of the deceased and filled the Post
Mortem Examination Report which was tendered and admitted in
evidence as EXHIBIT “P2” without any objection.
Upon cross examination he testified that they went to Kiwe Village in

the evening and started the post mortem examination at 20:00 hours.
He said that they arrived at Kiwe Village around 17:00 hours or 18:00
hours. He said that the death of the deceased was occasioned by head
injury.
484
MARIAM RHOBI OMARY (PW2) was yet another prosecution
witness who testified in order to prove that it was the accused in the
dock who killed the deceased.
PW2 is a Primary Court Magistrate at Ludewa Urban Primary Court

and a Justice of Peace who took out the Extra Judicial Statement of
the accused. She explained how the accused was brought to her by one
police officer by the name of DAUD and she narrated how she went
ahead taking the Extra Judicial Statement of the accused taking into
account the CJ Guidelines to Justice of Peace.
According to her the accused confessed to have killed his father the
deceased. The Extra Judicial Statement was tendered and admitted
in evidence as EXHIBIT “P3” as there was no any objection from the
defence.
MENURUFU NGAILO (PW3) was the third prosecution witness in

line who testified that he is the elder brother of the accused and that
on 5th June 2012 at 1:00 am he received the sad news about the
murder of the deceased and immediately went to the deceased’s house
which was about 45 minutes walking distance from the village where
PW3 was living. He explained how he arrived at the crime scene and
found the deceased brutally murdered and that on the following
day upon the arrival of the police and after carrying out the post
mortem report they were handed over the body of the deceased for
burial arrangements.
PW3 went on to testify that throughout that period the accused was
nowhere to be seen and did not even attend his father’s funeral.
According to PW3 the accused on 17th June 2012 surrendered himself
at his home place and confessed to have killed his father because the
deceased was witch and wanted to sacrifice him. He went on to say
that the accused confessed to have killed the deceased using a baton.
Upon cross examination he said that he arrested the accused because
he did not participate in the funeral of the deceased.
485
E . 5330 D/CPL ROBERT (PW4) was the last prosecution
witness to testify. According to him on 19th June 2012 he was at Ludewa
Police Station when the OC- CID Inspector MAJENGO instructed him
to take the cautioned statement of the accused. He then went ahead
to take the cautioned statement and that during interrogation
the accused confessed to have killed the deceased. However, since
PW4 did not produce the cautioned statement which was the basis of
his testimony his entire evidence is hearsay and therefore flies in his
face.
It is not, in my opinion, insignificant to state that all the Honourable

Assessors were of the opinion that the prosecution has established
its case beyond reasonable doubt that the accused was guilty of
the offence of Murder.
I will now turn to address the remaining issues that is whether the
deceased is dead and whether he died a violent death, whether the
accused before this court MAJUTO NGAILO is responsible for the
murder of the deceased DANIEL NGAILO and finally whether the
accused killed the deceased with malice aforethought.
As pointed out earlier on in order to prove that the accused
killed the deceased the prosecution produced four witnesses while
the defence produced one witness the accused himself who gave his
testimony under oath to protest his innocence. As a trial court
I had the advantage of observing the manner and demeanour of
witnesses when they were in the witness box testifying although I
must stress that I am alive to the fact that most liars can fool more
people most of the time. That being the case I drew inspiration
from the case of Byamungu Rusiliba v. R [1951] 18 EACA 233,
Shabani Daud v. Republic, Criminal Appeal No. 28 of 2000, Court of
Appeal of Tanzania (unreported).
The question whether the accused is dead and died a violent death
should not detain us longer. This is simply because PW1, PW2 and
PW4 testified to that effect and the defence did not take any issue with
that. Furthermore PW1 testified in detail about how he examined the
body of the deceased and tendered in evidence EXHIBIT “P2” which
was admitted without any objection. According to EXHIBIT “P2” it is
486
conspicuously clear that the accused died a violent death as it reads
“death occurred due to internal and external bleeding due to being
beaten with heavy object on the head”. It is clear therefore that the
deceased is dead and that his death was not natural but rather a
violent one.
It therefore remains upon this Court to resolve the remaining issues

on whether it is the accused before this Court who is responsible for
the death of DANIEL NGAILO. In tandem to that, if it is held that
it was the accused that committed this heinous offence, whether his
action was actuated with malice aforethought.
In order to answer the first issue on whether the accused killed the
deceased I will begin with the testimony of PW1. In my respectful
opinion the testimony of this witness did not have anything much
to incriminate the accused since his testimony only related to the
medical examination of the body of the deceased stating how the death
occurred and what was the cause. Part of his testimony is that the
deceased was hit by a heavy object in the head. I must point out in
passing that PW1 did not seem to be very consistent in his testimony
in particular on the timing of the carrying out the post mortem which
as I will explain later in due course was somehow contradictory
with that of PW4.
The evidence of PW2 was the most incriminating piece of evidence to

the accused in that EXHIBIT “P3” which was tendered in evidence
by PW2 the Justice of Peace conspicuously indicated that the accused
confessed to have killed the deceased. If I can tell his own story the
accused said:-
“Ilikuwa ni siku ya Jumapili Baba yangu ambaye ndo marehemu

alipotoka kilabuni alianza kunieleza kwamba wewe kadume
itakapofika sikukuu ya ekaristi lazima nikuue. Ilikuwa ni mida ya
saa mbili usiku tukiwa nyumbani ndo alinieleza hivi. Mimi nilishikwa
na hasira nilienda kwa Bahati nikamfuata anisaidie kumuua Baba,
maana nilichukizwa na maneno aliyokuwa ameniambia, siku ya
tarehe 5/06/2012 tulienda nyumbani kwetu mimi na Bahati, mimi
nikiwa nimejifunga kitambaa cheusi usoni, tuliingia ndani mimi
487
nikiwa nimetangulia nilimpiga baba kichwani, alikuwa amekaa
jikoni, niliendelea kumpiga kichwani, hapo tayari mama nilikuwa
nimeshampiga kibao akatoka nje akipiga mayowe, Bahati naye
aliingia jikoni tuliendelea kusaidiana kumpiga baba mpaka akafa
naye Bahati alikuwa akitumia rungu kumpiga baba.
Baada ya kumuua Bahati alirudi nyumbani kwao nami nilikimbia

porini, na baadae nilienda kwa kaka yangu ambapo nilikamatwa
na mgambo hatimaye kupelekwa katika kituo cha polisi Mlangali
na baadae kufikishwa hapa Ludewa.”
Although what is contained in EXHIBIT “P2” are facts relevant to the

fact in issue I don’t find EXHIBIT “P2” to be reliable as evidence that
can safely be used against the accused. This is because there are a
number of glaring irregularities as far as the extra judicial statement
is concerned. First of all as the accused was 15 years old at that
time he was not capable by reasons of his physical and mental
immaturity making statement in his own in the absence of a parent,
guardian, relative or a Social Welfare Officer and this vitiated the
entire Extra Judicial Statement. This is in terms of the requirement
of the Law of the Child Act, 2009 in particular section 4(2) which
reads as follows:-
“The best interest of a child shall be the primary consideration in all

actions concerning a child whether undertaken by public or private
social welfare institutions, courts or administrative bodies.”
This is also consistent with international legal instruments to which

Tanzania is a party. These are the United Nations Conventions on
the Law of the Child (CRC) and the African Charter on the Rights
and the Welfare of the Child (ACRWC) both of which binds Tanzania
in terms of the Vienna Convention of the Law of Treaties on the
doctrine of Pancta Sunt Servanda meaning that treaties have to be
obeyed.
488
In the instant case the accused was not given treatment as a child
neither by the police nor by the Justice of Peace in taking the Extra
Judicial Statement. It therefore defies logic to incriminate the accused
using the extra judicial statement with such glaring irregularities.
It is not, insignificant to say that, it would be a grave mistake to our

criminal justice system to convict a child in conflict with the law or an
accused person who at the time of committing the crime was a minor
and was not accorded the treatment as minor offender. This is likely
to invite moral panic and chaos to our criminal justice system and
more in particular the juvenile justice system. I am alive to the fact
that every case must be decided according to its own merits but I am
mindful of the fact that courts should not sit and condone injustice.
Courts have a duty to apply the law without occasioning injustice.
I take inspiration in the case of The Queen on the Application

of HC (a child by his litigation friend CC) and The Secretary of
State for the Home Department & The Commissioner of Police of
the Metropolis [2013 EWHC (Admin)] where the Court pointed out
that:-
“…The underlying principle is that the criminal justice system

should take account of a defendant’s age, level of maturity, and
emotional capacity. It is only by doing so that the system can redress
the imbalance which is the inevitable result where a child or
young person is confronted by the power of the criminal justice.”
That said the testimony of PW2 and EXHIBIT “P2” cannot

and should not be used to incriminate the accused for the offence
he stands charge.PW2 testimony therefore flies in her face. That
conclusion brings me face to face with the next piece of evidence.
Another piece of evidence that incriminates the accused is the

evidence of PW3 who is a biological brother of the accused. According
to PW3 the accused was arrested because he was suspected to be
the murderer since the accused did not attend his father’s funeral
and that he disappeared since the day of the murder and later he
surrendered himself to PW3 and confessed to have murdered
the deceased. Upon cross examination he said that the accused was
arrested first and later confessed.
489
He also said that the accused was arrested at the local pombe shop
and was taken to his residence for interrogation.
PW4 on his part explained how they went to the crime scene but
unlike PW1 who testified that they left Ludewa in the afternoon,
PW4 said that they left Ludewa in the morning and arrived there
in the afternoon at 14:00 hours. PW4 admittedly, said that the law
requires a child of tender age to be represented during the taking of
the cautioned statement.
Looking closely at the testimonies of PW1, PW3 and PW4 it is clear that
the evidence of the prosecution was marred with inconsistencies and
that the said unreasonable inconsistencies between the evidence
of the witnesses to my view are material and robbed the witnesses’
account of other persuasiveness. PW3 gave different account of the
story about how the accused was arrested. At one point he said the
accused surrendered himself at PW3’s house and made confession
but in a twisted story during cross examination he said that the he
met the accused at the local pombe shop where he was arrested by
the people militia. I must confess that PW3 did not at all impress
me as a witness of truth. It is very difficult to believe that PW3 was
talking of the same incident during the examination in chief and cross
examination.
In fact according to PW3 the accused was arrested because he did not
attend the deceased funeral which makes it to be a mere suspicion
and as amply demonstrated suspicion however, grave may be is not
sufficient to convict.
The accused in his defence refuted all the allegations that he freely
made the confessions and in the contrary he said that he confessed
because he was beaten by PW3 and later at the police. In his line of
defence he said that he ran away the day the assailants stormed their
house and went as far as Lake Nyasa where he stayed for two weeks
until the day he came back and was arrested by two people militia who
took him to his brother who was at the local brew club. He maintained
that he did not come back earlier because he was still afraid of
the assailants and that he was not aware that his father passed
until when he met his brother.
490
DW1 went on to testify that upon coming back his brother who was
drunk beat him severely and it was then that he was taken to the
police where he was beaten too.
I must say that I did not find DW1’s story compelling in particular
how he run could for approximately ten hours to Lake Nyasa after
the family was attacked and yet spend two weeks before coming
back home. In my opinion it is difficult to believe that DW1 was
telling the truth in his testimony. But the law, of course, does not
require the accused to tell the absolute truth. It will suffice to win
him an acquittal if his defence introduces a reasonable doubt into the
mind of the court.
Bearing in mind that the evidence in this case is entirely

circumstantial as none of the prosecution witnesses saw the
accused commit the offence, it is therefore imperative that in
order to earn a conviction one should irresistibly establish the
guilty of the accused beyond reasonable doubt with a trial court
obliged to ensure that when it is decided to premise conviction on
circumstantial evidence it has to satisfy itself that such
circumstantial evidence is in all aspects incapable of giving more than
one interpretation and that the facts from which an inference of
guilty or adverse to the accused is sought to be drawn, must be proved
beyond reasonable doubt. Such standard was restated in the case of
Walii Abdallah Kibutwa v. The Republic, Criminal Appeal No. 181
of 2006, (Dar es Salaam Registry) (Unreported) where the Court of
Appeal of Tanzania while taking inspiration from the case of Sharad
Birdhichand Sarda v. State of Maharashtra, AIR (1984) SC 1622
adopted the conditions precedent before a conviction could be based
on circumstantial evidence. These are:
• “The circumstances from which the conclusion of guilty is to

be drawn should be fully established. The circumstances
concerned “must” or “should” and not “may be” established;
• The facts so established should be consistent only with the
hypothesis of guilty of the accused, that is to say, they should not
be explainable on any other hypothesis except that the accused
is guilty;
• The circumstances should be of a conclusive nature and tendency;
491
• They should exclude every possible hypothesis except the one to
be proved;
and
• There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with
the innocence of the accused and must show that in all human
probability the act must have been done by the accused”.
In my respectful opinion this case being one based on

circumstantial evidence I hesitate to certainly say that the facts
irresistibly points at the guilty of the accused and no one else. It
would appear that what is on record is more of evidence based
upon suspicion and the law is clear that although there may be
strong suspicion against the accused, suspicion however strong is not
sufficient to convict, See Hakim Mfaume v. R (supra).
I have no hesitation therefore to answer issue number one in the

negative.
Having disposed the first issue in the negative that the prosecution
has failed to prove beyond reasonable doubt that the accused in the
dock was responsible for the murder of the deceased the second issue
is automatically overtaken by events in the sense that its redundant
to discuss it because I have found out that the prosecution did not
prove beyond reasonable doubt that it is the accused who was
responsible for the death of the accused.
The Honourable Assessors dutiful opined and unanimously turned the

verdict of guilty on account that the prosecution proved the case. With
due respect I wish to defer with my Honourable Assessors opinion for
the reasons I have explained above.
In the totality the prosecution has failed to prove the case beyond
any reasonable doubt as such the accused is hereby acquitted for the
offence he stands charged and has to be set free unless held for any
lawful cause.
492
R v. Projesstus Fidelis Mugalula alias Porojo and 3 Others, Criminal
Session 16 of 2009, High Court of Tanzania at Tabora (unreported)
(Songoro, J.)
(Date of the decision: 7th December 2012)
JUDGEMENT
SONGORO, J.: Projestus Fidelis Mugalula @ Porojo, the 1st accused,

Japhary Rashid @ Mwiga, the 2nd accused, Shashkant Manji Patel,
the 3rd accused, and Vituko Adam Salala, the 4th accused, herein after
in this Judgment referred simply as “the accused person”, are jointly
and together charged with 19 counts of the offence of manslaughter,
contrary to Section 195 of the Penal Code Cap 16 [R.E. 2002].
The facts giving rise their charge explained by the prosecution side
are that, the 1st accused person who was the owner of One Ten Disco
Hall, or referred as Porojo hall, assisted by the 2nd accused person, and
3rd accused person, who was the owner of Bubble Night Club assisted
by the 4th accused person on the 1/10/2008 organised “Toto Disco”
in their halls, both situated on Wing “B” of NSSF Building, School
Street, Tabora Municipality.
The two Toto Disco’s were organised as part of “Eidd el fitr” celebration
mainly for children.
While the two discos are being played, several children fall down,
others fainted, and some were unconsciously rushed to the hospital for
treatment. Out of children, who were taken to hospital for treatment,
19 of them died.
Subsequently the (4) four- accused person were arrested, and charged
with 19 counts of Manslaughter.
The charge facing the four 4 accused person contained 19 counts of

Manslaughter, stated, on the on the 1st day of October 2008 at about
17.30 at NSSF Building at Tabora District within Tabora Region
jointly and together did unlawful killed, (1) Donald Galus Kasela (2)
493
Selemani Iddi (3) Ramla Yenga (4)Abdallah Rehani, (5) Mohammed
Kapaya, (6) Yassin Rashid, (7) Rehema Fulgence Moyo, (8) Philipa
Haule (9) Agatha Maningu, (10)Ashura Jabali, (11) Beatrice Makelele
(12) Hadija Waziri, (13)Mwanahamisi Waziri, (14) Paulina Emanuel,
(15)Habiba Shabani (16)Veronica Maningu, (17)J acob Gerald (18)
Mrisho Selemani, and ( 19) Salima Hamisi.
On the 26/11/2009, the above mentioned four (4) accused persons called
to plead, but they denied the charges. In view of their denial, a plea of
not guilty was entered on each of the count, and their trial commenced
on the 26/9 /2011 with the aid of three Honourable Assessors.
During the trial, the 1st and 2nd accused were represented by Mr. Kayaga,
the Learned Advocate, whereas the 3rd and 4th accused persons, were
represented by Professor Shaidi and Mr. Kassim, Learned Advocates,
and the Republic was represented by Mr. Masanja, Mr Iddi Mgeni and
Mr Mugisha, Learned State Attorneys.
To prove its case, the prosecution side called 17 witnesses. These

were PW 1 Josephina Julius Nyasio, PW 2 Jumanne Mashaka,
PW 3 Sakina Ally, PW 4 Agnes Kasele, PW 5 Shufaa Hassan PW.6
Kulwa Iddi, PW 7 Msimu Rehani, PW8 Mwami Masumbuko, PW9 PC
Lawrence Semanini PW10, Rashid Ghuliku, PW 1 lE.505 Detective
Sgt. Bundala, PW12 Omary Nassoro, PW13 Dr Leslie Mhina, PW14
Paschal Peter Nyango, PW 15; Bilson Kizuri Bezigwa, PW 16 Joseph
Hoza Joseph and PW 17 E.1363 D/CPL Jonas.
These witnesses shall be referred to as PW1, PW2, PW3, PW4,PW5,

PW 6, PW7, PW 8, PW9, PW10, PW11, PW12, PW 13, PW 14, PW15,
PW16, and PW17. The prosecution side also tendered 35 exhibits.
The defence side, also called 8 witnesses being DW1 Projestus Fidelis
Mugalula, DW2 Japhari Rashid Mwiga, DW3 Twaibu Hashim, DW4,
Bakari Ibrahimu, DW5 Shashkhant Manji Patel DW6, Vituko Adam
Salala, DW7 Robert Cosmas, and DW8 Rashid Bakari
Also these witnesses shall be referred to DW 1, DW 2, DW 3, DW

4, DW 5, DW7 6, DW7, and DW8. The defence side also tendered 4
exhibits.
494
As alluded earlier the 4 accused persons are charged with the 19
counts of Manslaughter. For offence of Manslaughter under Section
195 of the Penal Code [Cap. 16 R.E. 2002] to stand, the prosecution
side must lead evidence which proves essentials ingredients of the
offence of Manslaughter, being that;
1. there was death or deaths which occurred,

2. death or deaths of all 19 persons was as a result of unlawful act
or omission of the four (4) accused person or any of them.
3. In the event of unlawful omission, there must be a proof that,
the omission amounted to culpable negligence to discharge a
duty tending to the preservation of life or health.
The burden of proof on all 19 counts of the offence of Manslaughter lies

on the prosecution side, and the standard of proof required in criminal
case like the present one, is proof beyond any reasonable doubt.
It is also essential to highlight that, “proof beyond any reasonable”

is not tantamount to proof beyond any shadow of doubt. It is always
stated that, the yardstick is if presented evidence carries a high
degree of probability. I find that, is what was even stated in -the case
of Miller vs Minister of Pensions [1947] All ER 372 at 373.
On the part of the accused person are not required at all, to prove their
innocence. All what they need to do, is to raise reasonable doubt as to
their guilty.
In the event there is reasonable doubt or doubts, inconsistencies or

contradictions in the prosecution evidence which goes to the root of
the case, then the doubts or inconsistence must be resolved in favour
of the accused person leading to his acquittal.
The cited principle was enunciated in the case of Woolmington v. DPP

(1935) AC 462, and it still good law.
495
Next, point need to be underscored is that, an accused person is not
supposed to be convicted on the weakness of his defence but on the
strength of the prosecution case. See the Isreal Epuku s/o Achielu v.
R (1934) 1 EACA 166.
Another legal point worth to be noted is that, it is presumed that, every

“homicide” is unlawful unless circumstances make it excusable. This
position was laid down in the case of R. v. Gusambiza s/o Wesonga
(1948) 15 EACA 65.
Bearing in mind the above stated legal principles, I would like at this
juncture first to address two legal issues, raised by the defence side
in the cause of the trial by before deliberating on the 19 counts of
Manslaughter facing the accused persons.
In the first legal issue raised by Mr Mussa, the Learned Advocate for
the 2nd and 3rd accused persons, it was contested in the statements of
offences in all 19 counts, only Section 195 of the Penal Code, Cap16
R.E.2002 was cited, and Sub-Section (1) and (2) of the above mentioned
Section were not cited.
It was the views of Learned Advocate that, since the statement of

offences in all 19 counts did not cite the two subsections, it follows
therefore that, the charge is defective thus accused persons are
entitled to acquittal.
I have had the opportunity of perusing the information of Manslaughter

filed by prosecution side on the 11/3/2009 and find that, in all 19 counts,
Statement of Offences only cited Section 195 of the Penal Code, Cap.
16 and the two subsections (1) and (2) were not cited in the statement
of offences.
I agree with Mr. Mussa on the point that, in the charge of manslaughter
made under Section 195 of the Penal Code, Cap. 16, a “statement
of offence” has to cite subsection (1) and if the charge is based on
“unlawful omission” then subsection (2) has to be cited.
496
In the charge which is before the court, the two sub-sections were not
cited in all 19 counts. I also found that, this was an “omission” on the
part of prosecution side.
However, it is apparent clear from the explanation offered to the court

by Mr Mussa, that the court was not told how such omission prejudiced
or caused injustice or unfairness to any of the accused person during
the trial.
In the absence of explanation on how the omission prejudiced the

accused persons from the defence side, I find that, there is no legal
justification, upon which the court may act and dismiss any of the 19
counts to the charge of manslaughter. It is in this respect, I find that,
there is no merit at all, on the point which was raised by defence side.
With that finding, I now move to consider the second legal issue raised
by 1st and 2nd accused persons.
In the second legal point, the 1st accused person Projestus Fidelis
Mugalula @ Porojo, while testifying, he explained to the court that,
during the investigation his ticket booklets which were in their
possession were seized by police during the investigation.
He also explained to the court that, his ticket booklets were not
returned to him. It was part of his complaint that, he was in need of
the seized ticket’s booklets, so that he may use them in his defence.
But the Police and office of the Attorney General’s Chambers declined
to return to him for no apparent reasons. It was the views of the 1st
accused person and his Advocate that, by denying him the seized
tickets booklets, which means, the 1st accused person was denied to
have a fair trial.
I carefully considered, the concern of the 1st accused person that,

the seized ticket booklets were not returned to him, and that, has
occasioned to unfair trial on their part, and find that, their complaint
has no merit at all, as I am about to explain.
First, I noted that, from the days when committal proceedings were
held in the subordinate court and during preliminary hearing the 1st
497
and 2nd accused duly informed the court that, they were not intending
to call any witness or to tender any exhibit. I find that, statement
made during preliminary hearing was an indication that, in their line
of defence they will not tender any exhibits. It is in this respect I find
that, the 1st and 2nd accused person did not need any exhibit in their
defence.
Secondly, I noted that, the 1st accused person plus Mr Kayaga were very
much aware that, the said seized ticket booklets were not tendered in
evidence before this court during the committal proceedings before
subordinate court or during the preliminary hearing when their trial
commenced in the High Court. It means therefore that, the 1st accused
person plus his advocate were very much aware that, the seized tickets
booklets were not in court but in hands of the police.
While still on this point, it seems to me that, the 1st accused and his
colleagues were out on bail for more than 3 years and definitely he had
ample opportunity and time to trace seized tickets booklets from the
police or Attorney General Chambers if he wished to do so. But apart
from complaining in court, it appears to me that, he did not make
“any tangible and diligent efforts of securing the alleged seized ticket
booklets from the Police or the office of the Attorney General. It is in
this respect, I find that, the 1st accused person may not turn around
·and apportion his blame to the court, for failure attributed by his own
laxity of pursuing his documents, which were never, seen by court.
It is in this respect, I find that, there is no merit at all on the point

raised by the 1st accused person about ticket’s booklets. That is all
what the court can say at this juncture.
After disposing the above mentioned two legal issues, I now turn to
consider, the first essential ingredient to offence of manslaughter
being;
Whether or not the prosecution evidence sufficiently established

the deaths of 19 deceased persons mentioned in the 19 counts of
manslaughter
498
Upon careful perusal of the above cited ingredient of the offence of
manslaughter, it follows therefore that, the key issue for determination
is whether the presented prosecution evidence has proved deaths of 19
deceased persons referred in the 19th counts of manslaughter
In addressing the above-mentioned issue, it appears to me that, the

relevant testimonies on the death of 19 deceased persons are that of
PW 14, and PW 16 the two doctors who claimed to have seen the bodies
of all 19 children at the hospital. I intend to assess the evidence of the
abovementioned witnesses one after another.
Starting with the testimony of PW16, I observed that, he explained

to the court that, on the 1/10/2008 at around 5.00pm while on duty a
Kalunde Out-patient Hospital, saw the 4th accused entering his office
carrying a child, and put the child on his medical examination table.
Then PW 16 told the court that, while the DW 6 was still in his office
he informed him, that, he was merely assisting the child, but there
are other children who have fallen down in the disco hall who will be
brought to the hospital.
PW 16 explained to the court, that after the DW 6 has conveyed that,

message, he left his office, and immediately there was an influx of
people entering into his office carrying unconscious children, and
other unconscious children were left outside his office.
PW 16 briefed the court that, he first examined the first child who
was brought by DW 6 and found was already dead. Next, he examined
other children and found that, out of 35 children who were brought to
Kalunde Out-Patient Hospital that evening, 19 of them were already
dead. PW 16 informed the court that, among the dead ones, 8 were
boys, and 11 girls. Their bodies were taken to Kitete Mortuary.
In addition to testimony of PW 16, there was also the evidence of

PW 14 the doctor who performed the post mortem examinations and
compiled reports.
499
PW.14 told the court that, he conduct post mortem examinations on
the 19 bodies on the 2/10/2008 from 11.00pm to 12.00 pm
He then tendered 19 post mortem examination reports explaining

the cause of deaths of (1) Selemani Iddi, 11 years old , whose report
was admitted as Exhibit P4, (2),Mrisho Selemani 9 years old , whose
report was admitted as Exhibit P.5, (3)Veronica Maningu, 7 years,
whose report-was admitted as Exhibit P.6, (4) Habiba Shabani, 14
years, whose report was admitted as Exhibit P.7 (5) Paulina Emanuel,
11 years whose report was admitted as Exhibit P.8, (6)Mwanahamisi
Waziri, 11 years whose report was admitted as Exhibit P. 9 (7) Beatrice
Makelele, 14 years, whose report was admitted as Exhibit P.10, (8)
Ashura Jabali, 12 years whose report was admitted as Exhibit P.11(9),
Agatha Maningu, 12 years whose report was admitted as Exhibit
P.12, (10) Donald Galus Kasela his age was not provided for whose
report was admitted as Exhibit P.13, (11) Ramla Yenga, 14 years
whose report was admitted as Exhibit P.14, (12) Abdallah Rehani,
14 years whose report was admitted as Exhibit P.15, (13)Mohammed
Kapaya, 15 y, ears, whose r port was admitted as Exhibit P.16, (14),
Phillipo Haule 15 years, whose report was admitted as Exhibit P.17
, (15) Jacob Gerald 12 years whose report was admitted as Exhibit
P.18, (16) Hadija Waziri, 12 years whose report was admitted as
Exhibit• P.19, (17) Rehema Fulgence Moyo,11 years whose report was
admitted as Exhibit P .20 (18) Salim a Hamis, 11 years, whose report
was admitted as Exhibit P .21 , (19) Yasini Rashidi whose report was
admitted as Exhibit P.22.
On the cause of death, PW.14 relying on his medical findings from

Exhibits P4 to P22 explained to the court that, death of all 19 deceased
persons was due to “Asphyxia” which he described it as suffocation
due to lack of clean air.
While on this point, PW 14 told the court that, according to his findings
the sole reason which caused death of all 19 deceased person was lack
of air.
500
While being cross examined by Mr. Kayaga, PW 14 enlightened the
court that, “suffocation” may be caused by several factors including,
if there is a problem on someone’s oxygen route, obstruction of the air
path in the event of failure on the part of human muscles, obstruction
of the mouth, nose or trachea or there is larynx obstruction or a person
has inhaled irreparable gases.
But apart from explaining several causes of suffocation PW 14 guided

the court that, on the death of the 19 deceased person, the circumstances
which caused the deceased person not to get clean air, are the reason
which caused their death. Impliedly PW 14 was appreciating the fact
that, “suffocation” may be caused by several reasons, but in this case
one needs to look into circumstances which caused the deceased not to
get a clean. And if that is done, then you ‘will find the reasons which
caused deaths.
The testimonies of the above-mentioned two doctors who testified as

PW 14 and PW 16 that, they saw the bodies of 19 children was also
supported by PW 15 who by then was OC-CID of Tabora Municipality
and in charge of investigation in Tabora District.
In his testimony PW 15 told the court that, he saw the bodies of 19

children when was at the hospital his official duties of assisting the
doctor in identification of the deceased bodies.
On the part of defence witnesses, I did not come across any evidence
suggesting that, there was no death of 19 children. I even noted in the
testimonies of DW 1, the first accused and DW 6 the fourth accused
also accepted that, there are children who were taken to the hospital
who died.
Going back to the testimonies of PW 14 and PW 16 plus that, of PW

15, the court found that, their testimonies as far as the death of 19
children and their cause of death were solid, and consistent.
The court noted that, even during their cross examination by the
defence counsels, testimonies of PW 14 and PW 16 and their findings
were not shaken or scratched at all.
501
Again, I perused the name of the deceased persons referred in exhibits
P 4 to P 22 and found are similar to the ones referred in the 19 counts
of Manslaughter.
Thus on the basis of the testimonies of PW 14 and PW 16 and details

contained in Exhibits P 4 to P 22, the post mortem examination
reports, the court is satisfied that, the prosecution evidence sufficiently
established that, 19 deceased children who their names, are referred
in 19 counts of Manslaughter are dead, and they died on the 1/10/2008.
The court also found that, on the basis of the findings of PW 14 and
details contained in Exhibits P4 to P22 on the death of the deceased
person, the evidence of prosecution side sufficiently established that,
all 19 deceased children their death was caused by suffocation due to
lack of air.
Finally, the court is satisfied that, prosecution evidence sufficiently

established the first ingredient to the offence of manslaughter in all
19 counts, being death of deceased children and their cause of death
being suffocation has been established.
With that finding, I now proceed to determine the second ingredient to

the offence of Manslaughter which has twin questions being.
The first main issue in determining the second ingredient to the

offence of Manslaughter is whether there is sufficient prosecution
evidence which establishes that, the deaths of all 19 counts was as
a result of unlawful act or omission of the part of four (4) accused
persons. The court noted that, in resolving the above-mentioned issue,
it entails also determination of the followings
1. an assessment of evidence of whether the 19 deceased persons

were physically in the two halls at the time discos were being
played.
2. What was “root cause of their suffocation” or what was “primary
cause of their suffocation or what ignited their suffocation.
502
3. whether there is any connection between any of unlawful acts or
omission of the accused person and death of deceased person
4. In the event there is omission, if such omission amounted
to culpable negligence to discharge a duty tending to the
preservation of life or health, envisaged in Section 195 (2) of the
Penal Code Cap 16.
In addressing the above mentioned 4 issues, it appears to me that, the

four issues are inter-related, and the court will make its finding on
basis of the presented evidence.
The starting point of examining the above -mentioned issues is on

whether there is any evidence which established the presence of the 19
deceased persons in the two halls when disco dance was being played.
Turning to the presented evidence, I found that; there are testimonies

of PWl, PW2, PW3, PW4, P\V5, PW 6.PW7 and PW8 which sufficiently
established that, “One Ten Disco, and “Bubbles” organised “Disco
Toto” on the 1/10/2008 and several children entered into the two halls.
The testimonies of the above-mentioned prosecution witnesses was

supported by DW 1, the first accused and owner of One-Ten Disco hall,
DW 2 second accused and the one who was selling tickets for One Ten
Disco hall and other witnesses such as DW 3, DW 4, and other defence
witnesses.
On the question if 19 deceased persons, were physically present in the

two halls or on the area under the control of the two halls, I found the
prosecution side presented two pieces of evidence.
First, there is a testimony of PW 5 who said that, she was in Porojo

hall with the late Ashura Jabali. On what happened to her and Ashora,
PW5 informed the court that, the two were together in Porojo and
while there, she first saw Ashura Jabali falling down. Then PW 5 told
the court that, she tried to assist Ashura, but, she also fall down and
lost her conscious. PW 5 stated that, she gained her conscious later
next day while she was at the hospital. It was part of PW 5 testimony
that, Ashura Jabali is now the deceased.
503
Apart from the testimony of PW 5, I found also there is a testimony
of PW 14 a doctor who saw the body of the late Ashura Jabali. PW 14
informed the court that the body of the late Ashura Jabali, was together
with other bodies which were sent to Kitete hospital Mortuary on the
evening of 1/10/2008. While testifying PW14, also tendered Exhibit P
11, the post mortem examination report which proved death of Ashura
Jabali.
Thus bearing in mind that, there is evidence of PW 5 which explained

that, late Ashura Jabali was in Porojo hall, she fainted in the hall, and
her body was seen at the hospital, I am satisfied that,the testimony
of PW 5 sufficiently established that, the late Ashura Jabali was in
Porojo hall on 1/10/2008.
On the remaining 18 deceased person, I found that, there is no direct

evidence which established any of the deceased person was seen or
spotted in any of the above-mentioned halls or places which were
under the control of the two halls.
However, the court observed that, there are testimonies of PW1

Nyasio, PW 2 PW3, PW 4 PW 5, and PW 6 which shows that, on
1/10/2008 between 2.00pm and 5.30 several children who bought disco
tickets were allowed to enter and play disco in Porojo hall as well as
Bubble’s. I found the testimonies of above-mentioned witnesses that,
several children bought disco tickets and entered the two halls, is even
supported by the testimonies of DW1 who was supervising queue of
their client, and DW 2 who was at the en try gate of the two halls
selling tickets for Porojo hall.
Further, the court noted that, there is testimonies of PW 9, and PW

13 who told the court that, on 1/10/2008 at around 5.00 pm and 6 pm
several children fall down and fainted in the two halls and corridors.
The testimonies of the above-mentioned witnesses also show that, the
fainted children were unconsciously carried from the two halls and
corridors taken outside the NSSF Building and then to the hospital.
The testimonies of PW 9 and PW 13 was also supported by DW 6, the
4th accused who hired taxi’s and lead a convoy of taxis to the hospital.
504
Furthermore, the court found that, there is a testimony of PW16, the
doctor on duty at Kalunde hospital who explained to the court that, on
the 1/10/2008 at around 5.00 pm while on duty at Kalunde Outpatient
Hospital, and saw the 4th accused person, and others entering into
his office carrying unconscious children and after examining them, he
found that, 19 children were already dead.
Next the court found that, there is a testimony of PW 14 who conducted

the post examination on the bodies of 19 children and prepared reports
which were admitted as Exhibit P 4 to P 22. PW 14 also told the court
that, the bodies of 19 children were identified to him by names and he
disclosed the names of all deceased person in Exhibit P4 and P22.
The court also found that, 19 deceased children who their names were
mentioned in Exhibits P4 to P22 after being identified and bears the
same names stated in the 19 counts of Manslaughter.
In view of the sequence of events and established facts which shows

that, children entered into the two halls, then fainted while still in
the hall and corridor and were unconscious taken to hospital and
some of them were found dead upon arrival at the hospital and their
subsequent identification by names, the court is highly convinced and
being satisfied that, chain of circumstantial evidence adduced by the
above mentioned prosecution witnesses sufficiently established that,
19 deceased person were the two halls.
The court finding takes into account the testimonies of PW9, PW13
and DW5 who at different interval told the court that, they were
involved in rescue exercise and carried unconscious children from the
halls and corridors and took them outside.
Regarding the defence submission that, prosecution side did not tender
tickets or any evidence which shows deceased acquired or bought
ticket from any of the halls, therefore there is no proof if the deceased
persons were in any of the hall, the court found this argument has no
merit for two main reasons.
505
First, there was explanation offered by the court by PW 5 and PWS
and others that, tickets were being collected at the entrance door,
before entering into the disco halls. It follows therefore any person who
entered into the two disco halls including the deceased person their
tickets were seized and none was expected to have a ticket. Secondly,
there is a testimony of DW1 who admitted that, children who were
lying on the stairs were either their clients meaning Porojo hall or
of Bubble’s. He also admitted that, some of the children taken from
their premises are the ones who died. Further, there is a testimony of
DW 5 who said was involved in rescue in the corridor which happened
to be within the surroundings of the two halls. The court found that,
the weight of evidence as a whole established the dead children and
others who survived after being given treatment at the hospital were
from the two halls.
After being satisfied that, 19 deceased persons were in the two halls
and places under the control of the two halls I proceed to determine
another issue being what caused or ignited their suffocation bearing
in mind the testimonies of the prosecution witnesses, that several
children where carried in unconscious condition from the two halls to
the hospital.
In addressing the above mentioned issue, the court noted there was
strong argument from the submission of Mr. Mussa the Learned
Advocate that, court in deciding the criminal liability of the accused
should see the place where the children fall down. While on this point
Mr. Mussa went ahead and suggested that, the deaths of children
occurred at the down stairs and not in Bubble’s it seem to me the
same views were expressed by the other defence counsels. But in
determining cause of death, the place where deceased fall down or he
died sometimes may not be of significance at all. I found even if the
deceased collapsed or died on the stairs or at the hospital that, may
not be a dominant fact in deciding the cause of death. Actually, what
is be ascertained in the cause of death like in the instant case is what
actually ignited the suffocation of the deceased person, or the source
of the suffocation.
506
It is the views of the court that, in resolving the above-mentioned
question, in this case the answer lies on the testimonies of witnesses
who were physically present in the two halls and places under the
control of the two halls.
And upon perusal of the testimonies of witnesses who claim to have

been present in the two halls and places under the control of the two
halls, I realised that, there are two opposing diametrical position on
the condition, situation, and what actually took place in the halls.
The first position is the one explained by PW 1, PW2, PW3, PW4,

PWS, PW6, PW7, PW8 and other prosecution witnesses that, that the
conditions under which the two disco were played were bad, and there
were a lot trouble.
The second position is the one which was conveyed to the court by the
testimonies of DW1, DW2, DW3, DW4 and DW 8. In their testimonies
the above-mentioned defence witnesses who claimed that, they were
also present in the premises, and the conditions in the two halls, was
good, calm, and children were entertained nicely until when the disco
was prematurely stopped.
Turning to the prosecution witnesses, I found that, there is a testimony

of PW1 who informed the court that, on 1/10 / 2008 she also attended
disco and entered into the two halls, at different interval.
In her explanation before the court, PW 1 narrated that, she first

entered Porojo Hall at 2.30 pm after buying ticket, stayed for a while
but failed tolerate the situation in the first hall, and went to Bubble’s.
It was part of her testimony that, the Porojo hall was full of people,
inside the hall it was difficult to pass. Due to the intolerable condition
and situation PW 1 left Porojo hall and went to Bubbles. In Bubble’s
PW1 found the hall was full of people and the atmosphere-in the hall
was too hot. While, was still inside Bubble’s hall she fell down and was
unconsciously taken to the hospital.
507
Thus, upon perusing the testimony of PW1 regarding situation and
condition in the two hall “strongly suggests” that, from 8.30 pm when
she entered into the two halls, the condition in the two halls were bad,
there was overcrowding of people and while in Bubble’s hall, she saw
people falling down she also fall down and unconsciously taken to the
hospital and regain her conscious. It seems to me that, the testimony
of PW 1 “strongly suggests” the situation and condition in the two
halls was bad and intolerable.
Regarding the testimony of PW 2 Jumanne Mashaka, he briefed the

court that, on the 1/10/2008 at around 4.00 pm he went to the disco
and paid entry fees to DW 6. He then entered Bubbles hall. Upon
entering into the hall, PW2 · found that, there were a lot people, the
temperature was too hot, all windows were closed, and above all there
was no air. She narrated that, her attempt to get out failed because
there were a lot of people. She also fainted and unconscious taken to
the hospital.
In totality, the testimony of PW 2, strongly suggested that, there were

a lot of people in Bubble’s, the temperature was too hot, all windows
were closed and there was no air inside hall.
In respect PW 3, she testified that, on the 1/10/2008 at 3.00 pm she

went to NSSF Building, bought ticket from 4th accused and enter
Bubble’s hall which she called at Shashi hall. She explained that, upon
entering into the disco hall, people were few and later the atmosphere
in the hall was too hot. She also said that, while they were playing
disco, small children started to fall down and fainted. PW 3 stated
she and Josephine tried to get out due to hot air, and she saw Kulwa
falling down and people stamping on her.
The testimony of PW13 “strongly suggests” that, the atmosphere in

the Bubble’s was too hot, and small children fall down inside the hall.
In respect of the testimony of PW 4, she testified that, on the

1/10/2008, she went to NSSF, Hall to play disco and paid entry fee to
the 4th accused person. It was part of his testimony that, he entered
Bubbles at around 3.00 pm and found that, there were few people
508
inside. But later a lot of people entered into the hall and the place
was overcrowded, inside the hall it was too hot, and she experienced
breaching difficulties, her chest was full of air and failed to breathe
normally.
In essence, the testimony of PW4, also strongly suggests that the

atmosphere inside Bubble’s hall was bad, it was too hot and she was
breathing with difficulties and failed to breathe the air normally.
PW 5 also testified that, on the fateful day, she left home and arrived
at NSSF Disco at 4.00 pm, and bought a ticket from DW 1who is the
1st accused and entered inside Porojo hall, which was on ground floor.
Further, PW 5 explained that, at the entry gate she handed over her
ticket to the person who was collecting tickets and entered inside the
hall. She told the court that, in the hall, there were a lot of people, and
the door was always closed.
Furthermore, PW 5 explained that, in the hall, there was no place even

to put legs and people were stamping on each other (kukanyagana).
She was with Ashura Jabali and who died. In his testimony PW 5
briefed the court that, it was Ashura Jabali who first fall down, and
she tried to assist her, but also she fall down unconscious.
Next, PW 5 briefed the court that, she gained her conscious later next
day at the hospital and was given a medical chit.
In brief the testimony of PW5 strongly suggested that, there were a

lot of people in Porojo hall to the extent that, there was no place to
put legs and people in were stamping on each other and the door was
always closed.
PW.6 testified that, on 1/10/2008, there was Iddi el Fitir celebration

and together with friends went played disco. According to his testimony
he bought ticket from DW 1, the 1st accused person and entered at
NSSF Hall at 4.00 pm. He said that, and upon entering the hall, the
atmosphere was good but, there were a lot of people.
In his testimony, PW 6 told the court that, in the hall people were
509
drinking soft drinks, beer, and water and but it was difficult to play
music due a lot of people. He told the court that, he saw fainted people
in the hall and others were dead. PW 6 briefed the court that, he
fainted while at the NSSF Premises and was unconsciously taken to
the hospital, and gained his conscious while at the hospital.
In brief the testimony of PW 6 suggested that, in Porojo there were

a lot of people including adults and children, it was difficult to play
music, some of the people fainted and other died in the hall.
PW.7 explained to the court that, he remembers on 1/10/2008, it was

Iddi-el-Fitir and went to Bubbles to play disco. Upon his arrival at
NSSF building he bought ticket from DW 4 and entered Bubble’s hall.
In his testimony PW 7 informed the court he and others entered

Bubbles hall by forcing their way through, because people were
overcrowded we were pushing each other. As per his testimony the
hall was overcrowded with people and people were pushing each other
and sweating.
According to PW 7, the drinks-like alcohol, and soda (soft drinks) were

being sold in the hall and people were drinking. He also explained
that, there was a table like counter where drinks were being sold. He
also claimed to have fallen down and fainted on the stairs while going
outside the hall. He told the court that was taken to the hospital in
unconscious condition.
In essence the testimony of Msimu Rehani strongly suggested that,

the route and corridor to Bubbles hall was overcrowded and people
including PW 7 were forcing their way through by pushing each other
and people inside hall were sweating.
Next, PW.8, Mwami Masumbuko, told the court that, on the 1/10/2008
he went to Bubble’s hall and found people were few, but as the time
went on, in the hall there were a lot of people, it was too hot, and
was also sweating. PW 8 said he saw people attempting to go outside
because it was too hot, but guards stationed at the door were returning
the~ inside, but people started to push each other and he fall down
510
and fainted. PW 8 explained to the court that, he was taken to Kitete
Hospital and was treated and discharged.
In summary the testimony of PW 8 suggested that, in Bubble’s they

were a lot of people, it was too hot and he also was sweating.
Going by the testimonies of PW 1, PW 5, and PW 6 their evidence

suggested that, in Porojo hall when the music was being played, and
children dancing the. hall was overcrowded, there was commotion
(watu kukanyagana). And, according to PW 9, air inside the hall was
heavy and insufficient.
Thus, going by the testimonies of the above-mentioned three witnesses

their evidence suggested that, the problems of insufficient of air
existed in Porojo at the time, the Disco Toto was being played and
children dancing.
Likewise, I found that, in summary the testimonies of PW 1, PW 2, PW

3, PW 4, PW 7 and PW 8 suggested “that the problem of insufficient
of air existed 111 Bubble’s at the time, the “Disco Toto” was being
played-and children were dancing.
But, the testimonies of the mentioned prosecution witnesses on

their assertions that, the situation and conditions in Porojo hall and
Bubble’s was bad, air was insufficient and there was overcrowding
was challenged by the defence side in two ways.
First, DW3, DW 4 and DW 8 individually explained to the court

that, there were in Bubble’s hall playing disco. The three witnesses
explained that, the situations and conditions in the two halls was
good, calm, there was sufficient of air, people were not overcrowded
but were dancing nicely. Also, DW 5 and DW6 said people in Bubble’s
hall were too many because limited tickets were sold. Expressly
the testimonies of the above-mentioned witnesses were refuted the
prosecution assertion on the condition and situation in the two halls.
Regarding Porojo hall, DW 1 and DW 2 explained that, there was no
overcrowding in the hall. DW1 briefed the court that, he knew that,
the air was sufficient and only reasonable number of people entered in
the hall, because limited tickets were sold.
511
It was the testimonies of DW 1, DW 3, DW 4 and DW8 before the court
that, situation in the halls were calm, until when a traffic police officer
in white uniform entered Bubble’s, ordered the DJ to stop and took a
microphone and announced loudly that: “Tunazima muziki ghorofa
linataka kuanguka’’; meaning, the music is being stopped because the
building is on the verge of collapsing.
The above-mentioned four defence witnesses briefed the court that,

the announcement of the Traffic Police officer in white uniform made
in Bubble’s hall that, the building was on the verge of collapsing
caused panicky situations and people rushed to the door to rescue
themselves and bump into others at the entry gate, who were trying
to enter inside the hall, and were not aware of the announced danger.
In short, defence witnesses strongly contested that, it is the Traffic

Police Officer in white uniform” who was the source of trouble’s
and their testimonies were supported by defence counsels in their
submissions.
Also, Mr Kayaga challenged the testimonies of PW 1, PW4, PW 5 and

PW 6 in the sense that, their evidence was “unreliable” because their
testimonies show that, they did not know the place where Porojo hall
is situated and were mixing Porojo hall and the place where they
entered thinking that, is Porojo Hall.
I have careful assessed and weigh the defence assertion that, it was
PW 9 PC Lawrence who was the source of trouble’s due to his shocking
and frightening announcement in Bubble’s and quickly spread to the
entire premises in line with the testimony of DW 2 and easily found
that, the assertion of DW1, DW3, DW4 and DW8 is “false” and has no
grain of truth, as lam about to explain.
First, there is overwhelming evidence from PW 5, PW6 and DW1 which
sufficiently established that, DW 2 who was at the entry gate on the
ground floor selling tickets for Porojo hall. That, evidence suggested
that, DW 2 was in excellent position to see at what point in time PW
9· PC Lawrence entered the NSSF Building and the factors leading to
his entry into the premises.
512
What I gathered from the testimony of DW 2 strongly established
that, PC Lawrence was just called into the premises to rescue the
situation after a group of children were trapped on the stairs with no
any assistance.
Indeed DW 2 plainly stated that, and I quote

‘I started to sale ticket from 3.00 pm to 5.30 pm when I was stopped
by Projestus Fidelis that) there are children who have been trapped on
the stairs) so don’t sale ticket. After being told that) I saw on the road
two traffic police officers. I send a youth to call a soldier because there
was a problem. I told the police officer that there are people who were
trapped on the stairs and we started to rescue people”, end of quote.
Thus, the testimony of D XI 2 cited above expressly states PW9 was

called inside the building to salvage the situation.
And PW 9 PC Lawrence also informed the court, and I quote:-
‘While looking the roads, I was informed by one child that, his brother
has been trapped. I went there and children were crowded. The children
were overcrowded, but I managed to force my way up to the upstairs.
- I found children trapped on the stairs, lying down one after another.
I went outside the building; and then at the back of the building and
found another way to go upstairs”.
Furthermore, I even found that, an action taken by DW 1 to stop DW2

to sale tickets, suggested that, it was prompted by the children who
were running here there inside the building, before PW 9 PC Lawrence
was called inside the building. Indeed DW1stated and I quote:-
When I saw down stairs, I saw children have fallen down and laying
each other, while other was running from upstairs to downstairs. After
seeing that, I stopped the selling of tickets. Then I went upstairs to
stop children from using the stairs and direct them to use the backyard
door.
513
Reverting back to the testimonies of DW 1 and DW 2 I find that, if
their statements referred above are read together shows that, the
instruction of stopping the sale of tickets and the and the action of
stopping the sale, were the first two actions which started, and were
followed by DW 2’s action of sending a child to call a traffic police
officer who happened to be PW 9. The sequence events referred above
as explained by the DW1 and DW 2 shows PW 9 was called into the
premises after the trouble’s had started to rescue children.
The second scenario which suggests that, PW 9 PC Lawrence was not
the source of the troubles are testimonies of PW1 Josephina Julius
Nyasio, PW 2 Jumanne Mashaka, PW3 Sakina Ally, PW 4 Agnes
Kasele PW 5 Shufaa Hassan, and PW6 Kulwa Iddi which consistently
and persistently “suggested” that, while the two “disco were being
played the situation and condition in the two halls were bad, the halls
were overcrowded with people, there was commotion (Kukanyagana)
the atmosphere inside the two halls was too hot and intolerable, there
was insufficient of air, and in both halls, and several children were
unconsciously lying down. The above-mentioned witnesses explained
that, the above-mentioned dangerous problems existed into the two
halls while the disco toto was being played.
The third reason which makes the court to believe the defence assertion
on PW 9 to be false are the testimonies of DW 3 and DW 4, which I
found to be doubtful for the reasons which I am about to explain.
DW 3 told the court that, he was traced by DW 1, the 1st accused

person, stayed with him for a while discussing about the· case. He also
informed the court that, he was requested by DW 1 to come and testify
in court about what he saw as he stated in his police statement. He
also indicated to the court that , what he testified in court its content
are the same like what he recorded in his previous statement to the
police. But surprisingly DW 3 did not show or produce to the court his
police statement to give credence to his testimony before the court.
But DW 3 did not tender his recorded statement at least persuade the
court that, his explanations in court and to the police are one and the
same thing.
514
Likewise, DW 4 briefed the court that, while was in Boma-Tabora he
recorded a statement with the police. Also, he stated that, what he
testified in court, its contents are the same like his previous recorded
at the Police.
But during his cross examination, DW 4 was shown his police statement
by Mr Masanja and he identified it by his signature, and unexpectedly
he refused that, his police statement should not be tendered in court
as exhibits. Sincerely, the court remained with “doubts” on why he
refused to tender his statement as exhibit if its details resembles
with his testimony in court. Even if he sensed that, there are some
discrepancies in his two statements definitely there is always a room
to explain the reasons for such discrepancies.
It is my view that, since both DW 3 and DW4 were called to testify in

court and had previously mad police statements and they their police
statements resembles· with their testimony in definitely they would
have volunteered to tender their police statements and give credence
to their evidence in court on what they saw in the Bubble’s and the
premises as a whole.
The failure and hesitation on the part of DW 3 and DW 4 to tender

their previous police statements, to enable the court to compare the
accuracy of their testimonies in court with previous statements, left
the court with doubts as to the correctness of their testimony especially
on what PW 9 did at Bubble’s.
For the reasons explained above, the court maintains that, PW 9 was
just called into the premises, after troubles had started in the two
halls. On the basis of what is explained above , the court decides that,
the testimonies of DW 1, DW 2 ,DW3 and DW 8 and other evidence
suggesting that, PW 9 was the source of the trouble’s which took place
on the 1/10/2008 in the two halls there to be false.
With that finding, I now move to Mr. Kayaga’s submissions that, the
testimonies of PW 1, PW4, PW5 and PW6 are unreliable because their
statement in court, showed that, they did not enter into Porojo hall or
they were mixing Porojo hall with Bubble’s hall.
515
It appears, Mr Kayaga’s point was on the way the above-mentioned
witnesses were mixing the place which they knew and described it as
Porojo hall, and the exact position of the hall in the premises.
I have considered a prayer of Mr Kayaga to discard the testimonies of

the above -mentioned witnesses because are unreliable and found that,
in fact the witnesses knew Porojo hall that, is in the NSSF Building
and have explained why the called the entire place Porojo hall. The
above-mentioned witnesses have told the court that, the two halls at
NSSF Building are famously known as “Porojo hall”, because Porojo
hall was the first hall to operate in that premises.
While on this point, it is important to state that, it is common

phenomenon to most of the people to call two or three business
premises by using one dominant name like the witnesses who call
the place Porojo hall. The use of dominant name is common especially
where the two different businesses are situated in one premises, or
the same building or, compound. It is my view that, that may not be
considered as mixing of the places which may render testimonies of
PW 1, PW4,PW5 and ,PW6 to be unreliable.
Since I was not shown any piece of their testimony, which show
that, the witnesses were not telling the truth, or there was material
contradictions which goes to the root of their evidence, I found there
is no legal justification which may prompt the court to fault the
testimonies of PW 1, PW 4, PW5 and, PW6 on their assertion that they
entered Porojo hall. With that, finding the court is convinced that, the
above-mentioned witnesses entered Porojo hall.
Reverting to the testimonies of PW 1, PW2, PW3 PW4, PWS ,PW6,

PW7 and PW 8, the court found that, their evidence, that, there were
in bad and intolerable conditions where there was insufficient of air,
and overcrowding, to be credible and true for the following reasons.
First, there is evidence of PW 16 which supports assertions of the

above- mentioned prosecution witnesses that, when they were received
for treatment at Kitete Hospital from the two disco halls, it was found
516
that, their bodies lacked oxygen. That finding suggests that, the
above-mentioned witnesses including the deceased person they were
subjected to the place where there was short supply of oxygen or air.
Secondly, their testimonies that, conditions in the two halls and

corridor were bad and intolerable were well supported by PW 9 and
PW 15 who entered into the two halls and corridor to recue children.
Thirdly, their testimony that, while in the two halls they also
experienced problems of breathing, lack of air was also supported
by PW 12 and PW16 who also pointed that, the cause of death of 19
children was suffocation due to insufficient of air.
Fourthly, I did not see any reasons or motive why PW 1, PW2, PW3,
PW4, PW5, PW6, PW7 and PW 8 should “fabricate false story or
evidence on bad condition of the two halls and the corridor.”
Thus, upon further revisiting the testimonies of the above mentioned

prosecution witnesses, the court found that, their evidence sufficiently
prove that, there is a connection or link between the problems of
insufficient of air which existed in the two halls, suffering of the
above mentioned witnesses and the cause of death of the deceased ,
in which PW 14 explained to the court that, the bodies of 19 deceased
persons had all symptoms of lack of oxygen and their death was due
to insufficient air.
Bearing in mind the finding of PW 14 on the cause of death of 19
deceased person and the facts that, children including the deceased
were in the overcrowded halls and there was insufficient of air,
that, leads the court the facts that, 19 deceased persons experienced
problems of insufficient of air while they were inside the two halls,
corridor and stairs, and both places were under the control of the
organisers and supervisor of the two discos.
While still on this point, I quite agree with PW 12 that insufficient

air is harmful to the health and safety of any human being. Also, the
court is of the view that, the risks and dangers posed by insufficient of
air or overcrowding of people to health and life of human being does
not need extra-ordinary thinking, to any sober and reasonable man in
the society like accused person.
517
But even with the above-mentioned findings the court remained
with another question be whether on presented prosecution evidence
can it be argued convincingly if there is evidence which sufficiently
established that, the four (4) people, either by unlawful action or
omission ignited the problems which lead to suffocation of deceased
person while in the two hall.
In my view the answer to that question, depends if the four (4) accused
persons were present at the disco hall and what was their role to the
two hall and two toot disco which took place on the
1/10/2008.
In respect of 1st and 2nd accused that organised Toto Disco in Porojo
hall, there are testimonies of PW 2, PW4, and PW6 which established
that, the two accused persons were physically present. PW 9 and
PW13 told the court, that the 1st accused was the owner of One Ten
and was present at the premises looking at queue of people outside the
hall. The 2nd accused was also present selling tickets at entry gate of
ground floor.
The testimony of the above-mentioned witnesses sufficiently
established that, the 1st and 2nd accused were physically present.
The 1st accused person in his testimony admitted that, the safety of
any person who entered into Porojo hall was on him as organiser of
the disco. He also told the court that, when he was at the premises, he
did not get an opportunity to enter into his disco hall because, was a
busy organizing person outside.
In respect of the 2nd accused, the court found he was assigned to sale
tickets and did not all check and cross check if the hall was full to its
capacity or the condition in the hall were good enough to allow more
and more people.
I found that, the attitude of 1st and of 2nd accused was that of just
sitting and wait what will happen, which wanted.
518
In respect of the 3rd accused, he has consistently and persistently
denied have organising and supervising disco toto on the 1/10/2008. It
was his defence that, he was attending other business when the disco
toto was being played. He also defended himself that, the disco was
organised by his management and his workforce of 21 employees.
I careful revisited his defence in line with the testimonies of

prosecution witnesses and found that, there is overwhelming evidence
from prosecution side which sufficiently established he was present
at Bubbles when the “Disco Toto” was being played and before the
troubles started.
In the first instance, the 3rd accused was seen by PW 7 when entering
into Bubbles. PW 7 explained to the court, that the 3rd accused was
close to Bubbles hall, and was wearing white clothes, but was doing
nothing.
In the second instance, the 3rd accused was seen by PW 13 the security
guard of the area who entered into the corridor immediately after the
seeing children escaping from two disco halls by using the back door,
normally not used by clients of the two halls. In his testimony, PW 13
explained to the court that, he found the 3rd accused on the corridor
with some children lying down on the floor shouting “toeni watu! toeni
watu!” while sweating.
PW 13 said on the basis the 3rd accused shouting “toeni watu! toeni
watu!” he and his colleagues started to carry the fainted children
outside for fresh air.
In the third instance, the 3rd accused was seen by PW 9 who informed
the court that, he saw the 3rd accused during rescue exercise, a fact
which the 3rd accused admitted that, he was involved in rescue services
by carrying unconscious children from the ground floor to the first
floor.
519
In summary, the testimonies of PW7, PW 19 and PW13 sufficiently
established that, the 3rd accused person was present at Bubble’s when
disco toto was being played and before the trouble’s stated.
Regarding his defence that, had management and 21 employees in

place who organised the disco on the 1/10/2008, I found that, were mere
allegations, because he did not produce any credible evidence, such
as employment letters contracts of employment, income tax receipts,
or social scheme contributions receipts or any credible evidence to
persuade the court that, he has employed staff working in his hall.
The totality and weight of evidence sufficiently established that, the

3rd accused that was the owner of the hall and was present at Bubbles
on the 1/10/200 when the disco dance was being played.
Regarding 3rd d accused and Professor Shaidi’s submission that, the

3rd accused renovated, modernized, converted the hall into sound proof
and fitted air conditions, fans arid therefore he discharged his duty of
care, I found that, modernisation was a good undertaking, but does
not relax or wipe out, or exonerate the 3rd accused from his duty of
care towards the deceased person who entered into his premises on
the 1/10/2008. Indeed Section 19 5 (1) and (2) of the Penal Code, Cap
19 does not creates a cut-off point, to exonerate or excuse any director
like the 3rd accused from any unlawful act or omission which may
cause death while is in control of the premises.
For reasons explained above., I found that, as a director, owner of

Bubble’s and a person who was physically present had duty care
towards deceased person.
On the part of the 4th accused person, also briefed the court that, he
was not involved, was not, a supervisor and organiser of disco toto
function on the 1/10/2008 at Bubble’s
He further pointed out that. He was not an employee of Bubble’s, thus

may not be held criminally liable with what happened in the toto disco.
520
I have careful considered his defence and the presented evidence and
found that, there is overwhelming evidence that, the 4th accused was
involved in disco toto function which took place at Bubble’ the on
1/10/2008.
First, in Exhibit P1 the permit which allowed Bubble’s to carry out

social and cultural activities, it is the 3rd accused person who received
from Tabora Municipal Council and signed it as the Manager of
Bubble’s hall. The court cannot turn back and assume the 4th accused
admission in Exhibit Pl that, he is the Manager of Bubble’s and his
signature were meaningless.
Secondly, there are testimonies of PW 2, PW3, and other witnesses

who saw the 4th accused person selling and issuing tickets for Bubbles.
PW 2 also briefed the court that, he saw the 4th accused in the hall
supervising things.
Thirdly, there is his own statement to the court that, he hired six’s
taxi at his expenses, and lead a convoy of six taxis to the hospital with
unconscious children to the hospital for treatment from the NSSF
Building.
Thus, when l considered that, actions taken by the 4th accused person
plus his efforts and initiatives, before the disco including securing
Exhibit P.1 - a permit as a Manager, securing and sale of tickets for
Bubble’s hall, and hiring a convoy of taxis to the hospital, the inference
which this court has based on the presented evidence referred above,
is that the 4th accused was one of the organisers of toto disco on the
1/10/2008 at Bubbles.
It is the finding of the court that 4th accused multiple involvement of

disco business of Bubble’s on the 1/10/2008 plus his physical presence
on the disco, sufficiently convinced the court that, he was not doing
charitable or humanitarian work or just onlooker as he tried to
suggest. The court found the 4th accused was present when the disco
was being played and was one of the organisers from the beginning to
the end of the disco.
521
With the court finding that the 1st, 2nd, 3rd and 4th accused persons
were physically present in premises of the two disco halls, it follows
therefore that , the two halls and· premises was under their control
from the point, where tickets were sold, that is at the entry gate of the
ground floor up to their halls.
l also found that, by virtue of the Section 3(3) of the Occupiers Liability
Act [Cap. 64 R.E. 2002] all 1st, 2nd, 3rd and 4th accused person being
the person in the control of the premises, and over the children were
statutorily bound to exercise great care towards children including
the deceased person who were invited to be entertained by disco.
Section 3(3) of the Occupiers Liability Act speaks loudly that, children
are less careful therefore great care must be exercised when they are
invited into any premise.
It is also my view that, children belong to the most vulnerable group

in the society. By virtue of their age, little ability and stamina to
withstand bad and hot conditions or places where there is “insufficient
of air, or overcrowding, thus they real need extra care.”
The weight of prosecution evidence sufficiently established that,

inside the two halls, there was no care, or supervision or any kind of
monitoring of children and protecting them from overcrowding and
problems of insufficient of air and other risks which cropped up in the
two halls. The totality of evidence established children were alone all
over the places even when the conditions were too bad, intolerable,
and ultimately the two discos ended into a fiasco. Also, the court found
that, none of the four (4) accused persons took measures of ensuring
that, deceased persons are not exposed to any risk or danger which
might endanger their health or life.
The attitude and action of accused persons, of not taking any measures,
when 19 deceased children were in bad conditions sufficiently
established laxity on their part.
522
By using a standard of a sober and reasonable man in any society,
subjecting children to stay in too hot condition, or overcrowded place
or place where there is insufficient air like in the two disco halls on
1/ 10/2008 and doing nothing, by all standard it amounted to reckless
act, because the foreseeable consequences were severe the human
health and life. It is in this respect the court found that the four (4)
accused of doing nothing constituted unreasonable undertaking of risk
by accused and that, amounted to recklessness therefore it is criminal
negligence. It was held by Chipeta, J., in the case of R v. Selemani
Ramadhani (1980) T.LR 95) that unreasonable under taking of risk
amounts to criminal negligence.
It is in this respect the court found that, in-action or omission of

the four accused of person of failure to take any measures when 19
deceased persons were faced with bad condition in the two halls aimed
at preservation of their life or health amounted to culpable negligence.
The fact that, accused persons are experienced entertainers and have
been in disco business for years, reasonably, one would have expected
them to foresee that, overcrowding of people, congestion, insufficient
of air and other problems constituted unreasonable taking of risk and
was likely to endanger the health and life of the deceased persons.
Regarding the offence of “Manslaughter” the court found that,

Professor Shaidi in his submission has explained extensively the
nature and legal position taken by courts and writers in several
jurisdictions in defining the offence of Manslaughter. I also noted that,
like a “tort of negligence’’ there have been efforts to define the offence
of manslaughter and that, exercise in still in process.
But according to Section 195(1) and (2) of the Penal Code, Cap. 16,
the law requires a proof of death, and in the event the case is based
on allegation of “omission” then there must be a proof of unlawful
omission amounting to culpable negligence to discharge a duty tending
to the preservation of life or health. On the culpable negligence it may
be either a slip which a person may be guilty of negligence or a slip
capable of being blamed. And on “negligence” it only means a failure
to take proper care.
523
I have perused careful, Section 195(1) and (2) of the Penal Code [Cap.
16 R.E. 2002] but I did not find any word of paragraph in the section
which suggest that, there must be a proof of high degree of negligence,
all what is required is just a proof of culpable negligence.
When I summed up the case to the three Honourable Assessors all

of them were of the view that, the prosecution evidence was weak, is
full of contradictions. Also, they pointed out that, there is no evidence
which established that, the four accused persons jointly and together
killed the 19 deceased persons. Furthermore, they opined to the court,
the two halls contained safety equipment and what caused all the
problems was the police officer who announced that, the building was
on verge of collapsing and caused panick, commotion and stampede.
They explained there was no negligence which was proved and the
presented evidence was not connecting the accused with the offences
charged. It was the views of the Honourable Assessors that, on the
basis of the presented evidence all four (4) accused person are guilty
with any of the offence charged. I have considered their opinion, and
with respect I differ with them for three key reasons.
First, the Honourable Assessors, they did not appreciate the prosecution
evidence and testimony of DW2 on the circumstances under which PW
9 PC Lawrence was called into the hall to salvage the situation.
Secondly, they did not appreciate and weigh the testimonies of PW1,
PW2, PW3, PW4, PW5, PW6,PW7 and PW 8 about the existence of
bad, and intolerable conditions particular the problem of insufficient
air in the two halls in which the deceased person were subjected to
and the danger and risk which they posed human health, and life.
Thirdly, the assessors did not appreciate the position of the law as
presented by Mr. Masanja which strictly requires any person including
occupiers of the premises like the accused persons to exercise duty
of care toward health and life of deceased children who they invited
for disco. For reasons explained, I disagree with opinion of the, three
assessors that four accused persons are not guilty.
524
To the contrary, I found that, the accused person’s inaction to exercise
a duty of care was unlawful omission because it contravened Section
3 of the Occupiers Liability Act [Cap. 64 R.E. 2002] as pointed by Mr
Masanja. Apart from the fact that, they contravened with the provision
of Section 3 cited above, but their slip is also capable of being “blamed”.
It is in this respect I found that, the omission of the accused persons
amounted to contravention of Section 3 of the Occupies Liability Act
[Cap. 64 R.E. 2002] in the sense it is failure to discharge a duty tending
to the preservation of life or health. It is also capable of being blamed.
Thus on basis of testimonies of PW l to PW 8 referred above, court

found that, there is sufficient prosecution evidence which sufficiently
established that, 19 deceased person were physically present in the
two halls at the time disco were being played. Secondly “root cause of
their suffocation” or what was “primary cause of their suffocation” or
“what ignited their suffocation” were the problems of bad condition,
insufficient of air, overcrowding of people, commotion, congestion
on corridor and stairs, which existed in the halls and corridor while
deceased person and others were playing disco. The court also found
that, since the deceased were invited into the halls the accused person
owed a duty of care and their omission caused the deceased to suffer.
As earlier alluded there is a connection between accused omission and
deaths of all deceased person.
Their failure to exercise duty of care amounted to culpable negligence

to discharge a duty tending to the preservation of Life or health, as
defined by Section 195 (2) or the Penal Code Cap 16.
Also the court found th.it, the testimonies of PW1, PW2, PW3, PW4,
PW5, PW6 ,PW7 and PW8 sufficiently established that, all four
accused person jointly and together organised the two disco toto, in
the same building, same time, and were in a jointly in control of the
premises. The evidence also established that, four (4) accused person
they jointly failed to exercise their duty of care, and their omission
was culpable on negligence.
The court is satisfied that, all the 1st, 2nd and 3rd essential ingredients
to the offence of manslaughter, that deaths of 19 deceased persons
525
occurred as a result of unlawful omission of the four 4 accused persons,
and the omission amounted to culpable negligence to discharge a duty
tending to the preservation of life or health of 19 deceased persons.
I find the presented prosecution evidence has established all three
essential ingredients to the offence of manslaughter on 19 counts cited
above. On the basis of the prosecution evidence cited above, I find the
prosecution side has proved 19 counts of manslaughter beyond any
reasonable against all four accused person. I therefore find the four
accused persons guilty of manslaughter contrary to Section 195(1) and
(2) of the Penal Code, Cap. 16 R.E. 2002 and convicted them as fellows:
1. Projestus Fidelis Mugalula @ Porojo, the 1st accused, Japhary

Rashid @ Mwiga the 2nd accused, are found guilty and convicted
in the 1st, 2nd, 3rd 4th, 5th, 6th, 7th, 8th, 9th, h, 10th, 11th, 12th, 13th,
14th, 15th, 16th, 17th, 18th, and 19th counts. In total 19 counts.
2. Shashkant Manji Patel, the 3rd accused, and Vituko Adam Salala,
the 4th accused are found guilty and convicted in the 1st, 2nd, 3rd,
4th, 5th 6th, 7th, 8th, 9th,, 11th, 12th, 13th, 14th, 15th, 16th, 17th, 18th
and 19th . In total 18 counts minus the 10th count.
Dated at Tabora on the 7th December 2012
H.T. SONGORO
JUDGE
Delivered at Tabora on the 7th December,012
H.T. SONTORO JUDGE

7/12/2012
526
Mr. Masanja - State Attorney;-
My Lord, I pray that, the accused person be given a sentence which

deserved the gravity of the offence. The accused are first offender. We
leave the matter for the court to decide.
H.T. SONGORO JUDGE

7 /12/2012
Mr. Mussa Kassirn, Advocate, Mitigation
My Lord, all 4 accused persons are first offenders. They have not
committed any offence, and this is their first offence. According to the
circumstances under which death occurred, accused are very sorry of
what happened.
All four (4) accused persons have family responsibilities and children
who are in school. On the part of 3rd accused is diabetic, and it is
difficult to maintain a diabetic patient. On the part of the 4th accused
is staying with his parents who depend on him. I pray that, the court
gives accused person a lenient sentence due. That is all.
H.T. SONGORO
JUDGE
7 /12/2012
SENTENCE:-
I have considered the prosecution statement that, the accused are first
offenders and a prayer that, the court impose appropriate sentence on
the basis of gravity of the offences committed and find it has merit.
But, I have also considered the mitigation factor explained by Mr.
Mussa, Advocate for the 1st, 2nd, 3rd and 4thaccused that, the court
impose a lenient sentence and find also has basis.
But taking into account, the gravity of the offences committed by

the accused, and the fact that, the offence of Manslaughter carries a
maximum sentence of life imprisonment, I hereby find that, accused
527
persons deserved lenient sentence. For that, reason I hereby sentence
the four accused persons as follows:-
1. Projestus Fidelis Mugalula @ Porojo is sentenced to serve 5

(Five) years imprisonment in each count. For 19 Counts he will
serve 95 years. The sentences to run concurrently.
2. Japhary Rashid Mwiga is sentenced to serve 5 (Five) years
imprisonment in each count. In total will serve 95 years in jail.
The sentence to run concurrently.
3. Shashkant Manji Patel the third (3rd) accused is sentenced
to serve 5 (Five) years imprisonment in 18 Counts, in total 90
years in jail. The sentence to run concurrently.
4. Vituko Adam Salala the 4th accused is sentenced to serve 5
(five) years imprisonment on 18 Counts. In total 90 years in jail.
The sentence to run concurrently.
528
R v Sprianus Angelo and others, (Criminal Session Case 27 of 2017)
[2019] TZHC 1; (20 September 2019)
JUDGMENT
MUGETA, J.: The incident leading to this case involved a nineteen

years old Lady who, together with her mother, had to endure torture in
a mob justice. The pains culminated with her witnessing the lynching
of the mother on allegation of witchcraft. The girl who is now aged
twenty two years is called Pelagia Fidelis. Her deceased mother was
called Maliciana Gerald. As the due process dictates, she had to recount
the ordeal when she testified in court as PW1. Adventina Gerald, a
sister to the deceased, testified as PW2 and Desdery Chrisant testified
as PW3. He is the “Kitongoji” Chairman at a place where the incident
took place which is Nundu village, Kagoma Ward, Buleba District,
Kagera Region.
The deceased was killed on allegation that she had bewitched one
Byera, a wife of Moses who is uncle to the 3rd accused person. The
killers, who believed the deceased is a witch, took the law into their
hands and murdered her in a manner which can be described in no
other fitting term than brutal. The facts, hereunder, testifies to this
effect. It is this cold blood murder which has landed the accused
persons before the court of law to answer a charge of murder c/s 196 of
the Penal Code [Cap. 16 R.E2002].
The incident took place on 20/6/2016 between 08:00 - 11:00 hours. This
God given day dawned as a normal work day. Early in the morning,
Pelagia (PW1), the deceased and one Dativa Fidelis, a member of the
deceased’s family who is dumb, went into the family “shamba” for
farming. While thereat, according to PW1, there came the 1st accused
and three others who are not in court as they are still at large. The
first accused is called Sprianus Angelo. Those visitors forcefully took
the deceased and her daughter (PW1) to the residence of Moses.
Thereat, one Byera lay naked inside the house. She was requested
to stand up by the first accused person and his team. She complied
and, in her nakedness, started to attack the deceased and PW1 using
a cooking spoon (mwiko). As she so did, she alleged that the deceased
529
had bewitched her. Thereafter, the victims were dragged towards
their residence while being beaten up by a mob led by the first accused
person using sticks, fists and leg kicks. According to PW1, he (the
first accused) cooperated with the 3rd, 4th, 5th, 7th and 9th accused
persons. As a result, PW1 suffered injuries which cause pain in her
chest to date.
At the victims’ residence, their kitchen was burnt and then the
deceased was taken from the compound to the farm where she was
burned to death. PW1 testified that it is the 6th and 9th accused persons
who set the deceased on fire. The killers dispersed leaving PW1 alone
staring at the dead, burned body of her mother!
In that loneliness and in pain due to the attack, this young lady
gathered the courage and strength to call, by cell phone, the “Kitongoji”
Chairman. This is PW3, who also phoned the Ward Executive Officer
to pass information of this tragedy. The two went to the scene of crime
where PW1 mentioned some of the culprits. Those mentioned includes
the 1st accused person. The rest managed to escape to date. Information
was passed to the police and the Officer Commanding Police Station
(OSC), whose name is not mentioned in evidence, visited the scene of
crime. According to PW3, when the OCS arrived, PW1 also mentioned
the second accused person as one of the suspects.
The 1st and 2nd accused persons were arrested immediately thereafter.
The rest accused persons were already at large, they were arrested
on later days almost a month after the incident. PW3 testified that
he participated in arresting them together with police officers. He
testified further that they were arrested after PW1 mentioned them
to the police officers. The arrests included PW2 who stayed in custody
for eight months before she was discharged and turned into a witness.
PW1 testified on how she identified the culprits. She was clear in
her evidence that she properly identified the assailants because the
incident took place at day time, it took long time the parties being
together and they are familiar with each other as fellow villagers,
except for the 9th accused persons who live in another village. She
stated that the 9th accused person lives at a different village called
530
Butembo but she was familiar with him because she used to see him
at the market place where he sells clothes.
On the role each accused played, PW1 testified about events which
can be classified into either a specific or general act of beating the
victims. On specific acts, she stated that the first accused picked them
from the farm, took them to Moses’s residence were the fracas started
and initiated the beatings while they were on way from Moses’s to the
victim’s residence. This means among the accused persons he is the
only one who participated from the beginning of the incident to the
end. She was also clear that the 9th accused person, Phinias Paul @
Kapondo is the one who collaborated with the 6th accused person, one
Egidius Burchard, to start the fire on the deceased. They used petrol
and a bicycle tyre. In her evidence she referred to the 9th accused
person as Kaponko. The rest accused person, she generally stated that
they were involvement in beating and burning the deceased.
On her part, PW2, who was initially a co-accused testified and identified
in court the 5th, 7th and 8th accused persons. That she saw them at
the scene of crime beating her sister. Then she referred to the rest of
the accused person that she saw them at the scene of crime but she
does not know their names. That she went to the scene of crime after
being informed of the incident by a person whom she did not name. On
arrival, she found the deceased and PW1 being beaten up. PW1 told
her to leave the place lest her be included. On that advice, she left and
went back to her home until when she was told her sister had been
killed. Her evidence, however, makes two contrasting versions of the
same story. In evidence in chief she said she saw the beatings session
only but on cross examination, she testified on having witnessed the
burning session too.
The foregoing is the material evidence of the prosecution side. On the

strength of this evidence, and upon submissions made by Emmanuel
Kahigi, learned State Attorney and Seth Niyikiza, defence counsel,
I ruled that all accused persons have a case to answer and called
upon them to enter a defence in terms of section 293 of the Criminal
Procedure Act [Cap. 20 R.E. 2002] (the CPA).
531
The accused persons testified serially in the manner their names
appear in the charge sheet starting with the first accused person. He
denied any involvement on account of her health. He testified that
he has health challenges in that he cannot walk properly, therefore,
he could not have managed to involve in the process narrated by the
prosecution witnesses. Indeed, I observed him in court and noted that
he walks with some difficulties. On cross examination he testified that
his economic activity is fishing.
The second accused person, Edisia Venant and the only lady on trial,
admitted to have seen the deceased and her daughter (PW1) being
attacked while at the residence of Moses. She is a wife of Venant who
is a brother of Moses. At the incident time, she had stayed at Moses’s
for six months, therefore, she was familiar with the deceased and
her daughter as they are neighbours. That she witnessed the assault
but she never participated in it and none of the accused persons
was involved. She challenged the evidence of PW1 that she (the 2nd
accused) also beat and burned the deceased. That she never left with
the assailants to the deceased’s residence. She admitted to have gone
there after the killing where she found Pelagia alone and that might
be the reason Pelagia confused her with the assailants.
The third accused person is Gaudin Antony. He testified that he is

HIV victim who was too sick on the incident date to manage to go to
the scene of crime even after hearing the yell there from. That he was
told about the killing by mama Angelo while at their home with his
mother.
The evidence of the 4th accused, Eliud William, the 5th accused person,
Gavuna Malchiory, the 6th accused person, Egidius Burchad, the 7th
accused person, Kenedy William and the 8th accused person, Antony
Anatory is similar in nature. All of them raised a defence of alibi.
While the 4th, 5th and 7th accused persons said at the material time each
of them was in Lake Victoria Waters fishing, the 6th and 8th accused
person said they were together at the residence of the 8th accused
persons doing construction works. The 4th accused person attributes
his arrest to personal vendetta for two reasons. Firstly, on his political
inclination as a fervent CHADEMA follower against the wishes of PW3
532
and secondly, for dumping Pelagia as her lover, six months before the
incident. The 5th accused person attributes his arrest with PW2 with
whom he was not in good terms after he frustrated the proposal by
PW2 to by land from his father. The 6th accused person attributes
his arrest to political inclination too. Like the 4th accused person, he
testified, he is a CHADEMA fan who caused one Lenatus Faida to lose
the election in 2015 (he did not mention the contested post). The 6th
accused testified further that the said Lenatus hatched hatred and
promised to hit back. The 8th accused person too attributed his arrest
to bad blood between him and PW2. He gave evidence to the effect that
his cattle destroyed PW2’s crops and he was fined Tshs. 200,000/= but
PW2 was dissatisfied.
In his defence, the 9th accused person, who is a business man, admitted
to have been at the scene of crime. He went there in response to a call
by Mama Joa who had requested him to go and collect the money she
owed him after she bought supplies from him. On arrival she found
a multitude of people, estimated at one hundred and the deceased
having been killed. He testified further that, thereat he found three
men holding hostage a girl, beating her on allegation of witch craft. He
tried to stop them but the angry mob was about to beat him so he left
after he had told the girl to run away in order to save her life. That he
never identified the killers because all of them were strangers but no
one of the accused persons was at the scene of crime. It is my settled
view that the foregoing is the material facts of the case.
In summing up to assessors, I directed them on matters of facts

and law. On facts, I informed them that there is no dispute that the
deceased died unnatural death. Her death was a result of continued
assault and burning, therefore, this is a murder case committed with
malice aforethought. I further told them that the only disputed fact is
whether it is the accused person who perpetrated the murder.
To answer this issue in the affirmative, I direct them on the law

governing identification, particularly visual identification which is at
issue in this case. That visual identification is the weakest form of
identification which can only be acted upon where all possibilities of
a mistaken identification are eliminated. That a correct identification
533
considers the incident time (whether it was night or day time), the
form and intensity of light that could guarantee a proper identification,
the time the parties spent together and their familiarity before the
incident. I further informed the gentleman and ladies assessors that
the material evidence in this case as far as identification is concerned
is that of PW1 and PW2. That save for the 9th accused person, PW1,
PW2 and the rest of the accused persons were familiar with each other
as fellow villagers. That the incident occurred during day time and it
lasted for approximately three hours and PW1 was involved closely
from the beginning to the end. I informed the gentleman and ladies
assessors about the value of the defence of alibi raised by the 3rd, 4th,
5th, 6th, 7th and 8th accused persons. That legally, in terms of section
194 (4), (5) and (6) of the CPA a defence of alibi starts with giving
notice and particulars of alibi to the prosecution which they never did.
This notwithstanding/ the practice is that once this defence is raised,
it cannot be completely ignored.
Upon inviting the assessors’ opinion, they unanimously entered a not

guilty verdict for the following reasons: Firstly, that the evidence of
PW1 andPW2 has contradictions on material facts. These are that
PW1 said she was alone during the incident while PW2 said she was
also there. That PW1 said she was also burned but only one person
was burned. Secondly, PW1 testified that she is familiar with all
accused persons but in her dock identification she failed to identify the
5th accused person. Thirdly, the direct evidence comes from relatives
only. There is no direct evidence from independent witnesses despite
the fact that the incident occurred at day time and was attended by
many people. Further that, even after seeing the deceased in danger,
PW2 made no efforts to report the incident to the police. Fourthly, that
there is a possibility that both PW1 and PW2 were not at the scene of
crime, that is why they gave contradictory evidence or that they did
not see the assailant because PW2 arrived and left while PW1 ran
away and hid behind the house when her mother was being burned.
I hold different view and I, respectfully, beg to differ with the gentleman
and ladies accessors’ opinion. I have humbly and honourably reviewed
and analysed the evidence on record, I am satisfied that the gentleman
and ladies assessors misapprehended the evidence on record.
534
Consequently, they have erred in conclusion. To start with, are there
material contradictions in the prosecution’s evidence? The law is now
settled that were there are contradictions in evidence, it is upon the
court to resolve them and decide if they are minor or major and their
effect on material facts in issue.
The first contradiction pointed out concerns PW1 and PW2 involvement
in the incident. I see no contradictions at all. The evidence of PW1 was
specific as to who the victims were and who perpetrated the crime.
Indeed, she never mentioned PW2 to have come to the scene of crime
in her evidence. PW2 also was specific on how she was involved and
how she identified the criminals. In law when a witness says what
another witness did not talk about regarding same incident, that does
not amount to contradictions. Such lapses, depending of facts of each
case and a particular fact in issue, can be used to assess credibility of
witnesses not to contradict them. Therefore, it is not right to conclude
that by PW1 not saying PW2 also came at the scene of crime, a fact which
PW2 stated, amounts to a contradiction. The issue before the court is
who committed the crime and not who attended at the scene of crime.
On the burning, the only relevant evidence is that of PW1. Once again,
her evidence is not contradicting as to who was burnt. Her evidence
on this fact is double edged, firstly, that her mother was burned to
death and secondly, that she was burned and sustained injuries but
she survived. On her agonizing experience this is what she said on
cross examination by counsel for the accused persons:
“I accompanied my mother in all the processes to her death. I was

also burned on my left side ribs part and on thighs. They used melted
plastic jerry can pieces to drop fire on me. I have burn scars up to now”
Indeed, therefore, two people were burned. One survived and one died.
This evidence, when viewed as whole, does not make or creates any
contradictions. It is misapprehension of evidence to conclude that only
one person was burned.
Did PW1 fail to identify the 5th accused person in court? As reflected
in the proceedings, PW1 identified the accused persons in the dock
backwards from the ninth to the first accused person. In the process
535
she skipped the fifth accused person. After she had testified, one of the
assessors put to her the following question: -
Question - You have identified all the accused persons in the dock
except the 5th accused person. What was his role in relation to this case?
The answer which is reflected in the proceedings goes thus: -

Answer - “If I have skipped the fifth accused person herein court
during my identification of the culprits that was an oversight. He was
also present”.
I am certain in my mind that PW1 is a truthful witness. I agree with
her that the skip was an oversight. This single incident of a human
error cannot, by itself alone, water down all what PW1 testified
regarding the incident leading to this case.
On witnesses being relatives, I know no rule of practice, evidence or

procedure which bars or requires that evidence of relatives or people
of the same family should be corroborated by independent evidence to
make it credible. Further, the assertion by one of the assessors that
PW2 never reported the incident to the police is completely unjustified.
There is no evidence at all on the distance there is from Nundu to the
nearest police station to warrant the blame. This notwithstanding,
it is not true that PW2 made no efforts. This is what PW2 testified
on cross examination when asked how she tried to help to save her
sister:-
“I did not try to call anyone after seeing the incident because my
cellphone had no credit. ... I did not report to the village chairman
because he was not around. Some other people had tried to reach him
by phone but he was not reachable”
This evidence is true as it is corroborated by PW3 who testified that the
Village Chairman was in Karagwe on that date. PW3 was responding
to a question by one of the assessors.
The gentleman and lady assessors are of the conclusion that due to
contradictions in the evidence of PW1 and PW2, there is a possibility
that one or both of them were not at the scene of crime. This conclusion
536
is not supported by facts in evidence on record. I have already held,
there is no material contradictions in their evidence, therefore, this
argument is not worth addressing.
The last part of the assessors’ opinion is that, it is likely that PW1
and PW2 did not see the assailant because PW2 arrived and left while
PW1 ran away and hid behind the house when her mother was being
burned. There is no merit in this allegation. PW2 testified that on
arrival at the scene of crime, PW1 requested her to leave to avoid
her being beaten together with them. PW1 testified that when her
mother was burned, the 9th accused person ordered her to run away
and she complied by just rounding up their house and got back to her
burning mother. There is nothing in this evidence which suggest or
creates conditions that could bar either PW1 or PW2 to identify the
assailants. The testimony of PW1 on being told to ran away by the 9th
accused person is even supported by the 9th accused person himself. In
his defence he stated: -
“... she also said I told her to run away. I wanted to save
her”.
From the foregoing, I am certain in my mind that both PW1 and PW2
were at the scene of crime. While PW2 arrived and left, PW1 was
present all the time.
Having settled with the accessors’ opinion and having given reasons
as to why I have to differ with their opinion, I now move to analyzing
the evidence on record to decide if the offence has been proved beyond
reasonable doubts.
I have held that this case wholly hinges on identification of the

culprits. To decide if each accused person was correctly identified I
shall analyse the prosecution evidence in relation to the defence of
each accused person. Before I do that, I find it proper to state some of
the undisputed facts: -
1. The incident took place at day time
537
2. At the incident time, the Prosecution witnesses and the accused
persons, save for the 9th accused person, lived in the same village,
therefore, familiar with each other.
3. The incident lasted for about three hours.
To start with, let me make it clear at the outset that I shall accord very
little weight to the evidence of PW2 for one major reason. She was a
co-suspect who spent eight months behind the bar and no explanation
has been offered as to why she had been charged besides being a sister
of the deceased. On cross examination she said the police arrested her
after they failed to get a young man she lived with who, allegedly, was
also involved in the murder. It might be true which is an indicator
of reckless and irresponsible investigation processes. However, this
does not absolve her evidence from being suspect anyways as evidence
of a person with interest to serve. This leaves PW1 as our only star
prosecution witness. Save for the arresting of the suspects, the
evidence of PW3 is hearsay. In her evidence she said she identified
all the accused persons as having participated to beat and to finally
burn her mother. She identified all of them in the dock save for the
fifth accused person and stated the role each one of them prayed. No
identification parade was held and I think under the circumstances of
this case not one was desirable.
The first accused dismisses the allegation against him because of

his body weakness in that he can neither run nor walk quickly and
that she was in that state of affair before the incident date. I have
no reason to doubt his evidence as the prosecution gave no evidence
as to his health condition before the incident. In her own words, the
first accused person testified that he does fishing to earn a living. This
proves that besides his general legs weakness he walks whatever the
speed. PW1 testified that the first accused person was among those
who picked them from the shamba. That he beat and finally burned
the deceased. Here the question of speed at which events took place is
irrelevant. What matters is that the 1st accused person can walk and
whether he was properly identified. I have no reason to doubt PW1
as I find no reasons as to why she should try to fix or lie against the
first accused person. The incident started at around 08:00 hours, PW1
is familiar with the first accused person as they lived as neighbours.
538
Further, they spent together a long period of time as her deceased
mother was being crucified and PW1 named the 1st accused person to
PW3 immediately after the incident which led to his immediate arrest.
I hold that he was properly identified as the conditions surrounding
the incident leaves no possibility of a mistaken identity. I reject the
defence of the first accused that he was not involved for disability as
raising no reasonable doubts in the prosecution’s case.
Like the first accused person, the second accused person was arrested
immediately after the incident. PW1 mentioned her to the police
who came to the scene of crime per the evidence of PW3. However,
in her evidence in chief, PW1 did not state when, where and how the
second accused person attacked them. Unlike her evidence regarding
other accused persons, it was at the dock identification when she said
generally that the second accused person also beat and burned the
deceased. This information lacks in PW l’s evidence in chief regarding
the incident. In her defence, the second accused firmly denied the
allegation. She admitted her presence at Moses’s residence where she
lived at the incident time and to have witnessed the assault thereat.
That she never moved with the assailants to the residence of the
deceased where she was finally burned to death. This evidence raises
a reasonable doubt in the prosecution’s case on whether the second
accused person was involved in the actual attack. On this account, I
find the second accused person not guilty.
Before I consider defence of the rest accused person, let me discuss

some stuff on the chain of events that led to the murder of the
deceased. This is important as far as proper identification is
concerned. The death of the deceased involved four stages. Firstly,
being taken from the “shamba” to Moses’s residence which process
involved the first accused and others not charged. Secondly, at
Moses’s where Byera and others not mentioned beat the deceased
and labeled her a witch. Thirdly, on the way to the deceased home
where the first accused cut a stick from a “mhumla” tree (a Haya
name) and started to beat the deceased in collaboration with Gaudin
(3rd accused), Eliud (4th accused), Gavuna (5th accused), Kenedy
(7th accused) and Kapondo (9th accused). Fourthly, at the decesed’s
residence where fire was lit in the kitchen, Egidius and Kapondo
539
took petrol and finally burned the deceased. On the burning, those
mentioned by PW1 to have been directly involved are Egidius and
Kapondo. Back to the defence of the accused persons.
The third accused person denied involvement because he was

sick at home. In her evidence PW1 referred to him as Gaudioza.
PW1 testified that he joined the first accused person to beat them
with “mhumula” while on way from Moses’s to the deceased’s
residence. This is a specific incident which can only be performed
at a closer range and guaranteed a correct identification. The alibi
of the 3rd accused person not only was raised at defence, but it is
also unsupported. I understand an alibi does not necessarily need
support to be believed. I further understand it is not upon the 3rd
accused to prove his innocence. His duty is to raise a reasonable
doubt in the prosecution’s case. Considering the evidence as a whole
and the circumstances of the case and the fact that I have held
that PW1 is a credible witness, I hold a firm view that this defence
is an afterthought. It does not raise any reasonable doubts in the
prosecution’s case.
For clarity and brevity, I shall discuss the defence of the 4th, 5th and 7th
accused persons together. This is because their involvement feature
at the same phase and their defence is also similar. PW1 testified that
they beat her and the deceased at the third phase or stage while on
way to the deceased’s residence. This followed the first accused person
preparation of the “mhumla” sticks. They also punched and kicked
randomly the victims. All the 4th, 5th and 7th accused persons denied
involvement because at the time of the incident they were fishing in
the lake. Like the 3rd accused person, their alibi was raised at defence
stage without notice. From the narration of PW1, I am not convinced
that she could have mistaken them. The 4th accused person testified
arraying her fear of being fixed for dumping PW1 as her lover and for
being a member of the opposition party. That PW3 used to complain
about young men’s reluctance to vote for CCM so he might have fixed
them. These two lines of defence might be possible but considering the
evidence on record, they remain highly improbable. Firstly, PW3 was
clear in his evidence that except for the arrest process, the whole of his
evidence is hearsay and he never attributed anyone with the murder
540
as he saw no one committing this offence. Let his own words during
cross examination speak for him. He testified: -
“I have not mentioned anyone as having been involved. I did not see
any of them committing the crime”
In his evidence in chief PW3 had given the following evidence which
referred to the arrest process and the fact that there are other suspects
mentioned by PW1 who are still at large: -
“The other suspects are not herein court. The rest accused
persons other than the 1st and 2nd accused persons were
arrested as Alinda mentioned them to the police. ... They were arrested
on 16/7/2016. I participated in arresting them on the instructions of
police officers.”
In her evidence, PW1 testified that Alinda is her other name. In view
of this evidence the idea that the 4th accused person was fixed by PW3
for whatever reason is far-fetched.
Did PW1 fix him for dumping her? It is unfortunate that the 4th
accused never raised or put this issue to PW1 on cross examination.
Without giving the other side the opportunity to express its views on
this allegation, it is least expected to be held that it raises any doubt
in the prosecution s case. I consider it to be an afterthought due to
the stage at which the suggestion was made, at defence during cross
examination. By so stating, I am not establishing a principle that new
evidence at cross examination should be disregarded. Not at all. Each
evidence ought to be considered on the facts of each case. In our case,
this suggestion ought to have been put to PW1 to hear her views. This
is a sure way to guard against fabrication of evidence, to result into
courts acting on lies. In the final analysis, I hold that the defence of
the 4th accused person does not raise any reasonable doubt in the
prosecution’s case.
On his part, the 5th accused person believes he was arrested at the
instigation of PW2 after she was discharged because they had bad
blood. However, the record of trial from committal proceedings is
clear that when PW2 was discharged, the 5th accused person had long
541
been arrested. PW2 was discharged by “nolle prosequi” on 2/2/2017
while the 5th accused person was charged since 24/6/2016. His alibi is
rejected because there is no possibility that PW1 mistook him.
The 7th accused person was a minor when he, allegedly, committed
the offence. When trial commenced, he had attained the age of
majority. The issue arose whether he enjoyed the child rights under
section 99 (1) of the Law of the Child Act, 2009. Both this law and
the regulation made thereunder (the Juvenile Court Rules) are
silent on the right of a child when tried in a court other than the
Juvenile Court. Having considered the scheme of protection of a
child under the state laws, I ruled that the rights therein are not
available to a child whose trial, in court other than juvenile Court,
commences after attaining the age of majority. The rights under
section 99 in such courts are exercisable at that court’s discretion.
However, where the trial is in a juvenile court, those rights are non-
negotiable regardless of the age of the accused person at the time of
trial. On this account the 7th accused person was tried in the absence of
a Social Welfare Office but he had a legal aid, “pro bono. In his defence
he relied on a defence of alibi that at the time of the incident he was in
the lake fishing. For the same reason that PW1 could not have mistaken
him, I reject his alibi. The defence of the 6th and 8th accused persons
also shall be considered jointly due to its nature and similarity. Both
testified that at the incident time they were together at the residence
of the 8th accused person doing construction works. The 6th accused is of
the view that he was arrested on political grounds as opposition party
member who in 2015 General Election was instrumental in defeating
Lenatus Faida, a CCM member. However, there is no evidence either
from the prosecution or defence that shows or suggests the role played
by the said Lenatus in arresting and prosecuting the 6th accused
person. This renders such a defence useless. To the contrary, PW1
mentioned him as having beaten them up while on way from Moses’s
residence and later lit fire on the deceased using petrol and a bicycle
tyre. This evidence leaves no room for a mistaken identification.
542
The 8th accused person testified that on the incident date while at
his home together with the 6th accused person, he received a phone
call from Said Idd who informed him about the murder. Further,
that despite the information and residing in same village, he never
told the 6th accused person nor went to the scene of crime. That
after he got the information, he traveled to Muleba to buy cement
for his construction work. He believes, PW2 might have instigated
the arrest because they are not in good terms. However, there
is no evidence that his arrest was at the incidence of the PW2.
It is incredible that one can receive news of murder of a fellow
villager and refrain from telling those with him at that particular
moment especially when they are fellow villagers. In the midst of this
untrustworthy evidence of the 8th accused, PW1 was clear that the 8th
accused beat them while on way from Moses’s residence. This evidence
of PW1 is true. I hereby reject the alibi and hold that the 8th accused
person was involved and he was properly identified. He is guilty as
charged.
Lastly, the defence of the 9th accused person. He admitted to have

been at the scene of crime but he neither beat nor burned anyone.
According to PW1, the 9th and the 6th accused persons are the ones
who set the deceased on fire. By any standard, this was a crucial
moment to PW1 as victim and observer of the last part of the ordeal:
The killing of his mother. As she was familiar with the people who
did it at day time, I have no reason to doubt her Identification of the
9th accused person as one of the criminals. He is guilty as charged.
Before I conclude, let me address one legal aspect. In matters of

identification, mentioning of the suspect at the earliest is key on
credibility of the identifying witness. PW3 testified that on his arrival
at the scene of crime PW1 mentioned to him the culprit as the 1st,
2nd and other accused persons who have not been arrest. His list
does not include the 3rd -9th accused persons. He testified that those
other accused she mentioned them later, not to him, but to the Police.
Does this shake PW1’s identification reliability in respect of the 3rd-
9th accused persons? I have given thought to this issue in line with
what PW1 went through, I am of the view that immediately after
the incident she must have been in a state of confusion and panic.
543
The evidence is that there were many people at the incident. PW1
testified that they were about 17, PW2 said about 30 and DW9 said
they were more than 100. Whatever the case, I am made to believe
that the incident attracted many people. In her evidence PW1, stated
that the villagers were divided. Some came, watched and left while
others joined the assault. In the state humiliation and the pain for
witnessing brutal murder of a mother, PW1 needed time to calm down
to do a proper recollection of who did what at the incident.
I understand there is no evidence as to when PW1 mentioned the

3rd- 9th accused person to the Police. It can be argued that it might
be after a long time because it took about a month to have the
suspects arrested. But it is dangerous to relate the identification
with the delayed arrest because there is evidence that after the
incident people deserted the village. PW1 testified that after the
murder they dispersed leaving her alone. The second accused
supported her. She testified that when she went at the scene of
crime after the murder, she found PW1 alone. PW3 testified that
people ran away after the incident to avoid arrests. The 7th accused
person testified that when he went home he found his mother in
hiding fearing arrest. This means the situation at the village was no
longer at ease. I, therefore, hold that despite this gap in evidence of
the prosecution, there existed conditions which favoured a correct
identification. I see no reason why PW1 could lie against any of the
accused person.
In the event, I hold that the prosecution side has failed to prove a case
against the 2nd accused person beyond reasonable doubts. I, hereby,
acquit her. The rest of the accused persons are found guilty and they
are convicted of murder as charged contrary to section 196 of the Penal
Code.
SENTENCE
The 7th accused person was a minor when he committed this offence.
He has been in custody since 2016. This is enough a punishment. I
hereby discharge him without any order. The 1st, 3rd, 4th, 5th, 6th, 8th and
9th accused persons are hereby sentenced to suffer death by hanging.
544
Robert Andondile Komba v. DPP, (Criminal Appeal No. 465 of 2017)
[2020] TZCA 277; (03 April 2020)
(Lila, Mkuye and Kitusi,JJ.A.)
JUDGMENT
KITUSI, J.A.: The District Court of Chunya convicted the appellant

Robert Andondile @ Komba for rape under section 130(1), and (2)(e)
and 131(1) of the Penal Code [Cap. 16 R.E. 2002] and sentenced him
to 30 years imprisonment. It was alleged that on 25th December,
2015 at Ngwala Village within Chunya District in Mbeya Region, the
appellant had carnal knowledge of a 14-year-old girl whom we shall
conveniently be referring to as the victim or PW1. In support of those
allegations there was the following evidence.
On 25/12/2015, Maduhu Samandi (PW4) instructed PW1, his daughter,

to go to the farm to watch over against birds that eat their crops. It
was at around 15:00 hours.
While at the farm PW1 spotted the appellant, who was on the garden
belonging to her parents and he was picking lady’s fingers (bamia)
from the garden without the owners’ permission. The appellant
confronted PW1 and threatened her with a machete. Then he took
hold of her and he led her to a nearby hut where he tore off her shirt
and underwear and threw her down. Then he also undressed and had
sex with the girl.
However, just as the appellant was done and had put on his clothes,
PW 1’s step mother Mbuke Njile (PW2) appeared unexpectedly, and
the appellant, naturally, escaped. PW2 who was PW4’s other wife
said she had gone to the garden to pick tomatoes and lady’s fingers
for her use. When she was near the hut, she saw the appellant lying
on top of PW1 having sex with her. She is a witness to the fact that
the appellant fled upon seeing her and that thereafter she checked
PW1’s private parts which had sperms mixed with blood in it. PW2
raised alarm by screaming and this was heard by Pili Joseph (PW3)
the mother of PW1 and who is PW2’s co-wife. She went to the scene.
545
The perpetrator of the alleged rape had already escaped but PW3 saw
in PW1 the aftermath of that rape. Her clothes had been torn, sperms
and blood were seen in her vagina and she had pains.
During all this time, PW4 was away from the village but finally
information about his daughter being raped reached him, through
PW2. PW4 reported the matter to the Chairman of the village after
which he took PW1 to hospital. Thereafter at night PW4 went in search
for the culprit, assisted by two militiamen who had been assigned that
duty by the village Chairman. They unsuccessfully searched for the
culprit in different parts of the village, until later when they went to
the farm of one Bright Kumwenda where they found a hut in which
the appellant was. PW1 and PW2 immediately identified him as the
villain. Outside that hut there was the machete he had allegedly used
to threaten PW1 with earlier in the day, and the lady’s fingers. He
was taken to the village office where he was put in custody. It was on
27/12/2015 when the appellant was taken to Mkwajuni Police outpost
where a PF3 was issued for PWl’s medical examination at Mwambani
Mission Hospital.
Godwin Andrew Mushani (PW6) examined PW1 on 28/12/2015 and

his findings were that PWl’s hymen had been perforated, and she had
a swelling in her vagina. After the examination PW6 completed the
PF3 which he tendered as Exhibit PEI.
Back at police station, D/Cpl. Gibson (PW7) recorded the appellant’s

cautioned statement in which he allegedly confessed. The statement
was tendered in exhibit and admitted without any objection from the
appellant.
The appellant was the only witness in defence. He gave his own story
of what happened, while denying the allegation that he had sex with
PW1. Here is what he said; on 25/12/2015 while heading to Bright
Kumwenda’s farm where he lived, he stopped by the farm of the
victim’s father to pick lady’s fingers, but thereafter he left the farm
and went home. He prepared food and after eating he slept, only to be
awakened at midnight by PW4, PW1 and the two members of People’s
Militia.
546
The appellant’s unexpected visitors told him that they were there to
take him to Bright Kamwenda, his employer, because he needed him.
Meanwhile PW4 asked him why he had picked lady’s fingers from his
farm without seeking his permission, but he was all the same taken
away even though he explained that he had done that out of dire need
for something to eat.
He said he was not taken to his employer, but found himself at the
Village Executive Office where he was locked in a cell before he was
subsequently transmitted to Mkwajuni Police. He insisted that at the
time of picking the lady’s fingers from PW4’s garden he was alone,
meaning that he never had sex with PW1 as alleged.
In convicting the appellant, the trial court accepted PW 1’s version of

what took place and took into account the evidence of PW2 and PW3,
the women who inspected PW1 immediately after the alleged rape
and detected sperms and blood in her vagina. He cited section 130 (4)
of PC which provides that penetration is proof of rape. The learned
magistrate also considered the appellant’s story that he was at the
farm of PW4 on the same afternoon as was PW1, as being corroborative
of the prosecution case.
The appellant lost his first appeal to the High Court. He now appeals to
the Court by a nine ground Memorandum of Appeal drawn by himself.
We shall only give the gist of each ground so as to avoid reproducing
them. They go thus: -
1. He is faulting the trial court and the High Court for relying on
the evidence of PW1 while she did not promise to tell the truth
before her evidence was recorded.
2. The two courts below erred in law when they did not seek
evidence to corroborate the evidence of PW1, PW2 and PW4 who
are family members.
3. The courts erred in not taking into account that PW1 and PW2
did not know the appellant as they did not disclose his name to
anyone.
547
4. The courts did not take into account the fact that the identification
of the appellant by PW1 and PW2 was merely dock identification.
5. That the findings of the medical doctors PW5 and PW6 were
contradictory while they both claim to have examined PW1 and
both completed the PF3.
6. That the High Court judge erred in relying on the cautioned
statement without considering the fact that at the time of
recording it, the appellant was illiterate.
7. The High Court erred in dismissing the appeal without taking
into account the fact that the case was cooked by PW1 PW2 and
PW4 for their own interests.
8. The High Court erred in not allowing his appeal on the ground
of his complaint that DNA test results which is the best evidence
in rape was missing.
9. That the High Court erred in not finding that the case against
the appellant was not proved beyond reasonable doubt because
his defence was disregarded.
The appellant prosecuted the appeal in person whereas the

respondent/DPP was represented by Ms. Rhoda Ngole, learned Senior
State Attorney and Ms, Xaveria Makombe, learned State Attorney. It
was Ms. Makombe who took the arena. Since the appellant elected to
rejoin after hearing submissions by the State Attorney, Ms. Makombe
addressed us, first making her position clear that she was in support
of the decisions of the two courts below. The learned State Attorney
commenced by identifying grounds 1, 3, 4 and 5 of the appeal as being
new grounds which on the authority of Dickson Anyosisye v. Republic,
Criminal Appeal No. 155 of 2017 (unreported) we should not consider.
While we agree with Ms. Makombe that this Court may not deal with
grounds which were not raised and determined by the High Court or
Resident Magistrate with extended jurisdiction, we asked the learned
State Attorney to address all grounds for two reasons. First of all, at
the High Court the appellant had raised a general ground that the
prosecution had failed to prove the case against him beyond reasonable
doubt, which is a general ground. Secondly, the grounds of appeal
548
are so overlapping that some elements in the so-called new grounds
touch on those which had been earlier raised. Ms. Makombe agreed to
address all grounds, which she did, we must say, with commendable
preparedness.
Submitting, she dismissed the first ground of appeal as misconceived

because it complains about PW1 not making a promise to tell the truth
which was not a legal requirement at the time the witness testified.
She pointed out that the requirement for a witness of tender age to
promise to tell the truth was introduced by Act No. 2 of 2016 which
amended section 127 (2) of the Tanzania Evidence Act, Cap. 6 R.E.
2002. We readily agree with Ms. Makombe on this. The Written Laws
Miscellaneous Amendment Act No. 2 of 2016 which introduced the
requirement of a witness of tender age to promise to tell the truth
came into force on 8/7/2016 after PW1 had already testified. This
complaint is misconceived as rightly submitted.
As regards the complaint appearing in ground 2 that the courts

relied on the evidence of PW1, PW2 and PW4 all family members,
Ms. Makombe responded that it is true those witnesses are family
members but in law their credibility is all what matters. She cited the
case of Edward Nzabuga v. Republic, Criminal Appeal No. 136 of 2008
and Dickson Anyosisye v. Republic, Criminal Appeal No. 155 of 2017
(both unreported). We think Ms. Makombe’s address on ground 2 is
relevant to ground 7 as well which alleges that those family members
concocted the case against the appellant for their own interest.
Ground 3 and 4 were combined, these are that the appellant was
not named and his arrest was based on mere suspicion. The learned
State Attorney agreed that the appellant’s name was not given by
any prosecution witness but she argued that PW1 had enough time
to observe him from the garden on to the hut where he led her, and
during the removal of clothes before raping her. She also referred to
the evidence of PW2 at page 13 of the record which shows how she
found the appellant on top of PW1 before he escaped.
549
We shall resolve these complaints later.
Ground 5 raised the issue of two medical practitioners examining PW1

and coming up with two different findings. Ms. Makombe submitted
that PW5 examined PW1 on 25/12/2016 at 7:00 p.m. and detected
sperms and blood and that the hymen had been perforated. He did
not complete the PF3, but referred the victim to Mwambani Hospital.
PW6 of Mwambani Hospital examined PW1 on 28/12/2016. He did not
detect any sperms on account of passage of time but he detected other
signs such as perforation of the hymen and swelling of PWl’s vagina.
In the learned State Attorney’s view there was no contradiction.
In ground 6 the appellant complains against the use of the cautioned

statement by the two courts. Ms. Makombe submitted that the
complaint is an afterthought because there was no objection from
him at the time of tendering it. When we put to the learned State
Attorney the question whether the statement was read in court after
admission, she admitted that it was not. She however sought to
rely on the case of Chrizant John v. Republic, Criminal Appeal No.
313 of 2015 (unreported). In that case we held that failure to read
a document after admission is not fatal if the witness who tenders
it refers to its details. This position could not provide an antidote to
our next question to the learned State Attorney. We asked her if the
cautioned statement was recorded within the basic hours, to which
she conceded and prayed that we expunge it.
We have set out the foregoing arguments at length for a reason,

because the principle in Chrizant John v. Republic (supra) resurfaces
later in this appeal.
Responding to ground 8, the learned State Attorney submitted that

in this country the best evidence of rape is not DNA but that of the
victim, citing the case of Seleman Makumba v. Republic [2006] TLR
379 cited in the case of Edward Nzabuga v. Republic (supra). She
further cited section 130 (4) (a) of the Penal Code which provides that
rape is proved by penetration and further linked it with the evidence
of PW1 who said that the appellant inserted his penis into her vagina.
550
Lastly, on ground 9 she maintained that the appellant’s complaint
that his defence was not considered is not supported by the record
which shows on pages 76 and 77 that it was.
Before Ms. Makombe rested her case, we raised the issue, suo motu, if
there was proof of the age of the victim in this case. The learned State
Attorney submitted that there was proof that PW1 was aged 14 years
because there were concurrent findings on this issue by the two12
courts below, citing the District Court’s finding at page 47. She also
referred to the PF3 on which the victim’s age is recorded as 14 years.
We wanted Ms. Makombe’s views on the PF3 first on the fact that
it was not read after admission and secondly on the fact that the
medical practitioner who completed that form had not been requested
to examine the victim’s age. The learned State Attorney submitted
that the principle in the case of Chrizant John v. Republic (supra)
cures the omission to read the PF3 after admission. She submitted
that there was proof of age.
When the appellant was called upon to submit in support of his

appeal, he did no more than reiterate his denial and prayed that he
be released from prison. We shall, as a duty, consider his grounds of
appeal as against the submissions of the learned State Attorney.
We have already dealt with the first ground of appeal and dismissed it
as misconceived. Ground 2 of appeal is equally on a settled law, that a
case would not be any less Droved merely because those who testify on
it happen to be family members. It is their credibility which matters,
as rightly submitted by the State Attorney. Decisions on this point are
quite handful apart from the one cited by Ms. Makombe. They include,
to name a few, the case of Mustafa Ramadhani Kihiyo v. Republic
[2006] TLR 323, Khatibu Kanga v. Republic, Criminal Appeal No. 290
of 2017 and Mohamed Seleman @ Nyenje v. Republic, Criminal Appeal
No. 108 of 2017 (both unreported). The foregoing covers ground 7 as
well.
551
We shall quickly dispose of ground 5 and reserve grounds 3 and 4 for
later. Ground 5 is a complaint about the alleged contradictions between
the two medical practitioners who examined PW1. As submitted by
the learned State Attorney there is no contradictions whatsoever
because they examined her on different dates and naturally the one
who examined her later may not have found some of the things which
were seen by the first. Besides, it is only PW6 who completed the PF3
which we shall discuss in details later. This ground has no merit as
submitted by Ms. Makombe.
There is no point in discussing ground 6 of appeal which is a complaint

against the cautioned statement because at the instance of the State
Attorney it has been expunged.
Ground 8 faults the trial court for not resorting to DNA test to prove
the fact that the appellant had sex with PW1. The State Attorney
submitted that all that the law requires is proof of penetration as
per section 130 (4) of the Penal Code and that the best evidence on
that has to come from the victim. We have no hesitation to go along
with the learned State Attorney. Proof by DNA test is neither a legal
requirement nor the practice in our jurisdiction. Many a culprit would
walk scot free if that were the case, in our view, and the suggestion
by the appellant is impractical. We are of the view that Ms. Makombe
has sufficiently addressed this point and we agree with her, with the
result that this ground has no merit too.
In ground 9 the appellant complains that his defence was not

considered. With respect it was. As rightly submitted by the State
Attorney the defence case was considered as seen on pages 76 and 77.
We take the view that it is one thing to consider the defence case and
it is quite another to accept it. It cannot be said the defence case was
not considered merely because its version was not accepted by the
court. In this case for instance, the trial court at page 46 of the record
considered the defence case as corroborating that of the prosecution.
This is because the appellant’s defence shows that he was at PW4’s
farm or garden at the same time as PW1. The law permits the court to
take into account a defence case that advances the prosecution case.
See the case of David Gamata and Another v. Republic, Criminal
552
This ground is also without merit and it is dismissed.
In arguing this appeal the State Attorney combined grounds 3 and

4 and we shall dispose of them in a similar style. Stated in a simple
language the grounds raise the issue whether the appellant was
identified. Ms. Makombe submitted that he was identified by PW1
throughout from the farm to the shed where he took off her clothes
and his, before he had sex with her. The learned State Attorney added
that PW2 saw him as he was lying on PWl’s top and as he fled from
the scene. Ms. Makombe conceded that nowhere was the appellant’s
name disclosed.
On our part we do not consider this to be anything other than an
issue of visual identification because failure to disclose the name of
the perpetrator of rape is neither here nor there, as it is known that
people are sometimes raped by strangers. What is critical is whether
the perpetrator’s identity is established.
In this case we have no doubt that PW1 did not mistake the appellant
for anybody else given her account of what happened on that afternoon
of 25/12/2016 and the time it took. Appellant’s defence, if anything,
places him at the scene of crime at about the same time it occurred.
We conclude that although the appellant’s name was not disclosed by
PW1, her evidence of identification of him was unmistaken.
There is one delicate issue that we must resolve before we conclude.

This is whether the appellant’s age was proved. This issue was raised by
the Court, not without reason. The law requires that in statutory rape
cases, the age of the victim must be proved. See the cases of Rwekaza
Bernado v. Republic, Criminal Appeal No. 477 of 2016, Mwami Ngura
v. Republic, Criminal Appeal No. 63 of 2014 and Solomon Mazala v.
Republic, Criminal Appeal No. 136 of 2012 (all unreported).
Ms. Makombe invited us to infer the age of the victim from the PF3
where her age is cited as 14 years. With respect we are not persuaded
that the age of the victim cited in the PF3 is proof of her age. Not only
was the PF3 not read after admission therefore liable to be expunged,
but the case of Chrizant John v. Republic (supra) cannot be brought
into play in this case. This is because in his testimony PW6 who
553
tendered the PF3 did not testify on the victim’s age let alone details
of that age.
Not only that, but in cases of statutory rape, age is an important

ingredient of the offence which must be proved. We are not prepared
to hold that citing of age of the victim is akin to Droving it, and this
is not the first time we make such observation. In Solomon Mazala v.
Republic and in Rwekaza Bernado v. Republic (supra) we referred to
the case of Andrea Francis v. Republic, Criminal Appeal No. 173 of
2014 (unreported) where the Court stated: -
“... it is trite law that the citation in a charge sheet relating to the
age of an accused person is not evidence. Likewise, the citation by a
magistrate regarding the age of a witness before giving evidence is not
evidence of that person’s age.”
Before reproducing the above paragraph from the case of Andrea

Francis v. Republic the Court stated this in Solomon Mazala:-
“Even if we go further and take the liberty to assume that the fact that
the trial court conducted a voire dire examination after being satisfied
that PW1 was under eighteen years of age, that assumption, in our
view, would be contrary to the dictates of the law.”
Therefore, it is our conclusion that there was no proof of PWl’s

age because what was cited in the PF3, even if there was no any other
defect, was not proof of her age as required by the law. In the end and
with respect, although we agree with the learned State Attorney in
her submissions regarding the grounds of appeal, our conclusion is
that there was no proof of statutory rape because there was no proof
of the victim’s age. On that around we allow the appeal.
We quash the judgment, set aside the sentence and order the
appellant’s immediate release if he is not otherwise lawfully held.
554
Rutoyo Richard v. R (Criminal Appeal 114 of 2017) [2020] TZCA 298;
(16 June 2020)
(Lila, Korosso and Sehel, JJA.)
JUDGMENT
LILA. JA: This is a second appeal. Rutoyo Richard, the appellant

herein, was arraigned before the District Court of Musoma at Musoma
with the offence of rape contrary to section 130 (1)(2) (e) and 131 of
the Penal Code, Cap 16. R.E. 2002 (the Penal Code). It was alleged by
the prosecution in the particulars of offence that; the appellant on 19th
April, 2015 at Kamnyonge area within the District and Municipality
of Musoma in Mara Region did have carnal knowledge of a fifteen
(15) year old girl, who we shall be referring to by the acronym SJ,
the victim or simply PW1, in the course of this judgment. He was
convicted as charged and was sentenced to serve a statutory minimum
sentence of thirty years jail term. His first appeal to the High Court
was unsuccessful, hence this appeal.
The present appeal, to say the least, is a clear manifestation of the reality
of one of the famous Swahili Saying “unaruka majivu unakanyaga
moto” literally meaning you avoid stepping unto ashes and you find
yourself stepping unto fire. The victim avoided being taken to school by
her mother for enquiry on her unsatisfactory performance but ended
up in being raped. This is the situation under which the victim found
herself in. As it were, she was schooling with her young sister, who
we shall also be referring to as SJ JUNIOR so as to further hide the
identity of the victim, at Buhare Secondary School. They were in form
I. Midterm test paper results were released and SJ’s score happened
to be lower than that of SJ JUNIOR as the former scored 45% while
the later scored 50%. Diana Moris (PW2), the victim’s mother, was
unhappy with that. She furiously questioned, abused and threatened
to take the victim to her teacher for further inquiry. Afraid of what
would befall on her in the event she was to be taken to school; the
victim parked her luggage on 19/4/2015 in the evening (around 6:00pm)
and left on foot to her grandmother’s place one Anastazia at Buhare.
While on the way, she met the appellant and his friend who were on a
555
motorcycle. The two, who were strangers to her, offered her a lift and
as it was already late in the evening she accepted and the trio left going
in the direction leading to Buhare and the journey ended at a certain
house. After a short while, the appellant’s companion left leaving
the appellant and the victim therein. Elaborating on what happened
thereafter, the victim claimed that for three consecutive nights, the
appellant had sexual intercourse with her at knife-point. She told
the trial court that in all those days until 21/4/2015 the appellant
used to lock her inside the house during the day time and left to his
errands but during the night he forcefully undressed her, forced her to
sleep on the bed, lay her legs apart and he penetrated his male organ
into her genital parts while holding a knife. She complained that she
experienced pains and at one time blood oozed from her genital parts.
That it was on 21/4/2015 when, after the appellant had closed the
door from outside and left, one Mama Constantine passed nearby the
house and she asked her to open the door. That she told her the whole
incident and was locked in again while planning for how she would
be rescued. Upon return of the appellant, the door was forced open
people who were outside and she managed to escape and the appellant
was apprehended by people who were outside the house despite his
attempt to disperse them by throwing stones onto them. According
to Anastanzia Wilfred (PW3) who witnessed the appellant being
arrested, the appellant was taken to Musoma Central Police Station.
Surprisingly, the victim, went to one Alloys whereat she stayed for
three days before she went back home. On 27/4/2015 she was taken
to Central Police Station, issued with a PF3 and went to Nyasho
Hospital where she was examined by Dr. Pius Biseko Makene (PW5)
who revealed that her virginity perforated and had been penetrated
by a blunt object which suggested that she was carnally known. He
filled the PF3 which he tendered in court and was admitted as exhibit
PI. PW2 simply told the trial court that the victim absented herself
from the evening of 19/4/2015 till the 21/4/2015 when she was told by
the victim’s teacher one Nuru Geofrey (PW4) who was looking for the
victim that she was seen with appellant.
556
A policeman one F. 3494 PC Dickson (PW7) told the trial court that
he assisted in the arrest of the appellant at Buhare after receiving a
tip from PW2 and took him to Central Police Station Musoma. On his
part, F. 1574 D/CPL Stephano (PW6), told the trial court that he
recorded the appellant’s cautioned statement (exhibit P2) on
21/4/2015 in which he confessed carnally knowing the victim.
In his sworn defence, the appellant vehemently protested his

innocence claiming that he was arrested by two policemen who were
accompanied by two women at his home after his return from his work
and was taken to Musoma Central Police station and thereafter charged
with the offence of rape. He said his statement was recorded and he
signed. He however attacked the evidence by the victim (PW1), PW2
and PW3 as being untrue and that they are related hence fabricated
the case against him. He, however, did not give reasons. In respect of
the Doctor’s evidence and PF3, he discredited such evidence claiming
that only one side was examined as he was not also examined. In sum,
he urged the trial court not to accord any weight to the untruthful
prosecution evidence.
The appellant’s lamentation notwithstanding, the trial court found

the prosecution case strong and proved the charge at the required
standard of proof beyond reasonable doubt. It was satisfied that the
appellant had forceful sexual intercourse with the victim, given that
they spent three days together the issue of identification does not arise
and based on assessment of her demeanour, the victim’s credibility
was impeccable. In addition, the detailed account of the incident
by the victim which tallied with the appellant’s explanation in the
cautioned statement moved the trial court to reach at a finding that
the appellant’s culpability was fully established. Consequently and as
hinted above, it proceeded to convict the appellant and sentenced him
to serve thirty years imprisonment.
557
In the High Court, on first appeal, the appellant lodged a
memorandum of appeal which comprised four grounds as hereunder:-
“1. That the presiding court erred when it failed to consider the
non-existence/unestablishment of penetration as per the elapsed
period of time i.e., 72hrs
2. That the presiding magistrate had failed to realise the
contradictions of exhibit PI (i.e., PF3) contents and or PW5’s
(Dr. Pius Biseko) findings with victims (PW1) evidence.
3. That due to the lack of prior descriptions the Hon. Trial
magistrate erred by acting on dock identification.
4. That, the prosecution case was not proved beyond reasonable
doubt.”
After consideration of arguments of both sides, the High Court

concurred with the trial court and found both the conviction and
sentence sound in law. Like the trial court, identification of the
appellant was found to be a non-issue. Also based on the best evidence
rule as was propounded by the Court in the case of Selemani
Makumba vs Republic, Criminal Appeal No. 94 of 1999 (then
unreported), the High Court found the victim’s evidence clear and
consistent hence sufficiently proved being penetrated by the appellant.
Feeling aggrieved, the appellant preferred this appeal fronting four
grounds of appeal as hereunder:-
“1. That, both the trial and first appellate courts erred in law and
facts by relying on incredible witnesses, i.e., PW1 who was
rather a suspect witness whose evidence was unworthy of belief.
2. That, both the trial and first appellate courts had taken no
circumspections over the victim’s pre- and post- conducts
which suffice to inevitably conclude that rape by force was an
afterthought
558
3. That, the trial and first appellate courts erred in law and facts
to rely on the cautioned statement regardless its shortcomings
in both the law and facts.
4. That, the appellant’s age as clearly shown in the charge sheet
and in the caution statements, i.e., 18 years old was not taken
into consideration in sentencing a child as it offended the Penal
Code, Cap. 16 R.E. 2002 and the Child Act.”
The appellant who was linked with the Court through video facility
appeared in person and unrepresented. Ms. Sabina Choghoghwe,
learned State Attorney, represented the respondent Republic.
When the appellant was invited to elaborate his grounds of
appeal, he refrained from doing so. He, instead, opted to make a reply
after the learned state Attorney had responded to his complaints.
Before putting up her position on the merits of the appeal, the

learned State Attorney first took issue with the grounds of appeal.
She hastened to point out that all the grounds of appeal were new
hence they should not be considered by the Court. Elaborating, she
contended that all matters raised in the grounds of appeal were not
canvassed in the High Court and determined hence in terms of section
4 (1) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2019 (‘the AJA’),
the Court lacks jurisdiction to entertain them. However, she took
exception of ground four (4) of appeal which she said is a point of law
whichcanberaised at any stage and the Court is obligated to entertainit.
In supporting her argument, she referred us to our decision in the case
of Hassan Bundala @ Swaga v. Republic, Criminal Appeal No. 386 of
2015 cited in the case of George Claude Kasanda v. The Director
of Public Prosecutions, Criminal Appeal No. 376 of 2017 (both
unreported). She accordingly urged the Court to disregard grounds 1,
2 and 3 of appeal.
In ground four (4) of appeal, the appellant is aggrieved by failure

by both courts below to accord due weight to his age when assessing
appropriate sentence to pass against him. His complaint is centred
on the fact that he was eighteen (18) years old when the sentence was
passed against him. Responding to that, Ms. Choghoghwe, contended
559
that she had no issue with it. She readily admitted that the appellant’s
age was not considered at the time of passing sentence. She contended
that the appellant’s age had serious bearing on the sentence to be
meted in terms of section 131(1) and (2) of the Criminal Procedure
Act, Cap. 20 R. E.2002 (‘the CPA’) which stipulates the appropriate
sentence to an offender who is a boy of the age of eighteen (18) and
below. In the present case, she argued further, the appellant was a
boy and a first offender hence the appropriate sentence was corporal
punishment and not a custodial sentence of thirty (30) years.
Before resting her case, the learned State Attorney, sought and
we granted her leave to submit on a point of law she contended to
have noticed when perusing the record and which did not form one ofthe
grounds of appeal. She humbly contended that since the appellant was
charged under section 131 (1) (2) (e) of the Penal Code which creates an
offence of rape where the victim is under eighteen (18) years in which
consent is immaterial, proof of age was of paramount importance. Her
stance was that the personal particulars availed by thevictim to the
trial court before being sworn or affirmed which indicated that she
was fifteen (15) years on the day she testified did not constitute part
of the evidence on account of not being given on oath.
To cement her assertion, she referenced us to the case of George

Claude Kasanda v. Republic (supra). Stressing on the point, she
submitted that neither the victim’s mother (PW2) nor the medical
Practitioner (PW5) who in terms of the decision of the Court in George
Claude Kasanda v. Republic (supra) could lead evidence proving the
victim’s age, discharged that duty. On that account, she pointed out,
the victim’s age remained unproved hence the prosecution failed to
prove the charge against the appellant.
Enchanted by the learned State Attorney’s response to his

grounds of appeal, the appellant copiously agreed with her and urged
the Court to allow the appeal and be pleased to let him free.
We have given deserving consideration to the appellant’s grounds

of appeal and the submissions by the learned State Attorney. We will
start with the issue raised by the learned State Attorney that grounds
560
1, 2 and 3 of appeal are new hence this Court is precluded, in terms
of section 4(1) of the AJA, from entertaining them. We unreservedly
agree with her that, save for issues of law, it is trite law that this
Court cannot entertain grounds of appeal which were not first put
before the High Court for determination. That legal position has
been restated in a chain of cases (See: Hassan Bundala @ Swaga
v. Republic (supra), Bakari Abdallah Masudi v. Republic, Criminal
Appeal No.126 of 2017 and Dickson Anyosisye v. Republic, Criminal
Appeal No. 155 of 2017, Alex Ndendya v. Republic, Criminal Appeal
No. 340 of 2017, Samwel Sawe v. Republic, Criminal Appeal No, 135
of 2004, Nasibu Ramadhani v. Republic, Criminal AppealNo.310 of
2017, (all unreported) and Abdul Athuman v.R [2004] T.L.R.151.We
are, however, unable to go along with her in the present case that such
position squarely applies. As the above recited grounds of appeal before
the High Court vividly show, the appellant had raised as a ground of
appeal that, the prosecution case was not proved beyond reasonable
doubt. General as it is, such a ground calls for an appellate court to
consider all the evidence, oral, documentary and physical evidence to
ascertain whether in their totality establish the appellant’s guilt to
the hilt. Need not to say, several grounds or points of grievance may
be drawn from that general ground. Although we find it not to be a
good practice for an appellant who has come up with specific grounds
of appeal to again include such a general ground, but where it is raised
as was the case in the present case, it should be considered and taken
to have embraced several other grounds of grievance. This Court
had an occasion to face an identical scenario in the case of Robert
Andondile v. Republic, Criminal Appeal No. 465 of 2017 (unreported)
wherein, with lucidity, stated:-
“While we agree with Ms. Makombe that this Court may not deal with
grounds which were not raised and determined by the High Court or
Resident Magistrate with extended jurisdiction, we asked the learned
State Attorney to address all grounds for two reasons. First of all, at
the High Court the appellant had raised a general ground that the
prosecution had failed to prove the case against him beyond reasonable
doubt, which is a general ground. Secondly, the grounds of appeal are
so overlapping that some elements in the so-called new grounds touch
on those which had been raised...” (Emphasis added).
561
To that extent we concur and find that all the grounds of appeal
were properly before us and deserved to be considered and
determined.
Leaving aside the above, in view of the submissions of Ms.

Choghoghwe, we think our determination of the issue taken on
board by the learned State Attorney at the hearing of this appeal
only will be decisive. That is, whether on the evidence on record the
offence charged was proved against the appellant beyond doubt.
Having gone through the evidence on record, we are in full

agreement with Ms. Choghoghwe that the prosecution evidence fell
short of proving the charged offence. As rightly argued by the learned
State Attorney, the appellant was charged with the offence of rape
under sections 130(1) and (2)(e) and 131(1) of the Penal Code. That
section creates an offence of rape committed against a girl of the age
of eighteen (18) and less now termed as statutory rape. Under that
section, therefore, age of the victim is of great essence. For that
offence to stand, it must be proved that the victim is eighteen or
below. Times without number, this Court has demonstrated that
need and casted that duty on the prosecution who, in our criminal
jurisprudence is, imperatively obliged to prove the charge beyond all
reasonable doubt. On this, we are grateful to Ms. Choghoghwe on her
concession that, in the instant case, the prosecution did not completely
lead any evidence tending to prove the age of the victim. The cited case
of George Claude Kasanda v. The DPP (supra) clearly illustrated that
settled position of the law. In that case, the Court cited with approval
the Court’s decision in the case of Issaya Renatus v. Republic (supra)
in which it was stated that:-
“We are keenly conscious of the fact that age is of great essence in
establishing the offence of statutory rape under section 130 (1) (2)
(e), the more so, under the provision, it is a requirement that the
victim must be under the age of eighteen. That being so, it is most
desirable that the evidence as to the proof of age be given by the
victim, relative, parent, medical practitioner or, where available, by
the production of a birth certificate...”
562
The court, in George Claude Kasanda v. the DPP (supra), then went
further to state that:-
“Before we proceed, we find it opportune to remind the courts below

and the prosecution that preliminary answers and particulars given
prior to giving evidence are not part of the evidence as the same
are not given on oath (See: Simba Nyangura v. Republic, Criminal
Appeal No. 144 of 2008 (unreported). Instead, they serve as general
information (See: Nalogwa John v. Republic, Criminal Appeal No.588
of 2015 (unreported).”
In the instant case, as rightly argued by the learned State

Attorney, no one be it the victim (PW1), her mother (PW2) or the
medical practitioner (PW5) led evidence proving the age of the victim.
What comes out clearly from the perusal of the record is that in the
particulars given by the victim and the PF3 taken to PW5 indicated
that the appellant was fifteen years old. On the authorities, that was
insufficient to prove the age of the victim. We reiterate that cogent
evidence relating to age from the victim, parent, close relative, close
friend, teacher in which she was schooling or any person who knew
well the victim was required. (See: Elia John v. Republic, Criminal
appeal No. 306 of 2016 (unreported).
The offence of statutory rape cannot stand where age of the

victim, which is one of the crucial ingredients of the offence, is not
proved. The appellant’s conviction of the offence was therefore not
sound in law. This being a deficiency on the prosecution evidence, an
order for retrial is unjustified and will occasion injustice. (See: Fatehali
Manji v. Republic [1966] E. A. 341)
For the foregoing reason, like the learned State Attorney, we find
the appeal meritorious. We accordingly invoke our powers of revision
in terms of section 4(2) of the ADA and hereby quash the appellant’s
conviction and set aside the sentence. The appellant be released from
prison forthwith unless held for another lawful cause.
563
Rwekaza Bernado v. R, Criminal Appeal 477 of 2016, Court of Appeal
of Tanzania at Bukoba (unreported)
(Mbarouk, Mkuye and Wambali JJA)
(Date of the decision: 29th August 2018)
JUDGMENT
WAMBALI, J.A.: The appellant, Rwekaza Bernado appeared before
the District Court of Karagwe at Kayanga where he was charged with
the offence of rape contrary to sections 130(1) and (2)(e) and 131 of
the Penal Code, Cap. 16 R.E. 2002. The particulars laid in the charge
was to the effect that on 29th January, 2015 at about 11.00 hrs. at
Rwaga Kayanga area within Kagarwe District in Kagera region, the
appellant unlawfully had sexual intercourse with one Renatha d/o
Lauriani, a girl aged 17 years old. It is in the record that the appellant
denied the allegation that was laid in the charge.
The prosecution therefore paraded five witnesses including Renatha

D/o Lauriani (PW1), the victim. The appellant gave his defence ater
the trial court determined that a prima facie case had been made out.
He consistently denied to have committed the offence. Nevertheless,
at the end of the trial, the trial District Court of Karagwe was fully
convinced that the prosecution had proved its case beyond reasonable
doubt. It therefore convicted him, of the offence of rape and imposed a
sentence of thirty years imprisonment.
The appellant’s appeal to the High Court was dismissed and the
conviction and sentence of the trial court was confirmed. The appellant
did not give up as he lodged the present appeal before this Court still
protesting the conviction and the sentence that was imposed on him
by the trial court. The appellant lodged five grounds of appeal before
this Court. However at the hearing of the appeal it was agreed by both
parties and the court that necessarily the complaint of the appellant
in all the grounds centered on the submission that the prosecution did
not prove the case against the appellant to the required standard of
proof.
564
At the hearing of the appeal before us, the appellant appeared in person
as he was not represented by a counsel, while Mr. Nestory Paschal
Nchimani, learned State Attorney, appeared for the respondent
Republic.
It is important to note that earlier on the respondent Republic had

lodged a notice of preliminary objection on the propriety of the notice
of appeal. However, after a short discussion and deliberation by the
Court on the nature of the defect, the learned State Attorney prayed to
withdraw the said notice and the court marked it withdrawn. He thus
conceded that the appeal should proceed for hearing.
The appellant, in his submission briefly urged us to adopt the grounds

of appeal which he had lodged and insisted that the prosecution did
not prove the case beyond reasonable doubt. He thus prayed that
his appeal be allowed, the conviction quashed and the sentence of
imprisonment be set aside.
On the other hand, Mr. Nchimani, learned State Attorney for the
respondent Republic did not support the conviction and the sentence
that was imposed to the appellant by the trial court. He thus supported
the appeal.
In his submission, he argued that the prosecution did not prove the
case as no sufficient evidence was tendered to support conviction of
the appellant. His position was based on the submission that the age
of the victim was not proved by witnesses, including the victim (PW1)
to the required standard. He argued that even the witnesses Hassan
Abdulmalick (PW4) and F3035 D/C Kenyera (PW5) who mentioned
the age of the victim did so in passing during examination in chief. He
was thus of the view that as age of the victim was the most important
factor with regard to the offence with which the appellant was charged,
the prosecution was duty bound to prove the same beyond reasonable
doubt. He concluded his submission by urging the Court to allow the
appeal as the charge that was laid at the door of the appellant was not
proved beyond reasonable doubt.
565
We wish to state that having gone through the record of proceedings
of the trial court and the first appellant court and the submission of
the learned State Attorney for the respondent Republic, we are of
the considered opinion that the issue of age of the victim which was
alleged in the particulars that described how the offence of rape was
committed was a crucial matter to be proved by the witnesses who
supported the prosecution case.
It is clear from the record that although the issue of age of the victim
was central to the offence, there was no any witness of the prosecution
who sufficiently proved the same to the required standard. The record
indicates that the victim herself did not say anything concerning her
age during examination in chief and cross examination. Unfortunately,
too, even the trial Resident Magistrate did not indicate the age of
the victim when she was being sworn before she testified. The trial
Resident Magistrate only indicated that the victim had completed
standard seven and she knew the duty to speak the truth. The said
evidence on the age of the victim did not also come from the doctor
(PW3) Hilary Gabriel who examined the victim and filled the PF3
which was tendered and admitted at the trial as exhibit PI.
The witnesses who spoke about the age of the victim were PW4
(the village chairman) and PW5 (the investigator). However, both
witnesses mentioned the age of the victim in passing without sufficient
explanation. Indeed, they could not competently prove the age of
the victim. Unfortunately, the learned trial Resident Magistrate also
mentioned the age of the victim in passing in his judgment.
In order to appreciate our emphasis that will follow, we wish to

reproduce the relevant provision under which the appellant was
charged, that is, section 130 (2) (e) of the Penal Code Cap. 16 R.E 2002
thus:-
“(2) A male person commits the offence of rape if he has sexual

intercourse with a girl or a woman under circumstances falling under
any of the following descriptions:-
(a) …
566
(b) …
(c) ….
(d) ….
(e) With or without her consent when she is under eighteen years of
age, unless the woman is his wife who is fifteen or more years of age
and is not separated from the man.”
We need to insist that as per the quoted provision, age of the victim
was an important matter to be proved by the prosecution apart from
other evidence. We hold a firm view that in the present matter, it was
important for the prosecution to prove beyond reasonable doubt the
case against the appellant where among others the age of the victim
was a determining factor in establishing the offence. This Court has
stressed in a number of decisions on the importance of ascertaining
the age of a victim before arriving to the conclusion that the offence
has been proved beyond reasonable doubt. It suffices to refer to the
decision of this Court in Andrea Francis v. The Republic, Criminal
Appeal No. 173 of 2014 (unreported) which was also quoted with
approval by this Court in Nalongwa John v. The Republic, Criminal
Appeal No. 588 of 2015 at Dodoma (unreported) where it was stated
that:
“... It is trite law that the citation by a magistrate regarding the age
of a witnesses before giving evidence is not evidence of that person’s
age. It follows that the evidence in a trial must disclose the person’s
age. In other words, in a case as this one where the victims age is
the determining factor in establishing the offence, evidence must be
positively laid out to disclose the age of the victim ...in the absence of
evidence to the above effect it will be evident that the offence ... was
not proved beyond reasonable doubt.”
In view of what we have stated above, we have no doubts in our
minds that the issue of age of the victim which was central to the
prosecution of the appellant was not proved beyond reasonable doubt.
Indeed, although there is also no dispute that there was contradiction
567
on the evidence tendered by the prosecution, we think the issue of age
was still central to the offence with which the appellant was charged,
convicted and sentenced to imprisonment for thirty years.
It is in this regard that we agree with the appellant who was supported
by the learned State Attorney for the respondent Republic that the
prosecution did not prove the case beyond reasonable doubt. It is no
wonder that Mr. Nchimani supported the appeal from the outset.
In the event, we allow the appeal, quash the conviction and set aside
the sentence of thirty years imprisonment that was imposed to the
appellant by the trial District Court. We accordingly order that the
appellant be released from prison forthwith and be set free unless he
is otherwise lawfully held for other cause. We so order.
568
Sajjad Ibrahim Dharamsi & Another vs Shabbir Gulamabbas
Nathan, (Civil Appeal No.42 of 2020) [2020] TZHC 3703; (30
October 2020)
JUDGMENT
MLACHA J: This appeal raises important questions in respect

of the applicability of the Law of the Child Act, 2009 (the Act) and
International Instruments in the safe guard of child rights in this
country. It is all about the straggle for the custody of an 11 years old
child born in the United States of America (the US) with an American
father but who had a Tanzanian mother. The child obtained the US
nationality by virtue of the birth but soon later shifted and lived in
Tanzania and has not returned back to the US. He is a product of
a broken family, a child who has not lived with his father but his
stepfather and maternal uncles for many years. He is now under
pressure to be repatriated to the land of his father, the US following
the death of his mother. His step father who is a Tanzanian and who
has developed an attachment to him is resisting. His maternal uncles
and Tanzanian grandparents are also resisting. He is also resisting to
go there.
The court is invited to make an interpretation of the law governing the
situation which is also connected to some International Instruments
and say who between the two contesting sides has a right to get hold of
the child. A number of cases were referred by counsel, both local and
foreign to defend their respective positions. What are the details and
who are the parties is what is to follow now.
The appeal was filled by SAJJAD IBRAHIM DHARAMSI and ALLY
JAWAD GULAMABBAS JIVRAJ against the respondent, SHABBIR
GULAMABBAS NATHANI. It seeks to set aside the ruling and orders
of the Juvenile Court of Dar es Salaam at Kisutu made in Miscellaneous
Application No. 194 of 2019. In that ruling, the Juvenile Court reviewed
its earlier ruling and orders made in Miscellaneous Civil Application
No. 139 of 2019 which had given the first appellant, Sajjad Ibrahim
Dharamsi, custody of the child Alihassan Nathani. The court had in
mind that, the right person to stay with the child was not the first
569
appellant who is a step father of the child but the respondent, Shabbir
Gulamabbas Nathani, who is the biological father of the child. The
second appellant Ally Jawad Gulamabbas Jivraj who is a maternal
uncle of the child joined forces with the first appellant to get hold of
the child.
It is a fact not disputed that the mother of the child Sajjida Gulamabbas
Jivraji was married to the respondent long before she had her second
marriage to the first appellant. The marriage was celebrated in Dar
es Salaam Tanzania on 02/01/2004. They thereafter moved and stayed
in the US. The child Alihassan was born in the US on 24/02/2009.
Difficulties developed in the marriage. His mother came with the boy
to Tanzania and filed Matrimonial Cause No. 30 of 2019 at Kariakoo
Primary Court, llala District. The court granted divorce on 21/05/2010.
She got married to the first appellant on 15/06/2014. The child who was
born in the US and who is an American citizen, has lived in Tanzania
since 2010 to date. He came to Tanzania with his mother while still
very young in 2010 and have been living in Tanzania with his mother,
the deceased and later with the first appellant as his step father to
date. The first appellant took care of him for all the years up to now.
No proceedings were filed in any court to claim for the child or seek
custody of him before the death of his mother. He lived with the first
appellant’s family peacefully for all the years. He used to visit his
grandparents unrestrictedly. The respondent has been visiting him
during his annual leave (summer). He claims that he made efforts
to get the boy through family meetings without success. And that,
while still negotiating following the death of his mother, he discovered
that there were orders to place him to the first appellant made in
Miscellaneous Application No. 139 of 2019. He was not happy hence
the move to seek revocation of the orders. The lower court revoked the
orders which had placed the child to the first appellant arguing that
the respondent being the father and surviving parent was the right
person to get hold of the child. The appellants did not see justice in the
decision hence the appeal.
A total of 14 grounds of appeal were lodged. They were drafted in a
length language and were a bit repetitive. They are reproduced if full
for easy of reference as under: -
570
1. That in arriving at the impugned ruling and order sought to be
appealed, the court a quo erred in law and fact by imparting undue
prominence to the biological nexus between the respondent and
the child unleavened by any consideration of the several factors
disclosed in the evidence on record and which are germane to
the best interests of the child.
2. That in predicating its decision on custody on the respondent’s
“right” as a biological father, the court a quo accorded presumptive
importance to the rights of the respondent as a biological father
and failed to undertake a broadly gauged assessment of all
the circumstances bearing on the best interests of the child
as evinced in the evidence on record and therefore detracted
from the paramountcy of the best interest of the child as a sole
determinant of custody.
3. That in arriving at its decision to repose the custody of the child
with the respondent, the court a quo erred in law and fact by
assigning surfeited deference to the wishes of the respondent
as a biological father tout court simpliciter and on the need to
reunite the child with its agnatic relatives a the expense of a
meaningful consideration of all the circumstances disclosed in
the evidence on record impinging on the best interests of the
child and whether the foregoing is in fact congenial to the best
interests of the child.
4. That the court a quo reliance on the respondent’s purported
“right” to custody of the child based on a biological tie with the
child is misconceived and lacks any mooring in the law pertinent
to custody and detracts from a holistic consideration of the
custodial arrangement most congenial to the best interests of
the child.
5. That in reaching its decision to vary the original order of 17th
July, 2019, the court a quo failed to adverts its mind to the
best interests of the child and relied on factors with exiguous
relevance to the best interests of the child and which were raised
by the court a quo on its own motion without inviting the parties
to be heard on those issues.
571
6. That in varying the original order of 17th July, 2019, the court
a quo relied exclusively on the respondent’s ipse dixit without
further dispositive evidence in concluding that the 1st appellant
despite representations to the court disavowing knowledge of
the whereabouts of the respondent, had in fact known of the
presence of the respondent in Dar es Salaam at the time that
the original custodial proceedings were filed.
7. That the court a quo erred in law and fact by concluding that the
mere fact the child stayed intermittently with its grandfather
after the passing of its mother is contravention of the conditions
of custody granted to the 1st appellant by dint of the order of 17th
July, 2019 without any evidence as to whether the foregoing was
a change of a serious magnitude as to adversely impinge on the
best interests of the child or detracts from the parenting ability
of the 1st appellant to ensure the best interests of the child.
8. That having accepted the evidentiary factum that the child had
lived almost its entire life with the appellants and maternal
grandparents, the court a quo erred in law and fact by failing to
draw the necessary inferences open from such evidence bearing
on the best interests of the child.
9. That in making the impugned custodial determination in favour
of the respondent, the court a quo failed to advert its mind to
the statutory desiderata to ensure the continuity of care and
maintenance of the features that anchor the stability and
security of the child who is a subject of a custodial proceeding and
also failed to consider the adverse impact on the child portended
by the discontinuance of the child’s current living arrangement
entailed by the court’s impugned custodial decision.
10. That in arriving at the impugned custodial decision, the court
a quo misdirected itself by failing to consider the whole tenor of
the independent wished of the child as expressed to the court
by the child and disregarded them based on a tendentious and
selective assessment of the child’s expression of its wishes and
also failed to consider whether the wished expressed by the child
were plausible when weighed on the fulcrum of circumstances
bearing on the child’s best interest as evinced in the evidence on
record.
572
11. That having ordered the preparation of a social inquiry report by
a court appointed social worker, the court a quo erred in law and
fact by failing to impact any weight to the said report without
a plausible justification and cavalierly dismissed the report
and the attachments thereto without adverting her mind as to
whether the report and the recommendations broached therein
further or detract from the best interests of the child.
12. That the court a quo, erroneously pretermitted any consideration
of the need to maintain the continuity of care of the child and
reposed blithe confidence in the ability of the respondent to
protect the child from the rebartive psychological and emotional
consequences that the child will suffer as a result of its
displacement from its habitual milieu without any evidence on
the parenting ability and temperament of the respondent, the
nature of the respondents current familial setting and relations
and whether the said setting would be sufficient and appropriate
to buffer the child from the adverse impact of change of its
current living arrangement.
13. The court a quo failed to impart any consideration on the
need to maintain the continuity of the child’s currents living
arrangements based on the unwarranted supposition that the
respondent had forged a relationship with the child by dint
of his regular visits of the child without satisfying itself as to
whether the evidence on record contains any basis to support
the illation that the relationship between the respondent and
the child was strong and of a quality to withstand any disruptive
consequences to the child as a result of the change of its current
living arrangements.
That in granting access to the 2nd appellant and the paternal
grandfather of the child, the court a quo failed to advert her mind to
the efficacy of the access rights granted to the 2nd respondent and the
grandfather and was oblivious of the complexity of cross-jurisdictional
access and abdicated its responsibility to ensure the efficacy of the
access rights to the 2nd appellant and the grandfather of the child by
directing them to enlist the assistance of a nebulous “the next social
worker” in the United States of America in the event of any difficulties
with the enforcement of their access rights.
573
The appellants’ prayers are as under;
(i) That, the HonourableCourt be minded to reverse the decision
of the Juvenile Court of Dar es Salaam at Kisutu dated 18th
December, 2019.
(ii) That, the court issue and order for the custody of the child
Alihassan Nathani to vest with Sajjad Ibrahim Dharamsi, the
1st appellant.
(iii) That, in the alternative, the court be minded to issue an order
granting the custody of the child Alihassan Nathani to Ali Jawad
Gulamabbas Jivraji, the 2nd appellant.
(iv) That, the court grant access to the respondent within the
geographical encincture of the United Republic of Tanzania.
(v) That, in the alternative, should the court be minded to grant
access to the respondent outside Tanzania, that, such access
should be granted subject to the latter furnishing the court with
a mirror order from o competent court in the United States of
America replicating the terms of the order to be issued by this
court and barring the respondent from seeking a fresh custody
from any court in the United State of America and acknowledging
the finality of the custody decision of the High Court of the
United Republic of Tanzania and also acknowledging the High
Court of Tanzania as the court with the exclusive jurisdiction
over the custody of the child.
(vi) Costs of this appeal.
(vii) Any other reliefs that the honourable court deem to be apposite.
Counsel for the parties had time to file written submissions on the
ground of appeal. They filed length submissions attached with various
authorities to support their respective positions. Mr. Hussein Mohamed
appeared for the appellants while Mrs. Nakazael Tenga appeared
for the respondent. I had time to read and examine the submissions
closely. I got a lot of assistance from the submissions and the attached
authorities. I thank the counsel for the research and industry.
574
Mr. Hussein Mohamed made a general overview before making
submissions on the grounds of appeal. He said that, the ruling of the
Juvenile Court in Miscellaneous Application No. 194 of 2009 placed
undue prominence to the biological nexus between the respondent
and the child without considering other factors which are germane
to the best interest of the child. It put presumptive importance to the
parental rights of the respondent as a biological father and failed to
accord a broader assessment of evidence and therefore detracted from
the paramountcy of the principle of the best interests of the child, he
said. He proceeded to say that the lower court put the wishes of the
respondent as a biological father and the need to reunite the child
with its agnatic relatives without considering other factors which are
equally or more important. He argued that giving custody of the child
simply because the respondent is a biological father was wrong and
a misconceived idea. He said that, the court failed to address itself to
the best interest of the child as required by the Law of the Child Act. It
instead decided the case based on new issues raised suo mottu without
inviting the parties to address it. The court relied on the information
given by the respondent alone, he said. Having made these general
observations, Mr. Hussein divided the grounds of appeal to 4 groups
and made joint submissions. He started by grounds Nos. 1, 2, 3 and
4. He submitted that, the court erred in holding that once a natural
parent is established, custody should follow. He said that there must
be a balanced assessment of all the circumstances bearing in mind
the best inters of the child. He said that the court failed to observe the
provisions of section 39(1)(2) of the Law of Child Act which carry the
principle of the best interest of the child. He argued that the law does
not say what is the best interest of the child. It has left the matter to
the court to say what is the best interest of the child after weighing all
the circumstances and facts involved.
Counsel argued that, the Law of the Child Act does not put any
significance to parental rights of custody against the best interests
of the child. Referring to section 4(2) of the Act, he said that, all the
parental claims must be subordinate to the best interests of the child.
He argued that, much as parental ties are important but are only an
integer in the best interests’ equation. They cannot supplant the best
interests of the child. He said that, the child is not a chattel in which
575
its parents have priority interest. It is a human being to whom serious
obligations are owed under the relevant law. He went on to argue that
natural parents have no automatic right to custody. Their importance
lies in furtherance of the best interest of the child, he said. Assuming
biological ties without the best interest of the child is misconstruing
the law, he argued. While addressing the need to maintain uniform
standards, counsel argued that, the parliament could not have enacted
a law which is inconsistent with International Law instruments. He
went on to say that, when interpreting statutes enacted to enforce
rights under International Instruments as is the case for the Law of the
Child Act, interpretation should be done in accordance with the terms
of International Instruments. It argued that, the parliament could not
have intended to enact a law that detracts or contradicts its obligations
towards children provided under International conventions.
Referring to the decision of the House of Lords in Garland V. British
Rail Engineering Limited [1982] UKHL 2 and the decision of United
Kingdom Supreme Court in Assange V. The Swedish Prosecution
Authority [2012] UKSC 22 he said that, domestic legislation, whose
enactment is precipitated by International Instruments should be
interpreted in a manner that avoids disjunctive between domestic
legislation and International Instruments. Referring to the General
Comment No. 14 (2013) Para 3 and 4 of the United Nations Committee
on the Rights of Children, he said that, the assessment of the rights
of the child should be individualized, flexible and should consider
all contextual exigencies bearing on those interests. He then invited
the court to see the interpretation given by courts in UK, Canada,
Australia and India, saying that he could not find a local case on the
subject.
Citing the decision of the House of Lords in JV. V (an Infant) [1969]
UKHL 4, he said that the court was to decide a case of custody
between a natural parent and his foster parents and granted custody
to the foster parents because it found it difficult to disturb the existing
arrangements for the child. In Canada, counsel submitted, the Supreme
Court had the same decision in Gordon V. Goertz [1996] S.C.R. 27
and Young V. Young [1993] S.S.C.R.3 ruling against importing
presumptive or decretal significance to biological ties which are not
connected to the best interests of the child. Counsel submitted that
576
a similar position was held by the House of Lords in Re: G (children)
(FC) [2006] UKHL 43 where it was said that, there is no presumption
in favour of natural parents. The determination of custody must be
predicated on evidence not presumptions. And that, the welfare of the
child should be of paramount consideration more than anything else.
Further reference was made to the decision of the House of Lords in
Brixey V. Lyna [1996] UKHL 17 and decisions of the English Court
of Appeal in W (a child) [2016] EWCA Civ 793 and Re: E.R (a child)
[2015] EWCA Civ 405 with similar observations.
Counsel referred the court to Hodak Newman Hodak [1993] FLC 92-
421, Rice V. Miller [1993] FLC 92-415 and Re: Evelyn [1993] Fam CA
55 which are decisions from Australia on the subject. Referring to the
decisions he said that, while the fact of parenthood is not be trifled
with and should be regarded as an important and significant factor
in considering which proposals are better to advance the welfare of
the child, such facts does not establish a presumption in favour of
natural parents or general preferential position in favour of natural
parents. This was also the position in India as per Gaurav Naggpal V.
Sumadha Nagpal, Civil Appeal No. 5099 of 2017, he said.
Submitting in grounds 5, 6 and 7, he said that, the court has power
under S. 37(3) of the Law of the Child Act to grant custody but it is
subject to the best interests os per s.37(4). He argued that, the court
did not follow S. 37(4) of Law of the Child Act. He said that, the court
failed to consider the best interests of the child before varying the
order. It varied the order without satisfying itself to the exact nature
of the change. It failed to assess the best interests of the child before
varying the order, he submitted. It also erred in failing to consider the
social Inquiry Report. It relied on irrelevant matters in varying the
order, he argued.
Submitting in grounds, 8, 9, 10, 11, 12 and 13, counsel submitted that,
the court failed in seeing the need to maintain continuity of care to
the child. That the child had formal attachment to the appellants and
it was not correct to remove him and place him to the respondent
who was not used to him. It even failed to consider the wishes of the
child. He referred the court to section 39(2) (d) of Law of the Child Act
on the need to consider the wishes of the child. He invited the court
577
to seek assistance from the case RES (contact children views) [2002]
IILR 1156 on the need to hear children who can express themselves.
He said that, the older the child the more serious they should be heard
as was said in Re: L (contact Domestic, Violence ets) [2002 2 FLR and
Re:(a child) [2009] EWCA Civ 445. He then argued the court to grant
the appeal as prayed. Counsel argued the court to allow the appeal
with costs.
Mrs. Nakazael Tenga started by giving the background of the
matter according to her version. She said that the respondent and
the late Sajjida were husband and wife. They lived in the US where
the child Alihassan Nathani was born. Both the respondent and
the child Alihassan Nathani are American citizens. That, in 2014,
Sajjad and the child travelled to Tanzania for a visit. She then filed
divorce proceedings in Tanzania which were heard ex-parte without
the knowledge of the respondent. She proceeded to live with the first
appellant as her husband without knowledge to the respondent. On
noticing, the respondent went to religious leaders to claim for the child
and was adviced to wait till when the child will be 7 years old. When
he came to request for the child after 7 years, Sajjida refused. Access
for the child was very difficult, he said.
Counsel proceeded to submit that Sajjida died on 07/02/2019 leaving
the child with the appellant. The respondent came a week later to
send condolences to the family. He requested for a meeting to discuss
the fate of the child without success. He then approached the Juvenile
court for a redress only to be told that there was a prior application
which had given custody to the first appellant. And that it was done
ex-parte. He wondered why he could not be consulted or served as he
was in Dar es Salaam in those days. He then lodged the application
which vacated the earlier ruling. Counsel could not see any problem
with the ruling and orders of the lower court.
Counsel submitted that the cases cited by the counsel for the appellants
cannot assist the court because they lack material facts. It is also not
clear if the provisions under discussion are in parimateria with our
Law of Marriage Act. She argued in support of the decision of the lower
court saying that it was made according to the Law of the Child Act.
He referred the court to section 39(1)(2)(c) and (e) of the Act. Citing
578
subsection (c), she said that, it is preferable for a child to stay with
his parents except if his rights are persistently being abused by his
parents. She submitted that there is no evidence that the respondent
abused the child’s rights. She referred the court to subsection (e)
and argued that it was desirable for the child to stay with the other
children of the respondent’s family given the requirements of the law
that siblings must stay together.
Counsel referred the court to section 37(1) (3) (4) of the Act saying
that the respondent has a right to stay with the child as a parent. She
took the court to section 9(4) of the Act which provides that where
biological parents of the child are deceased, parental responsibility
may be passed to a relative of either parent or a custodian by way of a
court order. She said that in our case, the father is alive so there is no
reason of giving custody to other people. She referred the court to the
case of Halima Kahema V. Jayanlal G. Kiria [1987] TLR 147 where
it was said that the welfare of the child requires it to be in the hands
of either parent not child’s grandparent. The next case was the case
of Bharat Dayal Velji V. Chandni Vinesh Bharat, Civil Appeal No. 45
of 2017 where it was said that the best interest of the child carters
far behind financial ability. The children need love, affection and care
which the mother (father) is in the best position to offer, she said. She
argued that the respondent is married and have 2 other kids which
can easily receive the child.
Counsel requested the court to observe the provisions of section 7(1)
(2)(a)(b) and (c) which provide that the child is entitled to live with
his parents or guardians. And that he should not be denied that right.
She argued that it was wrong to handle the child to the first appellant
whose integrity is questionable. Giving details he said that the first
appellant allowed the child who was under him as a care taker to stay
with his grandparents. That contradicted rule 75(3), she said.
Responding to the submission that the lower court disregarded the
wishes of the child, the counsel for the respondent referred the court
to the views of Fitzgibbon LJ in Re: O’hara [1990] 21R 2323 who said
that the wishes of a child of tender age must not be permitted. These
views, she submitted were adopted by Muruke, J in Rosemary Stella
Chambe Jairo V. David Kitundu Jairo, High Court, Civil Appeal No.
579
79 of 2013 who said that the child may be coached, she argued.
She ended by referring the court to the case of DG Jackson [2001]
ZASCA 139, a decision of the Supreme Court of South Africa which
said that an appellate court should not interfere with the decision of
the trial court lightly because it has a chance to see and measure the
credibility of parties. She argued the court to dismiss the appeal with
costs.
Mr. Mohamed Hussein filed a rejoinder submission and joined issues
with the counsel for the respondent in all fours.
He insisted that the appeal has a lot of merits and must be allowed
with costs.
I have taken time to consider the submissions closely. Primarily the
court is invited to see if the lower court had directed itself properly
on the provisions related to custody of children before varying its
orders. Whether it was proper so to say, to revoke the order of custody
of the child which was given to the first appellant and give it to the
respondent in the circumstances of this case.
I agree with the counsel for the appellants that the Law of the Child
Act 2009 was enacted to full international standard contained in the
UN Convention on the Rights of the Child to which Tanzania is a
signatory. I also agree with him that in interpreting the provisions of
the Act the court must take into account the meanings and opinions
expressed in UN instruments on the matter. We also have a duty to
see what has been said by other courts. We are not bound but we have
a duty to see what they are doing. Where persuaded as we shall see
later the court must not hesitate and follow. I have been impressed so
to say, buy the decisions of foreign courts referred in the submission. I
also got some assistance from the decisions of this court cited, though
with respect, did not carry the weight of the foreign judgments which
were more direct on the subject under discussion.
Apart from the cases cited by the counsel, my look at the submissions
has shown me that, the counsel had references to provisions of the Law
of the Child Act with diverging opinions. The battle was on sections
4(2), 7(1)(2)(a)(b)(c), 9(4), 37(1), (3) and (4) and 39(1)(2)(c)(d)(e). They
are also at longer heads on rule 75(3) of the Law of the child (Juvenile
580
court) Rules 2016 GN 182/2016 which were applied to this court by
virtue of GN 154/2019. I have tried to go through these provisions
closely. I could not get difficulty in understanding them. They are all
relevant in the subject under discussion, the best interests of the child.
Section 4(2) carry the best interests of the child principle. It states
that it shall be the primary consideration of any public or private
institution, court or administrative body to take into account the
best interests of the child in anything they are doing about children.
Section 7 carry the right to grow with parents. It states that the child
has the right to live with his parents or guardians. Subsection (2) says
that a person shall not deny a child to live with his parents, guardians
or family and grow up in a caring and peaceful environment unless it
is decided by the court that living with his parents or family shall lead
to significant harm to the child, subject the child to serious abuse or it
is not in the best interests of the child so to do. The emphasis here is
that the child has a right to live in a family. It can be the family of his
parents or that of his guardian. He should live there except where it
is found that living there has caused or is likely to cause harm to him,
subject him to a serious abuse or it is no longer in his best interest.
My understanding of this provision is that, he has a right to live in
the family of his parents or guardians but he cannot live or continue
to live with his parents or guardians if by living there, he is subjected
to harm, serious abuse or it is not in his best interests so to do. It is
a provision which gives him the right to stay in the family and give
circumstances under which he can be removed.
Section 9 carry the parental duty and responsibility. Subsection (1)
say that children have a right to life, dignity, respect, leisure, liberty,
health, education and shelter from his parents. Subsection 2 restrict
the right to the guidance and ability of parents. That is to say, they
will enjoy the rights as far as their parents can afford. Subsection (4)
which is at issue says that where the biological parents are deceased,
parental responsibility may be passed to on to a relative of either parent
or a custodian by way of a court order or a traditional arrangement.
The argument of the respondent here is that so long as the respondent
(father) is not dead, custody should be left to him. The appellants are
saying no arguing that the court should observe other factors as well.
581
I will respond to this question later.
Section 37(1) say that a parent, guardian or relative who is caring for
a child may apply to a court for custody of the child. Subsection (2)
gives the court power to give orders of custody. Subsection (3) gives the
power to revoke the grant and grant it to another person. Subsection
(4) put a requirement to revoke subject to the best interests of the
child. The argument of the appellant is that the court did not observe
the requirements of subsection (4) in the course of revoking the grant.
The respondent is saying that the requirements were complied with
so long as he is the biological father of the child. The appellants are
arguing that being a biological parent is just one factor. There are
other factors as well which must be considered.
Section 39 has the conditions for custody or access. The contravery
is on subsection (1) (2) (c) (d) (e). Subsection (1) require the court to
consider the best interests of the child and the importance of the child
being with his mother when making the order. The respondent is
arguing that the word mother must be replaced with father to mean
the respondent. The appellants are saying no. Having examined the
whole section, I have the view that the legislature did not intend the
word mother to be interchangeably with the word father. If that was
the case, it could have been written so specifically. Or else the word
parent could be used instead. Subsection (2) carry other considerations.
They include the rights of the child as provided under section 26 which
are rights of children in case parents separate. That is not the case
here. The age and sex of the child, that it is preferable for the child
to live with its parents except if his rights are abused are also key
factors. The views of the child if given independently and the need
for continuity of care and control of the child must be observed. The
argument of the respondent is that he has not done any harm to the
child and therefore entitled for custody. The appellants are arguing
in favour of continuity of care and the wishes of the child expressed
to the Social Welfare Officer that he was not ready to go with the
respondent. The respondent while recognizing the requirements of
respecting the wishes of the child hove the view that, the child might
have been coached.
582
I have considered the applicability of the above provisions and
arguments advanced by the parties carefully. I also had ample time to
read the cases cited to me and International Instruments referred to.
As correctly pointed out by counsel, the Law is silent on what is the
best interests of the child. Counsel has the view that, the question was
left to the court to create flexibility and decide cases according to the
circumstances of each case. I agree with counsel but I think there must
develop some yard sticks to guide the court, points for cross checking
while examining the best interests of the child.
In my perusal of General Comment No. 14 (supra) have come across
elements which must be taken into account when assessing the child’s
best interests. They are 7 namely; The child’s views, child’s identity,
preservation of the family environment and maintaining relations,
care, protection and security, situation of vulnerability, child’s right
to health and child’s right to education.
Under the heading of care, protection and safety of the child we have
the following: -
“The terms “protection and care” must also be read in a broad sense,
since their objection is not in limited or negative terms (such as to
protect the child from harm) but rather in relation to the comprehensive
ideal of ensuring the child’s “wellbeing” and development. Children’s
wellbeing in a broad sense includes their basic material, physical,
education and emotional needs as well as needs for affection and
safety. Emotional care is a basic need of children; if parents or other
primary care givers do not fulfil the child’s emotional needs, action
must be taken so that the child develop a secure attachment. Children
need to form an attachment to a care giver at a very early age and
such attachment, if adequate, must be sustained over time in order to
provide the child with a stable environment.
Assessment of the child’s best interests must also include consideration
of the child’s safety, that is the right of the child to protection against
all forms of physical or mental violence, injury or abuse (art 19), sexual
harassment, peer pressure, bullying, degrading treatment etc as well
as protection against sexual, economic and other exploitation, drugs,
labour, armed conflicts etc.
583
Applying a best interests’ approach to decision making means assessing
the safety and integrity of the child at the current time, however the
precautionary principle also requires assessing the possibility of
future risk and harm and other consequences of the decision for the
child’s safety”, (emphasis added)
Having examined the Law of the Child Act and the International
Convention on the Rights of Children and the above comments, I
have the view that in assessing the best interests of the child the
court must be guided by the following things; one, the child needs
protection to his life. This the first thing and primary. He must live in
an environment which will guarantee safely to his life. He shall not
live in any environment which is likely to cause his death or endanger
his health. Two, he must live in an environment which will ensure
that he grow well physically, mentally and psychologically. Three, he
must also grow spiritually, with a sense and fear of God. He must grow
in a certain religion. Four, he gets basic material things regard being
on food, shelter, clothing, education and medical care. Food, shelter,
clothing, education and medical care are comparative. They are not
similar from one community to another. The child must get the best
services available in his community from his parents or guardians.
Five, to grow with parents or a parent or with a guardian in a family
which can ensure that number one, two, three and four exist.
The question now is whether, living with is a father or mother alone
can be said to be the best interests of the child. The answer, in my view
is NO. Here is where the relevance of the cases cited by Mr. Hussein
came in. I have borrowed a lot of wisdom from the decisions. They are
all valid because they interpret the principle of the best interests of
the child as reflected in their respective statutes but as are reflected in
the Convention on the Rights of a Child which is the foundation to our
Law of the Child but for which we are signatory. I have found them
to be useful to this court. I feel proud to be guided by the decisions
from Australia (supra) which laid the principle that, while the fact
of parenthood is not to be trifled with and should be regarded as an
important and a significant factor in considering which proposals are
better to advance the welfare of the child, such facts does not establish
a presumption in favour of natural parents or general preferential
position in favour of natural parents. There must be a combination of
584
factors, some of which I have mention above, so as to meet the best
interests of the child.
In this case, the child was born in the US on 24/02/2009. He lived in
the US shortly. He came to Tanzania in 2010. His mother got married
to another person. He has lived in Tanzania since 2010 to date. He has
lived with his mother, the deceased, and the first appellant since then.
He also had a chance to visit his uncles (wajomba) and grandparents.
He had never returned to the US since then. He has been meeting the
respondent rarely during holidays. When he was asked by the Social
Welfare where he wanted to stay, he never said yes to his father the
respondent. He mentioned the appellants. The lower court neglected
the views of the child and recommendations of the social welfare officer.
I have considered the reasoning of the magistrate and with respect I
think he was in error. Much as children can be coached as observed
by Muruke, J. in the case cited above, but there is no evidence in this
case that he was coached. I think he was just saying what was inside
himself given the background.
Further to that, the record is loud that his mother and the respondent
were in difficult in the US. They were not in good terms. I am not
convinced that the deceased come to Tanzania on a visit as alleged
by the respondent. I think she was running away from quarrels at
the matrimonial home. No wonder she did not hesitate to file divorce
proceedings soon after arrival. She thereafter moved to marry the first
appellant. If things were well in the US as alleged, she could not decide
to file divorce soon after arrival and get married to another man.
The facts before me reveal that the child left the US in a situation of
conflict. Her mother run away to Tanzania and was not ready during
her life time, to release the boy to the US. She knew what could
happen to her son. If her mother could not agree to release the child
while alive, it will not be wise for us who do not have the details of
the life of the respondent to release the child to the US. I think it will
not be in the best interest of the child so to do. I think it is safer to
leave him in Tanzania until such time when he will attain the age of
majority where he can decide whether to return to the US or process a
Tanzanian citizenship and proceed to live in Tanzania. This will serve
the life and up brings of the child.
585
Again, there is a new family which has developed in the US. The
respondent is not alone. He is living with another woman whom he
has two children. We have no evidence that the other woman is ready
to accept the child and live with him. Much as the respondent may
be willing but if his wife is not ready, the child will end up living in a
difficult condition something which may not be in his best interests.
It follows that, the lower court erred varying its earlier orders and
making new orders in favour of the respondent. I think, if it had
directed its minds properly, now that, the relation between the
appellant and the child’s mother have ended following the death and
in view of the closeness between the child and his uncles (wajomba)
and grandparents, it could vary the orders in favour of the second
appellant. It could also make some orders in respect of costs of
living (especially on education and health) for it is obvious that, the
respondent still have a duty under the law to maintain his child as a
father.
It is ordered so. No order for costs.
586
Stephen Mbeba v. Hassan Maulid Mohamed, ( Juvenile Civil Revision
2 of 2019) [2020] TZHC 788; (18 May 2020)
RULING
MASAJU J.: The Law of the Child Act [Cap. 13] provides for
consolidation of laws relating to children, rights of the child and
promotion, protection and maintenance of the welfare of Children
in line with international and regional conventions on the rights of
the child; affiliation, foster care, adoption and custody of the child,
regulation of employment and apprenticeship of the child and the
provisions with respect to a child in conflict with law and some other
related matter. The law in its section 97 establishes the Juvenile
Court. The jurisdiction and procedure of the said Court is provided
for under sections 98 and 99 thereof, respectively. Section 99 (1) of the
Law of the Child Act [Cap 13] is categorical that:
“99.-(1) The procedure for conducting proceedings by the Juvenile

Court in all matters shall be in accordance with rules made by the
chief justice for that purposes, but shall, in any case, be subject to the
following conditions;
(a) The Juvenile Court sit as often as necessary;
(b) Proceedings shall be held in camera;
(c) Proceedings shall be informal as possible, and made by enquiry
without exposing the child to adversarial procedures;
(d) A social welfare shall be present;
(e) A right o f a parent, guardians or next of kin to be present;
(f) The Child shall have a right to next of kin and representation by
an advocate;
(g) The right to appeal shall be explained to the child and
(h) The Child shall have a right to give an account and express an
opinion.
587
(2) Apart from members and officers of the Juvenile Court, only the
following persons may, at the discretion of the Court, attend any
sitting of Juvenile Court;
(a) Parties to the case before Court, their advocates, witnesses and
other persons directly concerned or involved in the case; and
(b) Any other person whom the Court may authorize to be present.”
As for the jurisdiction of the Juvenile Court, section 98 of the Law of

the Child Act, [Cap 13] provides thus;
“98.- (1) The Juvenile Court shall have power to hear and determine:
(a) Criminal charges against a child; and
(b) Applications relating to Child care, maintenance and protection.
(2) The Juvenile Court shall have jurisdiction and exercise powers
conferred upon it by any other written law.
(3) The Juvenile Court shall, wherever possible, sit in a different
building from the building ordinarily used for hearing cases by
or against adults.”
The Juvenile Court of Dodoma at Dodoma, when considering an
application made under Rule 63 (1) of the Law of the Child (Juvenile
Court Procedure) Rules, 2016, for custody of Children, learnt that there
is Rule 71 (1) (2) of the Law of the Child (Juvenile Court Procedure)
Rules, 2016, which provides thus:
“71.-(1) At the first hearing the Court shall enquire of the parties
whether they have seen a mediator and, if not, where practicable and
appropriate to do so, adjourn the hearing for a period of no more than
28 days to allow the parties to resolve the issues through mediation.
588
(2) Where the parties have seen a mediator and evidence is provided
that they have not been able to resolve their differences, the Court
shall proceed to hear the case.”
The said Juvenile Court found further that the word “mediator” has
not been interpreted in Rule 3 of the Law of the Child (Juvenile Court
Procedure) Rules, 2016 and that her perusal of the law of the Child
Act, [Cap 13] was not helpful as well, though Rule 65 (6) of the Law
of the Child (Juvenile Court Procedure) rules, 2016 provides that the
procedure for issue and service of summons shall be the procedure
provided under Order V of the Civil Procedure Code.
The said Juvenile Court was of the position that “mediator” named in
Civil Procedure Code applies to issue and service of summons only,
hence her forwarding the case to the Court for guidance.
Since the parties to the Application for custody have the advocacy
services by the learned counsels Juma Malimi and Fred Kalonga for
the Respondent and the Applicant respectively, Court summoned the
said learned counsels to advise the Court on the law accordingly on
the 20th day of February, 2020.
The learned counsel, Juma Malimi, advised the Court that apart from
Rule 71(1) and (2) of the Law of the Child (Juvenile Court Procedure)
Rules,2016 (GN. No. 182 of 2016), Rule 16 (1)(m) thereof also provides
that the Juvenile Court magistrate Court shall have the power
to encourage the parties to use an alternative dispute resolution
procedure if appropriate and facilitate the use of such procedure. Yet,
there is no forum or procedure that have been named in the law of the
Child Act [Cap. 13] and the Law of Child (Juvenile Court Procedure)
Rules, 2016, thereof on the said mediation. That the trial magistrate
was therefore right to think that there was ambiguity on the matter
about adopting the Procedure in the Civil Procedure Code [Cap. 33].
That both Rules 16(1) (m) and 71(1) (2) of the Law of the Child (Juvenile
Court Procedure) Rules, 2016 have been coached in mandatory terms
by the use the word “shall”. That, despite of the said guidance still
Rule 16(1) (m) of the Law of the Child (Juvenile Court Procedure)
Rules, 2016 require the Court to facilitate the use of such procedure.
That the trial magistrate should have therefore asked the Magistrate
589
in-Charge of the Juvenile Court to appoint another magistrate for
mediation. That the word “Mediator” has been defined by the Black
Law Dictionary, 8th Edition, 2004, at page 1003, thus:-
“Mediator is a neutral person who tries to help disputing parties reach

an agreement.”
The said another magistrate could have qualified for a mediator, for
all Magistrates by law and ethics are required to be neutral.
The learned counsel, Fred Kalonga, on his part joined issues with the
advice by the learned counsel Juma Malimi. He added that Rule
16 (1) (m) of the Law of Child (Juvenile Court Procedure) Rules,
2016 read together with Rule 69 (2) (a) (b) of the said Rules further
provide that the Court should provide details of any mediation
service that is available and inform the parties that they will be
required to attempt to settle their dispute through mediation before
the first hearing. That, the trial magistrate should have referred
the case file to the magistrate Incharge of the Juvenile Court for
appointment of the mediator. That rules 60 (1) (2) and 99 (10) of the
Law of the Child (Juvenile Court Procedure) Rules, 2016. provide for
application of the Civil Procedure Code [Cap. 33] for service of notice,
summons and pleadings and for application to set aside care order
and the freeing the child for adoption respectively.
The two learned counsels so advised the Court. The Court appreciates
their service to the Court.
That said, the Court is of the considered reasoning and position thus,
1. That the law of the Child Act [Cap. 13] neither provides for
mediation nor alludes to mediation.
2. That, the Civil Procedure Code [Cap. 33] in its section 64A and the
First Schedule thereto particularly in its Order VIII Rules 24 –
39 on mediation does not state that it shall apply to the Juvenile
Court.
590
3. That, the Law of the Child (Juvenile Court Procedure) Rules, 2016
nowhere provides for adoption and application of the Civil
Procedure Code, [Cap 33] on mediation. Where the Civil
Procedure Code, [Cap 33] was intended to apply to the procedure
in the Juvenile Court, the said Rules so specifically provides
in Rules 65 (6), 66 (1) (2) and 99 (10) of the Law of the Child
(Juvenile Court Procedure) Rules, 2016. So, in the absence of
specific legal guidance to that effect in either the Law of the Child
Act [Cap. 13], the Civil Procedure Code [Cap. 33] or the Law of
the Child (Juvenile Court Procedure) Rules, 2016, the Juvenile
Court cannot adopt and enforce the rules of procedure for
mediation in the Civil Procedure Code [Cap. 33]. After all, the
magistrates in the Juvenile Court are not among those who qualify
for nomination to act as mediators so provided for under Order
VIII Rule 25 (6) of the Civil Procedure Code [Cap .33 R.E. 2019].
4. That, though the words “mediation” “mediation service” and
“mediator” have been used in Rules 65 (1) (c), 69 (2) (9) Law of
the Child (Juvenile Court Procedure) Rules, 2016, the said words
have not been defined under its interpretation Rule 3 or
elsewhere in said Rules. The Law of the Child (Juvenile Court
Procedure) Rules, 2016 neither provides for mediation Procedure
nor the persons who qualifies to act as mediators in disputes
brought before the Juvenile Court disputes of the fact that Rule
16 (1) (m) provides the Court’s encouragement of the parties
to use alternative dispute resolution procedure if appropriate
and facilitation of use of such procedure. Rule 16 (1) (m) of the
Law of the Child (Juvenile Court Procedure) Rules, 2016 does
not provide for mandatory mediation service but just gives the
Court the power to encourage the parties to use the alternative
dispute resolutions to settle their disputes.
5. That, Rule 65 (1) of the Law of the Child (Juvenile Court
Procedure) Rules, 2016 provide that:
“Every Respondent to an application for custody or access and
any interested party should be served by the Court within
fourteen days of the application being filed with a signed and
sealed Court copy of: -
591
(a) The application
(b) The date of the first hearing before the Court which shall be
no later than twenty-eight days after the application has been
filed; and
(c) Details of any mediation service available in the area, with
details of how the service can be contacted.”
So, by virtue of Rule 65 (1) (c) of the Law of the Child (Juvenile
Court Procedure) Rules, 2016, there might be a situation where
there are no mediation service in the local jurisdiction of the
Juvenile Court. When there is no such service in the local
jurisdiction of the Juvenile Court, Rule 65 (1) (c) of the Law of the
Child (Juvenile Court Procedure) Rules, 2016 shall not detain the
Juvenile Court from exercising its adjudication powers over the
dispute. The said Court could still apply her powers under Rule
16 (1) (m) of the Law of the Child (Juvenile Court Procedure)
Rules 2016 to encourage and facilitate the parties to the dispute
to settle the dispute out the Court between themselves within 28
days with an option for extension thereof provided that the parties
are so interested. This is very important because disputes belong
to the parties and not the persons (natural or legal) who have
been mandated to resolve disputes between the parties. Unless
mediation services, if any, are freely provided by mediators,
subjecting disputants to mediation becomes a burden to the
parties in addition to wastage of time in the event the mediation is
not successful.
6. There is Constitutional guidance under article 107A (2) (d) of the
Constitution of the united Republic of Tanzania, 1977 (The
Constitution) for promotion and enhancement of dispute resolution
among persons involved in the disputes. The Courts are enjoined
to promote and enhance such procedure. The Constitution does
not provide that such dispute resolutions should necessary be
made through particular institutions or persons. It is upon
the parties themselves to consider going for an out of courts
settlements of their own disputes upon advice by the courts. So,
alternative dispute resolution referred to in Rule 16 (1) (m) of
the Law of the Child (Juvenile Court Procedure) Rules, 2016
does not necessarily mean particular institutions or persons
592
designated to act as mediators. The parties to disputes can
decide to reach an out of Court settlement between themselves
without necessary involving a third party and they can as well
decide to go for mediation before a third party of their own choice
but at the end of day they must report back to the Court for her
necessary action and orders thereof accordingly.
7. That, pursuant to Rule 71 (1) of the Law of the Child (Juvenile
Court Procedure) Rules, 2016, the indulgence of the mediator by
the parties to the dispute is possible only when it is practicable
and appropriate to do so. That is to say, when there are no
such mediation services in the local jurisdiction of the Juvenile
Court, the said Court can still, pursuant to Rule 16 (1) (m) of the
said Rules encourage and facilitate the parties to dispute to
consider an out of Court settlement on their own or by the help
of another person (mediator) of their own choice within a certain
time say, the 28 days subject to extension at the option of the
parties to the dispute and report back to the Court. When the
said mediation or resolution of the dispute out of Court is not
successful, the Juvenile Court will proceed to hear the
case/dispute accordingly as so provided for under Rule 71 (2) of
the Law of the Child (Juvenile Court Procedure) Rules, 2016 with a
view to deciding the dispute pursuant to the law.
Since by now there are no particular institutions or persons designated
for mediation services within the local jurisdiction of the trial Juvenile
Court and there is no rules of procedure governing such mediation
services, it is prudent and advisable that the Juvenile Court shall
encourage and facilitate the parties to the dispute to consider their
own an out of court settlement between themselves or before a
mediator of their own choice and then report back to the said Court
for her action accordingly. When the said settlement or mediation,
if any, fails the Court shall proceed to hear and decide the dispute
between the parties in accordance with the law applicable accordingly.
It is also advisable that the enabling provisions of law for an
application for child custody or access thereof would include the
relevant provisions of section 37 of the Law of the Child Act, [Cap 13].
The trial Juvenile Court is hereby so guided as the Court so orders
this 18th day of May, 2018.
593
Tegemeo Kachira v R, (DC Criminal Appeal 8 of 2019) [2019]
TZHC 5; (10 October 2019)
JUDGMENT
MUGETA, J.: Following accusation that the appellant had raped a

girl of twelve years of age, he was charged, tried and finally convicted
of statutory rape c/s [contrary to section] 130 (1) (2) (e) and 131 (1) of
the Penal Code [Cap.16 R.E. 2002]. He is aggrieved, hence, this appeal
which is premised on six grounds of appeal.
Those grounds of appeal are somewhat not clear but I shall try to
extract their meaning one after another. The first one is a statement
to the effect that the appellant pleaded not guilty to the charge. The
second and third grounds can be combined. They are to the effect
that the trial court erred to find that PW1 (the victim) is a credible
witness while her evidence was recorded in total violation of section
127 (2) of the Evidence Act [Cap. 6 R.E. 2002] as amended by Act No.
4/2016. The fourth complaint is that the trial court did not consider
the defence case at all.
The fifth ground of complaint is that the trial court did convict the
appellant on a charge which was not proved to the required standard
and finally, that the trial court judgment is a nullity for failure to state
the offence and the provision of law which the appellant was convicted
of as required by section 312 (1) and (2) of the Criminal Procedure Act,
[Cap. 20 R.E. 2002] (the CPA).
The summary of the facts of the case are that the victim and the
appellant are relatives who lived in the same house. The victim, who
at the incident time was aged 12 years, gave unsworn evidence and
it is not on record if she was made to promise to tell the truth in
terms of section 127 (2) of the Evidence Act [Cap. 6R.E. 2002]. Her
evidence is to the effect that sometimes in December, 2017, the
appellant went with her into a forest to collect firewood. Thereat, the
appellant, threatening her with a matchet, coerced her to undress and
he had carnal knowledge of her. Thereafter, the appellant promised
594
to kill her if she revealed the story to anyone. Indeed, the victim
muted until January, 2018 when she broke the news to her sister
who reported to the police. She decided to disclose because appellant,
allegedly, kept on having sex with her. She never disclosed if the next
encounters were also induced by force or she consented. Investigation
was carried out and Emily Malack, a medical doctor examined the
victim. He established the hymen had been perforated. Besides the
hymen perforation, there was no other evidence of penetration but he
concluded that the victim had been raped. He testified as PW3 while
the victim’s sister, Rehema Francisco, testified as PW2. Her evidence
just corroborated the victim in that she finally reported the incident to
the village leadership upon getting the shocking news from the victim.
The evidence of PW4, the village chairman is a completely hearsay.
The appellant’s defence was very brief. He testified that he could not
have raped the victim in December, 2017 because in this month, the
victim had travelled to Nyaruyoba village on leave since 12/12/2017.
On cross examination, he said there was misunderstanding between
the victim and her sister’s mother on one hand and him and his
mother on the other hand because those mothers were quarrelling
over a family farm. It would seem, the victim’s and the appellant’s
mothers are blood sisters.
On the hearing date, the appellant chose not to start. He prayed, and
he was granted, the Republic to start so that he can rejoin should he
find imperative to do so.
Riziki Matitu, Senior State Attorney, appeared for the Republic. He

supported the appeal and added that he shall submit on two grounds
of appeal only. Those are grounds No. 3 and No. 6. At the end he added
another reason why he supported the appeal. That exhibit P1 (the
PF3) was admitted but was not read loudly in court to the accused
person.
On the third ground of appeal he submitted that the evidence of the

victim is of no evidential value because being a child of tender age,
her evidence was recorded without a promise to tell the truth which
595
is in contravention of section 127 (2) of the Evidence Act [Cap. 6 R.E.
2002]. Regarding the sixth ground of appeal, he submitted that the
judgement is, indeed, invalid because the appellant was convicted
without stating the offence and the section of the Penal Code which he
was convicted of. To support his submission on the 3rd ground he cited
the case of Godfrey Wilson v. R., Criminal Appeal No. 168 of 2018,
Court of Appeal, at Bukoba (unreported), On the submission in relation
to the sixth ground of appeal, he cited the case of Aidi Seleman Aidi v.
R, Criminal Appeal No. 129/2017, High Court, Mtwara (unreported).
To buttress the submission on his argument on the additional reason

to support the appeal which is failure to read the PF3 loudly in court,
he cited the case of Emmanuel Kindrad Yosipati v. R, Criminal
Appeal No. 296/2017, Court of Appeal, at Mtwara (unreported). The
appellant in rejoinder just supported the submission by the learned
State Attorney. For this reason, I consider that he has abandoned the
grounds of appeal not argued by the State Attorney.
The complaint of the appellant in the second and third ground of the
memorandum of appeal is that the trial court did not enable the victim
to promise to tell the truth before she was allowed to testify. Let us
see what the record reflects when the victim testified on 23/2/2018. It
reads:-
596
PROSECUTION CASE OPENS:
PW1:
Name: N d/o S.M. (true names withheld)
Age: 12 years
Tribe: Ha
Religion: Christian
Court: A child have not been sworn In.
After the above record, the victim’s evidence was taken down where
she narrates about the carnal knowledge by the appellant.
It is now common knowledge that the unsworn evidence of a child

of tender age is admissible under section 127(2) of the Evidence Act
[Cap.6. R.E. 2002] as amended by Act No. 4/2016 which reads:-
“127 (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 lies.”
The making of the promise before a child of tender age testifies is
obligatory. In the case of Godfrey Wilson (supra) it was held:-
“…Section 127(2) as amended imperatively requires a child of a tender

age to give a promise of telling the truth and not telling lies before he/
she testifies in court.”
The court further held that in absence of that promise the evidence so
admitted is of no evidence value.
In the case subject of this appeal, the child testified without that
promise. Her evidence, therefore, has no probative value. The
testimony of the victim is central to this case because it is the only
evidence relating to occurrence of the incident and the identification
of the perpetrator. Unfortunately, it is valueless in the eyes of the law.
As there is no other independent evidence to connect the appellant
with the offence, he was erroneously convicted. I uphold this ground
of appeal.
597
The foregoing is sufficient to dispose of this case. However, due to
the importance and the commonality of the errors raised in the sixth
ground of appeal and the additional argument raised by the learned
State Attorney, I shall proceed to address the same.
Indeed, the learned trial Resident Magistrate convicted the appellant
without specifying the offence and section of the law under which
the conviction was entered. As stated in the petition of appeal and
submitted by the learned State Attorney, this is a contravention of
section 312(2) of the Criminal Procedure Act [Cap. 20 R.E. 2002]
which reads:-
“In case of conviction, the judgment shall specify the offence of which,
and the section of the Penal Code or other law under which, the
accused person is convicted…”
In our case, the learned Resident Magistrate simply stated:-
“… I hereby find him guilty as charged and convict him forthwith”

It is, therefore, true that the offence and section of the law under which
conviction is entered was not specified per the above stated provision
of the law. This was not sufficient as the law demands full statement
of the offence and the section of the law under which the conviction is
entered. So, this complaint has merits too even if I am of the view that
this, by itself, could not have vitiated the judgment as the same could
have been saved by section 388 of the CPA which states:-
“388- (1) subject to section 387, no finding, sentence, or order made or

passed by a court of competent jurisdiction shall be reversed or altered
on appeal or revision or account of any error, omission or irregularity
in the complaint, summons, warrant, charge, proclamation, order,
judgement or in any inquiry or other proceedings under this Act; save
that where on appeal or revision, the court is satisfied that such error,
omission or irregularity has in fact occasioned a failure of justice, the
court may order a retrial or make such other order as it may consider
just and equitable.”
It is my view that the pointedout irregularity did not occasion any
failure of justice. I understand that section 312 (2) of the CPA is coined
in mandatory terms by the use of the word “shall”. But as held in the
598
case of Bahati Makeja v. R, Criminal Appeal No. 118/2006, Court of
Appeal, Dar es Salaam (unreported), the word “shall” whenever used
in the CPA does not impose a mandatory obligation because it is subject
to the provision of section 388 of the same Act. The situation would
have, however, been different if no order of conviction were entered.
Under such a situation, the practice has been to refer the judgement
to the trial court for entering properly the conviction.
Lastly, the issue of reading in court loudly the content of the PF3.
Indeed, the PF3 was not read. It is a good practice that the content of
the PF3 whenever it is admitted after passing the admissibility test, it
ought to be ready in court to enable the accused person to understand
its content. However, failure to do so, depending on the circumstances
of each case, does not necessarily all the time invalidate its admission.
In this case, despite the fact that it was not read loudly, the doctor
who testified about it, gave elaborate testimony about its content
particularly on his observation of the state of the private parts of the
victim. The appellant, therefore, was well informed about its content
and he was not prejudiced by the omission. The case of Emmanuel K.
Yosipati (supra) cited by the learned State Attorney is distinguishable.
That case refers to a retracted confession which was admitted during

a trial within a trial in absence of accessor in a trial at the High Court.
In such a situation, the document must be read loudly in court when
the main trial resumes to enable the accessors who are part of the
court coram and who, as a matter of practice, are excluded at a trial
within a trial to hear its contents. This is a different scenario from our
case. This complaint, therefore, is without merits.
Finally, a word on the way the learned Resident Magistrate introduced

his position in the proceedings. Throughout, he initiated his title as
DRM meaning District Resident Magistrate. I think, like Resident
Magistrate in-charge, these are posts for administrative purposes
not court proceedings. It is advisable that Magistrates should always
record in proceedings their title in the letters of appointment to their
current judicial posts in the ranks of magistracy. All administrative
posts should not be reflected in court proceedings.
599
This said and done, and based on my holding regarding the second and
third grounds of appeal, I accordingly find merits in the appeal and
allow it. The conviction of the appellant is quashed and the sentence
is set aside. Appellant to be discharged forthwith from custody unless
otherwise lawfully held for another cause.
600
Michael Said alias Yohana v. R, Criminal Appeal 516 of 2015, Court
of Appeal of Tanzania at Iringa (unreported)
(Mjasiri, Mmila and Lila JJA)
(Date of the decision: 7th October 2017)
JUDGMENT
LILA, J.A.: Michael Said@ Yohana, the appellant, was arraigned

before the High Court of Tanzania sitting at Songea of the offence
of incest by males contrary to section 158(1) of the Penal Code,
Cap. 16 R.E. 2002. It was alleged that he, between December, 1977
and October,1999 had carnal knowledge of one Grace Michael, his
daughter. Trial ensued and at the end he was convicted as charged
and was sentenced to a mandatory minimum sentenced of thirty-
year imprisonment. Aggrieved by the conviction and sentence he has
preferred this appeal.
The material facts which culminated in the appellant’s
conviction are simple and straight forward.
To start with, from the record, it is undisputed that Mwanahawa
Asili (PW1) and the appellant (DW1) were wife and husband whose
marriage lasted from 1984 to 1993 when they parted each other. The
marriage was blessed with six issues namely Neema, Michael, Grace,
Gailes, Cecilia and Ubaya. At that time, they were living at Nangaka
village. After the birth of Ubaya, the marriage broke down and the
appellant shifted to Namiungo village leaving all the six children in
the care of PW1. There at Namiungo, the appellant married another
women. In 1996 the appellant took his three children to namiungo
from PW1, namely Grace, Neema and Ubaya. In October, 1998 PW1
went to Namiungo to see her aforementioned children. Upon arrival
thereat PW1 lamented to the appellant as to why the children were
unhealthy and ill-dressed. The two quarrelled and PW1 reported the
matter to the ten cell leader, one John Benedictor Milanzi (PW3)
where she was accommodated on promise that the matter would be
sorted out the following day. On the following day, the discussion did
not bear any fruits and she was allowed to take the three children; she
left with them to Nangaka.
601
Apart from the above, PW1 also told the trial court that her
divorce with the appellant was fuelled by the latter’s habit of having
an affair with her sister’s daughter which she thought was not proper
and the matter was reported to the church leader, one Songambele
who failed to resolve it. The matter was again taken to a Paroko of
Nangaka who also failed to reconcile them. Later, in 1993, the Bishop
allowed them to divorce. PW1 also said when she queried the appellant
on the state of affairs she found the children, the latter told her to take
her “chicks”.
She further said on the way to Namakambale while with the

three children, she noted that Grace who was then 14years old and
was yet to start menstruation, was heavily bleeding from her private
parts and was crying. Upon enquiring from her, Grace said she used
to have sex with her father, the appellant, since 1997 whenever the
appellant’s wife was away and at times when they went to fish in the
wilderness. She said Grace told her that she was being promised
by the appellant that he would buy her expensive clothes and was
warned not to tell anybody otherwise she would be slashed with a
bush knife. PW1 further said, upon arrival at home, her paramour
one Mustafa Rashid took Grace (PW2) to Nakapanya hospital where
he was advised to take a document from the court. She said, later, her
brother one Ntendeke took PW2 to Tunduru police station. On being
cross-examined by Mr. Mbogoro, learned advocate who represented
the appellant at the trial, she said she was angry with the appellant’s
habit of having affairs with her sister’s daughter one Daria hence she
went to the church to seek for divorce. She said Grace (PW2) told her
that she could not report the appellant’s acts to the appellant’s second
wife or grandfather who were living with the appellant due to fear as
she had no any relative at Namiungo. On re-examination, PW1 said
the bleeding of PW2 started after 3 to 4 hours walk and that black
blood was oozing out from her private parts.
In her testimony, Grace (PW2), reiterated what PW1 had stated

regarding how she found herself at Namiungo in 1997 living with her
father, the appellant. She further said she used to go with the appellant
to the lowlands for rice farming. She also said they used to go fishing
at the river and sometimes into the bush to inspect traps whereat the
602
appellant used to order her to undress so that he could carnally know
her and was threatened that if she refused she could be slaughtered.
That whenever she refused the appellant used to force her down and
was warned not to tell anybody lest she would be slaughtered. That
she used to feel pains both outside and inside her private parts and
she bled but could not tell anybody due to fear. That, then, she had not
made love with anybody else other than the appellant.
She further said that while walking to Nakapanya after they

were taken from the appellant, she bled heavily and she told her
mother (PW1) that the appellant used to have carnal knowledge of her.
That, she was, the following morning, taken to Nakapanya hospital by
Mustafa Rashid where she was told that she had contracted venereal
disease. Later, her uncle one Ntendele took her to Tunduru Police
station where she explained that her father (appellant) used to have
carnal knowledge of her. That the police ordered the appellant’s arrest.
When cross-examined by Mr. Mbogoro, she said the appellant used to
threaten her with a panga and an axe he used to take. That, then,
she was too young to think of there being ten cell leaders or a Ward
Executive Officer.
John Benedictor Milanzi (PW3), told the court that PW1 went
to Namiungo on 14/10/1998 to see her children and complained that
her children were in bad condition. That PW1 slept in his residence
because PW1 told him that there was a misunderstanding between
her and the appellant. That the following day it was resolved that
PW1 should take the children. He further said that he did not know
any other allegations against the appellant.
The record show that on 22/5/2002, the PF3 for PW1 (exhib P1)
and that of the appellant (exhibit P2) were tendered as exhibit by the
prosecution (Mr. Manyamba, learned State Attorney) under section
291(1) of the Criminal Procedure Act, Cap. 20 R.E. 2002 following
Dr. Ndazi’s inability to attend as a witness during the session. The
High Court received the two PF3 reports under section 291(4) of the
CPA and admitted them as exhibits P1 for that of PW2 for that of the
appellant.
603
The appellant, on his part, vehemently denied involvement
in the commission of the offence. He stated that he earlier married
PW1 with whom he was blessed with six children and that they
later divorced and he moved to Namiungo where he married another
woman leaving behind all the children with PW1. That sometimes
later he went to Nangaka and took three children including Grace
(PW2). That later in 1998 PW1 went to Namiungo and demanded to
take the three children after complaining that they were not in good
health and poorly dressed. That they exchanged words with PW1 who
then slept at PW3’s residence. That the following day, a meeting was
held and it was resolved that PW1 should take the children. That he
accompanied them on the way to Nakapanya for about 4 kilometrs and
then returned home, leaving them to cover the remaining 5 miles. That
he did not know what happened later on. That he was a farmer and
was also fishing and trapping animals like rates but he did so leaving
Grace playing with water. That he did not go for animal trapping or
fishing with PW2. That PW2 was taught by her mother to implicate
him. That he was taken to hospital and his urine medically examined
and found not suffering from any disease. That three months passed
since PW2 and the children left to when he was arrested. When cross-
examined, he said the misunderstanding started at Nangaka. That
he did not know one Daria. He further said PW1 complained to the
church for divorce without giving reasons. That he used to carry an
axe when he went for trapping animals which he used for cutting trees
to make traps.
As indicated above, the trial court was satisfied that the charge
against the appellant was proved beyond reasonable doubt and it
proceeded to convict and sentence the appellant accordingly.
In protesting his innocence the appellant has filed a five

point memorandum of appeal. Such grounds of complaints can be
summarized thus:-
1. The trial judge failed to consider the misunderstanding that

obtained between the appellant which led PW1 and PW2 to
fabricate the case against the appellant.
604
2. The contents of the PF3 for PW2 (exh P1) and PF3 for the
appellant (exh P2) were not corroborated hence the trial judge
was wrong to rely on them to convict the appellant.
3. The appellant’s conviction was based on a weak evidence by PW2
who was illiterate and who could be trained by PW1 on what to
tell the court as there existed grudges between the appellant
and PW1.
4. The charge sheet did not specify time when the offence was
committed.
5. The prosecution failed to prove the charge beyond all reasonable
doubts.
When the appeal was called on for hearing, the appellant appeared
in person and fended for himself while the Republic respondent was
represented by Mr. Hamimu Nkoleye assisted by Ms Hellen Chuma,
learned State Attorneys.
The appellant opted for the learned State Attorney to start
arguing the appeal so that he could later on give his response.
Arguing the first ground of appeal, Mr. Nkoleye stated that

although it was true that there existed grudges between the appellant
and PW1 due to the former’s habit of having affairs with PW1’s sister’s
daughter which culminated in the two divorcing, that does not make
the case against the appellant to be a fabricated one. He said there
was sufficient evidence adduced by PW1 and PW2 that the appellant
had carnal knowledge of PW2, his daughter. He said that evidence is
supported by medical findings when the two (the appellants and PW2)
were medically examined and found to have had contracted the same
venereal decease as revealed by thePF3 (exhibits P1 and P2).
He said the exhibits were admitted without objection from the defence
under section 291(4) of the Criminal Procedure Act, Cap 20 R.E. 2002
(the CPA) because the Doctor who medically examined PW1 and the
appellant could not be procured so as to testify without delay.
605
Regarding ground two of appeal Mr. Nkoleye had it that the
contents of the two PF3 (exhibits P1 and P2) were corroborated by the
evidence of PW1 and PW2 who testified to the effect that the appellant
had carnal knowledge of PW2. He referred to the Court’s decision in
Seleman Mkumba Vs Republic [2006] TLR 379 where the Court
stated that the best and true evidence is that of the victim.
On the complaint that the charge did not specify the time when
the offence was committed, Mr. Nkoleye said, the appellant used
to have carnal knowledge of PW1 from 1997 to 1999. That it was a
continuous act hence they could not specify the time, he said.
For the above reasons, Mr. Nkoleye contended that the appellant
was convicted on the strength of the prosecution evidence against him
particularly that of PW1 and PW2 supported by exhibits P1and P2. He
concluded that the prosecution proved the charge beyond reasonable
doubt, hence grounds 3,4 and 5 are baseless. He urged the court to
uphold the appellants conviction and sentence.
On his part, the appellant, a layman and unrepresented, had

nothing material to tell the Court. He insisted that the case was a
fabricated one due to the grudges that obtained at that time between
him and PW1 and all that PW2 told the trial court was a result of the
training done by PW1. He, otherwise, left for the Court to determine
the appeal basing on the grounds of appeal and the evidence on record.
We have given a deserving consideration to the arguments by
both sides. We have also thoroughly perused the record.
The appellant was charged with incest by males contrary to

section 158(1) of the Penal Code. That section states:
“158 (1) Any male person who has prohibited sexual

intercourse with a female person, who is to his knowledge his
granddaughter, daughter, sister or mother, commits the offence of
incest, and is liable on conviction:-
If the female is of the age of less than eighteen years, to imprisonment

for a term of not less than thirty years,
606
If the female is of the age of eighteen years or more, to imprisonment
for a term of not less than twenty years.
It is immaterial that the sexual intercourse was had with the consent
of the woman.”
Given the above position of the law it is clear that all that the
prosecution is obliged to prove in cases of this nature is that the
accused had carnal knowledge of a female person and at the time of
doing so he had knowledge that female person is his granddaughter,
daughter, sister or mother. That provision categorically states that
consent is irrelevant.
In the present appeal, as indicated above, it is not in dispute

that Grace Michael (the Victim) is the daughter of the appellant.
The evidence by PW1 and PW2 is to that effect. Even the appellant
conceded to this fact. So the appellant’s knowledge that PW1 was his
daughter is beyond question.
The next issue to be determined is whether PW1 was carnally

known. There has been no dispute all along during the trial and even
before this Court that PW1 was raped. The medical report (exhibit
P1) and the evidence of PW1 and PW2 proved that PW2 was carnally
known. PW2 told the trial court that while on the way back home,
she saw PW2 walking with difficulty and in examining her she found
her heavily bleeding from her private parts. PW2 was also clear that
she used to be carnally known and felt pains whenever that was
done which signified that there was penetration of the penis into her
vagina. The medical evidence (exhibit P1) showed that upon being
examined PW2 was found to have had contracted sexually transmitted
deceases. It also remarked that no hymen was found. The totality of
this evidence is that PW2 was carnally known. See Simon Erro v.
Republic, Criminal Appeal No. 85 of 2012 CA (unreported).
The crucial issue to be determined here is who carnally knew

PW2? PW2, when inquired by PW1 why she was disorderly walking and
heavily bleeding from her private parts, she straight away mentioned
the appellant as the one who used to have carnal knowledge of her.
607
Even in her testimony in court PW2 maintained that she was being
carnally known by the appellant. The story from the appellant was
different. He distanced himself from that allegation. All the same, the
trial court was satisfied that the appellant committed the offence and
proceeded, as indicated above, to convict and sentence him accordingly.
In the first ground of appeal the appellant is complaining that
this was a case fabricated against him by PW1 and PW2 because of
the grudges that existed between them.
Our careful examination of the record have revealed that the

appellant’s conviction was mainly based on the testimony of PW1,
PW2 and the medical evidence (exhibits P1 andP2).
We have taken pain to summarize the testimonies by PW1 and

PW2 above. PW1’s evidence is to the effect that PW2 told her that the
appellant used to have carnal knowledge of her when they went to
fish and trap animals and that she was always warned not to disclose
the matter to anyone otherwise she would be slashed with a bush
knife. On her part, PW2 consistently and persistently maintained
that the appellant used to have carnal knowledge of her whenever her
step mother was away, and at time when they went to fish and trap
animals. She maintained that as she was then 14 years old she was
frightened hence did not report the matter to anyone.
We have carefully examined the evidence by PW1 and PW2

and particularly that of PW2, the victim. At the time the offence was
being committed against her she was only 14years. And at the time
of testifying in court she was 18 years old. At the age of 14years, no
doubt PW2, could know and recollect incidences done against her.
This explains her ability to narrate in detail and consistently what
had befallen on her both to her mother (PW1) and in court. Though
the trial court did not categorically comment that PW1 and PW2 were
credible witnesses, but it all the same did not doubt them. We are
alive to a cardinal principle that the credibility of a witness in any
judicial proceedings be it criminal or civil is the exclusive domain of
the trial court. That is where the witnesses are heard and seen when
testifying hence easy to assess their demeanour. (See: Siza Patrice
v.R, Criminal Appeal No.19 of 2010 and Shabani Daudi v. R, Criminal
608
Appeal No.28 of 2001 (both unreported). The above notwithstanding,
the credibility of a witness can be determined in two other ways as
was stated in the case of Shabani Daudi v. R (supra) that:
“The credibility of a witness can also be determined in two other 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 the other witnesses, including, 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.”
Given that the evidence by PW1 and PW2 was consistent and
not contradictory and their credibility was not doubted by the trial
court which had the opportunity to see them testifying, we also have
no reason to doubt that the two witness were credible.
Having satisfied ourselves that PW2 was a credible witness, her

evidence on what befell her has to be given a deserving consideration
that she was a witness of truth. The court in the case of Selemani
Makumba v. Republic (supra) rightly cited by Mr. Nkoleye stated that
the best witness to the offence of rape is the victim. (See also Alfeo
Valentino v. Republic, Criminal Appeal No. 93 of 2006 CAT and Godi
Kasenegala v. Republic Criminal Appeal No.10 of 2008 CAT (both
unreported). That principle, in our view, rightly apply in this case.
For this reason, we agree with the learned State Attorney that the
appellant was convicted on the basis of the evidence against him and
the case was not a fabricated one. The first ground of appeal therefore
fails and is dismissed.
Ground two of appeal is in respect of the medical evidence (exh

P1 and P2) and the complaint is that they were not corroborated.
As demonstrated above the medical documents (exhibits P1

and P2 were properly tendered and admitted as exhibits under section
291 (4) of the Criminal Procedure Act, Cap. 20 R.E. 2002 because the
doctor who examined PW2 and the appellant could not be availed to
testify without under delay and the appellant and his advocate having
609
been given sufficient notice of intention to do so. The two documents
were received without any objection from the appellant’s advocate.
They are to the effect that PW1 and the appellant had contracted
the same decease. As rightly argued by Mr. Nkoleye, the appellant’s
conviction was not solely based on exhibits P1 and P2. Instead, the
appellant’s conviction was also based on he oral testimonies of PW1
and PW2. PW1 told the trial court that he saw PW2 heavily bleeding
from her private parts and on enquiring what had befallen on her PW1
said she was being carnally known by the appellant. That apart, PW2
hammered that last nail as she categorically stated that the appellant
used to have carnal knowledge of her. In effect, therefore, the oral
testimony of PW1 and PW2 and the medical evidence complimented
each other. The appellant’s complaint is therefore baseless.
In respect of ground three of appeal, as rightly argued by Mr.

Nkoleye, it is a repetition of ground one of appeal. We have held that
the appellant’s guilt was founded on a strong and credible oral evidence
by PW1 and PW2 accompanied with the medical evidence (exhibits P1
and P2). Consequently, the issue of PW1 coaching PW2 on what to tell
the court has no place. This ground of appeal fails too.
The appellant also, in ground four of appeal, complains that the

charge sheet did not specify the time the offence was committed.
We have examined the charge sheet under attack and we have

realized that it clearly shows that the offence was committed for
the period between December, 1997 and October, 1998. PW1, in her
testimony, is very clear that the appellant had carnal knowledge of her
right from 1977 after the appellant had taken her from PW2 from her
in 1996. We, therefore, agree with Mr. Nkoleye that as the offence was
being committed continuously between December, 1997 and October,
1998 they could not specify the time the offence was being committed.
In the circumstances we are satisfied that there was overwhelming

prosecution evidence which required the appellant’s explanation to
rebut it. His defence, closely examined, amounted to a general denial.
610
He has all along maintained that the case is a framed one due to the
quarrel that obtained between him and PW1. We have, above, ruled out
that contention for the reason that the offence of incest was committed
and the prosecution evidence established that the appellant is the
perpetrator. The appellant’s general denial could not therefore shake
the overwhelming prosecution evidence.
In all, we are satisfied that the evidence by PW1 and PW2

coupled with medical evidence (exhibits P1 and P2) established
the appellant’s guilt beyond a speck of doubts. The appellant was,
therefore, properly convicted. Ground five of appeal has no merit.
The appellant had also appealed against sentence. The

provisions of section 158(1) (a) of the Penal code, above quoted, in no
uncertain terms spell out that where the victim of the offence of incest
is a female of the age less than eighteen years, a person convicted of
that offence is liable to imprisonment for a term of not less than thirty
years. At the time the offence was committed, PW2 was only 14 years
old hence below eighteen years. The appellant was, for this reason,
properly sentenced to a jail term of thirty years.
In the light of the above, we have no ground for interfering with

the decision of the learned Judge. We accordingly dismiss the appeal
611
Veronica Agostino Shirati v. Issa Ramadhani Kisibo, Civil Appeal 9 of
2020, High Court of Tanzania at Musoma (unreported)
JUDGMENT
KISANYA, J.: The appellant, Veronica Agostino Shirati and the
respondent, Issa Ramadhan Kisibo, are biological parents of SRK
(name withheld). The appellant filed an application in the Juvenile
Court of Musoma at Musoma (hereinafter referred to as “the juvenile
court”) praying, inter alia, for a maintenance order of the said SRK at
the tune of TShs. 300,000 per month. She also prayed for 10% of the
respondent’s pension upon his retirement.
After full trial, the Juvenile Court ordered the respondent to pay
TShs. 60,000 each month as maintenance of the said SRK and that,
from March 2021, he should pay TShs. 80,000 per month after paying
the pending bank’s loan. The order for payment of 10% of respondent’s
pension was not granted on the ground that the respondent is still in
service.
Feeling that justice was not done, the appellant appealed to this Court
on the following grounds, in verbatim:
“1. That, the trial court erred in law and fact for awarding the
amount of TShs. 60,000 (Sixty Thousand Shillings Only) per
month as child maintenance which is too low compared to the
basic needs of a child.
2. That, the trial court erred in law and fact for entertaining the
matter between the parties without giving an opportunity to
Social Welfare Officer to bring the report something which is
contrary to the law.
3. That, the trial court erred in law and fact for failure to order payment
of 10% pension of the respondent who is at the time to retire.”
612
At the hearing of this appeal, the appellant appeared in person while
the respondent enjoyed the services of Ms. Flora Okombo, learned
advocate. The appellant reiterated the grounds stated in the petition
of appeal. She stated further that, the maintenance order granted by
the juvenile court was too low and below TShs. 100,000 which the
respondent was paying before the Social Welfare Officer.
In reply, Counsel Flora conceded to the second ground that the Social
Welfare Officer was not involved. She argued that the omission
contravened rule 85 of the Law of Child (Juvenile Court Procedure)
Rules, 2016. The learned counsel was of the firm view that the
proceedings before the trial court was vitiated. She therefore urged
me to nullify and quash the proceedings of the trial juvenile court and
order retrial.
After due consideration to the evidence on record, the petition of

appeal and the submission by the parties, I find that this appeal
can be disposed of by addressing the second ground on failure by the
Juvenile Court to require the Social Welfare Officer to prepare a social
enquiry report before issuing the maintenance order. Factors to be
considered by the juvenile court in granting a maintenance order are
specified in section 44 of the Law of the Child Act, Cap. 13 R.E. 2019
(the LCA) and rule 84 of Law of Child (Juvenile Court Procedure),
2016 (the Rules). This includes the wealth and income of both parents
and the impairment earning capacity of the person liable to maintain
the child. Section 44 of the LCA provides that:
“44. The court shall consider the following matters when making a
maintenance order: -
(a) the income and wealth of both parents of the child or of the
person legally liable to maintain the child;
(b) any impairment of the earning capacity of the person with a
duty to maintain the child;
(c) the financial responsibility of the person with respect to the
maintenance of other children;
613
(d) the cost of living in the area where the child is resident; and
(e) the rights of the child under this Act.”
All of the above factors are required to be considered. It is not sufficient
to consider one factor in isolation of the other. Therefore, the juvenile
court is empowered to engage the social welfare officer to prepare a
social enquiry report before consideration of an application to make
an order for maintenance. This is provided for under section 45 of the
LCA as follows:
“45.-(l) The court may order a social welfare officer to prepare a social
enquiry report before consideration of an application to make an order
for maintenance, custody or access.
(2) The court shall’ in making such order, consider the social enquiry
report prepared by the social welfare officer.”
The above provision suggests that it is not mandatory for the court to
engage a Social Welfare Officer. His or her engagement depends on
the circumstances of each case. It is my considered opinion, in deciding
whether to require the social welfare officer to make an enquiry, the
juvenile court has to satisfy itself on whether the factors required to
be taken into account in making the maintenance order have been
established. This is also based on the provision rule 85(1) of the Rules
which provides:
“85.-(l) The court may, before granting an order for maintenance

in accordance with section 45 of the Act, request a social welfare
officer to prepare a social enquiry report for the purposes of-
(a) assessing the ability of parents to provide
for the maintenance and care of the child; and
(b) ascertaining the accuracy of any statements relating to income and
outgoings and liabilities. ”
614
In the present case, the social welfare officer was not engaged by
the juvenile court. Guided by the above position of law, I am not in
agreement with counsel Flora that the whole proceedings before the
juvenile court were vitiated due to the failure to require the social
welfare officer to prepare the social inquiry report. This is because
engagement of the social welfare officer depends on the circumstances
of each case. Further, pursuant to rule 85(1) of the Rules, the juvenile
court engages the social welfare officer before granting the maintenance
order. Therefore, even if the juvenile court had to require the social
welfare officer to prepare the social enquiry report, the proceedings
conducted before granting the maintenance order cannot be vitiated.
However, it should be noted that social welfare officer’s duty is to

assess the ability of parents in maintaining and taking care of the
child; and ascertain the accuracy of any statements relating to income
and outgoings and liabilities. In the case at hand, these issues were not
proved accordingly. The juvenile court considered the salary income
of the appellant only. Thus, it was not established as to whether the
respondent has no other source of income. Also, the ability or income
of the appellant was not stated and considered. In such a case, there
was a need of engaging the social welfare officer prepare the social
enquiry report before the juvenile court grant the maintenance order
of TShs. 60,000 per month. It is therefore not clear as to whether the
said amount was realistic or not. This is when it is considered that
when the matter was reported to the welfare officer, the respondent
used to pay TShs. 100,000 per month.
In view of the above, I am inclined to invoke the revisional power of

this Court to quash and set aside the judgement and decree. For the
interest of justice, the casefile is remitted to the trial magistrate to
request the social welfare officer to prepare a social enquiry report
under section 45 of the LCA and rule 85 of the Rules. Thereafter,
judgement (including the maintenance order) should be made after
considering the report prepared by the social welfare officer and the
evidence on record. During the pendency of this matter, the respondent
should continue to pay TShs. 60,000 per month as maintenance of
SRK as ordered by the juvenile court. Order accordingly.
615
Yusufu Baruani v. R, Criminal Appeal 4 of 2010, Court of Appeal of
Tanzania at Tanga (unreported)
(Msoffe, Luanda and Mandia, JJA)
(Date of the decision: 5th April, 2011)
JUDGMENT
LUANDA, JA.: Prior to the fateful day in which Mwanahamisi d/o

Julius, a baby girl of 11/2 years of age was raped, the husband of Sakina
d/o Kunema (PW3) suspected the baby to have been carnally known as
her private parts had widened. Her husband told her to make a follow
up. PW3 and her husband stay in the same house with the appellant
who was married to Sikuzani d/o Anania (PW1) the mother of the baby
and so the appellant was the step father of the child. The appellant
and PW1stayed together.
Indeed, on 16/5/2006 at around 4.00 p.m., PW3 passed near the

window of the appellant’s room. She saw the appellant lying on the
bed covered with a bed sheet and was holding and kissing the baby.
She suspected something sinister. She alerted people around. One
among them was Fatuma d/o Mwanahamisi (PW2). They knocked the
door and entered the appellant’s room. They took the child from the
appellant. On checking her private parts, they saw sperms coming
out. When the appellant was asked, at first, he kept silent. Later he
admitted to have raped the child and asked for money so that he could
go to his home place.
The mother of the child Sikuzani d/o Anania (PW1), who was not
around, was called. The child was sent to police. And, on the same
day, the child was also sent to hospital where she was examined. The
medical officer one Sofia d/o Abdallah (PW4) not only saw that the
vagina was reddish but also saw spermatozoa. PW4 was of the opinion
that the child was raped and tendered the report as an exhibit. The
appellant was then charged with rape contrary to sections 130 (2) (e)
and 131 (3) of the Penal Code, Cap 16.
616
In his defence the appellant denied to have committed the offence.
He however, admitted to hold the child on the fateful day and then
the child was taken by his land lady, Mama Suma who later returned
to him. While talking with Mama Suma, a brother of Mama Suma
one Mbamba arrived and asked him why he raped the child. They
quarrelled and eventually the matter was reported to police.
After a full trial, the trial court convicted him and he was sentenced
to 30 years imprisonment.
Aggrieved by the finding of the trial court, the appellant unsuccessfully

appealed to the High Court. The High Court set aside the sentence of
30 years imprisonment and imposed a sentence of life imprisonment.
Still dissatisfied, the appellant has come to this Court on appeal.
In his Memorandum of Appeal, the appellant has raised three

grounds. One, the preliminary hearing was not properly conducted
as the memorandum of matters not in dispute was not read over and
explained to the appellant as dictated by section 192 of the Criminal
Procedure Act, Cap 20. Two, that section 289 of the Criminal
Procedure Act, Cap 20. (henceforth the Act) was violated in that the
prosecution side added one more witness namely Sikuzani d/o Anania
without informing or giving notice to the appellant.
Three, the trial Court was wrong to ground a conviction without the
appearance of the victim of rape.
In this appeal, the appellant appeared in person and unpresented;

whereas the respondent/Republic was represented by Ms. Pendo
Makondo learned State Attorney. Ms. Makondo supported the
conviction and sentence of life imprisonment. She urged us to dismiss
the appeal. The appellant is protesting his innocence and prayed that
his appeal be allowed.
Arguing the first ground of appeal, Ms. Makondo submitted that

the preliminary hearing was properly conducted. She referred us to
page 6 of the record. Page 6 of the record shows very clearly that the
preliminary hearing was conducted and the appellant did not dispute
617
two facts namely, (i) his name and personal particulars contained
in the charge sheet and (ii) the date the appellant was charged with
the offence. However, the record does not show that the same were
explained and read over to him. Really, those two facts, were not
crucial to the offence of rape upon which the appellant was charged.
To put it differently, none of them constitute one of the ingredients
of the offence of rape. In any case, the appellant did not say in what
way he was prejudiced or had an unfair trial. We are of the settled
view that failure to read and explain those two facts which were not
in dispute, in this case was not fatal to vitiate the entire proceedings.
This ground has no merit.
Next is non-compliance with S. 289 of the CPA. The appellant

complained that Sikuzani d/o Anania (PW1), the mother of the child,
was not listed as one of the witnesses to testify during the conduct of
the preliminary hearing. So, her evidence should be expunged from
the record.
Ms. Makondo submitted that that provision is applicable in the High

Court and not to subordinate courts. We entirely agree with her.
Section falls under Part VIII - Procedure in trials before the High
Court.
S. 289 of the CPA reads:
289 (1) No witness whose statement or substance of evidence was not

read at committal proceedings shall be called by the prosecution at the
trial unless the prosecution has given a reasonable notice in writing to
the accused person or his advocate of the intention to call such witness.
(2) The notice shall state the name and address of the witness and the
substance of the evidence which he intends to give.
(3) N/A.
The appellant appears to have failed to distinguish between a
preliminary hearing and a preliminary inquiry which is a committal
proceeding. The two are not one and the same thing. Preliminary
618
hearing is conducted by the trial court itself in ascertaining matters
which are not in dispute for purposes of accelerating trial and disposal
of cases. Preliminary inquiry (committal proceedings) on the other
hand is conducted by subordinate courts to the High Court, save
primary courts for the purposes, inter alia, of enabling the accused
person to know the case he is going to face in the High Court.
In this instant case, the appellant is complaining that PWl was not one
of the witnesses listed after the conduct of the preliminary hearing. So
she ought not to have been summoned and testified. We have said that
5.289 of the CPA does not apply in subordinate courts.
Lastly, is the appellant’s complaint about nonappearance of the victim

of rape in court. Ms Makondo submitted that it was not necessary as
the evidence is strong. First, we wish to point out that ordinarily the
best evidence of rape comes from the victim of rape. However, that
does not mean that that is the only evidence to establish the offence
of rape. Depending on the circumstances of each case, there are times
where the evidence may not necessarily come from the victim of rape
and yet the same may as well be sufficient to ground a conviction.
In this case the victim of rape was 1 ½ years of age. She could hardly
talk to explain what had happened. But there is clear evidence on
record which was found by both lower courts to be true that the baby
was raped. That is the evidence of PW4- the medical officer. The
vagina was reddish and it had spermatozoa. But the appellant was the
one who was holding the child when taken away from him and when
sperms were coming out from her private parts. PW2 and PW3 were
positive when they were cross - examined by the appellant whether
what they had seen were sperms.
PW3 said:-
“I am adult, so clearly knows sperms. The people surrounded. I have

known penis and fingers cannot provide sperm.”
And PW3 said, we quote:-
619
“The sperms looked like heavy jelly (Makamasi). You agreed to have
raped the child.”
It is also in the evidence in chief of PW2 which was not challenged that
the appellant admitted to have raped the child. The above evidence
is strong enough to ground a conviction notwithstanding the non-
appearance of the child who could not speak.
In the event, and for the foregoing reasons, we find both conviction
and sentence deserving. We dismiss the appeal in its entirety.
620
Zakaria Kamwela and 126 others v. Minister of Education and
Vocational Training and Another, (Civil Appeal 3 of 2012) [2013]
TZCA 167; (12 December 2013)
(Othman CJ, Msoffe JA, Kimaro JA, Massati JA and Mandia JA)
(Date of the Decision: 5th July 2013)
JUDGMENT
OTHMAN, CJ.: One of the paramount questions for determination in
this appeal is the constitutionality or otherwise, under Articles 19(1)
and 29( 1) of the Constitution of the United Republic of Tanzania,
(Cap. 2 R.E. 2002) (the Constitution), which respectively, guarantee
the right to freedom of conscience and religion and the protection of
fundamental rights and duties, of a Circular issued by the Commissioner
for Education, which compelled 127 Secondary and Primary School
students, believers of Jehovah’s Witnesses, a Christian religious sect,
to sing the National Anthem during the school assembly.
The appeal before us is directed against the Judgment and Decree of

the High Court (Nyerere, J; Aboud J.), which on 2/12/2010 dismissed
the petition by the Appellants, Zakaria Kamwela and 126 others that
was instituted under sections 4, 5 and 6 of the Basic Rights and Duties
Enforcement Act, Cap 3 R.E. 2002 and Article 26(2) of the Constitution.
At the hearing of the appeal, on 11/6/2013, the Appellants were

represented by Dr. Saudin Mwakaje and Ms. Rachel van Witsen, learned
Counsel. The first and 2nd Respondents, who resisted the appeal, as
they did with the petition at the High Court, were represented by Mr.
Nixon Ntimbwa and Mr. Mark Mulwambo, respectively, Principal and
Senior State Attorneys. Professor Chris Maina Peter and Professor
Abdallah Saffari appeared as amicus curiae.
The main background facts leading to the appeal were these. The
appellants consist of 127 pupils from Shikula Secondary School and
a number of other Secondary and Primary Schools in Mbozi District,
Mbeya Region. As religion, all the students belonged to Jehovah’s
Witnesses. They consistently desisted from singing the National
Anthem, “Mungu Ibariki Africa/ Mungu Ibariki Tanzania” (i.e.,
621
God Bless Africa, God Bless Tanzania) during the morning school
assembly, as this was against their Bible trained conscience, a
fundamental religious belief held by all Jehovah’s Witnesses. They
attended the school assembly, but stood by quietly and respectfully,
when other students sang the National Anthem. They neither caused
any disturbance during the singing, nor did they show any disrespect
to other students who sang the anthem.
The Shikula School Board expelled five (5) of the students on 30/6/2007
for their refusal to sing the National Anthem. The 122 other students
were also subjected to disciplinary measures by their schools for the
same reason. Their appeal to the Regional Education Appeal Board,
was dismissed on 12/10/2007 on the ground that refusal to sing
the National Anthem was a breach of the Constitution; that it was
against Education Circular No 4 of 1998 (“NYIMBO ZINAZOJENGA
HISIA ZA KITAIFA”) (i.e., SONGS WHICH BUILD NATIONAL
CONSCIOUSNESS) (the Circular) issued on 6/6/1998 by the
Commissioner for Education (the Commissioner) and that they had
categorically refused to sing the National Anthem.
On 30/10/2007, the Appellants further appealed to the Minister

responsible for National Education (the Minister). On 24/6/2008,
the Deputy Principal Education Officer of the Ministry of Education
informed them that it had been decided that they be re-instated to
their respective schools on condition that each one of them agrees to
sing the National Anthem, daily at school and signs a special form to
the effect that he or she will do so, before being re-admitted.
Undisuaded, on 6/11/2008 they sought audience to see the Prime

Minister. They were advised by the Prime Minister’s Office on
11/11/2008 that should they consider themselves aggrieved by the
decision of any Educational authority, redress should be sought from
the Court. On 19/3/2009, they instituted a petition at the High Court
seeking, mainly, the following reliefs:
622
(i) a declaration that the decision of the Minister for National
Education dated 24/6/2008 violated Articles 13(4) and 19(1) and
(2) of the Constitution;
(ii) a declaration that the Education Circular dated 6/7/1998 issued
by the Commissioner for Education compelling them to sing the
National Anthem, despite their genuine, conscientious religious
objections contravened Articles 19(1) and 29(1) of the Constitution;
(iii) a declaration that their expulsion and objections for not singing
the National Anthem constituted in itself a violation of Articles
19(1)-(2) and 29(1) of the Constitution and,
(iv) an order directing the 1st Respondent to allow them to return to
their respective schools, without any imposed conditions.
The majority Judges in the High Court (Nyerere, J, Aboud, J.) dismissed
the petition in its entirety, principally holding that neither the Circular
nor the decision of the Minister contravened the Appellants’ right to
freedom of religion under Article 19(1) of the Constitution.
Shangwa, J., on the other hand, in his dissenting opinion, held the
contrary position. He opined that forcing the Appellants, whose
religious belief does not allow them to sign the National Anthem, was
an infringement of Article 19(1).
Hence this appeal.
Considering the Appellant’s sixteen grounds of appeal, the well

researched written submissions and the oral arguments, we are of
the settled view that this appeal can be exhaustively attended to by
considering two critical issues.
The first pertinent question to be answered by the Court is whether

or not the Appellants were prima facie entitled to the enjoyment and
guarantee of the right to freedom of religion enshrined in Article 19(1)
of the Constitution.
The learned majority Judges found out that it was “undoubted” that
the Petitioners were faithful Jehovah’s Witnesses. They additionally
found that their refusal to sing the National Anthem was based on
623
the fact that it was against their Bible trained conscience. However,
they held that the Appellants had failed to show clear evidence as to
how the National Anthem had offended their freedom of religion. The
majority Judges were of the decided view that the National Anthem
was not a prayer; and only if it had been one, would the Appellants
have been entitled to seek “refuge” under Article 19(1). They concluded
that the Appellants were not entitled to the protection of the right to
freedom of religion under Article 19(1).
Dr. Mwakaje and Ms. van Witsen forcefully submitted that the right
to freedom of religion is a right that all Tanzanians are entitled to,
under Article 19(1). Citing Dibagula v. The Republic (2003) AHRLR
274 (CAT); Julius Ishengoma Francis Ndyanabo v. Attorney General,
(2004) T.L.R. 14 and R. v. Big M Drug Mart Ltd. (1985) 1 SCR. 295,
para. 117, they pressed the point that fundamental rights enshrined
in the Constitution should not only to be broadly and generously
interpreted, but must also be jealously protected by the Court as
the guardian of the Constitution and not by the Executive or the
Legislature.
Relying on Julius Ishengoma Francis Ndyanabo’s case (supra, p. 17)

and Charles Obbo v. Attorney General (2000) UGCC4, they submitted
that the onus of proof was on Petitioners to establish that their right
to freedom of religion under Art 19(1) had been violated by the 1st
Respondent. That in considering whether this had been occasioned,
it was first necessary to determine if the Appellants’ refusal to sing
the National Anthem was based on their religious belief. The learned
majority Judges, they submitted, fell into grave error in inquiring into
the validity of the Appellants’ religious belief, rather than carefully
assessing the sincerity of their religious belief. By doing so, the
majority embarked on a theological inquiry. The determination of
the Appellants’ sincerity of religious belief involved a secular judicial
determination; not a theological inquiry.
Furthermore, Dr. Mwakaje and Ms. Van Witsen cogently submitted

that what attracts an individual’s protection to the right to freedom
of religion under Article 19(1) is the Appellants’ sincerity of belief;
not the attractiveness of that belief. The undisputed facts of the
624
case showed that the Appellants had refused to sing the National
Anthem because of their sincerely and conscientiously held religious
belief. That sincerity of belief was further evidenced by their refusal
to compromise on the Circular or to act contrary to their religious
conscience, resulting in denial of their right to education.
They placed reliance on Bijoe Emmanuel and Others v. State

of Kerala and Others, 1987 AIR (SC) 748, para 19-20; Syndicat
Northcrest v. Amselem (2004) 2 S.C.R. 551, paras; 43, 52; Regina v,
Secretary of State of Education and Employment and others, exparte
Williamson and others, (2005) UKHL 15, para. 22; and West Virginia
State Board of Education v. Barnette, 319 US. 624(1943), pp. 642-643.
Opposed, Mr. Ntimbwa and Mr. Mulwambo submitted that the role of
the majority Judges under Art 107A (2)( e) of the Constitution was to
do justice without being unnecessarily curtailed by legal technicalities.
While it was a fact that a person has the right to believe in a certain
way in order to exercise his right to freedom of religion under Article
19(1), when his or her way of practicing his religion is in issue, as
was the case at hand, then courts of law had the power to inquire.
The majority Judges were therefore entitled to inquire as to how
the National Anthem offended the Appellants’ religious belief. They
correctly did not see how the National Anthem operated against the
Appellants’ religious belief. To have done otherwise as the Appellants
demand, is to ask the High Court to decide out of thin air. The Court
never crossed the threshold of theological reasoning.
Mr. Ntimbwa and Mr. Mulwambo contended that it was not enough
to earn the protection of the right to freedom of religion under Article
19(1) for the Appellants to assert that they quietly and respectfully
stood by as other students sang the National Anthem and they did not
sing it. As the National Anthem was secular, it could not have offended
the Appellants’ religion or any other religious belief. Also drawing
support from Syndicat Northcrest’s case (supra), they conceded that
sincerity of belief was the applicable test.
Supporting the appeal, Professor Saffari lucidly submitted that

contrary to what the learned majority Judges had found out as the
625
basis of the Appellants’ religious belief on the singing of the National
Anthem, they had exhibited empirical evidence on the existence
of the genesis of their genuinely and sincerely held religious belief
that if they sang the National Anthem they will not go to heaven.
The majority Judges had not sufficiently exercised their minds on the
relevant Biblical verses or Encyclopaedic sources, which formed the
genesis of that belief. The High Court’s misdirection on this very issue
was fatal to the correct determination of the case.
Professor Saffari further submitted that the learned majority Judges

found out that the National Anthem is not a prayer; however, the
Appellants, because of their religious belief, think otherwise. On this
score, the majority erred in holding that the National Anthem is not
a prayer in the Appellants’ minds and religious beliefs. Had this been
correctly decided, the Appellants could have sought “refuge” under
Article 19.
Professor Peter, also fully supporting the appeal, succinctly submitted

that what was protected under Article 19(1) was belief based on
religion. Once it is established that the religious belief is genuine and
conscientiously held, as part of the profession or practice of religion,
then it is sufficient to warrant protection under Article 19(1). He relied
on Syndical Northcrest’s case (supra); Secretary of State for Education
and Employment and others, exparte Williamson’s and others case
(supra), and Multani v. Commission Scolaire Marguerite-Bourgeoys
(2006) l.S.C.R. 256.
In resolving the controversy before us, it is necessary, we think, to

preface and to re-emphasize what the Court stated in Julius Ishengoma
Francis Ndyanabo’s case (supra, p.29):
“the provisions touching- fundamental rights have to be interpreted in a
broad and liberal manner, thereby jealously protecting and developing
the dimensions of those rights and ensuring that our people enjoy their
rights, our young democracy not only functions but also grows, and
the well and dominant aspirations of the people prevail. Restrictions
on fundamental rights must be strictly construed.” (Emphasis Added).
626
In our considered view, this remains the correct and proper approach.
Other Commonwealth jurisdictions have taken a similar position.
In Hunter v. Southam Inc. (1984)2 S.C.R. 145, the Supreme Court
of Canada stated that the basic approach to be taken by the Court
in interpreting the Canadian Charter of Rights and Freedoms
(Constitution Act, 1982) should be a generous rather than a legalistic
one, aimed at fulfilling the purpose of the guarantee and securing for
individuals the full benefit of the protection accorded therein (See also,
R. v. Big M Drug Mart Ltd. (supra, paras. 116-117).
We fully endorse that view.

First and foremost, it should be borne out that the United Republic of
Tanzania (Tanzania) is a secular State (Art 3(1) of the Constitution).
The founder of our Nation, Mwalimu Julius Kambarage Nyerere
eminently stated:
“Nchi yetu haina dini”. Watu wetu wana dini; wengine wanazo dini na
wengine hawana.” [i. e. Our country has no religion. Our people have
religion/ some have a religion and others do not have one.] (Nyerere.
J.K., Nyufa/Dar es Salaam: Mwalimu Nyerere Foundation/ 1995, pp.
27-28).
This view was reinforced by Mzee Ali Hassan Mwinyi, the former
President of Tanzania this way:
“ Serikali ya Taifa letu haina dini yake rasmi …. Katika misingi hiyo
hiyo, hatuna dini inayojulikana kwamba ni dini ya Rais, .... Wananchi
wa Tanzania wenyewe/ na kwa hiari yao wenyewe/ ndio wenye dini
yao...Misingi hiyo ndiyo iliyotuwezesha kujiepusha na ubaguzi wa dini
katika nchi yetu na hivyo kuimarisha umoja wetu. Misingi hiyo pia
imeimarisha uhuru wa kila Mtanzania kufuata dini aipendayo yeye
mwenyewe.” (Mwinyi Ali Hassan, Uhuru wa Kuabudu, Peramiho
Printing Press/ 1987, pp.10-12).
Furthermore, Article 19(2), of the Constitution, in its English

translation provides:
627
“19 (2) The profession of religion, worship and propagation of religion
shall be free and a private affair of an individual, and the affairs and
management of religious bodies shall not be part of the activities of
the State authority. (Emphasis added)
Each and every person in Tanzania has the right to enjoy the
fundamental rights engraved under PART II, BASIC RIGHTS AND
DUTIES, of the Constitution and expressly provided for under Articles
12 to,28. The right to freedom of conscience and religion is enforceable
under Article 26(2) of the Constitution, read together with sections 4,
5 and 6 of the Basic Rights and Duties Enforcement Act, Cap 3 (R.E.
2002).
The right to freedom of conscience and religion that each and every
person enjoys is plainly set out in Article 19(1) which in its English
version reads:
“19(1) Every person has - the right to the freedom of conscience, faith
and choice in matters of religion including the freedom to change his
religion or faith. (Emphasis added)
The right to freedom of conscience and religion under Article 19(1)

mirrors both Article 18(1) of the International Covenant on Civil and
Political Rights (1966), which Tanzania acceded to on 11 June 1976
and Article 8 of the African Charter on Human and Peoples Rights
(1981) (Banjul Charter), of which Tanzania is a State Party. As can
be appreciated from the above, it is not only our own Constitution
that guarantees to every person the right to freedom of conscience and
religion, but our international legal obligations also require us to do
the same.
The Constitution is silent on the National Anthem. The National

Emblems Act, Cap 10, R.E. 2002 which provides for the National Flag
and the Coat of Arms as National symbols also contains no provisions
on the National Anthem. It is the Appellants’ position that the National
Anthem in itself does not offend their religion, Jehovah’s Witnesses.
They neither seek to challenge its salutary purpose nor its contents or
words. Ms. van Witsen submitted that the Appellants’ conduct in not
singing the National Anthem was not the lack of respect for Tanzania,
628
its National Anthem or National symbols. The clear-cut and precise
point they urge, is that it is the singing of the National Anthem that is
against the tenets of their sincerely and conscientiously held religious
belief, guaranteed under Article 19(1).
That clarified, given that the appeal centres on the right to freedom of
religion, it is helpful, we think, that we should examine, albeit briefly,
the meaning of the expressions “religion”, “religious belief” and the
concept: religious freedom. “The chief function in law of a definition
of religion”, said the court in Church of New Faith v. Commissioner of
Pay Roll Tax (Vie), (1983 HCA40, para. 7)
‘is to mark out an area within which a person subject to the law is
free to believe and to act in accordance with his belief without legal
restraint”.
Our Constitution does not define the word “religion”. The Interpretation
of Laws Act, Cap 1 R.E. 2002 also does not. Of interest, section 2(1)
of the Law of Marriage Act, Cap 29 R.E. 2002 gives as the meaning
of religion, “any system of belief which is divided into denominations,
sects or schools, any such denomination, sect or school and includes any
non-denominational body or other association of a religious nature”.
A further appreciation of the above expressions, can also be browsed

from case law.
In R. v. Big M. Mart ltd’s Case (supra), the Canadian Supreme Court
(para. 94) observed:
“The essence of the concept of freedom of religion is the right to entertain
such religious beliefs as a person chooses the right to declare religious
beliefs openly and without fear of hindrance or reprisal and the right
to manifest religious belief by worship and practice or by teaching and
dissemination r~ (Emphasis Added)
In Christian Education South Africa v. Minister of Education (2000)

ZACC11; 2000(10) BCLR1051, para. 36, the Constitutional Court of
South Africa stated:
629
“… freedom of religion goes beyond protecting the inviolability of the
individual conscience. For many believers/ their relationship with God
or creation is central to all their activities. It concerns their capacity to
relate in an intensely meaningful fashion to the sense of themselves/
their community and their universe. For million in all walks of lifer
religion provides support and nature and a framework for individual
and social stability and growth Religious belief has the capacity to
awake concepts of self- worth and human dignity which form the
cornerstone of human rights. It affects the believer’s view of society and
founds the distinction between right and wrong. (Para. 36) (Emphasis
Added).
In Syndicate Northcrest’s case (para. 39) (supra) the Supreme Court of

Canada again opined:
“Defined broadly, religion typically involves a particular and
comprehensive system of faith and worship. Religion also tends to
invoke the belief in a divine, superhuman or controlling power. In
essence, religion is about freely and deeply held personal convictions or
beliefs connected with an individual’s spiritual faiths and integrally
linked to one’s self-definition and spiritual fulfillment, the practices of
which allow individuals to foster a connection with the divine or with
the subject or object of that spiritual faith”. (See also, Church of New
Faith case(supra, para. 14) (Emphasis added)
In the Commissioner, Hindu Religious Endowments, Madras v, Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) INSC 46,
AIR 1954 SC282, the Supreme Court of India stated:
“Religion means a system of beliefs or doctrines which are regarded
by those who profess that religion as conductive to their spiritual
wellbeing” ... “ A religion is not merely an opinion; doctrine or belief.
It has its outward expression in acts as well”. (See also, S.P. Mittal v.
Union of India & Others; AIR 1983 S. C 1) (Emphasis added).
In the Commissioner of Police and Others v. Acharya Jagdishwaranda

Avadhuta & Another ([2004J INSC 155, para. 25), again the Supreme
Court of India remarked:
630
“What is Religion. Religion is a social system in the name of God laying
down the Code of Conduct for people in Society……. Essentially;
Religion is based on “Faith”. ... Faith in Religion influences the
temperament and attitude of the thinker.
Religion includes worship, faith and extends to even rituals. Belief in

religion is belief of practice a particular faith/ to preach and to profess
it. Mode of worship is integral part of religion.” (Emphasis Added).
Having closely reconsidered the issues raised, we would agree with

Dr. Mwakaje and Ms. van Witsen that the learned majority Judges
seriously misdirected themselves in questioning the validity of the
Appellants’ religious belief. The generous and purposive approach
they were enjoined to take at the threshold, was to satisfy themselves
on the material available, whether or not the Appellants’ religious
belief was genuinely, sincerely and conscientiously held, as part of
the profession or practice of their religion. With respect, this line of
inquiry was not satisfactorily pursued to its proper conclusion.
In Bijoe Emmanuel’s case (supra, para. A), the Supreme Court of

India, explained it thus:
“The question is not whether a particular religious belief or practice

appeals to our reasons or sentiments but whether the belief is genuinely
and conscientiously held as part of the profession or practice of religion.
Personal views and reactions are irrelevant. If the belief is genuinely
and conscientiously held, it attracts the protection of Article 2~ but
subject to the inhibitions contained therein.” (Emphasis dded).
To a significant extent, Article 25(1) of the Constitution of India

mirrors Article 19(1) of our Constitution.
Similarly, the Supreme Court of Canada in Syndicate Northcrest’s

case (supra, para. 53) stated:
‘’Assessment of sincerity is a question of fact that can be based on
several non-exhaustive criteria, including the credibility of a claimant’s
631
testimony, as well as an analysis of whether the alleged belief is
consistent with his or her other current religious practices…..
Religious beliefs, by their very nature, are fluid and rarely static.
A person’s connection to or relationship with the divine or with the
subject or object of his or her spiritual faith, or his or her perceptions
of religious objection emanating from such a relationship, may well
Change and evolve over time. Because of the vacillating nature of
religious belief, a Court’s inquiry into sincerity, if anything, should
focus not on past practice or past belief but on a person’s belief at the
time of the alleged interference with him or her religious freedom”. (See
also at paras. 42, 45).
In Secretary of State for Education and Employment and others, ex

parte Williamson’s case (para. 22), the House of Lords in England and
Wales had this to say:
“Freedom of religion protects the subjective belief of the individual
religious belief is intensely personal and can easily vary from one
individual to another. Each individual is at liberty to hold his own
religious beliefs, however irrational or inconsistent they may seen to
some, however surprising” (Emphasis Added).
In Multani v. Commission Scolaire Margurite-Bourgeoys (supra, para.

35) the Court explained:
“What an individual must do is show that he or she sincerely believes
that a certain belief or practice is required by his or her religion. The
religious belief must be asserted in good faith and must not be fictitious,
capricious or an artifice “, (Emphasis added)
We find persuasion in that approach, which we are prepared to

accept. That route, we wish to add has been followed by the Supreme
Courts of Canada (Syndicat Northcrest’s case; Multani v. Commission
Scolaire Margurite-Bourgeoys (supra; India (Bijoe Emmanual’s case
(supra); Uganda (Sharon and Others v. Makerere University, (2006)
UGSC 10 and the House of Lords (Secretary of State for Education
and Employment and others, experte Williamson’s case (supra, para.
22).
632
Having closely considered the matter, we entertain no doubt that
a generous and purposive interpretation of the right to freedom
of religion under Article 19(1) of the Constitution calls for it to be
judicially determined from the platform of a believer’s sincerity and
conscientiousness of his or her religious belief and conviction. Belief in
religion, as a matter of consciousness and personal faith also involves
among other things an individual’s nexus or relationship with the
Divine, Supernatural Being, Transcendent Order, Controlling Power,
Thing, Doctrine or Principle. Moreover, the protection afforded by
Article 19(1) and (2) goes to religious belief and its manifestation or
practice
At the High Court, it was, therefore, inept for the Respondents to label
the Appellants’ refusal to sing the National Anthem against their
religious belief, as nothing but “anarchic behaviour”. We respectably
also say so, because there was no evidence that the Appellants had
in any way disrupted the school assembly or shown any disrespect to
other students who sang the National Anthem.
In our settled view, going by the approach distilled above, would

also be consistent and in consonant with what the Court observed in
Dibagula v. The Republic (2003) AHRLR 27A (CAT) when dealing
with, among other issues, a question touching on fair trial and the
right to freedom of religion under Article 19(1) of the Constitution.
The Court stated:
“Is Jesus Christ the Son of God? Millions of persons would sharply
disagree as to the correct answer to this question. Some would
entertain no doubt whatsoever than an answer in the affirmative is
the correct one: to others ‘No’ would, without the slightest doubt be
the correct answer. Whichever is the correct answer: the question is
purely a religious one and therefore, cannot fall for determination by a
court of law. It is not, therefore, one of the questions which the instant
appeal can possibly answer”.
Having closely revisited the matter, we are of the considered view
that once the majority Judges had correctly found out that it was
“undoubted” that the Appellants were faithful Jehovah’s Witnesses
and that their refusal to sing the National Anthem was grounded on
633
their Bible trained conscience, they seriously misdirected themselves
when they delved into an inquiry on the validity of the Appellants’
religious belief. With respect, this question should not have energized
the High Court in the way it did.
We would agree with Dr. Mwakaje and Ms. van Witsen that the crucial
question of emphasis was not how the National Anthem offended the
Appellants’ freedom of religion. The high or secular purpose of the
National Anthem as an expression of nationalism or patriotism was
not at all at challenge. On the contrary, what was to have been the
trial Courts’ central focus of analysis was the Appellants’ religious
belief. Whether they harbored a genuine, sincere and conscientiously
held belief that singing the National Anthem was against their
religious conviction. In dealing with the right to freedom of religion,
the above test is most essential. This the Respondents conceded. With
respect, it could not have been a mere technicality of the law, as they
unattractively argued.
We would equally agree with learned Counsel for the Appellants and
Professor Saffari that there was ample and sufficient evidence that
the Appellants had a sincere and conscientiously held belief that
singing the National Anthem was against their religious conviction.
(See, also Encyclopaedia Britannica (Macropaedia) Vol II, page 538;
Bijoe Emmanuel’s case (supra) pp 750-751 and authorities cited
therein; Adelaide Company of Jehovah’s Witnesses Incorporated v.
The Commonwealth (1943, 67 C.L.R. 116). The Appellants had also
sufficiently shown that this was an essential part of the practice of
their religious faith.
The devoutness and deep-rooted nature of the Appellants’ religious

belief can also be traced from the uncontroverted fact that some of
them never sang the National Anthem during the morning school
assembly throughout the whole of their primary school education,
having completed their formal elementary education as Jehovah’s
Witnesses (See, para. 3 of the Affidavit of Zakaria Kamwela).
634
Furthermore, the sincerity and conscientiousness of their religious
belief could also have been evaluated from another established fact.
The Appellants were prepared to suffer illiteracy and for some even
to forfeit their primary education, compulsory under s. 35(1) of the
National Education Act, Cap 358 R.E. 2002 (the Act), rather than
yield to the compulsion of singing the National Anthem, against their
genuine and conscientiously held religious conviction. For some of the
students, like Zakaria Kamwela, Tamaini Kamwela, Musa Mlawa,
Upendo Njole and Sahari Nyausa this sacrifice has even lasted over
six (6) years!
Dealing with almost a similar issue, in Bijoe Emmanuel’s case (supra,

p. 749), the Court stated:
“We are afraid the High Court misdirected itself and went off at a
tangent. They considered in minute detail, each and every word and
thought of the National Anthem and concluded that there was no
word or thought in the National Anthem which could offend anyone’s
religious belief. But that is not the question at all. The objection of the
petitioners is not to the language or the sentiments of the National
Anthem: they do not sing the National Anthem, wherever, ‘Jana Gana
Mana’ in India, ‘God save the Queen’ in Britain/the Star-spangled
Banner in the United States and so on.
In the end, we find persuasion in the submission by Dr. Mwakaje and

Ms. van Witsen that the Appellants’ prima facie right to freedom of
religion under Article 19(1) was triggered by what they had sufficiently
established. In our considered view, they were more than entitled to
seek “refuge” thereunder. They were entitled to enjoy the right to
freedom of conscience and religion, guaranteed under Article 19(1),
subject to legitimate limitations or derogation.
Giving the matter further scrutiny, it is on record that the Appellants’
religious belief was also erroneously rejected by the learned majority
Judges for another reason. They opined:
635
“… we are of also the considered view that in any case, accepting the
religions sentiments of one religion group would mean do away with
the declaration that Tanzania is a “secular” State. The impact would
be to accept all other sentiments that will subsequently be presented to
Court by other religious bodies on several issues whole list is endless.”
With respect, the majority Judges again misdirected themselves
on the matter. Tanzania as a secular State guarantees the right to
freedom of religion embodied in Article 19(1). What was at issue was
the Appellants’ religious belief. Not the beliefs of any other religious
groups. Moreover, there was no evidence before the Court of any other
religious belief, than that of the Appellants’,
The inevitable question that follows second, is whether or not the

Circular was legally and validly issued and if so, whether or not it
infringed the Appellants’ right to freedom of religion under Article
19(1).
Dr. Mwakaje and Ms. Van Witsen submitted that the Circular
purportedly issued under Section 5 (f) of the National Education
Act was not made under the authority of the law. Also, it did not
amount to delegated legislation within the terms of Article 97(5) of
the Constitution. That the powers of the Minister under section 5 (f)
thereof were subject to the provisions of ‘any other written law’, which
included Article 19(4).
Learned Counsel for the Appellants resourcefully submitted that

the Circular was also not validly issued by the Minister who had the
power to make regulations under Section 61(0) of the Act prescribing
the conditions of expulsion or exclusion from schools, of pupils on
grounds of discipline. The Circular, they emphasized, was issued by
the Commissioner who was not referred to under section 61(0). To the
effect that the Circular resulted in denial of the Appellants’ right to
education, a highly prized possession, on religious grounds, it was also
ultra vires section 57(2) of the Act, which stipulated that no person
may within Tanzania, be denied opportunity to obtain any category,
nature or level of education for reasons of religion, The Circular was
thus in conflict with the National Education Act itself.
636
Resisting, Mr. Ntimbwa and Mr. Mulwambo submitted that the
Circular which had existed since 6/7/1998 without any challenge by
the Appellants, was lawfully issued under section 5 (f) of the Act.
They agreed with learned Counsel for the Appellants that only proper
regulations made in accordance with the procedure set out for delegated
authority had the force of law. The Circular they added, was made
under the Minister’s delegated authority. All students were required
to obey it as a matter of school law. By disobeying the Circular, the
Appellants breached a public order emanating from the Act.
The Respondents submitted that the Circular did not offend any
religion as it was directed to all pupils in all schools and not to the
Appellants only. The intention of the Circular was to foster public good
for the National Anthem as a symbol of nationhood. That as singing
the National Anthem was in public interest, then the Appellants’
refusal to do so violated Article 30(1) of the Constitution, which bars
anyone from acting against public interest.
Relying on Articles 3(1) and 19(2) of the Constitution, Mr. Ntimbwa

strenuously submitted that Tanzania is a secular state that separated
religious matters from state affairs. That at school, a secular institution
involving the affairs of the State, the Appellants were required to
comply with the Circular and to sing the National Anthem. Outside
the school, they were free to privately practice their religious belief.
During school time, secular affairs prevailed over religious beliefs. As
such, the Circular neither offended any religion nor interfered with
the Appellants’ religious belief in school.
Questioned by the Court, Mr. Ntimbwa conceded that the Circular

did not provide for any punishment in case of non-compliance by a
student in singing the National Anthem.
Professor Peter submitted that under the Act, the Minister was
empowered to issue regulations. Under Section 61(2), he could
delegate those powers to the Commissioner. In the instant case, there
was no evidence that the Minister had delegated his authority to the
Commissioner to issue the Circular. It could thus be safely concluded
that the Circular was just a letter. It was not strictly speaking a by-
637
law validly made by the relevant authority under the Act. That even
if the Minister had delegated his powers to make regulations under
the Act to the Commissioner, it was still necessary, under section 61
(3), to have gazetted the Circular for it to have any legal effect. This,
it appears, was not done.
Professor Peter went on to add that as the very Education authority

that issued the Circular, i.e. Commissioner, had no powers to do so
under the Act, it was a nullity and had no legal effect. Nobody had a
duty to comply with it. The Appellants could not have been expelled
or suspended for allegedly disobeying an order whose legal value is
suspect.
On his part, Professor Saffari was of the view that only to the extent
of the Circular having been issued, it was lawful. The Circular, he
submitted, had the force of law in terms of the doctrine of delegated
authority in Administrative Law, as it was made by the Commissioner
on behalf of the Minister who had such powers vested in him under
section 61 of the Act. However, he immediately distanced himself
from the Circular by indicating that it did not specify therein that
refusal to sing the National Anthem attracted expulsion or suspension
from school. The Circular, as a limitation on the Appellants’ right to
freedom of religion under Article 19(1) was also unnecessary to ensure
discipline or promote nationalism or to protect public interest. It was,
he submitted, arbitrarily made and irrational. Article 30(2) of the
Constitution could not save it.
Given that the Circular is at the heart of the controversy, it is
imperative that we quote it in full:
638
JAMHURI YA MUUNGANO WA TANZANIA
WIZARA YA ELIMU NA UTAMADUNI
Anwani ya Simu: “EUMU”

DAR ESSALAAM
Telex: 42741 Elimu Tz
Simu:110146/~ 110150/2
Fax: 113271
S.L.P.9121
DAR ESSAlAAM
Unapojibu tafadhali:
Kumb. Na ED/OK/C.2/4/59 Tarehe: 6/7/1998
Makatlbu Tawala wa Mikoa

Makatibu Tawala wa Wi/aya
Wakuu wa Shule za Sekondari
Wakaguzi Wakuu wa Shule wa Kanda
639
TANZANIA BARA
WARAKAWA ELIMU NA. 4 WA MWAKA 1998
NYIMBO ZINAZOJENGA HISIA ZA KITAIFA
[EDUCATION CIRCULAR NO 4 OF 1998
SONGS WHICH BUILD NATIONAL CONSCIOUSNESS]
Nidhamu ya wanafunzi wengi katika shule na vyuo imepungua.

Ni jambo la kawaida kwa wanafunzi walio wengi kutoheshimu
vionqozi, watu wazima ama hata walimu wanaofundisha. Mwalimu
anaweza kupita kundi la wanafunzi akiwa amebeba mzigo asitokee hata
mmoja wao kumpokea. Aidha kiongozi wa ngazi za juu anapotembelea
shule anaweza kupita kundi la wanafunza wamekaa wanaongea
wakaendelea kukaa kama kwamba aliyepita ni mwanafunzi mwenzao.
Vitendo vya namna hii vinaonesha utovu wa nidhamu na ukosefu wa
heshima miongoni mwa vijana wetu. Hall hii haikuwepo miaka ya
nyuma.
Zipo sababu nyingi zinazochangia watoto kuwa na heshima na
nidhamu. Mojawapo ya sababu hizi ni kuimba nyimbo zinazojenga
Uzalendo. Baadhi ya nyimbo hizo ni Wimbo wa Taifa, TAZAMA
RAMANI UTAONA NCHI NZURI NA TANZANIA NAKUPENDA
KWA MOYO WOTE. IIi kujenga uzalendo na kurudisha nidhamu
na heshima kati ya vijana wetu mnaagizwa kuhakiklsha wanafunzl
wote wanafundishwa nyimbo hizi na kuzIimba wakati wa sikukuu za
kitaifa. Aidha, Wimbo wa Taifa ni sharti uimbwe kila siku za kazi
asubuhi na wakati wa mkusanyiko kabla ya kuingia darasani.
Umesainiwa na
A. S. Ndeki
KAMISHNA WA ELIMU (Emphasis Added)
The learned majority Judges found out that the Circular was issued by
the Minister under section 5(f) of the Act and was enforceable in law.
On his part, Shangwa, J. did not question the legality of the Circular.
Now, section 5 (f) of the Education Act provides:
“5. For the purposes of discharging his responsibility under this Act
the Minister may-
(f) subject to the provisions of this Act and of any other written law in
640
that behalf, do any other act or thing which in his opinion is designed
to or may further the promotion of education having regard at all
times to the national interests and the interests of the people of the
United Republic.”
The duties of the Commissioner are provided for in section 8 of the

Act, which reads:
8.(1) Subject to the provisions of this Act and to any directions

and instructions given to him by or on behalf of the Minister, the
Commissioner shall be responsible for the general management and
administration of all schools.
(2) Notwithstanding the provisions of subsection (1) non-government

schools shall be managed and administered in accordance with the
directions of the Commissioner.
The power of the Minister to make regulations is contained in section

61. Of particular interest, section 61(0) provides:
61. The Minister may make regulations for the better carrying out
of the provisions and objects of this Act and, without prejudice to the
generality of the power to make regulations, may make regulations for
the following purposes-
(a) -(n) ………………………………………………………………….

(0) to prescribe the conditions of expulsion or exclusion from schools
of pupils on the ground of age, discipliner or health and to provide for
and control the administration of corporal punishment in schools:
(p) - (u)…………………………………………………………. .
(v) to prescribe anything which, in the opinion of the Minister is

necessary or expedient for the better carrying out of the provisions of
this Act.
(Emphasis added)
641
Furthermore, Section 61(3) provides:
‘:Any regulation made under this section shall be published in the
Gazette.”
The Circular requires very close scrutiny. It is clearly visible on its

face that it was not issued and signed by the Minister. It is common
ground that the Minister has full capacity to delegate his functions
and powers to make regulations under the Act to the Commissioner.
Taking the scheme, purposes and objects of the Act; sections 5, 8 (1)
and 61(2) read together may be taken to be the statutory basis that
supports a delegation of authority vested in the Minister. As proposed
by Professor Saffari, so does the principle governing the delegation of
administrative authority in Administrative Law. Going by the record,
no evidence was afforded that the Minister had delegated his powers
to make regulations on the singing of the National Anthem and
disciplinary measures resulting thereof, to the Commissioner. The
Circular, therefore, could not have amounted to a valid regulation and
one that was properly issued under section 61(0) or 61(v) of the Act.
Worst still, we are not persuaded that the Circular was published in
the Gazette, as is required by section 61(3).
Even assuming that the Commissioner, being the person responsible

under section 8(1) and (2) of the Act, for the general management and
administration of all schools, had independent or original authority
to issue the Circular, in our respectful view, as an administrative or
ministerial instruction, that communication could not have had any
force of law or be held to amount to a regulation properly issued under
Rule 61. If anything, it was a mere administrative Circular. Moreover,
it could not in Law be equated to a bye-law arising out of the Act.
Mr. Ntimbwa was candid enough to admit that save for a delegation
of power by the Minister, the Commissioner, by his own authority,
could not make regulations under the Act. In these circumstances,
in our considered view, the Circular, could not lawfully serve as a
legal restraint on the Appellants’ exercise of their right to freedom of
religion under Article 19(1).
642
In so far as the right to freedom of religion and the Circular are
concerned, the facts in this case are not too remote from those in Bijoe
Emmanuel’s case (supra, pp. 752-755). There, the Director of Public
Instruction, Kerala had issued two Circulars which among other
matters, had directed pupils to sing the India National Anthem in all
schools during the morning school assembly. The Appellants therein,
who were faithful Jehovah’s Witness were expelled from school for not
singing the song because of their genuinely and conscientiously held
religious belief.
The Supreme Court of India found out that the Circulars did not
have the force of a statute and were mere departmental instructions.
It held that he Circulars could not be invoked to deny a Citizen the
fundamental rights under Article 25(1) of the Constitution of India.
We find that decision persuasive.
A much closer examination of the Circular in the instant case,

startlingly reveals that it was not even addressed to the Heads of
Primary Schools or School Committees established under section 40
of the Act. Bearing in mind, it remains unanswered how it could have
been used as the lead legal instrument for the imposition of disciplinary
measures (suspension or expulsion) against 102 of the 127 Appellants,
who were primary school students at the material time. The Circular
was only directed to Heads of Secondary Schools, Regional and District
Administrative Officers and Zonal School Inspectors. No clarification
or explanation was offered by the Respondents, as to the basis of its
application to Primary Schools, which were not its addressee.
That apart, in our respectful view, the Respondents’ argument

that the Appellants were required to abandon their religious belief
or faith during school hours and resuscitate them once outside the
school is misconceived. First, the Appellants’ religious belief was not
part of any school instruction. Second, Article 19(1) and (2) of the
Constitution not only protects every person’s religious belief, but also
its manifestation or practice. Third, secularism and religion are not
necessarily incompatible or always in competition. “Secularism is
neither Anti-God nor Pro-God; it treats alike the devout, the agnostic
and the atheist”. (Justice H. K. Khanna, cited in Santosh Kumar and
Others v. The Secretary, Ministry of Human Resources Development
and Another, AIR 1995 SC293, para. 17).
643
In so far as the right to freedom of religion and the School as an
educational institution are concerned, we find relevant the cautionary
words of the United Nations Human Rights Council’s Special
Rapporteur on the Right to Freedom of Religion or Belief, who stated:
“Freedom of religion or belief and school education is a multifaceted
issue that entails significant opportunities and far-reaching challenges.
The school is the most important formal institution for the realization
of the right to education. It provides a place of learning, social
development and social encounter. At the same time, the school is also
a place in which authority· is exercised and some persons, including
members of religious or belief minorities, may find themselves in
situations of vulnerabilities. Given this ambivalence of the school
situation, safeguards to protect component of freedom of religion or
belief which enjoys an absolute guarantee under international human
rights law. With regard to the freedom to manifest ones religion on
belief, both the positive and the negative aspects of that freedom must
be equally ensured, i.e. the freedom to express one’s conviction as well
as the freedom not to be exposed to any pressure especially rom State
institutions, to practice religious or belief activities again ones will.
(United Nation Human Rights Council, Rapporteurs Digest on
Freedom of Religion or Belief, (2011), para 57).
On the whole, we are not persuaded that the Circular stemmed from
any lawful delegated authority by the Minister or had the binding
force of law. Legally wanting, it could neither have been the legal basis
for the imposition of any disciplinary action against the Appellants
under section 61(0) of the Act. Significantly, it could also not by any
measure, override the Appellants’ entitlement to the right to freedom
of religion guaranteed under Article 19(1).
With respect, the learned majority Judges seriously misdirected

themselves, first, in holding that the Circular was issued by the
Minister under section 5(f) of the Act; second, in its finding that failure
to observe it amounted to a breach of the law; and third, in their
omission to notice that it was not even directed to Heads of Primary
Schools or to the School Committees.
644
With the conclusion that we have arrived at, it is not necessary for the
determination of this appeal to embark on a debate on the purposes
or contents of the Circular. Moreover, it would be premature, if not
prejudicial, for us to answer the question whether or not it was a
legitimate limitation of or permissible derogation of the Appellants’
right to freedom of religion under Articles 19(3) or 30(2) of the
Constitution, on grounds of national cohesion or interest, patriotism,
secularism or public peace.
Mindful of the depth of the parties opposing submission on the

extent of or limitation to the right to freedom of religion; the scholarly
opinion of Professor Saffari and Professor Peter and recognizing the
importance in Tanzania, a secular State, of every person’s right to
freedom of religion under Article 19(1), we are constrained to make
the following observations.
It is common ground that the fundamental rights and duties enshrined

in Articles 12 to.28 of the Constitution, including the right to freedom of
conscience and religion under-Article 19(1) are not absolute (See also,
Prince v. President of the law Society of Good Hope (2000) ZACC28;
Ross v. Brunswick School District No 15 (1996) 1 S.C.R. 825, para. 72;
Charles Onyango Obbo’s case (supra)). The right to freedom of religion
can even conflict with other constitutional rights (See, Multani v
Commission Scolaire Marguerite-Bourgeoys (supra, para 30).
In Julius Ishengoma Francis Ndyanabo’s case, we plainly stated:
“Fundamental rights are subject to limitation. To treat them as

being absolute is to invite anarchy in society. Those rights can be
limited, but the limitation must not be erbltrsrv; unreasonable and
disproportionate to any claim of State interest: See Pumbun’s case.
Under the Constitution an individual’s fundamental right may have
to yield to the commonweal of society.”
In Kukutia Ole Pumbum and Another v. Attorney General I: and
Another (1993) T.L.R. 159 (CAT) we held that:
645
“A law which seeks limit or delegate from the basic right of the individual
on grounds of public interest will not be declared unconstitutional if
it satisfies two requirements: (a) that it is not arbitrary: and (b) and
the limitation imposed by such law is not more than is reasonably
necessary to achieve the legitimate objective”.
Having deliberated on the appeal, we could not have failed to notice

that by the purported Circular, the Respondents attempted to set
up limitation or derogation of the right to freedom of religion under
Article 19(1) on grounds of national interest or cohesion.
Dr. Mwakaje and Ms. van Witsen submitted that where a Respondent
believes that a limitation or derogation of a fundamental human
right under Articles 12 to 28 of the Constitution is justified in the
national interest, as the Respondent have tried all along, to urge, the
Constitution itself and the law provides for the mechanism for the
same to be judicially examined by a Court of law and a determination
made on the basis of evidence. The onus is on the party relying on a
limitation or derogation of a fundamental right to justify the same
(See, Julius Ishengoma Francis Ndyanabo’s case (supra) p. 17). We
fully agree.
The nervous system of this Constitutional litigation does not only centre
on the right to freedom of religion. It also concerns the Appellants’
entitlement to education. Of the 127 Appellants, 102 were primary
school students whom the purported circular affected.
Section 56(2) of the National Education Act reads:
56(2). No person may, within the United Republic, be denied opportunity
to obtain any category, nature or level of education for reasons of his
racer religion, or political or ideological beliefs. (Emphasis added)
Moreover, section 35(1) of the Act provides for compulsory enrolment

in primary education of every child who has attained the age of seven
years. The Law of the Child Act, No 21 of 2009 also recognizes, under
sections 8(2) and 9(1) right to access to education and the Child’s right
to it.
646
In balancing and engaging the right to freedom of conscience and
religion; national cohesion or interest; patriotism; the entitlement to
education and the rights of the Child, we respectfully think that a host
of factors merit utmost consideration.
Professor Saffari also posed a pertinent question worth reflection: Can

sheer singing of the National Anthem be a recipe for nationalism or
patriotism? He thought not.
For our part, as we have cautioned ourselves earlier, we need not cross
the rubicon. Suffice it to reflect on the concurring opinion of Justice
Black and Justice Douglas in West Virginia Board of Education’s case
(p. 644):
“Love of country must spring from willing hearts and free minds,
inspired by a fair administration of wise laws enacted by the peoples
elected representatives within the express bounds of constitutional
prohibitions.”
In Roel Ebralinag, et al v. The Division of Superintendant of Schools

of Cebu, et al., (1996 SCR Vol 219 (G.R. No. 95770), para. 14), the
Supreme Court of the Philippines (Kapunan, J.) also observed:
“Compelling members of a religious sect to believe otherwise on the

pain of denying minor Children the right to an education is futile
and unconscionable detour towards instilling virtues of loyalty and
patriotism which are best instilled and communicated by painstaking
and non-coercive methods. Coerced loyalties, after all, only serve
to inspire the opposite. The methods utilized to impose them breed
resentment and dissent”.
In conclusion and for all the foregoing reasons, we proceed to hold the
Circular as having no legal effect. In consequence, with respect, the
Ministerial decision emanating from the Circular, inevitably cannot
stand. We accordingly declare that the Circular, lacking the force of
law, could not have been lawfully used by the Education Authorities
to compel the Appellants to sing the National Anthem against their
647
sincerely and conscientiously held religious belief, guaranteed under
Article 19(1), read together with 29(1) of the Constitution. It interfered
with and violated their right to freedom of religion, thereunder. The
resultant expulsion or suspension of the students, we respectfully also
hold, was and remains unlawful.
,.
Accordingly, we allow the appeal, quash and set aside the majority
Judgment of the High Court and reverse all the consequential orders
issued.
In the circumstances, each party is to bear its own costs.
648
649
650
651
652

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INSTITUTE OF JUDICIAL

Members who provided Additional Technical Support:

CHAPTER ONE ................................................................................................. 1

CHAPTER TWO ............................................................................................... 17

CHAPTER FOUR ............................................................................................ 66

CIVIL APPLICATIONS IN RELATING TO CHILDREN ............................... 66

CHAPTER FIVE .............................................................................................. 79

CHAPTER SIX ................................................................................................. 88

FULL-TEXT OF CASES INCLUDED......................................................... 102

The idea to come up with the Compendium on Child Justice Cases

Hon. Mr. Justice Prof Ibrahim H. Juma (PhD)

It gives me tremendous pleasure to acknowledge with great

In the same vein, I wish to express my profound appreciation to the

The Juvenile Justice Frontline Workers Project which is the basis of

Justice Dr. Paul F. Kihwelo, J. A

Ahaz Moses Mwalubanda v. Jane Kalyemba, Probate and

Rwekaza Bernado v. R, Criminal Appeal 477 of 2016,

Sajjad Ibrahim Dharamsi & Another vs Shabbir Gulamabbas

Stephen Mbeba v. Hassan Maulid Mohamed,

Tegemeo Kachira v R, (DC Criminal Appeal 8 of 2019)

Veronica Agostino Shirati v. Issa Ramadhani Kisibo,

Yusufu Baruani v. R, Criminal Appeal 4 of 2010, Court of

Zakaria Kamwela and 126 others v. Minister of Education

ACRWC African Charter on the Rights and Welfare of

1.2. UNDERPINNING PRINCIPLES

The following are the underpinning or overriding principles of child

1.2.1 BEST INTEREST OF THE CHILD

This principle has been considered by courts in both criminal and

Case Law 1: Glory Thobias Salema v Allan Philemon Mbaga

Summary of the Case

Case Law 2: Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas v

Summary of the Case

Summary of the Case

Case Law 4: Ahaz Moses Mwalubanda v. Jane Kalyemba,

Summary of the Case

Summary of the Case

(2) A person shall not discriminate against a child on the grounds

Case Law 1: Elizabeth Mohamed v. Adolf John Mohamed,

Summary of the Case

Summary of the Case

Children should have the opportunity to take part in sentencing

1.2.4. RIGHT TO BE MAINTAINED

Case Law 1: Denis Elias Nduhiye v. Lemina Wilbad, Juvenile Civil

Summary of the Case

Case Law 2: Assah A. Mgonja v Elieskia I. Mgonja, Civil

Summary of the Case

Case Law 3: James Mapuga v. Jesca Ntonya, Civil Appeal 12 of

Case Law 4: Sajjad Ibrahim Dharamsi & Ally Jawad Gulamabas

Tanzania has ratified various international children’s rights treaties6

This chapter includes some cases on criminal responsibility, age

2.2. CRIMINAL RESPONSIBILITY

Case Law: MA v. R, Miscellaneous Criminal Application 95 of 1999,

2.3. AGE DETERMINATION

Summary of the Case

(i). Considering the weight of the sentence in this offence, the

Case Law 3: Enoka Bujiku v. R, Criminal Appeal 62 of 2015,

Summary of the Case

Summary of the Case

In Elizabeth Michael Kimemeta, the DPP was dissatisfied with the

Summary of the Case

Summary of the Case

Case Law 3: Charles s/o Jackson v. R, (HC Criminal Case No

Case Law 4: Joseph Lazaro and 2 Others v. R, Court of Appeal of

Summary of the Case