IN THE HIGH COURT OF THE UNITED REPUBLIC OF TAZANIA

KIGOMA DISTRICT REGISTRY

(AT KIGOMA)

APPELLATE JURISDICTION

(DC) CRIMINAL APPEAL NO 58 OF 2019

(Original Criminal Case No.68 of2018 o f the District Court ofKibondo at Kibondo, before
Hon. E.R.Mar!ey -RM)

ISAGUYE SILVESTER....................................... APPELLANT

VERSUS
REPUBLIC................................................. RESPONDENT

JUDGMENT

6/3/2020 & 6/3/2020

I.C. MUGETA, J.

The appellant was convicted of the offence of rape. He was sentenced to

thirty years jail imprisonment, hence, appealed to this court to assert his
innocence. The appeal was resisted by Shabani Masanja, learned State
Attorney while appellant had no any legal representation. The petition of
appeal has three grounds.

The first ground is that the charge was not read over to the appellant and
his plea was not taken. The second ground is that the defense case was

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not considered and finally that the appellant was convicted without
showing under which law he was convicted.

The appellant as a lay person had no much to say to support the grounds
of appeal. He, therefore, allowed the State Attorney to submit first.
Shaban Masanja, learned State Attorney argued on the cited case by the
appellant in the memorandum of appeal to support the allegation that the
charge was not read to him. This is the case of Noache Ole Mbile V.
Republic (1993) TLR 253 where it was held that failure to read the
charged sheet is fatal. He distinguished it from the case before us by
saying that in the cited case, the charge completely was not read to the
accused contrary to the case before us in which the charge was not read
during preliminary hearing only. Coming to the second ground, the learned
State Attorney argued considered as
reflected at page 5 the c id, he concurred
with the appellant that he was convicted without showing the provision of
law under which the conviction was based. On general matters, the
learned State Attorney argued that the PF-3 which was tendered without
being read to the appellant as seen at page 10 of the proceedings, ought
to be expunged from record. This notwithstanding, he argued the evidence
of the victim is sufficient to establish the offence of rape.

In rejoinder, the appellant added that he is a refugee who lived at the

camp, therefore, not easy to commit a crime thereat during day time. He
challenged the evidence of the victim that she was threatened with a knife
which was not tendered in court.

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I wish to be very brief by just considering whether the offence was proved.
According to the record, the victim was aged 16 years when he testified.
The learned trial magistrate recorded her evidence without oath. He did so
for powers under unmentioned provision of the Law of the Child Act, 2009.
With respect to the trial magistrate, matters of evidence are governed by
the Evidence Act. In case of children of tender age, the relevant section is
127 (2) and (4) of the Evidence Act [Cap. 6 R.E. 2002]. However, at the
age of 16 years, the victim, for the purpose of evidence, was no longer a
child. He ought to have been sworn. Since her evidence was unsworn, the
rule is that it needs corroboration which is completely missing. She
testified as PW1. PW2 is a doctor who tendered the PF3 and PW3 is the
mother who recounted the story of the victim which is hearsay. I
understand in rape cases, the best evidence is that of the victim. However,
in this case the evidence of the victim needed corroboration. Since it is
uncorroborated, the same cannot ground a conviction. On this finding, I
see no reason to further discuss arguments presented by the parties. I
allow the appeal. The conviction is quashed and sentence is set aside.
Appellant to be released unless otherwise lawfully held for another cause.

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Court: Judgment delivered in chambers before the appellant in person
and Shaban Masanja, State Attorney, for the Respondent.

Sgd: I.C. Mugeta

Judge

6/6/2020

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