IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MOSHI DISTRICT REGISTRY

AT MOSHI
CRIMINAL APPEAL No. 54 OF 2019
(C/F Criminal case No. 9 of 2018 District Court of Moshi at Moshi)

JOHN LEON KIMARIO APPELLANT

Versus
THE REPUBLIC RESPONDENT

JUDGMENT

MKAPA, J.

The appellant, Evarist John Leon Kimario was arraigned before the
District Court of Moshi at Moshi in Criminal Case No. 9 of 2018 (the
trial court) on the offence of unnatural offence contrary to section
154 (1) (a) of the Penal Code, Cap 16, R.E. 2002 (Penal Code).
It was alleged that on unknown dates of July and November, 2017,
at Mbokomu area within Moshi District in Kiliomanjaro region, the
appellant had carnal knowledge of one "BM", the victim (true identity
hidden) a girl aged 14 years old against the order of nature.

At the trial court, the prosecution summoned four witnesses, PW1,

the victim's mother, PW2, the victim, PW3, clinical officer who
examined the victim as well as prepared the PF3 report which was
admitted into evidence as exhibit Pl. In his defence, the appellant
appeared in person unrepresented and denied the charge against
him.

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The actual facts of the case are to the effect that sometimes in
November 2017 the appellant who happened to be the victim's
paternal uncle found PW2 cooking in the kitchen he demanded her
to hug him. She refused then appellant threatened her with a knife
and grabbed her to a nearby farm where he tore off her skirt lied her
facing down and sodomised her. When examined by PW3, PW2 told
the later that the appellant had been raping and sodomising her since
June or July 2017 but she was afraid to report the ordeal as the
appellant had been threatening to kill her.

At the trial court the appellant denied to have carnally known the
•: r
victim and further that the charges were framed against him due to
the ongoing family feud as he was alleged to have sold a family farm
without the consent of the family and that he had no grudges with
the victim. At the end of the trial, the trial magistrate convicted and
sentenced the appellant to serve life imprisonment.

Aggrieved, the appellant preferred this appeal comprising eight

grounds, which can be summarised into six as follows;

1. That, the trial magistrate erred in law and fact in convicting the
appellant while the essential ingredients of unmistaken identity
were not considered at all.
2. That, the trial magistrate erred in holding that the
inconsistencies from the charge sheet to the whole evidence
adduced did not vitiate the prosecution case hence occasioned
miscarriage of justice. ^*^‘1 *'

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 3. That, the trial magistrate erred in law and fact in relying on the
evidence of PW2 without any test to ascertain whether she
possessed enough intelligence and understand the duty to
speak the truth.
4. That, the trial magistrate erred in law and fact in not finding
that, the lapse of time in withholding information of the alleged
incident was fatal thus left the prosecution case unproved
against the appellant.
5. That, the trial magistrate erred in law and fact in convicting the
appellant based on the evidence of PW1 and PW2 while
admitting that the same were evidence were contradictory.
6. That, the trial magistrate erred in law and fact in shifting the
burden of proof to the appellant when faulting his failure to
cross-examine the witnesses while knowing that he was a
layperson who deserved representation.
At the hearing of the appeal, the appellant appeared in person
unrepresented while the respondent was represented by Ms. Lilian
Kowero learned State Attorney. Hearing of the appeal was by way
of filing written submissions.

Submitting in support of the appeal, the appellant submitted on the

1st ground the fact that although PW2 testified to the effect that
electricity light was on when the appellant entered the kitchen
around 20:00 hrs, and dragged her to the nearby farm and
sodomised her PW2 did not describe the intensity of the light. He
contended further that, there has been a number of Court of Appeal

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authorities which require, the source of light and its intensity at scene
of the crime at night time be disclosed to avoid mistaken identity. To
support his contention, he cited the case of Jackson Zepherine V
R, Criminal Appeal No. 186 of 2005 where Court of Appeal of
Tanzania at Mwanza the court observed that the evidence of prior
knowledge of the suspect is a relevant actor that can facilitate
identification of the suspect. However, the same should not be
considered in isolation from the prerequisite requirement of
favourable and proper identification which in the case at hand was
not considered.

Still pressing on lack of proper identification the appellant submitted

that since PW2 claimed to have known him, she should have given a
general description at the earliest possible stage including raising the
alarm so that the appellant was apprehended considering the fact
that they were living in the same house.

On the 2nd ground the appellant submitted that, the trial magistrate
erred in holding that the contradictions in the charge sheet did not
vitiate the prosecution case since the charge states the offence of
unnatural offence while PW2 testified about being raped. More so,
PW3 testified that she attended the victim by the name Blandina
while the victim's name was Brenda and the PF3 was written Blanda,
a fact which the trial magistrate did not scrutinise.

On the 3rd ground the appellant testified that, the trial magistrate did
not adhere to the mandatory requirement of section 127 (2) of the
Evidence Act as amended by section 26 (1) of Written Laws No.
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4 of 2016 and rule 7 (2) of the Law of the Childs Act, GN No.
182/2016. According to the appellant, the mentioned laws requires
the case of this kind where the victim is a child a social welfare officer
has to be present in court. He argued that in this case nowhere in
the proceedings is indicated the presence of the social welfare
officer.

On the 4th ground the appellant asserted that, the whole period that
had lapsed and the reasons which made the victim withhold the
offence does not make sense. He argued that, since PW2 claimed to
have been sodomised since November, 2017 she decided to report
the matter on 26th December, 2017 a whole month had lapsed
without reasons on what had transpired in between. He further
argued that, the appellant and the victim stays in the same house,
the fact that she later reported the matter to her auntie but not to
her mother immediately after the incident on the ground that she
was threatened to be killed gives benefit of a doubt to the appellant.

On the 5th ground the appellant submitted that despite the flaws and
irregularities as explained above, still the trial magistrate overlooked
them and reached to a biased decision. He mentioned the
contradictions that PW2 testified to have been sodomised but PW3
’* )I
testified she was raped are two different offences. Lastly on the 6th
ground the appellant argued that section 110 of the Evidence Act
rest the burden of proof to the one who alleges such fact (s) which
in the case at hand is the respondent. However, the trial magistrate
shifted burden to the appellant by holding that he thoroughly failed

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to cross examine the witnesses instead of weighing the evidence as
a whole. The appellant finally prayed that this Court re-evaluate the
evidence, quash and set aside the sentence and set him free.

In reply Ms. Kowero resisted the appeal and fully supported the
conviction and sentence by submitting on the 1st ground of appeal
on mistaken identity that, PW2 testified that on the day of the
incident, the appellant found her in the kitchen cooking and there
was an electricity light. Although she did not explain on the intensity
of such light but the fact that they were staying in the same house
and it was the same appellant who grabbed her to the nearby farm
uninterrupted leaves no room for mistaken identity. To cement this
ground she referred to the conditions set out in the landmark case
of Waziri Amani V Republic (1980) TLR and averred that since the
light was enough to enable PW2 to cook the food and the fact that
the appellant and the victim had some time to converse before he
grabbed her to the nearby farm and sodomised her, it was Ms
Kowero's view that the condition for identifying the source and
intensity of the light was met.

Disputing the 2nd and 5th grounds, Ms. Kowero submitted jointly that,
the best evidence of rape offence comes from the victim herself as it
was held in the case of Selemani Makumba V R, 2006, TLR 379.
Therefore, the victim testimony was what had actually happened
during June, July and November, 2017 and since the appellant was
conversant with the charges and the fact that was able to mount his
defence he was not prejudiced anyhow. More so, the trial magistrate

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assessed the evidence as a whole to the extent of satisfying that the
offence against the appellant was thoroughly proved at the required
standard and convicted him.

Regarding the 3rd ground, on whether PW2 possessed enough

intelligence and duty to speak the truth, Ms. Kowero argued that,
when the incident occurred the victim was 14 years old and when
she testified, she was aged 15 years capable of understanding the
duty to speak the truth.

With regard to the 4th ground, it was Ms. Kowero's submission that
PW2 did not report the matter at the earliest possible time because
she was threatened to be killed by the appellant. On the last ground,
Ms. Kowero argued that, the trial magistrate did not shift the burden
of proof to the appellant. The fact that the appellant failed to cross
examine the witnesses due to his own ignorance does not exempt
him from the principle as observed in the case of Nyerere Nyague
V. Republic, Criminal Appeal 67 of 2010 which observed that a party
who fails to examine a witness on certain matter is deemed to have
accepted that and is estopped from asking the trial court to disbelieve
what the witness said.

He finally prayed for this appeal to be dismissed and the trial court's
conviction and sentence be upheld. In his brief rejoinder, the
appellant reiterated his submission in chief and prayed for the appeal
to be allowed. '

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I have examined the record of appeal in the light of the submissions
of the parties and in my view they are all centred in challenging the
prosecution not to have proved the case against the appellant as per
the required standard thus I think the only question to be answered
is whether the prosecution case has been proven beyond reasonable
doubt against the appellant? To begin with the 1st ground, on the
appellant's allegations of mistaken identity, I am satisfied that the
intensity of the electricity light in the kitchen which enabled PW2 to
prepare food was favourable enough to enable the appellant to be
easily identified. The decision in Waziri Amani V Republic [1980]
TLR 250, has elaborated on several conditions to be considered while
addressing the issue of visual identification during unfavourable
conditions as hereunder;
"... The principle of identification is that, where a witness
is testifying about identifying another person in
unfavourable circumstances like during the night. He must
give dear evidence which leaves no doubt that the
identification is correct and reliable. To do so, he will need
to mention all the aids to unmistaken identification like
proximity to the person being identified, the source of tight
and its intensity, the length of time the person being
identified was within view and whether the person is
familiar or a stranger..."

In the instant appeal despite the fact that PW2 did not elaborate on
the intensity of the electricity light, and much as the Waziri Amani's

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case (supra) provides for guidelines on identification during
unfavourable conditions, my view is the same should be applied with
some sense of reasoning.
It is on record the fact that PW2 knew the appellant as her paternal
uncle, and they exchanged words while the appellant was demanding
for a hug from PW which she refused before he grabbed her to the
nearby farm. I am of the opinion that all this time PW2 was able to
identify his paternal uncle (the appellant) I find this ground meritless
and I disallow it.
Turning to the 2nd ground, the appellant faulted the trial court's
decision on the ground that there were some inconsistences on the
charge sheet against testimony adduced in court. According to him;
he was charged against the offence of unnatural offence but
respondent's witnesses testified on the offence of rape and unnatural
offence. It goes without saying that in criminal cases, a charge sheet
is the backbone of the trial as the evidence adduced has to prove the
offence charged thereon. In Mussa Mwaikunda V R [2006] TLR
387 Court of Appeal observed inter alia that;
"The principle has always been that an accused
person must know the nature of the case facing him.
This can be achieved ifa charge discloses the essential
element of an offence."
In the instant appeal the charge sheet discloses the offence of
unnatural offence and at the trial court, the respondent paraded
evidence to prove the same. As to PW3's evidence I am in agreement
with the appellant's argument that the name of the victim in the PF3
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is BLANDA, while the victim testified as BRENDA and PW3 attended
a patient called BLANDINA. I do not consider this as a minor
contradiction thus PW3 testimony with PF3 tendered are expunged
from the record.

Nevertheless, in In Salu Sosoma V R, Criminal Appeal No.4 of 2006

CAT-MWZ (Unreported) the Court of Appeal, had this to say;

"...likewise, it has been held by this court that lack

of medical evidence does not necessarily in every
case have to mean that rape is not established
where all other evidence point to the fact that it was
committed."

In the present case, the trial court did not rely solely on PW3 and
PF3 evidence in reaching at its decision. Suffices to say that PW2's
evidence alone as a victim was sufficient to prove the charges of rape
against the appellant.

On the truthfulness of PW4's testimony without proof of possessing

intelligence, this Court is of the view that, the victim had enough
knowledge to understand the nature of oath that is why she was
sworn. In the case of Philipo Emmanuel V Republic, Cr. Appeal
No. 499 of 2015 (CAT at Mbeya) (unreported), the Court while
making reference to the Written Laws (Miscellaneous Amendments)
Act, No. 2 of 2016 which amended section 127 (2) of the Evidence
Act, held that:

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 "... [We] think it is instructive to interject a remark, by
way of a postscript, that, of recent, this long standing
requirement of a voire dire test was laid to rest upon the
enactment of the Written Laws (Miscellaneous
Amendments) Act, No. 2 of 2016 which was promulgated
on 8th July 2016. Through this Act, the provisions of
subsections (2) and (3) of section were deleted and
substituted with 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 lies." With this provision, the requirement of voire

dire test has been effectively foregone.

In light of the above statement by the Court of Appeal interpreting

the amendments to the relevant law, it is fair to say that it is no
longer mandatory to conduct voire dire examination for the court to
satisfy itself that the child of tender age possess enough knowledge
to understand that s/he is supposed to speak the truth.
In the instant appeal PW2 gave a sworn testimony after the trial
magistrate was satisfied that she knew the meaning of an oath hence
she was sworn. It would have been different if PW2 would have given
an unsworn testimony then the trial court would have been required
to state that before reception of her evidence PW2 actually promised
to tell the truth and not lies. This ground is meritless and hence

disallowed.

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As far as the 4th ground is concerned, as it was held by the Court of
Appeal in Selemani Makumba V R (2006) T.L.R 92 as well as other
Court of Appeal decisions that sexual offences are normally
conducted in secrecy therefore the best evidence of sexual abuse
cases comes from the victim. PW2 testified that the appellant
threatened to kill her with a knife before, during and after sodomising
her. Also when the November incident occurred, she disclosed the
ordeal to her aunt after she had returned back from safari and was
the one who sent her to the hospital and reported the matter to the
authorities. It is also worth mentioning the fact that in African
tradition it is shameful to let other people know what had happened
to her. The effect and proof of ongoing rape was cemented by PW3'S
testimony as recorded at page 18 & 19 of the proceedings that;
"... she said she had been raped before, sodomized and
raped when she came for examination she said it was in
November when she was last sodomized and raped ...
Following her statement, she said she was sodomized
before, there was smell, she was discharging faeces and
she was smelling. Since days had passed according to her
she said she was sodomized back in June and July..."

In the above circumstances I consider this case to have been

reported within a reasonable time. This ground is baseless and I
disallow it.

On the 5th ground on contradictions of witnesses' testimony the same

has already been briefly analysed in the 2nd ground to the effect that,

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the victim was first sodomised on November, 2017 which is the
offence which the appellant was charged with. Although in due
course the victim stated that the appellant started raping her since
June and July 2017 but the charge sheet states the offence of
unnatural offence alone. In his own words the victim at page 13 of
the proceeding testified;

"...there was electricity light in the kitchen, he inserted

his penis in my anus here matakoni mkunduni aliingiza
aiikuwa naingiza na kutoa he laid over me on top of me
'• I »•

there was no light at the farm,"

It undisputed from the foregoing narration the fact that PW2 was
sodomized hence the offence of unnatural offence as charged in the
charge sheet.

Lastly, the appellant claimed that the trial magistrate shifted the
burden of proof to him by holding that he failed to properly cross
examine the witnesses. What I had gathered from the trial court's
proceedings is when PW1 testified to the effect that there were no
• -4

grudges between them as they used to live and eat together the
appellant never cross examined on the same. However in my view
this does not mean shifting the burden of proof since the appellant
was the one who alleged the ongoing family feud relating to the
selling of a family farm. This ground also fails.

On these circumstances find the appeal is devoid of merit therefore

I affirm the conviction as the prosecution has been able to

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establish its case beyond reasonable doubt. This appeal is dismissed
and the trial court's decision is upheld
It is so ordered.

delivered at Moshi this 10th day of February, 2021.

Right'of Appeal explained.

S.B. MKaIpA

JUDGE
10/02/2021

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