Emmanuel Kija vs Republic (Criminal Appeal No. 20 of 2023) [2026] TZCA 614 (2 June 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: KOROSSO. J.A.. KENTE. 3.A. And KHAMIS. J.A.l CRIMINAL APPEAL NO. 889 OF 2023 EMMANUEL KIJA ...... .................. .................. ....................APPELLANT VERSUS THE REPUBLIC...................... ................................................. RESPONDENT (Appeal from the Judgment of the Resident Magistrates Court of Mwanza) (Shao. SRM-Ext.Jur.1 ) dated 11th day of August, 2023 in Criminal Appeal No. 20 of 2023 JUDGMENT OF THE COURT J d October, 2025 & 2n dJune, 2026 KENTE. 3.A.: The appellant was tried and convicted on a charge of rape contrary to sections 130(1) (2) (e) and 131 (1) of the Penal Code. The particulars of the offence alleged that, on diverse dates from October 2018 to August, 2021 at Misungwi Village within the District of Misungwi in Mwanza Region, the appellant unlawfully had sexual intercourse with a girl who was aged sixteen years at the time. To prevent damage to her persona, we will herein after refer to the said girl as the complainant, the victim or PW3. l Upon conviction, the appellant was subsequently sentenced to a term of 30 years imprisonment. His appeal to the High Court of Tanzania which was later on transferred to the Court of the Resident Magistrate of Mwanza in terms of section 45 (2) of the Magistrates Court Act to be heard by Hon. A. P. Shao, a Principal Resident Magistrate with Extended Jurisdiction, did not bear fruits. Increasingly disconsolate with this series of defeat, the appellant launched the present appeal. The factual background giving rise to this appeal is tolerably straight forward. Prior to the occurrence of the alleged rape incident, the appellant was employed by the complainant's father (PW2) as a steward. It was alleged that, whilst in the course of employment in 2018, the appellant lost his heart to his employer's daughter (the complainant) whom he went on secretly dating before they went on to elope apparently, at the height of their amorous relationship. The complainant who testified as PW3, recounted how the appellant allegedly took her as his "house girl" but ended up turning her into his prospective spouse. She also testified that, during the elopement, the appellant took her to a guest house where they engaged in sexual intercourse and in consequence, she became pregnant. On the other hand, the appellant's version of the events was very short. He told the trial court that, the case against him was a trumped up charge presumably orchestrated from the complainant's father and specifically designed to silence him from claiming his outstanding wages. He also admitted to have made a statement to the Police but he went on retracting it saying that he was forced to say what it contains. Moreover, the appellant challenged the prosecution for allegedly not leading sufficient evidence to prove the age of the complainant. Under cross-examination which was remarkably and unprocedurally conducted by both the public prosecutor and the court itself, the appellant denied to have sent a text message to the complainant allegedly advising her to seek abortion because of what appeared to be an unplanned pregnancy. Analysing the evidence, the trial court correctly found that the prosecution case was basically anchored on the testimony of the victim together with the appellant's cautioned statement (Exhibit P02). Relying on our earlier decision in the case of Maganga Udugali v. Republic, Criminal Appeal No. 144 of 2017 [2021] TCZA 639 (3 November 2021), the trial court found that the age of the victim was proved through the evidence of her mother (PW2) who told the trial court that her daughter was aged sixteen at the time. Moreover, the trial court was satisfied and as a consequence, it found that the victim was a reliable witness who testified in a forthright manner. It found, on the basis of the evidence of the complainant's pregnancy that, indeed she had been raped by none 3 other that the appellant. The trial court accordingly found the appellant guilty of the offence of rape and convicted him. As stated earlier, embittered with the conviction and sentence imposed on him by the trial court, the appellant launched an appeal to the High Court (the first appellate court) which was later on transferred to and decided in his disfavour by the Resident Magistrate's Court of Mwanza, (Shao-SRM Ext.Jur.), hence the present appeal. The appeal is based on six grounds two of which are, in our respectful view, absolutely dispositive of this matter. Whereas in the first ground, the appellant has raised for the first time, a complaint that his cautioned statement was inadmissible for failure to adhere to the strict guidelines stipulated under the Criminal Procedure Act, Chapter 20 of the Revised Laws (the CPA) particularly the failure to record the said statement within the prescribed period, in the second ground, the appellant has again for the first time, raised a complaint that the testimony of the complainant was received and admitted without taking a formal oath or making an affirmation to tell the truth. In support of the first ground of appeal, the appellant referred us to our earlier decisions in the cases of Fernandes Fransis v. Republic, Criminal Appeal No. 1 of 2023 (2024) TZCA 797 (7 December 2024) and Fikiri Kalamji and Another v. Republic, Criminal Appeal No. 163 of 2021 [2022] TZCA 797 (7 December, 2022). He also went on citing the case of Otter Mining Limited v. Majengo Athuman Mohamed, Civil Appeal No. 493 of 2022 [2025] TZCA 695 (4 July 2025) to support his position that, adult testimony that is neither sworn nor affirmed violates mandatory requirements of the law (i.e section 198 (1) now section 212 (1)) of the CPA and that, in the context of the present case, the evidence of the victim was inadmissible. Relying on those arguments, it was the appellant's submission that, the trial court was wrong to have admitted the two categories of evidence and to have held that, the said evidence had proven his guilt to the required standard, a holding which was subsequently endorsed by the first appellate court. The appellant therefore urged us to discard the two categories of evidence for having been unprocedurally procured, and consequently allow the appeal, quash the conviction and set aside the custodial sentence meted out on him. In response, Ms. Jaines Kihwelo, learned State Attorney who appeared along with her fellow State Attorneys, namely, Mr. Ibrahim Salim and Ms. Brenda Mayalla to represent the respondent, begun by conceding the appellant's argument that, indeed the two lower courts erred when they relied on a cautioned statement which did not indicate 5 the time when the appellant was taken into restraint as to enable the court to determine whether the recording was within the four hours' period as required under section 50 (1) (a) of the CPA. Because of this, the learned State Attorney went along with the appellant correctly so in our view, saying that, it was a misdirection on the part of the trial court and the first appellate court to have proceeded the way they did by relying on the appellant's cautioned statement which was, to all intents and purposes, inadmissible for having been recorded in violation of section 50 (1) (a) of the CPA. Ms. Kihwelo concluded on this point by urging us to sustain the first ground of appeal. Responding to the second ground of appeal which faults the first appellate court for relying on the complainant's evidence which was given without oath or affirmation, Ms. Kihwelo spoke very concisely and precisely. She simply agreed with the appellant's grievances and urged us to expunge the complainant's evidence from the record and subsequently decide on the way forward. We begin our deliberations by addressing the appellant's first complaint regarding the recording of his caution statement out of the prescribed period and its subsequent admission into evidence. On this point, the appellant argues that the statement does not show the time he was taken into restraint. In this connection, the gravamen of the appellant's argument is essentially that, the omission to disclose the time of his arrest amounts to having recorded his statement beyond the four hours' period subsequent to his arrest which is in conflict with section 50 (1) (a) (now 51 (1) (a)) of the CPA which provides that: "For the purpose o f this Act, the period available for interviewing a person who is in restraint in respect o f an offence is:- (a) Subject to paragraph (b), the basis period available for interviewing a person that is to say, the period o f four hours commencing at the time when he was taken under restraint in respect o f the offence. "[Emphasis added] Going through the evidence on the record, there is no indication regarding the day and time the appellant was arrested in respect of the subject offence. As correctly submitted by the appellant in his cocktail of grounds of appeal and written submissions, and gracefully conceded by Ms. Kihwelo in her oral submissions, the omission adversely impacted on the cautioned statement and it can only be inferred that it was recorded beyond the prescribed period and thus illegally obtained. Faced with a similar situation in the case of Elirehema Mjema v. Republic, Criminal Appeal No. 312 of 2023 [2025] TZCA 359 (9 April 2025), we held that, section 50 (1) of the CPA requires a suspect who is taken under restraint in respect of an offence to be interviewed within four hours of his restraint which period starts to run from the time of that person's arrest. We also emphasized in that case that, it is the duty of the prosecution to lead evidence showing the time of such person's arrest so as to establish if the cautioned statement was recorded within time. While following our earlier decisions in the cases of Mbuzi Lushona @ Mwangiki and Two Others v. Republic, Criminal Appeal No. 159 of 2022 [2024] TZCA 964 (4 October 2024) and Msafiri Emmanuel Daniel and Another v. Republic, Criminal Appeal No. 194 of 2018 [2020] TZCA 1925 (24 December 2020), we finally guided that, any deviation from the established protocols, particularly sections 50 and 51 of the CPA, renders the statement recorded inadmissible. On the strength of the principle set out in the above-cited authorities, we have neither the option nor justification to depart from our earlier decisions in the present matter. Consequently, we hold that, indeed the appellant's statement was inadmissible for having been recorded beyond the prescribed legal period. In this regard, it is incumbent upon us to say that, failure by the prosecution to adhere to the mandatory requirements of the law regarding timelines, is a violation of not only the law itself but also of the accused's rights and a compromise to the integrity 8 of the investigation. For this reason, we find merit in the first ground of appeal which we accordingly sustain. Coming to the appellant's second complaint that the evidence of the victim on which the conviction of the appellant was anchored was given not on oath or affirmation, we agree with Ms. Kihwelo that indeed, in view of our current jurisprudence, there can be no doubt that in the instant case, the requirements of the law were not met and the lower courts strayed into error when they relied on such evidence. To demonstrate the current legal standing, it behoves us to quote what we said in the case of Amos Seleman v. Republic, Criminal Application No. 267 of 2015 [2016] TZCA 311 (27 April 2016) when we dealt with a similar situation. After quoting the provisions of section 198 (1) of the CPA, which requires every witness in a criminal cause, subject to the provisions of any other written law to the contrary, to be examined upon oath or affirmation, we stated that: "Evidence given without oath or affirmation in a criminal trial is no evidence at ai! as it is contrary to the mandatory provisions o f section 198 (1) o f the CPA." 9 Dealing with the consequences of non-compliance with the above quoted law, we stated very categorically in Mwami Ngura v. Republic, Criminal Appeal No. 63 of 2014 unreported, that: "If this is not done, such evidence must be visited by the consequences o f non-compliance with section 198 (1) o f the CPA .... I f in a criminal case, evidence is given without oath or affirmation ... such testimony amounts to no evidence in law." And, following our earlier decision in the case of Mwita Sigoge @ Ogorea v. Republic, Criminal Appeal No. 54 of 2004 (unreported), we finally concluded that the above stated principle applies across the board and therefore, the question of such evidence being relegated to unsworn evidence, does not arise. It is quite clear that as correctly submitted by Ms. Kihwelo, and in view of the applicable law as encapsulated in the statements of this court in the above - cited authorities, the evidence of the complainant who was the key witness to the prosecution case, was recorded in total disregard of the law. We therefore discard it. And once that evidence is discarded as was the evidence of the appellant's confession to committing the subject offence, the prosecution case remains materially lacking in support. 10 Upon the above observation, we find the conviction of the appellant which was sustained by the first appellate court to have been unsafe. We accordingly allow the appeal, quash the said conviction and set aside the custodial sentence imposed on the appellant. We order for his immediate release from jail unless he is detained therein for some other lawful cause. DATED at DODOMA this 29th day of May, 2026. W. B. KOROSSO JUSTICE OF APPEAL P. M. KENTE JUSTICE OF APPEAL A. S. KHAMIS JUSTICE OF APPEAL Order delivered this 2n d day of June, 2026 via virtual court, in the presence of Appellant in person/unrepresented, Ms. Jaines Kihwelo, learned State Attorney for the Respondent/Republic and Ms. Harida Hamisi, Court Clerk; is hereby certified as a true copy of the original. A. L. KALEGEYA DEPUTY REGISTRAR COURT OF APPEAL 11