Lemindea Lesiria vs Republic (Criminal Appeal No. 601 of 2023) [2026] TZCA 332 (20 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KOROSSO, J.A.. MASHAKA, J.A. And NGWEMBE, J.A.) CRIMINAL APPEAL NO. 601 OF 2023 LEMINDEA LESIRIA .............................................. .............. APPELLANT VERSUS THE REPUBLIC................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) (Tiganga, 3.) dated 28th day of July, 2023 in Criminal Appeal No, 8 of 2023 JUDGMENT OF THE COURT 26th February & 20th March 2026 NGWEMBE, JA.: The appellant, Lemindea Lesiria and Kulasa Mandeu (not party in this appeal) were arraigned before the Resident Magistrate's Court of Arusha at Arusha charged with three counts of grievous harm contrary to section 225 and cruelty to children contrary to section 169A (1) and (2) of the Penal Code Cap 16 R.E. 2022 (the Penal Code). Also, the appellant was faced with another count of rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code. l The material facts leading to the appellant's arrest and arraignment in court, lies on the purported customary marriage of Maasai traditions where the appellant alleged to have married a girl of 14 years old in 2020, but she was already 16 years at the time of trial in 2022. It is on record that, on 14th September, 2022, the victim who testified as PW1, while carrying a bottle containing an animal pesticide, tripped and fell down, causing the said bottle to break down and spill the pesticide. Her husband, the appellant was infuriated and he assaulted her. Fearing for her safety, PW1 fled from her husband and sought refuge and protection from her brother-in-law (Kulasa Mandeu), whom she reasonably expected would offer assistance. Tragically, her expectation of protection proved misplaced. Instead of intervening on her behalf, Kulasa joined forces with his brother, the appellant and together subjected PW1 to an extended and merciless ordeal. They bound her to a tree and commenced beating her with canes on various parts of her body, deliberately avoiding only her stomach. After exhausting themselves with this initial assault, they untied her from the tree but continued their cruelty by binding her hands and legs before abandoning her in the forest. 2 It is on record that for four painful days, from 14th to 18t h September, 2022, PW1 remained in that vulnerable situation where they left her. The evidence presented during trial revealed that she frequently lost consciousness due to the severity of her injuries. During intermittent moments of awareness, she would attempt to crawl through the bush, as her physical condition prevented her from standing or walking. Each attempt at movement would be followed by another period of unconsciousness, creating a cycle of suffering that persisted until her eventual rescue. The intervention that saved her life came on 18th September, 2022, when Lemindea Kitipa (PW2) encountered her while grazing livestock in the area. Recognizing PW1, he carried her to his home and administered first aid by using sheep oil, a traditional remedy. He then notified her father, Kashira Mzee (PW3), who promptly arrived, collected his injured daughter and transported her to a medical facility for medical treatment. At the hospital, she was examined by Doctor Wilbert Kessy, a medical doctor (PW5), who testified that the medical examination concluded that her genitalia was abnormally wide for her age, permitting easy penetration of two fingers without resistance. This observation 3 suggested regular sexual penetration. Based on that finding, the doctor completed two Police Form 3 (PF3), one documenting the physical assault and another specifically addressing the sexual component of her well being. The appellant and his co-accused were arrested and arraigned in court. When the charge was read over and explained to them, they denied any involvement in assaulting and abandoning the victim. The appellant offered an alternative explanation, claiming that his wife had escaped from their home and returned to her parents' residence, suggesting that any injuries she sustained occurred at her parental home rather than by his hand. Regarding the incident of rape, he advanced a defence rooted in cultural practice, asserting that he married PW1 in 2020 after completing all traditional procedures required by Maasai customs and had consensual sexual relations with her as his wife ever since. His defence raised a fundamental legal question of whether the alleged marriage, even if contracted through customary means, could immunize a husband from rape liability when his wife was below the age of consent. This question will be determined in due course of this judgment. Following a full trial, the trial court rejected their defence and convicted them on all counts. The court sentenced each to five years' imprisonment on the first and second counts and ordered each to pay compensation of T7S 2,000,000/ to the victim. The appellant was also sentenced to thirty (30) years' imprisonment for the offence of rape. It was ordered that, the sentences should run concurrently. Aggrieved, both preferred appeals to the High Court which sustained the conviction and the subsequent sentences save only on the sentence of the second count in which it substituted with fine of TZS. 300,000/=. Undaunted and determined to defend his innocence, the appellant lodged his memorandum of appeal to this Court comprising nine (9) grounds which may be condensed into three substantive complaints as follows: one, the trial and first appellate courts erred to convict the appellant on rape and sentenced him to 30 years imprisonment while at the age of 18 years contrary to section 131 (2) (a) of the Penal Code; two, variance between the charge and the prosecution evidence; and three, that the case against the appellant was not proved to the required standard. At the hearing, the appellant entered appearance unrepresented and when he was invited to address his grounds of appeal, first he demonstrated incapability to follow the court proceedings because of his 5 language barrier. That, he did not speak and understand the language of the Court which is, either Swahili or English, save only Maasai. The Court sought assistance from an interpreter who knows Swahili and Maasai language. M r. Kirema Kivuyo was sworn in as an interpreter of the appellant from Swahili to Maasai language. Consequently, the appellant adopted his grounds of appeal together with his written statement of arguments lodged in Court on 2n d February, 2026. In brief, the appellant lamented bitterly that in 2020 he was 18 years old, while the victim was 14 years thus, he was covered under section 131 (2) (a) of the Penal Code whose sentence is only corporal punishment. In this point he buttressed his argument with a case of Musa Abimeleki v. Republic, [2025] TZCA 1152 (17 October, 2025). On variance of charge and prosecution evidence, he relied on the age of the victim in relation to the Law of Marriage Act, that at the age of 15 years, the victim was allowed in law to be married. Thus, he could not rape his wife, he argued. Finally, he urged the Court to release him because the offence of rape was not proved to the hilt. The respondent Republic was represented by a team of State Attorneys led by Ms. Neema Mbwana, learned Senior State Attorney, assisted by Ms. Marietha Maguta and M r. Abdon Bundala, learned State Attorneys. It is Ms. Marietha Maguta who addressed us at the hearing of the appeal. The original stance of the respondent was to oppose the appeal and implored the Court to dismiss it because the prosecution proved the offence to the required standard. However, after engagement and upon revisiting the record of appeal especially on the victim's evidence, that at the time of her testimony in court, she was 16 years old, but instead of either taking oath or affirmation, she promised to tell the truth and not lies, thus her evidence is prone to expungement. She thus changed the respondent's stance and supported the appeal. On our part, having carefully considered the grounds of appeal, the submissions of the parties and upon examining the record before us, the issue for our determination is whether the prosecution proved its case beyond reasonable doubt. We wish to begin with the admissibility of the victim's evidence in regard to how she gave her testimony. It is on record as appears in page 13 of the record of appeal that, on 17th October, 2022 PW1 stated her name and age that she was 16 years, pastoralist, Gilai Lumbwa, Pagan. Then she proceeded as follows: "I promise to tell the truth and only the truth your honour." From that promise she proceeded to testify her evidence. 7 It is undisputed that the victim at the time of her testimony was 16 years old. In terms of section 127 (2) and (4) now section 135 of the Evidence Act, provides categorically that a child of tender age may testify without making an oath or affirmation. For clarity the section provides: 127 (2) "A child o f tender age may give evidence without taking an oath or making an affirmation but shaii, before giving evidence, promise to tell the truth to the court and not to tell any lies. (4) For purposes o f subsections (2) and (3), the expression "child o f tender age" means a child whose apparent age is not more than fourteen year s" (Emphasis added). Since the victim was at the age of 16 years, she could not promise to tell the truth and not to lies because such promise is exclusively reserved for children of tender age, below 14 years old. Therefore, her evidence was taken without oath or affirmation. We are alive, on the consequences of testifying without oath or affirmation. It is a mandatory legal requirement in terms of section 198 (1) of the Criminal Procedure Act (CPA), now section 212 (1) to swear or affirm prior to testifying in any court of law. The section is couched in a mandatory manner that: 212- (1) "A witness in a criminal cause or matter shall, subject to the provisions o f any other written law to the contrary, be examined upon oath or affirmation in accordance with the provisions of the Oaths and Statutory Declarations Arf"(Emphasis provided). Equally important is the proviso to section 4 of the Oaths and Statutory Declaration Act, Cap 34 R.E. 2023 which provides mandatory requirement to take oath or affirmation before testifying as a witness in court. It says: 4. "Subject to any provision to the contrary contained in any written law, an oath shall be made by - (a) any person who may lawfully be examined upon oath or give or be required to give evidence upon oath by or before a court; or (b) any person acting as interpreter o f questions put to and evidence given by a person being examined by or giving evidence before a court: Provided that, where any person who is required to make an oath professes any faith other than the Christian faith or objects to being sworn, stating, as the ground o f such objection, either that he has no religious belief or that the making of an oath is contrary to his religious belief, such person shall be permitted to make his solemn affirmation instead of making an oath and such affirmation shall be of 9 the same effect as i f he had made an oath (Emphasis added). The above provisions go hand in hand with rule 2 of the Oaths and Affirmation Rules, Government Notice 125 of 1967 which prescribes the oath and affirmation for all religious believers and non-believers. Given the fact that PW1 was a non-believer (pagan) she ought to have affirmed before she could testify in court. Consequently, her evidence is discounted and expunged from the record. As we have alluded to above, in rape cases, the true evidence is from the victim. This is the stance of the law in a number of decisions of the Court including the cases of Hamis Mkumbo v. Republic, Criminal Appeal No. 124 of 2007; Rashidi Abdallah Mtungwa v. Republic, Criminal Appeal No. 91 of 211; (both unreported) and Seleman Makumba v. Republic [2006] T.L.R. 379. In the latter case the Court held: "True evidence o f rape has to come from the victim , if an adult, that there was penetration and no consent, and in case o f any other woman where consent is irrelevant, that there was penetratiori’ In the instant appeal, after expunging the evidence of PW1 from the record of appeal, then, the immediate crucial issue which has 10 exercised our mind, is whether the remaining evidence on record is sufficient to sustain the appellant's conviction. In simitar circumstances, the Court, in the case of Mariko Thomas v. Republic, [2020] TZCA 1760 (27 August, 2020) asked a similar question after expungement of the victim's evidence. After reevaluation of the remaining evidence, the Court found that the appeal was merited because the remaining evidence was incapable to prove the offence beyond reasonable doubt. Thus, in the absence of the victim's evidence, the offence remained unproved beyond reasonable double. In the instant appeal, having expunged the victim's evidence from the record of appeal, the remaining evidence would give only corroborative evidence as we decided in the cases of Galus Kitaya v. Republic/ (Criminal Appeal No. 196 of 2015) TZCA 301 (15 April 2016) and Godi Kasenegala v. Republic, Criminal Appeal No. 10 of 2008 (unreported). It is now settled law that the proof of rape comes from the prosecutrix herself. Other witnesses if they never actually witnessed the incident, such as PW5 (medical doctor), PW2 and others may give corroborative evidence. The evidence of other witnesses do not irresistibly lead to the conclusion that PW1 was raped. We are aware on u the allegations of marriage which we do not intend to indulge on it at this time. It is an area fit for another appropriate case. As such in the absence of the true evidence from the victim like in the instant appeal, we are settled in our minds that the remaining evidence could not sustain conviction. We therefore, agree with the learned State Attorney that the prosecution case on account of rape was not proved to the hilt. Given the circumstances of the above reasons, we agree with the learned State Attorney that we need to interfere with the concurrent findings of the trial and first appellate courts because both courts beiow misapprehended the evidence which occasioned miscarriage of justice. See, Wankuru Mwita v. Republic, Criminal Appeal No. 219 of 2012 (unreported). We are therefore, satisfied that after expunging the evidence of PW1 there is no evidence on record which could safely be concluded that the appellant raped the victim. Moreover, the sentence passed by the trial court and upheld by the first appellate court was contrary to law. It is our further view that had the learned Judge considered the shortfalls discussed above, he would have come to the inevitable finding that it was not safe to sustain the appellant's conviction and sentence. 12 In view of the above reasoning, we are satisfied that this appeal is merited and we allow it, quash the conviction, set aside the sentence and order for the immediate release of the appellant from prison unless held on lawful cause. DATED at DODOMA this 19th day of March, 2026. W . B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P . J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered virtually this 20th day of March 2026 in the presence of the Appellant in person - unrepresented, Ms. Tusaje Samwel, learned State Attorney for the Respondent / Republic and Ms. Stella Mlaponi, Court clerk, is hereby certified as a true copy of the oric1 ""’1 R. W . CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL 13