Juma Mwandu vs Republic (Criminal Appeal No. 872 of 2023) [2026] TZCA 289 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI. 3.A.. MAKUNGU, J.A. And MGEYEKWA, J J U CRIMINAL APPEAL NO. 872 OF 2023 JUMA MW ANDU ............. ..................... ................. APPELLANT VERSUS THE REPUBLIC ..... ................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) (Massam. J.) Dated the 20th day of October, 2023 in Criminal Appeal No. 38 of 2023 JUDGMENT OF THE COURT 19th February & 9th March, 2026 WAMBALI. J.A.: The District Court of Maswa at Maswa convicted the appellant, Juma Mwandu of the offence of impregnating a secondary school girl contrary to section 60A (1) (3) of the Education Act, as amended by the Written Laws (Miscellaneous Amendments) Act No. 2 of 2016. It was alleged in the particulars that; on 12th October, 2020 during night time at Zebeya village within Maswa District in Simiyu Region, the appellant did impregnate a secondary school girl aged 19 years. In this judgment, we shall refer the respective girl as the victim. It is apparent that upon entering the conviction in respect of the offence charged, the trial court ordered that the appellant should serve a term of thirty years imprisonment. The appellant appealed to the High Court in Criminal Appeal No. 38 of 2023, whose decision is the subject of the current appeal. Having considered the grounds of appeal in the petition of appeal, the first appellate judge sustained the conviction of the appellant in respect of the offence he was charged with and confirmed the sentence of a term of thirty years imprisonment. Dissatisfied, the appellant lodged before the Court the instant appeal to challenge the decision of the High Court. The two memoranda of appeal filed by the appellant before the hearing contain a total of twelve (12) grounds of appeal. However, for the purpose of determining the appeal, the major complaint of the appellant reflected in the second ground of the supplementary memorandum of appeal centres on the alleged variance between the name of the victim indicated in the charge and the name of the alleged victim who testified at the trial as PW1. More importantly, the complained of variance also features between the name in the charge and testimonies of other prosecution witnesses, except the doctor who examined the victim and filled the PF3. We do not, therefore, intend to reproduce all the grounds of appeal. In short, the appellant's complaints in the second ground of appeal may be paraphrased as follows: "That, both the trial court and the first appellate court erred in law and fact to convict and sentence the appellant while there is discrepancy on the name of the victim between the charge and the evidence adduced by the complainant (PW1) and other prosecution witnesses." At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas Mr. Anesius Kainunura and Ms. Suzan Masule, learned Principal State Attorney and Senior State Attorney, respectively appeared for the respondent Republic. Addressing the Court in respect of the respective second ground of appeal, the appellant stated briefly that the name of the victim indicated in the charge differs with the name of a person who testified as PW1. In this regard, he submitted, PW1 was referred to and introduced herself as Sumbuka contrary to the name in the charge sheet. He added that the said name reflected was also consistently referred by PW2, PW3 and PW4 in their testimonies. He stated further that the only witness who mentioned the name of the victim both in her oral testimony and the PF3 which she tendered and admitted as exhibit P2 is PW5, a doctor who examined the victim. 3 It was thus the appellant's argument that, apart from the variance of the name between the charge and the evidence of the prosecution witnesses, he was not fairly tried as he was not sure whether the victim who is indicated in the charge is the same as the one who testified at the trial, simply by one name of Sumbuka. He therefore urged the Court to allow the appeal and set him free on account of the variance of the name between the charge and the evidence in the record which rendered the prosecution case unproved. On the other hand, Mr. Kainunura readily conceded that there is variance of the name of the victim between the charge and the evidence of the prosecution on the record. However, he submitted that upon perusal of the record of proceedings of the trial court in the record of the appeal, it seems the variance on the names of the victim between the charge and evidence was caused by the trial court which handled the proceedings. Indeed, he stated, the style adopted by the trial court caused a serious confusion in the proceedings regarding the name of the victim. The learned Principal State Attorney submitted further that, it is apparent in the record of appeal that the trial court recorded the name Sumbuka to hide the identity of the victim from the stage of preliminary hearing and when it recorded the evidence of the prosecution witnesses. The exception is evidence of the doctor (PW5) who referred the victim by the name indicated 4 in the charge which also appeared in the PF3. Besides, he stated, though the evidence of PW4, a school teacher shows the name of the victim as Sumbuka, the name indicated in the School Registers he tendered and admitted as exhibit P2 shows the names indicated in the charge. Mr. Kainunura argued that basically, it may be taken that the appellant followed the proceedings as he cross-examined PW1 who testified as Sumbuka the other prosecution witnesses who substantially made reference to that name. However, in the absence of the indication that it was the trial court which directed that the victim should be so referred, the proceedings were tainted with serious confusion which rendered the trial unfair. Indeed, he submitted confusion indeed it prejudiced both sides of the case. Mr. Kainunura stated further that the confusion is also apparent in the judgement of the trial court where the victim is referred by the trial magistrate as"PW l K.L. nicknamed Sumbuka". Therefore, the identity of the victim was not consistent throughout the proceedings. Yet the record of appeal is silent on whether there was specific order or direction by the trial magistrate on the reference of the identity of the victim. In this regard, the learned Principal State Attorney argued that considering the confusion in the proceedings of the trial court, it is clear that the appellant as well as the Republic were prejudiced. In the circumstances, he urged the Court to invoke the powers of revision under section 6 (2) of the Appellate Jurisdiction Act, Cap 141, to revise and nullify the proceedings of the trial and first appellate courts, quash the conviction and set aside the sentence imposed on the appellant. As for the way forward, Mr. Kainunura stated that considering the material facts on the record, a retrial be ordered as the prosecution will not fill the gaps. The appellant rejoined by urging the Court to discharge him because of the variance of the name between the charge and the evidence on record which rendered the case unproved. He maintained that he did not cause the stated confusion in the proceedings. Having heard the submissions of the parties, we entirely agree that the proceedings that proceeded at the District Court of Maswa in Criminal Case No. 25 of 2021 are tainted with serious confusion with regard to the procedure adopted by the trial court to hide the identity of the victim. Though the record of appeal is silent on whether the trial magistrate directed that the name of the victim should be referred to as Sumbuka, it is clear that the name Sumbuka which is different from that indicated in the charge was consistently used from preliminary hearing and during the trial by the witnesses who testified for the prosecution. 6 It is apparent from the record of appeal that while the charge indicated the two actual names of the victim and the age being 19 years, the proceedings from the stage of preliminary hearing and the evidence of the prosecution witnesses referred the victim by the name Sumbuka. It is only in the testimony of PW5, the PF3 (exhibits PI) and the attendance register (exhibit P2) in which the name of the victim relates to the one indicated in the charge. Therefore, apart from the preliminary hearing, throughout the testimonies of the prosecution witnesses, the victim was referred by the name Sumbuka. As stated by Mr. Kainunura, the confusion in the name is also reflected in the judgement of the trial court. Presumably, the reference on the identity of the victim in the judgement was in line with the directions of the Chief Justice's Circular No. 2 of 2018. However, it is not clear why the trial magistrate used three different identities of the victim; that is "PW1", "K .L" and Sumbuka. We note that, the appellant did not, both at the trial and the first appellate courts, raise the issue of variance of the name of the victim. He did not also complain that the victim who appeared in court and testified as PW1 is not the one who was indicated in the charge. It is on the record that, the appellant cross examined PW1 and other witnesses and did not raise the issue of difference in the names of the victim. Nevertheless, considering the silence in the record of appeal regarding the style of hiding the name of the victim, the apparent confusion in the proceedings of the trial court prejudiced parties to the case. Therefore, the intervention by the Court cannot be escaped. In Tanzania, as a genera! rule, criminal proceedings are conducted in open court and the accused has the right to know the identity of the witness testifying against him. This is the import of the provisions of section 192 (1) of the Criminal Procedure Act, Cap 20 (the CPA). However, in limited and exceptional circumstances, the court may take measures to conceal or protect the identity of a witness in order to safeguard their safety, dignity or public interest. Thus, in terms of section 192 (3) of the CPA, it is provided that proceedings involving juveniles who are victims of sexual offences or witnesses should be conducted in camera to protect their identity. The section provides: "192-(3) Notwithstanding the provisions o f any other iaw, the evidence of all persons in all trials in volvlng sexual offences shall be received by the court in camera, and the evidence and witnesses involved in these proceedings shall not be published by or in any newspaper or other media , but this subsection shaii not prohibit the printing or 8 publishing o f any such matter in a bona fide series o f law reports or in a newspaper or periodical o f a technical character bona fide intended for circulation among members o f the legal or medical professions." [emphasis supplied] Therefore, when proceedings are conducted in camera, only the essential parties remain in court including but not limited to the accused, advocates, court staff, social welfare officers (if any) and necessary witnesses. The respective provision limits and prohibits publication of any information in any newspaper or media except when printing or publication is bona fide for law reports or newspaper of a technical character bona fide intended for circulation among members of the legal or medical professions. Indeed, in Goodluck Kyando v. The Republic [2006] T.L.R. 363 the Court stated that: "In sexual offences, trials are to be conducted in camera so that children as defined under the Act are not , for instance, exposed to publicity which may inhibit a fair trial\ subjecting them to stigma and the like." It is noteworthy that, in 2018 the Chief Justice of Tanzania issued a Circular to guide courts in handling cases involving children and victims of sexual offences, particularly in criminal proceedings and adoption 9 proceedings. For clarity, the Chief Justice Circular No. 2 of 2018 provides the following guidance with regard to protection of identity of a child as victims or witnesses and victims of sexual offences of a whatever age: "Ref. No. CAB.50/101/01/20 March, 2018 CHIEF JUSTICE'S CIRCULAR NO. 2. OF 2018 RE: DIRECTION NO. 2 OF 2018 ON PROTECTION OF IDENTITIES OF CHILDREN IN ANY MATTER BEFORE THE COURT; OF PARENT AND GUARDIAN OF THE CHILD IN THE ADOPTION PROCEEDINGS; AND OF VICTIMS OF SEXUAL OFFENCES OF WHATEVER AGE 1.0 The Law o f the Child Act, 2009 [Cap. 13] was enacted for among other purposes, to protect and maintain the welfare o f a child in Tanzania. 1.1 While section 33 of Cap 13 prohibits the publication of any information or a photograph that may lead to the identification of a child in any matter before the court unless with prior authorization by thecourt; section 76makesit unlawful, topublish and advertisement containing information that will disdose the identityoftheparent orguardian ofa childdesiredto be adopted, or oftheperson desiring to adopta child, or ofa person willing to arrange for the adoption. 2.0 In order to comply with both the requirements o f the law and the need to protect the dignity o f children involved in any matter before the court; of children in involved in the proceedings o f sexual offences as victims or witnesses, and o f victims o f sexual offences of 10 whatever age Judges and Magistrates, when composing their decisions, are directed to use pseudonyms designed to preserve and protect their respective privacy and dignity. 2.1 The protection and preservation o f the dignity o f persons mentioned in this Direction shall extend to keeping and maintaining ait documents in a secure place to prevent any access by any person who does not have reasons to know their contents. 2.2 No unauthorized person shall have access to any document which is likely to disclose the name or any other information concerning (i)- children having any matter before the court or involved in the proceedings o f sexual offences either as victims or as witnesses; (ii)-victims o f sexual offences o f whatever age; or (iii)-parents or guardians in the adoption proceedings. 2.3 Protection o f identities under this Direction shall extend to ensuring that the names or information concerned is not disclosed to the mainstream media or to the social media. 2.4 Courts must also take further care to ensure that other small details like , the addresses, or the names o f their former schools, do not lead to the disclosure o f the identities o f the persons protected under this Direction. 2.5 And, Judges and Magistrates shaii ensure that abbreviations they use as pseudonyms, do not in any way iead to the identification o f the protected ii person. " [emphasis supplied] What can be discerned from the guidelines is that the court is directed to use initials, pseudonyms or abbreviations in the judgements so as not to disclose the full name of the child involved in proceedings. The courts, are further directed not to disclose information that may indirectly reveal the child identity such as schools, exact residence or parents' full details where unnecessary. The protection extends to ensure that the names or information concerned is not disclosed to the mainstream media or social media. It is therefore important for magistrates and judges to be aware of and conscious of the guidance provided in the circular to safeguard the dignity of the victims and witnesses. Admittedly, both section 192 (3) of the CPA and the Chief Justice Circular do not provide directions on hiding the names of children as victim or witnesses in sexual offence cases and those involving children from the stage of preliminary hearing and during trial. The Chief Justice Circular, in particular, directs hiding the names of the respective victim or witness in the judgement. Besides, the circular emphasises that the abbreviations used as pseudonyms should not be in such a way that it leads to the identification of the protected person. 12 We are of the view that non-direction on the requirement to hide the names of respective victims and witnesses during the preliminary hearing and trial is based on the consideration that; firstly, the proceedings are held in camera as stated under section 192 (3) of the CPA in which only relevant parties connected to the case are involved. Secondly, the recognition of the principle of fair trial in which the accused is entitled to know the victim or complainant or a witness and understand the nature of the accusation facing him in order to prepare his defence. Thirdly, the expectation that those involved in such proceedings cannot divulge the relevant information about the protected victim or witness and what transpires during the proceedings. It is in this regard that, the provisions of the CPA referred above and the Chief Justice Circular prohibits publication of such proceedings disclosing the names of the victims. Moreover, while conscious of the fact that a judgement of the court is a public document, the Chief Justice Circular directs hiding name of the victim to safeguard his/her dignity. In Leonard Salim Kimweri v. The Republic (Criminal Appeal No. 453 of 2015) [2016] TZCA 626 (5 August 2016, TANZLII), it was held that: "Proceedings held in camera are intended to protect the victim o f crime and not the accused." 13 In the circumstances, we are of the view that, though the record of appeal is silent on whether it is the trial magistrate who directed the hiding of the name of the victim, the style adopted by the trial court in respect of hiding the name of the victim, from preliminary hearing and during the testimonies of the prosecution witnesses was irregular. Certainly, the style caused serious confusion in the proceedings of both the trial and the first appellate courts. In this regard, while we uphold the complaints of the appellant on the failure by the trial court to properly guide the proceedings regarding the name of the victim as per the charge, we are satisfied that the issue is not on the variance between the charge and the evidence on the record which renders the prosecution case unproved. On the contrary, the apparent variance was caused by the style adopted by the trial court which caused confusion that occasioned a failure of justice to both parties. In VIP Engineering and Marketing Ltd v. Mechmar Corporation (Malaysia) Berhad of Malaysia (Civil Application No. 163 of 2004) [2006] TZCA 23 (12 May 2005, TANZLII), the Court stated that apparent confusion in the proceedings that leads to the miscarriage of justice has to be resolved by resorting to revision power of the Court. This stance was also followed by the Court in Lengai Ole Sabaya and Three Others v. The Director of Public Prosecutions (Criminal Application 14 No. 03/02 of 2023) [2024] TZCA (20 February 2024, TANZLII), in which the tainted proceedings resulting from confusion were nullified. We thus hold that in the circumstances of this case, the confusion in the proceedings of trial court eroded the principles of fair trial leading to miscarriage of justice. The next issue for our consideration, at this juncture, is on the way forward. It is noteworthy that while the appellant prayed that he should be discharged apart from the apparent confusion, the learned Principal State Attorney prayed that since the confusion in the proceedings was caused by the trial court and has occasioned injustices to both the appellant and the prosecution, the proceedings of both courts below be nullified by invoking section 6 (2) of the AJA, followed by quashing the conviction of the appellant and setting aside the sentence and in the end, an order for retrial be made. For our part, we are aware that upon nullification of the proceedings, a decision whether a retrial should be ordered or not must also depend on the circumstances of a particular case. Besides, ordering a retrial must be based on the position that though the intention of a retrial is a question of making good a technical defect or irregularity that surrounded the previous trial, the interest of justice require that the court must ensure that no is prejudice will be suffered to the accused. In the end, considering the circumstances of the case, we are of the view that, a retrial will be on the interest of justice. Consequently, in terms of section 6 (2) of the AJA, we nullify the proceedings of the trial and first appellate courts, quash the conviction and set aside the sentence imposed on the appellant Ultimately, we order that a case file in Criminal Case No. 25 of 2021 be remitted to the trial court for retrial which should be expedited. Meanwhile, the appellant should remain in custody pending retrial. DATED at SHINYANGA this 7th day of March, 2026. F. L. K. WAMBALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A.Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 9th day of March, 2026 in the presence of the Appellant in person and Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court