Mngindu Ruben @ Ngidu vs Republic (Criminal Appeal No. 485 of 2023) [2026] TZCA 239 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CORAM: WAMBALI, 3.A.. MAKUNGU. 3.A AND MGEYEKWA. J.A.n CRIMINAL APPEAL NO. 485 OF 2023 MNGINDU R U B E N ...............................................................................APPELLANT VERSUS THE R EPU BLIC................................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga sitting at Kahama) (Massam. 3.) dated the 24th day of May, 2023 in Criminal Sessions Case No. 73 of 2021 JUDGMENT OF THE COURT 10th February & 4th March, 2026 MAKUNGU. 3.A.: The High Court of Tanzania at Shinyanga sitting at Kahama (the trial court) convicted the appellant, Mgindu Ruben @ Ngidu of the offence of murder contrary to section 196 of the Penal Code. He was accordingly sentenced to death by hanging. The conviction followed the trial court's evaluation of the prosecution and the defence evidence in which it came to the conclusion that the appellant murdered one Lusasula s/o Washa @ l Lusana Washa on 6th March, 2016 at Kinamwing'wa Village within Kahama District in Shinyanga Region. The prosecution case depended on the evidence of seven (7) witnesses and five (5) documentary exhibits. The appellant was also accorded the opportunity to defend himself and strongly denied the allegations levelled against him by the prosecution side. For reasons to be apparent shortly, we do not intend to revisit the substance of the evidence for both sides. The dissatisfaction of the appellant with the finding and conviction by the trial court prompted him to lodge the present appeal. In the memorandum of appeal, the appellant has fronted five (5) grounds of complaint. Nevertheless, as intimated above with respect to the factual background of the case, we do not intend to reproduce the respective grounds of appeal herein. At the hearing of the appeal before us, Mr. Shaban Mvungi, learned counsel, represented the appellant, whereas Mr. Jukael Jairo, learned Senior State Attorney appeared for the respondent Republic. Before hearing of the appeal on merit commenced, an issue arose concerning the propriety of some of the witnesses who gave their evidence without oath or affirmation. We, therefore, suo motu put it to the parties to address us on the consequences that may befall the evidence of such witnesses and the effects on the prosecution case as a whole. On taking the floor, Mr. Mvungi submitted that, apart from conceding that the four witnesses (PW1, PW4, PW9 and DW1) gave their testimonies before they were either sworn or affirmed, he was of the view that what was recorded when they testified was no evidence at all in the eyes of the law and could not be acted on to determine the appellant guilt or otherwise. He urged the Court to nullify the trial proceedings, quash the conviction and set aside the sentence with an order that the appellant be set free. He argued that, a retrial is not worthy on account that the appellant expressed his intention to give his defence on oath as shown in the record of appeal. Nonetheless, he stated, the trial court failed to put that into consideration. On the other hand, Mr. Jairo apart from conceding to the stated anomalies and that the trial was vitiated, he submitted that such evidence was recorded in total contravention of the mandatory provisions of section 198 (1) (now S.212 (1)) of Criminal Procedure Act, Cap. 20 (the CPA). Regarding the impact of the testimonies by PW1, PW4 and PW9 being discarded on the prosecution case, the learned Senior State 3 Attorney, argued that in so far as PW1 and PW9 were among key prosecution witnesses and are the only witnesses who gave evidence proving that the appellant was the last person to be with the deceased, then without such evidence the prosecution case will be affected. Mr. Jairo was also of the view that even the defence evidence would not survive the infraction hence there will be no defence evidence to be considered. It will, he added, have the effect that the appellant did not render his defence which is one of natural rights he is entitled to exercise. The learned Senior State Attorney could not let the appellant benefit from the infraction. Both sides, he emphatically argued, were negatively impacted by the shortcoming in the conduct of the case. He ultimately urged us to nullify the proceedings of the trial court and order a retrial. He relied on the decisions of the Court in Fatehali Manji v. Republic [1966] E.A 341 and Nestrory Simchimba v. Republic (2017) [2020] TZCA 155 (1 April 2020, TANZLII). On our part, without having to linger on the matter, we entirely agree with the counsel for the parties on improper recording of the testimonies of witness for both sides of the case without being sworn or affirmed. It is clear from the record of appeal that PW1, PW4, PW9 and DW1 informed the trial court that they had no religion on which they 4 professed. Thereafter, the trial Judge recorded their testimonies without administering to them either an oath or affirmation. It needs no overemphasis that evidence to be acted upon by any court must come from a competent witness. Unless a witness is exempted in terms of section 127 (1) of the Evidence Act, Chapter 6, for being a child offender age and does not understand the nature of an oath hence his evidence is taken without being sworn or affirmed, any other witness in any judicial proceedings must be sworn or affirmed. This is the tenor and import of the mandatory provisions of section 212 (1) of the CPA, section 4 (a) and (b) of the Oaths and Judicial Proceedings Act, Chapter 34 (the OJPA) and the Oaths and Affirmations Rules, G.N. No. 125 of 1967 made under section 8 of the OJPA (the OJPA Rules). The OJPA Rules prescribe different types of oaths for witnesses who are Christian who should swear, Muslims who should affirm and Hindus or Pagans who should affirm. We shall start our discussion with the provisions of section 212 (1) of the CPA which imperatively require a witness be sworn or affirmed before his evidence is recorded. That section states: "212 (1) Every witness in a crim inal cause or m atter shall, subject to the provisions to any other law to the contrary, be examined upon oath or affirm ation in accordance with the provisions o f the Oaths and Statutory Declarations A c t " 5 In line with the above, the provisions of section 4 (a) and (b) of the OJPA states that: - 4. Subject to any provision to the contrary contained in any written law, an oath shall be made by: a ) A n y p e rso n w ho m ay la w fu lly be e xam in e d upon o a th o r g iv e o r b e re q u ire d to g iv e evid e n ce upon oath b y o r b e fo re a co u rt; b) Any person acting as interpreter o f question 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, e ith e r th a t he h a s n o re lig io n b e lie f or that the making o f an oath is contrary to his religious belief, su ch p e rso n s h a ll be p e rm itte d to m ake h is so lem n a ffirm a tio n instead o f making an oath and such affirmation shall be o f the same effect as if he had made an oath." (Emphasis added) Further, to the above and relevant to the instant case, Paragraph 4 of the First Schedule to the OJPA Rules prescribes a specific form of affirmation by a Pagan. It states: 6 " 4. Affirm ation by pagans , person objecting to making an oath, or persons professing any faith other than the Christian, Musiem or Hindu faith: "I so le m n ly a ffirm th a t w h at I s h a ll s ta te s h a ll be th e tru th , th e w hole tru th a n d n o th in g b u t th e tru th ." In the present case, PW1, PW4, PW9 and DW1 professed no any religion hence they were pagans. So, they ought to had been affirmed in the above accord before their evidence was taken. The need to meet the threshold of section 212 (1) then 198 (1) of the CPA was discussed in Mwami Ngura v. Republic, Criminal Appeal No 63 of 2014 and Jafari Ramadhani v. Republic, Criminal Appeal 311 of 2017 (both unreported) when the Court faced an identical situation. In the former case, it was stated that:- "... this means that, as a genera! rule, every witness who is competent to testify, m ust do so under oath or affirmation, unless, she falls under the exceptions provided in a written law. As demonstrated above one such exception is section 127 (2) o f the Evidence A ct But once a trial court, upon an inquiry under section 127(2) o f the Evidence Act, finds that the witness understands the nature o f an oath, the witness must take an oath or affirmation. I f this is not done, such evidence m ust be visited by the consequences o f non-compliance with section 198(1) o f the CPA. A nd, in s e v e ra l cases, th is C o u rt h a s h e ld th a t i f in a c rim in a l case, evid en ce is g iv e n w ith o u t oath o r a ffirm a tio n , in v io la tio n o f se ctio n 1 9 8 (1 ) o f th e CPA, such testimony amounts to no evidence in law (see eg. M w ita S ig o re @ O gorea v. R. Crim inal Appeal No. 54 o f 2004 (unreported). The question o f such evidence being relegated to "unsworn" evidence does not therefore arise." (Emphasis provided) Since in our case, PW1, PW4, PW9 and DW1 gave evidence without being affirmed on the authority above, their words recorded when they gave testimonies was no evidence at all and, in that accord, we entirely agree with both counsel that such evidence deserved not to be considered by the court to determine the guilt or otherwise of the appellant. The evidence of PW1, PW4, PW9 and DW1 is hereby accordingly discarded. Considering the divergent views of the counsel for the parties on the way forward, we further agree with Mr. Jairo that, in the circumstances of the case under our consideration, both sides are seriously affected by those omissions. Should we order a retrial or not, is the issue that pops for our determination. Both learned counsel parted ways on the propriety or otherwise of a retrial. In determining the above issue, we are guided by the principles laid down in the often cited decision by the defunct East African Court of Appeal in the case of Fatehali Manji (supra). In that case it was stated that:- "7/7 general a retrial w ill be ordered only when the original that was illegal or defective. It w ill not be ordered where conviction is set aside because o f insufficiency or for purposes o f enabling the prosecution to fill up gaps in its evidence at the first trial. Even where the conviction is vitiated by mistake o f the trial court for which the prosecution is not to blame\ it does not necessarily follow that, a retrial shall be ordered; each case m ust stepped on its own facts and circumstances and an order o f retrial should only be made when the interest o f justice require." The principle stated in the above decision were followed by the Court in Selina Yambi and Others v. Republic, Criminal Appeal No. 94 of 2013 (unreported) where it was stated: "We are alive to the principle governing retrials. Generally, a retrial w ill be ordered if the original 9 trial is illegal or defective. It w ill not be ordered because o f insufficiency o f evidence or for the purpose o f enabling the prosecution to fill up gaps. The bottom line is that, an order should only be made where the interest o f justice require." Failure by the trial court to affirm the appellant (DW1) before recording his defence evidence, similarly affected the appellant. His defence evidence, equally suffers from the consequence of being disregarded. The appellant remains with no defence at all. Section 231(1) and (b) of the CPA gives the right of accused person to defend himself before the court. But that right was taken away by the court of law. No one else can wash away that right except the appellant himself by expressly opting out not to render his defence. According to the record of appeal the appellant, expressly showed his intention to defend himself on oath. We, consequently, in the circumstances of the case at hand, have no doubt in our minds that failure to affirm the four witnesses prejudiced both sides of the case and hence rendered the trial a nullity. In the present case, it is our view, therefore, that justice of the case demands an order of retrial be made. In the result, we invoke the provisions of section 6(2) of the Appellate Jurisdiction Act, Chapter 141 to revise and nullify the proceedings of the trial court, quash conviction and set aside the 10 sentence. We direct the trial court record be remitted back so that the trial shall be commenced from when the infraction first occurred, that is immediately before PW1 gave his testimony. We further direct that, for the interest of justice, a retrial be expedited. Meanwhile, the appellant shall remain in remand custody. DATED at SHINYANGA this 3rd 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 4th day of March, 2026 in the presence of Mr. Shaban Mvungi, learned counsel for the Appellant and Ms. Mboneke Ndimubenya, learned State Attorney for the Respondent, via virtual Court, and Mr. Elias Mkwabi, Court Clerk; is hereby certified as a true copy of the li