Ngeleka Masome vs Republic (Criminal Appeal No. 498 of 2024) [2026] TZCA 260 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA, J.A.. MDEMU. 3.A. And ISSA. J.A.^ CRIMINAL APPEAL NO. 498 OF 2024 NGELEKA M ASO M E ............................................................................ APPELLANT VERSUS REPUBLIC......................................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Itemba, J.^ dated the 10th day of November, 2023 in Criminal Appeal No. 87 of 2022 RULING OF THE COURT 26th February & 4th March, 2026 ISSA , J.A.: The appellant, Ngeleka Masome was arraigned before the District Court of Misungwi at Misungwi (the trial court) in Criminal Case No. 56 of 2021 facing two counts: First, rape contrary to sections 130 (1) (2) (e) and 131 of the Penal Code, Cap. 16 and second, intentional transmission of HIV contrary to section 47 of the HIV and AIDS (Prevention and Control) Act, Cap. 431. The trial court convicted him on both counts and sentenced him to serve 30 years imprisonment for the 1st count and six years imprisonment for the second count. The appellant's arraignment before the trial court was a result of an accusation that, on diverse dates between June, 2020 and January, 2021 at Ukiriguru Village within Misungwi District in Mwanza Region, the appellant had carnal knowledge of a 12-years-old girl whom we shall refer as the victim. Further, at the same period and place, the appellant intentionally transmitted HIV to the victim. The appellant pleaded not guilty to the charge. It is noteworthy to state that, it was the second time the appellant was tried, convicted, and sentenced in the same court. Following a conviction and sentence in the first trial, the appellant appealed to the High Court where his appeal (Criminal Appeal No. 105 of 2021) was heard by a Senior Resident Magistrate with Extended Jurisdiction who ordered a retrial. The record of appeal on page 49 reads: "On 21/02/2022 Senior Resident Magistrate with Extended Jurisdiction vide Extended Jurisdiction Crim inal Appeal No. 105 o f2021, ordered retrial o f this case on the reason o f non-compliance o f section 127(2) o f the Evidence Act, Cap. 6 R.E. 2019 on the part o fP W l , hence this judgment". Upon the order of retrial, the appellant was therefore retried, convicted and sentenced as stated earlier. Aggrieved, he appealed to the High Court of Tanzania at Mwanza (the first appellate court) in Criminal Appeal No. 87 of 2022 which partly allowed his appeal. The conviction on the second count was quashed and the sentence set aside, but the conviction and sentence on the count of rape was sustained. Undaunted, the appellant approached this Court armed with a memorandum of appeal lodged on 14th July, 2024 containing four grounds of appeal and a supplementary memorandum of appeal lodged on 8th May, 2025 containing 6 grounds of appeal. When the appeal was called on for hearing, the appellant appeared in person and was fending for himself. Upon inquiry, he allowed counsel for the respondent Republic to submit first and reserved a right to rejoin, if a need arises. The respondent Republic had the services of Ms. Lilian Erasto Meli, learned Senior State Attorney assisted by Mr. Adam Murusuli and Ms. Stella Minja, learned State Attorneys. Before the hearing could start in earnest, we asked the Republic to address us on the propriety of the order of retrial and the ensued retrial. Ms. Meli submitted that, the trial court erred to order a retrial which led to the instant appeal. She added that, although the record of the first trial is not part of this record of appeal, but what is gleaned from the record is that in the hearing of the first appeal, the learned SRM with Extended Jurisdiction discovered that, the victim (PW1) who was a child of tender years did not promise to tell the truth before testifying at the trial court, which was a violation of section 127(2). Hence, with that anomaly, he ordered a re-trial of the case. Ms. Melli argued that the trial court misdirected itself in ordering a retrial as the proper course which it ought to have taken was to expunge the evidence of PW1 and proceed to evaluate the remaining evidence if would be sufficient to ground a conviction. To support her argument, she cited the Courts decision in Minani John and Others v. The Republic [2019] TZCA 666, where the Court held that a child witness must promise to tell the truth and the failure to do so renders the evidence valueless. On the way forward, Ms. Meli submitted that, after expunging the evidence of PW1, it would be impossible to prove penetration which is the essential ingredient of rape. Therefore, the remaining evidence is insufficient to prove the charge. She wound up by stating that, she is supporting the appeal and the way forward is for the Court to nullify all proceedings after the order of retrial and set the appellant free. The appellant, on his part, had nothing to say in response to the submission made by the Republic, he reiterated his prayer to the Court to consider his grounds of appeal and then set him free. On our part, we agree with the submission made by Ms. Meli and our starting point in determining that issue is to examine section 127(2) of the Evidence Act which is now section 135 (2) R.E. 2023 which reads: "135(2) A child o f 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 to tell any lies . " This provision was couched on a permissive term. It allows a child of tender age to take an oath or make an affirmation when he understands the nature of oath and if he does not, he may give evidence upon promising to tell the truth and not to tell lies. The child of tender age was defined in section 135 (4) of the Evidence Act as a child whose apparent age is not more than fourteen years. In the instant case, the victim being 12 years old is a girl of tender age and is, therefore, exempted by section 135(2) of the Evidence Act from taking oath. In Issa Salum Nambaluka v. The Republic, [2020] TZCA 10, the Court stated: "From the plain meaning o f the provisions o f subsection (2) o f s. 127 o f the Evidence Act... a child o f tender age may give evidence after taking oath or making affirmation or without oath or affirmation. This is because the section is couched in perm issive terms as regards the manner in which a child witness may give evidence." Further, in our earlier decision of Yusuph s/o Molo v. The Republic [2019] TZCA 344, the Court stated: "It is mandatory that such a promise must be reflected in the record o f the trial court. I f such a prom ise is not reflected in the record, then it is a big blow in the prosecution's case ... if there was no such undertaking, obviously the provisions o f section 127(2) o f the Evidence A ct (as amended) were flouted. This procedural irregularity in our view, occasioned a miscarriage o f justice. It was fatal and incurable irregularity. The effect is to render the evidence o f PW1 with no evidentiary value, it is as if she never testified to the rape allegation against her. It was wrong for the evidence o f PW1 to form the basis o f conviction." We are aware that section 135 of the Evidence Acthasbeen amended by Act No. 11 of 2023 which introduced new subsection(7) which reads: "(7) Notwithstanding any other law to the contrary, failure by a child o f tender age to meet the provisions o f subsection (2) shall not render the evidence o f such child in adm issible." 6 Although, this provision has changed the effect of section 135(2) of the Evidence Act, it has no retrospective application and therefore is not applicable to the instant case where the offence was committed between June 2020 and January 2021. Therefore, the position of law stated above is inapplicable to the instant case and we agree with Ms. Meli that, the evidence of PW1 had no evidential value and the proper course which ought to have been taken by the SRM with Extended Jurisdiction was to expunge the evidence of PW1 and proceed to evaluate the sufficiency of the remaining evidence. If the evidence was sufficient to sustain a conviction, he should have sustained a conviction made by the trial court, but if the evidence was insufficient, he should have acquitted the appellant. It was a misdirection on his part to order a retrial. Further, on the way forward we also agree with Ms. Meli that, the remaining evidence after expunging the evidence of PW1 will be insufficient to sustain a conviction. The record of appeal reveals that the prosecution called only four witnesses to prove their case: PW1 who is the victim, PW2 who is the father of the victim, PW3, the welfare officer and PW4, the doctor who examined the victim. Therefore, in the absence of the evidence of PW1, the remaining evidence will not be sufficient to sustain a conviction for the two counts in the charge. In the circumstances, we invoke the provision of section 6(2) of the Appellate Jurisdiction Act, Cap. 141 R.E. 2023 to revise and nullify the proceedings from the order of a retrial and everything that followed. We also quash the conviction and set aside the sentence imposed on the appellant. We order his release from prison forthwith unless held for other lawful purposes. DATED at MWANZA this 3rd day of March, 2026. The Ruling delivered this 4th day of March, 2026 in the presence of appellant in person, Ms. Jainess Kihwelo, learned Senior State Attorney for the respondent/Republic, and Mr. Ladislaus Msuba, Court Clerk, is hereby certified as a true copy of the original. M.C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL