William Gervas vs Republic (Criminal Appeal No. 499 of 2024) [2026] TZCA 269 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A.. MPEMU. 3.A. And ISSA, J.A.) CRIMINAL APPEAL NO. 499 OF 2024 WILLIAM GERVAS............................................................................ APPELLANT VERSUS THE REPUBLIC.............................................................................. RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Mwanza at Mwanza) fShao, PRM-Ext. Juris.) dated the 1s t day of March, 2024 in RM. Criminal Appeal No. 49 of 2023 JUDGMENT OF THE COURT 26th February & 4th March, 2026 LEVIRA, J.A.: This decision deals with grievances of the appellant against his conviction on a charge of rape and sentence meted out to him by the District Court of Magu at Magu (the trial court) in Criminal Case No. 60 of 2023 and upheld by the Resident Magistrate's Court of Mwanza at Mwanza (the first appellate court) in RM Criminal Appeal No. 49 of 2023, subject of the present appeal. It was the prosecution's case that, on 27th May, 2023 at Ng'haya Village within Magu District in Mwanza Region, the appellant did rape D.J. (name withheld), a girl of 14 years old (the victim). He denied the charge. As a result, the prosecution called six witnesses to prove their case against him. On the defence side, four witnesses testified. However, after a full trial, the appellant was convicted and sentenced to thirty (30) years imprisonment and pay compensation to the victim at a tune of TZS. 1,000,000.00. As hinted above, the appellant was aggrieved and thus, he appealed to the High Court of Tanzania at Mwanza. His appeal was transferred to A.P. Shao, a Resident Magistrate with extended jurisdiction and it was heard at the Resident Magistrate's Court of Mwanza. The outcome of his appeal was not in his favour; hence, the present appeal in which a total of 17 grounds of appeal were presented before us through a memorandum of appeal filed on 14th June, 2024 and two supplementary memoranda of 10th July, 2024 and 7th May, 2025, respectively. Due to reasons to come into light shortly, we shall not reproduce all the grounds of appeal. For better understanding of what was presented to the courts below giving rise to the present appeal, a brief background is provided: The victim in this case testified as PW2 and her evidence was that, on the fateful day she went near the river with her colleagues (Calista John and Milembe) to collect fire woods. The appellant appeared and took advantage of Milembe being far from the victim and Calista, and he sent Calista to follow Milembe where she was. He remained with the victim, undressed her and lied her down. He, as well, undressed, took a knife and put it close to the victim's neck, inserted his penis to her vagina and left her with pain. Adding on what was not stated by PW2, Calista John (PW4) who was with her, testified that, when the appellant found them near the river where they were collecting firewood, he told them that they had stolen the firewood. Thus, he sent her to bring Milembe where they were living him behind with PW2. Upon coming back, they found PW2 crying and she told them that she was raped by the appellant. Milembe Baheba (PW5) confirmed that while in the course of collecting fire wood, PW4 approached and informed her that the appellant was calling her. When they got at the scene of crime, they found PW2 crying as she claimed to have been raped by the appellant. Kulwa Ndila (PW1), the mother of the victim (PW2) testified that, indeed, on the material day, the victim and her colleagues went near the river to collect fire wood. However, when they returned home, PW2 was crying and told her that she was raped by the appellant. PW1 reported the matter to Kabila Police Station where she went with the victim. They were issued with a PF3, went to the hospital, PW2, was examined and it was revealed that, she was raped. The next day the appellant was arrested. F 2658 DSSGT Manswert investigated the matter having been assigned by the OC CID, Magu Police Station. He gathered information from witnesses and came to conclude that, PW2 was raped by the appellant. After closure of the prosecution case, the appellant (DW1) took the floor. According to him, on 26th May, 2023, he went to Magu hospital with his wife to pay a visit to his sister-in-law who was admitted there. He spent a night over there and on 27th May, 2023 his wife relieved him. On the next day at around 05:00 am some people went to his house and arrested him and took him to Kabila and later Magu Police Station. Winfrida Peter (PW2), a wife of the appellant testified that, on 25th May 2023, she received a phone call from her mother (Scholastica Julius - DW4) informing her about a sick person (Hellena Felician, PW3). They went to Magu hospital and left her husband there, he slept over there until the next day at around 5:00 pm. On the following day around 5:00 am, people came and arrest her husband on accusation of raping someone and was sent to Magu Police Station. The trial court weighed the evidence adduced by both sides and it was satisfied that the charge was proved to the required standard. Therefore, it convicted and sentenced the appellant as introduced above. The appeal was called on for hearing on 26th February, 2026 and the parties appeared before us. The appellant had no legal representation. He adopted his grounds of appeal as part of his oral submission before the Court and reserved his right to make a rejoinder, after hearing submission from the respondent Republic. The respondent was presented by a team of three learned counsel. Ms. Lilian Erasto Meli, learned Senior State Attorney led the team and she was assisted by Mr. Adam Murusuli and Ms. Stella Minja, both learned State Attorneys. The Court was addressed by Mr. Murusuli who in the first place opposed the appeal. However, having been engaged by the Court regarding the 3r d ground of appeal in the supplementary memorandum of appeal of 7th May, 2025 and upon reflection, he supported the appeal on account that, the evidence of some of the witnesses, particularly the victim was recorded without either promise to speak the truth, oath or affirmation. He referred us to page 11 of the record of appeal where PW2, a child of tender age in terms of section 127(4) of the Evidence Act, Cap. 6 was recorded in contravention of section 127(2) of the said Act without her promise to tell the truth not lies. Likewise, he added, the evidence of PW4 and PW5 who were also children on pages 13 and 14 of the record of appeal, respectively, was recorded in contravention of section 127(2) of the Evidence Act. Apart from prosecution witnesses, Mr. Marusuli added that, even the appellant's defence evidence was recorded without oath or affirmation, contrary to section 198 of the Criminal Procedure Act, Cap. 20 (the CPA). He thus prayed for the evidence of those witnesses to be expunged from the record. Having done so, he added, there will be no evidence on the record sufficient to prove the charge against the appellant. He thus urged us to allow the appeal. In rejoinder, the appellant urged us to consider his grounds of appeal and set him free. Having heard the parties' submission and gone through the record of appeal, it is clear to us that, the determination of this appeal lies on the validity or otherwise of the evidence of the victim (PW2), who is a crucial witness as far as the charge of rape is concerned. In terms of section 127(4) of the Evidence Act (now section 135 (4) R.E 2023) the expression 'child o f tender age'\s defined as follow: "For the purpose o f subsection (2) and (3), the expression 'chiid o f tender age' means a child whose apparent age is not more than fourteen years." According to the record of appeal, when PW2 was giving evidence was 14 years old, well within the definition of a child of tender age. The law provides for a procedure of taking evidence of a child of tender age under section 135 (2) of the Evidence Act. It reads: "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 lies . " The above provision provides for the manner in which the evidence of a child can be taken; to wit, with oath, affirmation or upon promising to tell the truth if does not know the meaning of oath. The assessment of whether or not he knows the nature and meaning of oath is normally done by the court upon asking him/her simple questions, as it was said by the Court in Godfrey Wilson v. Republic [2019] TZCA 109 (6 May 2019). If the court will be satisfied that the child witness does not understand the nature and meaning of oath, the law requires him or her to promise to tell the truth and not to tell lies. In the instant case, PW2 gave her evidence without making prior promise of telling the truth and not lies. We note that on page 11 of the record of appeal, it is indicated that she took oath. However, the record is silent as to whether her oath was presided by simple questions by the court so as to establish her knowledge of the nature and meaning of oath. Therefore, it means that, the evidence of PW2 was recorded in contravention of section 135 (2) of the Evidence Act as it is not clear under which basis, the trial court decided to administer oath to a child offender age. As a result, her evidence has no evidential value and we proceed to expunge it from the record. We do so while fully aware of the amendment of section 135 of the Evidence Act by Act No. 11 of 2023 which introduced subsection (7) to that provision, that failure by a child of tender age to meet the provisions of subsection (2) shall not render the evidence of that child inadmissible. However, we note that the offence in the instant case was committed before that provision came into force, therefore inapplicable in the present case. We are equally mindful of the best evidence rule that, true evidence in sexual offences comes from the victim. Since PW2 was the victim of rape allegedly committed by the appellant whose evidence has already been expunged, and since no any other witness saw the appellant while committing the offence, it is unsafe to sustain his conviction as we find no any other evidence on the record which the Court can rely upon as a proof of penetration, one of the essential elements of rape. We shall therefore end there for any further analysis on how the evidence of other witnesses was recorded, will be an academic exercise which we are not prepared to do. Suffices here to conclude that, having expunged the evidence of PW2 from the record, the prosecution case lacks legs to stand on as it remains unproved beyond reasonable doubt. In the event, we allow the 3r d ground of appeal in the supplementary memorandum of 7th May, 2025, quash conviction and set aside the appellant's sentence and compensation order. Accordingly, we order immediate release of the appellant from prison unless he is otherwise lawfully held. DATED at MWANZA this 3rd day of March, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 4th day of March, 2026 in the presence of the Appellant in person, Ms. Jainess Kihwelo, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. A. S. CHJUGULU DEPUTY REGISTRAR COURT OF APPEAL