Augustino Ephraim Mbonile vs Republic (Criminal Appeal No. 610 of 2022) [2026] TZCA 183 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE. J.A.. RUMANYIKA. J.A. And AGATHO. J.A.) CRIMINAL APPEAL NO. 610 OF 2022 AUGUSTINO EPHRAIM MBONILE ............................................. APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Ebrahim. J.) dated the 23r d day of September, 2022 in Criminal Appeal No. 71 of 2022 JUDGMENT OF THE COURT 26th February & 2"d March, 2026. MKUYE. J.A.: The appellant, Augustino Ephraim Mbonile, was charged with rape of an 82 years old woman contrary to sections 130 (1), (2) (a) and 131 (1) of the Penal Code, Cap 16 R. E. 2019. It was alleged in the particulars of offence that, on 7th February 2022 at about 23:00hours, at Iponjola Village within Rungwe District in Mbeya Region, the appellant, unlawfully had sexual intercourse with E. S. (her identity is concealed to preserve her diginity without her consent. 1

A brief background of the matter is that, on 7th February 2022, at around 23:00hrs E. S (the victim) PW1, was sleeping at his home. She left the front door open to enable her granddaughter who had gone to attend funeral ceremony in the neighborhood enter when she comes back. Suddenly, a person jumped into her bed whom she first thought it was her granddaughter from the funeral ceremony. But, alas! it was not. It was a man who then demanded money. PW1 gave him TZS. 30,000.00 but in the course, one note fell down. On searching for it, the appellant allegedly lighted a torch which incidentally enabled the victim to identify him. After retrieving the money, the appellant raped her and required her to go outside so that he can kill her. When they went out people came including her granddaughter and the appellant fled away. PW1 narrated the ordeal to her granddaughter who called her father (PW3) who then informed the Street Chairperson and Ward Executive Officer (WEO) who came to the victim's house. Later, PW1 was taken to the police station and on the following day to the hospital where upon examination, it was revealed that she was penetrated. In order to prove the case, the prosecution marshaled four witnesses and produced one exhibit whereas on the defence side, the appellant was the only witness. 2

After a full trial, the trial court was satisfied that the case was proved beyond reasonable doubt. It found the appellant guilty of the charged offence, convicted him and sentenced him to imprisonment for thirty years. His appeal to the High Court was unsuccessful. Still aggrieved, he has preferred this appeal on two memoranda of appeal with a total of thirteen (13) grounds of appeal which for a reason to be apparent shorty, we will not reproduce them. When the appeal was called on for hearing, the appellant appeared in person, unrepresented, whereas the respondent Republic was represented by Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys assisted by Mr. Rajabu Msemo, learned State Attorney, who initially intimated to the Court that they were not supporting the appeal. When invited to elaborate the grounds of appeal, the appellant prayed to adopt his grounds of appeal but opted to let the respondent respond first and reserved his right to rejoin later, if need would arise. With the direction of the Court, Ms. Mollel, began with the 1s t ground of appeal in the Supplementary Memorandum of Appeal to the effect that: 3

"The two courts below erred in law point and fact in grounding the conviction of the appellant basing on unsworn evidence ofPW l - See the case of Japhary Ramadhani v. Republic, Criminal Appeal No. 131 of 2017 [sic] (unreported) Ms. Mollel conceded that PW1 gave evidence without taking oath or affirmation. She contended that, this was contrary to section 198 (1) now section 212 of the Criminal Procedure Act, Cap 20 R. E. 2023 (the CPA) requiring the witness to testify on oath or affirmation. She was of the view that, since PW1 gave unsworn evidence, it rendered her evidence to have no evidential value and the remedy is to discount it. She went on to argue that ordinarily, under the circumstances, the way forward would have been to look at the remaining evidence if it can sustain the conviction. However, she submitted that, in this case, if the evidence of PW1 who was a key witness is discounted, there remains no other evidence to prove the case against the appellant. She added that, even the evidence by PW3 that appellant confessed to the Village Chairman is not corroborated as the said Chairman did not testify in court and the appellant denied to confess. In this regard, Ms. Mollel stressed that, they supported the appeal that the prosecution failed to prove the case beyond reasonable doubt. 4

She, thus, urged the Court to allow the appeal, quash the conviction, set aside the sentence and order for his immediate release from custody unless held for other lawful cause(s). In rejoinder, the appellant welcomed the concession to the appeal by the respondent. He prayed to be set free. The issue for this Court's determination is whether PW l's evidence was taken without oath and if the said issue is in the affirmative whether the case was proved beyond reasonable doubt. Section 198 (1) now 212 (1) of the CPA governs oaths and affirmations to be taken by witnesses before giving evidence. It requires the trial court to administer oath or affirmation to a witness before the witness is examined. The said section provides as follows: "212 (1) Every witness in criminal cause or matter shall, subject to the provisions of any other written law to the contrary be examined upon oath or affirmation in accordance with the provisions o f the Oaths and Statutory Declaration A c t" The record of appeal at page 7 indicates as follows: "PW1: XXX (identity hidden) 84 years, Igisa, Kyusa, Christian, 5

Court: The witness does not understand English/Swahili so we have to find the interpreter Kisa Hebron Mwasungu who will interpret from Swahili to Kyusa and vise versa. Interpreter: Kisa Hebron Mwasungu, Adult, Christian, sworn and states:- I will interpret accordingly to what the witness says. EXAMINA TION IN CHIEF. I am residing at Igisa, Ilalabwe, I am peasant, I am residing with my son and granddaughter..." As it can be gleaned above, PW1 was not sworn before she started to be examined in chief after securing an interpreter who was sworn. Looking at PW l's particulars as recorded, it would appear that the trial magistrate remarked that the witness does not understand English/Swahili after she failed to take oath. Be it as it may, despite the fact that, the record shows that PW1 had indicated to be a Christian, that was not enough. The trial court ought to go to the next step of administering oath to the witness before she adduced evidence. See: Fujo Juma Kulususu and Another v. Spear Amani Komanya, [2025] TZCA 645. This is a 6

requirement under section 4 (a) of the Oaths and Statutory Declaration Act, Cap 34 R. E. 2002 [now R.E 2023] which states as hereunder: "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 court; (b) N/A ." In the case of Attu J. Myna v. CFAO Motors Tanzania Limited, [2022] TZCA 187, the Court interpreted the above provision to be mandatory. It stated as follows: "It is now dear that the law makes it mandatory for the witness giving evidence in court to do so under oath. It follows therefore that the omission by the witness to take oath before giving evidence in this case is fatal and vitiates the proceedings." In this case, it is crystal clear that PW1 gave her evidence without taking oath. Since no oath was taken by PW1 before she gave her evidence, it is obvious that section 212 (1) of the CPA was not complied with. Thus, the evidence that was taken in contravention of the above provision has no evidential value. It vitiated the proceedings. See: 7

Mwami Ngura v. Republic, Criminal Appeal No. 63 of 2014 (unreported); Nestory Simchimba v. Republic [2020] T2CA 155. Ordinarily, as was rightly stated by Ms. Mollel, the remedy for such omission is to expunge the evidence of PW1 which we hereby do. Next would be what is the way forward. As was correctly argued by the learned Senior State Attorney, is to look at the remaining evidence to find out if it can sustain the conviction. As alluded to earlier on, PW1 was the key witness in this case who accounted for the entire ordeal she had encountered. Other witnesses such as PW2 (granddaughter), PW3 (son) and PW4, the WEO, gave evidence regarding what they were told and saw later. For instance, PW3 testified on among others that, on the following day the street chairperson, WEO and VEO came to the victim's home and the appellant was also called. That, he admitted to commit the offence and asked for forgiveness. However, much as it may be taken that he made oral confession to the said chairperson, WEO or VEO, none of them testified in court. Worse still, the appellant in his defence denied to have confessed to the VEO. This means that, the evidence which could have been taken to prove the case scrambles. 8

We therefore, agree with the learned Senior State Attorney that the remaining evidence cannot sustain conviction. In other words, the case was not proved beyond reasonable doubt. In the event, we allow the appeal, quash the conviction, set aside the sentence imposed against the appellant and order that, he be released forthwith from custody unless held for other lawful cause(s). DATED at MBEYA this 28th day of February, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL Judgment delivered this 2n d day of March, 2026 in the presence of the appellant in person, Mr. Rajabu Msemo, learned State Attorneys for the Respondent/Republic and Ms. Jasmin Kazi, Court Clerk is hereby certified as a true copy of the original.