Director Of Public Prosecutions vs Happiness Koroso @ Peter (Criminal Appeal No. I l l of 2024) [2026] TZCA 117 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: NDIKA, J.A., FIKIRINL J.A. And ISMAIL. J J U CRIMINAL APPEAL NO. I l l OF 2024 DIRECTOR OF PUBLIC PROSECUTIONS .................................... APPELLANT VERSUS HAPPINESS KOROSO @PETER............................................... RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Musoma, at Musoma-Extended Jurisdiction) (SWAI. PRM.Ext.Jurist dated the 5th day of October, 2023 in Criminal Appeal No. 21 of 2022 JUDGMENT OF THE COURT 16th & 25th February, 2026. FIKIRINL J.A.: The controversy which this Court is invited to resolve is whether the Principal Resident Magistrate with Extended Jurisdiction (PRM, Ext. Juris), sitting as the first appellate court, correctly expunged the testimony of PW2 and, as a result, allowed the appeal, quashed the conviction, and set aside the sentence of twenty (20) years' imprisonment together with the ordered compensation of TZS 500,000/=. i

What the record reveal, is that on 13th December, 2022, at Sabasaba area in Tarime District, Mara Region, the respondent, Happiness Koroso@ Peter, for purposes of sexual gratification, undressed a four-year-old child, lay on top of her, and inserted fingers into her genitalia. The allegation landed the respondent before the District Court of Tarime at Tarime, charged with the offence of grave sexual abuse contrary to Sections 138 C (1) (d) and (2) (b) of the Penal Code. The respondent pleaded not guilty, and the matter proceeded to a full trial. According to the prosecution, on the material day at about 12:00 p.m., PW1, the victim's mother, went to a shop leaving her daughter (PW2) inside the house. It began to rain, prompting PW1 to return home. On arrival, she did not find PW2 where she had left her. After calling out for her daughter, PW1 discovered PW2 inside the respondent's room. To her shock, she found both the respondent and PW2 naked, with the respondent lying on top of the child and rubbing her body against PW2. PW1 struck the respondent with a cooking spoon and raised an alarm. Neighbors, including PW4, responded and apprehended the respondent, escorting her to Tarime Police Station.

Later that day, PW2 was examined at Tarime District Hospital by PW3. The medical examination revealed bruises, absence of the hymen, and indications of sexual penetration. PW3 completed the PF3 medical report (exhibit PI). The respondent was subsequently arraigned before the trial court. In her defence, the respondent testified as DW1, denying the allegations. She claimed the case was fabricated by PW1 out of jealousy, suspecting that the respondent was having a sexual relationship with PWl's husband. DW1 admitted being found with the victim at the scene but professed ignorance as to why PW1 raised an alarm and assaulted her. She further stated that she bore no grudge against PW1. Upon evaluating the evidence, particularly that of PW1 and PW2, the trial court found PW2 credible and reliable. PW2, being the victim, clearly identified the respondent as the perpetrator of the sexual abuse. Her account was not shaken under cross-examination. PWl's testimony corroborated PW2's account, as she personally witnessed the respondent grinding her private parts against those of PW2. The trial court convicted the respondent of grave sexual abuse and sentenced her to twenty (20) years' imprisonment. 3

The respondent appealed to the High Court on seven grounds, the third concerning compliance with Section 135(2) of the Evidence Act. The record of appeal was assigned to Honourable T. Swai, PRM, Ext. Juris. The first appellate court allowed the appeal solely on the third ground, which challenged the admissibility of PW2's testimony as being contrary to Section 135(2). Consequently, the court expunged PW2's evidence and acquitted the respondent. In its reasoning, the PRM Ext. Juris, held that Section 135(2) (formerly Section 127(2)) of the Evidence Act, R.E. 2023, had not been complied with. According to the court, the requirement for a child below fourteen years to promise to tell the truth applies only after it has been determined that the child cannot testify under oath or affirmation, meaning that such a procedure is not automatic. Dissatisfied, the appellant filed this appeal on one ground:-

1. That the first appellate court erred in law and fact by expunging the evidence o f PW2, wrongly concluding that PW2 had failed to promise to tell the truth before testifying, while in fact the statutory requirement had been satisfied. On the date set for hearing Ms. Monica Hokororo, learned Principal State Attorney, Mr. Nico Malekela and Ms. Happiness Machage both learned State Attorneys, were in Court to argue the appeal preferred by

the appellant. Through a publication in the Habari Leo Newspaper of 4th February, 2026, notified and summoned the respondent to appear for the hearing of the appeal preferred by the appellant. The respondent was not in Court when the appeal was called on for hearing. Under the circumstances, Ms. Hokororo, urged us to proceed under Rule 80 (6) of the Court of Appeal Rules, 2009 (the Rules), of which we allowed. Ms. Machage addressed the Court on behalf of the appellant's team. In her brief but pointed submission, counsel argued that Section 135(2) of the Evidence Act defines who is a minor witness and provides that such a witness may testify in court once he or she promises to tell the truth and not lies. She further submitted that PW2, being below fourteen years, had indeed made such a promise, but the first appellate court expunged her testimony, thereby weakening the prosecution's case. The learned State Attorney prayed that the appeal be allowed, the decision of the first appellate court quashed, and the trial court's judgment upheld. As earlier observed, the issue for determination is whether PW2's testimony was properly expunged by the first appellate court. Section 135(1) provides that every person is competent to testify unless the 5

court finds them incapable of understanding questions or giving rational answers due to tender age, old age, or mental illness. This provision specifically contemplates children of tender years. Section 135(2) states: "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." Thus, the legal requirement is a promise to tell the truth and not lies, rather than an oath or affirmation. In the present matter, the first appellate court reasoned that PW2, aged four, understood the meaning of oath, and therefore her evidence should have been taken under oath. We do not support the interpretation by the PRM, Ext. Juris. We are, instead, convinced that the trial court correctly handled PW2 in accordance with Section 135(2) of the Evidence Act. The record of appeal on page 14 confirms that PW2 made the requisite promise. The questions posed by the trial magistrate merely assessed PW2's ability to understand and cannot be construed as proof that she comprehended the meaning of an oath. Once satisfied that PW2 did not fully grasp the concept of oath or affirmation, the magistrate properly resorted to the statutory requirement of a promise to tell the truth. 6

In Jafari Majani v. R, Criminal Appeal No. 402 of 2019, [2021] TZCA 466 (6 September 2021; TANZLII), the Court emphasized the procedural safeguards under Section 135 (2). First, a preliminary inquiry must be conducted to assess a child's competence, including questions to gauge intellectual ability. Second, if the child understands the nature of an oath or affirmation, it must be administered. Third, if the child does not, the court must secure an unequivocal promise to tell the truth and not lies. We concur with the learned PRM, Ext. Juris, that such a promise is not automatic. However, the omission to record verbatim the precise questions posed to PW2 does not vitiate her testimony. While best practice dictates documenting such inquiries, so far, the law imposes no mandatory requirement. Expunging PW2's testimony merely because the specific questions were not recorded was in our view, manifestly irrational and unfounded. The omission was not fatal, since PW2 nonetheless committed herself to tell the truth and not lies. We find the appeal meritorious. Accordingly, we quash the judgment of the first appellate court, set aside the respondent's acquittal and the revised order for compensation of TZS 500,000/=. We reinstate the District Court's decision convicting the respondent in Criminal Case

No. 24 of 2023, imposing a custodial sentence of twenty (20) years and compensation of TZS 500,000/=. The record to be remitted to the High Court for the hearing and determination of the remaining grounds of appeal. Meanwhile, the authorities are ordered to arrest and detain the respondent pending the hearing of her appeal, should she opt to do so. It is so ordered. DATED at MUSOMA this 25th day of 2026. The Judgment delivered this 25th day of February, 2026 in the presence of Jonas Kivuyo, learned State Attorney for the appellant and respondent absent and Mr. Shabani Kanyai, Court Clerk; is hereby certified as a true copy of the original. G. A. M. NDIKA JUSTICE OF APPEAL P. S. FIKIRINI JUSTICE OF APPEAL M. K. ISMAIL JUSTICE OF APPEAL 8