Paulo Vedastus @ Majani vs Republic (Criminal Appeal No. 829 of 2023) [2025] TZCA 988 (23 September 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM (CORAM: WAMBALI. J.A.. KENTE J.A. And MANSOOR J.A.^ CRIMINAL APPEAL NO. 829 OF 2023 PAULO VEDASTUS @ MAJANI...................... .......................... APPELLANT VERSUS THE REPUBLIC........... ....................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Dar es Salaam) (Mango, J.1 ) Dated the 27th day of October, 2022 in Criminal Appeal No. 251 of 2021 JUDGMENT OF THE COURT 21st March & 23rd September, 2025 WAMBALI. J.A.: The Court of Resident Magistrate of Dar es Salaam at Kisutu convicted the appellant, Paulo Vedastus @ Majani of two counts. One, rape contrary to section 130 (1), (2) (e) of the Penal Code, Cap 16, and two, impregnating a school girl contrary to section 35 of the Education Act, Cap 353 read together with rule 5 of the Education (Imposition of Penalties to Persons who Marry or Impregnate School Girls) Rules, 2003 (GN No. 265 of 2003). It was alleged in the charge that, the respective offences were committed on an unknown date between May and August 2016 at Tandika

area within Temeke District in Dar es Salaam Region against a girl aged 16 years. In this judgment we will refer to the respective girl as the victim. It is apparent that upon entering the convictions in respect of the offences charged, the trial court ordered that the appellant should serve a term of thirty years imprisonment for each offence, to run concurrently. The appellant appealed to the High Court in Criminal Appeal No. 251 of 2021, whose decision is the subject of the current appeal. Having considered the grounds of appeal in the petition of appeal, the first appellate judge acquitted the appellant on the charge of impregnating a school girl. It was the finding of the High Court that, there was no proof that the victim of the offence was a school girl at the material time. It reasoned that there was neither school register and registration number of the victim nor evidence from the administrators of Maji ya Chai Secondary School which were tendered and admitted in evidence at the trial court proving that the victim was attending school at the alleged time of the commission of the offences. However, the first appellate judge sustained conviction of the appellant on the offence of rape and confirmed the sentence of a term of thirty years imprisonment. The basis of the said decision was explained to be that, at the trial, the victim who testified as PW1 stated clearly that she had sexual 2

intercourse with the appellant and as a result, they were blessed with a child, who according to the DNA test, whose report was admitted as exhibit P5, the genes of the victim and the appellant were proved to be 99%. Further that, the Medical Doctor (PW4) who examined the victim revealed that she was pregnant. It is worthy pointing out that for the reason to be apparent shortly, we do not intend either to revisit the evidence of the parties on the record in detail or reproduce the grounds of appeal in the memorandum of appeal lodged by the appellant before the Court to contest the decision of the High Court. At the hearing of the appeal, the appellant appeared in person, unrepresented, whereas Ms. Agatha Lumato, learned Senior State Attorney assisted by Ms. Upendo Mono and Mr. Steven Kandoro, learned Senior State Attorney and State Attorneys, respectively appeared for the respondent Republic. At the inception of the hearing of the appeal, we noted that initially, the appellant was arraigned and charged with two counts of rape and impregnating a school girl at the District Court of Temeke in Criminal Case No. 630 of 2016. However, the respective criminal case was later withdrawn and subsequently, Criminal Case No. 141 of 2018 was filed at the Court of

Resident Magistrate of Dar es Salaam at Kisutu. Though there is no dear record of proceedings in the record of appeal concerning the date on which the respective case was withdrawn and the reason thereof, the appellant's defence at the subsequent trial before the Court of Resident Magistrate of Dar es Sataam at Kisutu indicates that it was withdrawn on 5th April, 2018. Indeed, the learned Senior State Attorney conceded that Criminal Case No. 630 of 2016 was withdrawn at an advanced stage of the proceedings. We further noted that both at the trial and the first appellate courts, the appellant contested the tendering and admission of the DNA report (exhibit P5) from the Chief Government Chemist on the contention that, Hadija Mwema (PW5) who tendered it, is not an author. On the contrary, the appellant insisted, the author is Leticia N. Waitara who did not appear at the trial to testify for the reason that she was indisposed. Nevertheless, the appellant's complaints were not endorsed by both courts below. More importantly, at the inception of the hearing of the appeal what attracted our attention is the circumstances and the reasons under which the DNA test was ordered by the District Court of Temeke in Criminal Case No. 630 of 2016. Basically, the circumstances and the reasons are not apparent in the record of proceedings of the trial court in Criminal Case No. 141 of 2018. What is apparent is that, PW5 simply tendered the letter of the 4

Acting Resident Magistrate Incharge of Temeke District Court directed to the Chief Government Chemist and the DNA Report which were admitted respectively as exhibits P4 and P5. On the other hand, the police investigator, WP 6892 Cresensia, simply stated that the District Court of Temeke made an order for DNA test involving the victim, the child and the appellant. Unfortunately, she did not state whether it was ordered at the trial court's own motion or upon the request by the prosecution, and whether it was before the trial started or in the course of the trial. Besides, at the trial, PW4 admitted that it was her second time to testify as she had testified before at the District Court of Temeke in Criminal Case No. 630 of 2016. In this regard, considering the nature of the proceedings of the trial court in Criminal Case No. 141 of 2018, it is apparent that there is confusion on what led to the ordering of the DNA test and whether it was appropriate for the trial court to ground the conviction of the appellant based on the said report. In the circumstances, we requested parties to address us on the apparent confusion in the proceedings of the courts below. The appellant informed the Court that the trial Resident Magistrate at the District Court of Temeke in Criminal Case No, 630 of 2016 simply made

the order in the course of hearing for DNA test to be conducted by an officer called Elia Mwamlima without involving the parties. Unfortunately, he added, the order is not apparent in the record of appeal. That, later the trial magistrate wrote a letter (exhibit P4) to the Chief Government Chemist and thus he did not know what the trial magistrate intended to achieve. He added that, the DNA test was conducted on 24th November, 2017 and when he appeared at the District Court of Temeke on 5th April, 2018, the said case was withdrawn after most of the prosecution witnesses had testified in support of the case. Nonetheless, he was subsequently rearrested and charged afresh at the Court of Resident Magistrate of Dar es Salaam at Kisutu. The appellant therefore left it upon the Court to determine the way forward concerning the irregularity that led to confusion in the proceedings of the subsequent trial in Criminal Case No. 141 of 2018. On her part, Ms. Lumato readily conceded that it is beyond controversy that the trial court relied heavily on the DNA test report (exhibit P5) to ground the convictions of the appellant on both counts of rape and impregnating a school girl. She added that, though the first appellate court quashed the conviction of the appellant on the offence of impregnating a school girl, it relied on the same report to sustain conviction on the offence

of rape in the absence of the background on how the order was made in the record of proceedings by the District Court of Temeke. In the circumstances, Ms. Lumato submitted that there is confusion in the proceedings which followed at the Court of Resident Magistrate of Dar es Salaam at Kisutu. She explained that considering that the record of appeal is silent on whether the trial magistrate at the District Court of Temeke made an order upon the request of the prosecution or suo motu, there is confusion in the proceedings which prejudiced both parties to the case. She thus urged the Court to determine the appropriate fate of the trial and first appellate courts' proceedings in the interest of justice on the fairness of the appellant's trial. She eventually, left upon the Court to determine the fate of the tainted trial and first appellate courts' proceedings. However, she submitted that in case the tainted proceedings are nullified, the Court in any event, should order a retrial before another magistrate as the factual setting in the record of appeal supports the prosecution case. Having heard the submissions of the parties, we entirely agree that the proceedings that proceeded at the Court of Resident Magistrate of Dar es Salaam at Kisutu in Criminal Case No. 141 of 2018 are tainted with confusion with regard to the introduction of the letter of the Acting Resident Magistrate of Temeke requesting for medical examination of the appellant,

the victim and the child together with the report of the DNA test (exhibits P4 and P5), respectively. The confusion is apparent and strengthened by the fact that, the circumstances under which the letter (exhibit P4) from the Acting Resident Magistrate Incharge of Temeke District Court to the Chief Government Chemist Laboratory is questionable. Basically, in the absence of the order which led to the writing of the letter, and considering the complaint of the appellant on the genesis of the letter, it may be stated that the order was made suo motu by the then trial Magistrate who also by then acted as the Resident Magistrate Incharge of Temeke District Court. We hold this view because according to the appellant, the said Magistrate made the order suo motu in the course of the proceedings. This fact is enhanced by the testimony of PW4, the investigator, who did not seem to know whether the initiative for ordering the DNA test came from the prosecution side. As we intimated earlier on, PW4 only alluded to the fact that the then trial Magistrate made an order for DNA test. In this regard, the confusion in the proceedings emanating from Criminal Case No. 630 of 2016 is strengthened by the fact that there is no indication in the record of appeal that parties were heard before the trial magistrate made an order for DNA test. What is apparent is that, the DNA 8

report was later tendered and admitted as exhibit P5 at the subsequent trial before the Court of Resident Magistrate's Dar es Salaam at Kisutu. On the other hand, the confusion in the proceedings is enhanced by the nature and substance of the then trial Magistrate's letter and the D IM A test report in which the appellant and the victim were referred to as mother and father of the child and thus, they were taken to have been in a parentage dispute. For clarity, the letter (exhibit P4) states: "Ninaomba kupatiwa majibu ya DNA kwa wazazi hawa, ambaye ni Paui Vedastus @ Majani na Binasa Mohamed pamoja na mtoto wao anayebishaniwa Shufaa Paui Vedastus, Hi kutambua kama Paui Vedastus @ Majani ni baba wa mtoto Shufaa. Ni muhimu kufanya vipimo hivyo na taarifa ifike ofisi yetu Mahakama ya Wiiaya Temeke." The copy of the said letter was directed to the appellant and the victim. The DNA report in return made reference to the child's given name and the first and surname of the appellant. As we have stated earlier, while the nature and the circumstances of the order of the then trial Resident Magistrate of the District Court of Temeke regarding the DNA test is not apparent in the record of proceedings of the Court of Resident Magistrate of Dar es Salaam at Kisutu, both the trial and 9

first appellate courts substantially relied on the said report to ground the conviction of the appellant on the offence of rape. More importantly, the first appellate court substantially relied on the DNA report to sustain conviction on the offence of rape while it had found that the appellant was not guilt of the offence of impregnating a school girl. In the circumstances, we are of the view that the irregularity in the previous trial which continued in the subsequent trial caused confusion in the proceedings of both the trial and first appellate courts. Indeed, the confusion occasioned a failure of justice on both parties. In VIP Engineering and Marketing Ltd v. Mechmar Corporation (Malaysia) Berhad of Malaysia (Civil Application No. 163 of 2004) [2006] TZCA 23 (12 May 2005, TANZLII), the Court stated that the confusion in the proceedings has to be resolved by resorting to revision power of the Court. This stance was also followed by the Court in Lengai Ole Sabaya and Three Others v. The Director of Public Prosecutions (Criminal Application No. 03/02 of 2023) [2024] TZCA (20 February 2024, TANZLII) in which the tainted proceedings resulting from the confusion were nullified. In the circumstances of this case, it cannot be said that the principles of fair trial were strictly followed as there is no indication that the appellant properly knew the case which confronted him and whether he understood 10

the proceedings that followed his arraignment at the trial court. In Mussa Mwaikunda v. The Republic [2006] T. L. R. 387, the Court made reference to the decision of the New South Wales Court of Criminal Appeal in Regina v. Henlye (2005) NSWC CA 126 in which Smith, J. in a case of R. v. Prosser (1958) VR 45 at 48 had laid the minimum standards to be complied with for an accused person to be taken to have undergone a fair trial thus: "(a) to understand the nature o f a charge; (b) to plead to the charge and exercise the right o f challenge; (c) to understand the nature o f the proceedings; namely, that it is an inquiry as to whether the accused committed the offence charged; (d) to follow the course o f proceedings; (e) to understand the substantial effect o f any evidence that may be given in support o f the prosecution; and (f) to make a defence to answer the charge" In the case at hand, it cannot be safely concluded that at the trial, the appellant was made to understand the nature of the charges to which he pleaded to enable him exercise the right to properly challenge them. Moreover, it is doubtful if, considering the nature of the letter (exhibit P4) which led to the DNA report (exhibit P5), the appellant was made to understand whether his arraignment before the trial court was due to paternity dispute or an allegation of impregnating a school girl as preferred l i

under the second count. Moreover, in the wake of exhibit P5, it is not certain whether the appellant followed the course of proceedings to the extent of understanding the substantial effect of the said piece of evidence that supported the prosecution case. It is not in dispute that exhibit P5 was substantially relied on by the trial court to ground the convictions in both counts. Moreover, as per the record of appeal, exhibit P5 was also relied on by the first appellate court to ground conviction of the appellant on the offence of rape though the same was deemed unreliable in grounding the conviction on the second count of impregnating a school girl. This is notwithstanding that the appellant made a defence against both counts. The next issue for our consideration at this juncture is on the way forward. It is noteworthy that while the appellant left the burden on the Court to determine the appropriate order, the learned Senior State Attorney readily admitted that the confusion in the proceedings of the trial and first appellate courts occasioned injustices to both the appellant and the prosecution. In this regard, she spiritedly argued that should we nullify the proceedings of both courts below, an order be made for a fresh trial before another magistrate. We are indeed aware that the irregularities and confusion in the proceedings of the courts below caused miscarriage of justice on both sides 12

of the case. Further that, in deciding whether a failure of justice has been occasioned, the interests of both sides of the case must be considered on a balanced scale. For this stance see, among other decisions of the Court, Makumbi Ramadhani Makumbi and Four Others v. The Republic, Criminal Appeal No. 199 of 2010 (unreported). Nonetheless, it is also a principle that each case must be decided based on its peculiar facts. To this end, a decision whether a retrial should be ordered or not must also depend on the circumstance of a particular case. Besides, ordering a retrial must be based on the position that though the intention of a retrial is a question of making good a technical defect or irregularity that marked the previous trial, the interest of justice require that the court must ensure that no prejudice will be suffered to the accused. In the instant case, we have considered the circumstances and the factual setting in the record of proceedings of both courts below in the record of appeal, particularly the genesis of exhibits P4 and P5 which were substantially relied on in grounding the conviction of the appellant despite the noted confusion. In the result, we are of the view that it will not be in the interest of justice that the appellant should undergo a third trial. We hasten to state that such an order will cause a serious miscarriage of justice on the part of the appellant than the prosecution side. We do not therefore

agree with the prayer of the learned Senior State Attorney that an order for retrial is the best option. In the event, we invoke the provisions of section 4 (2) of the Appellate Jurisdiction Act, Cap 141, to revise and nullify the entire proceedings of the trial and first appellate courts, quash the conviction and set aside the sentence imposed on the appellant. In the end, we order that the appellant should be released from custody forthwith if not lawfully held in connection of other causes. DATED at DODOMA this 19th day of September, 2025. F . L. K. WAMBALI JUSTICE OF APPEAL P . M. KENTE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered virtually this 23r d day of September, 2025 in the presence of appellant in person and Ms. Gladness Mchami, learned Senior State Attorney for the Respondent/Republic and Ms. Hilda Mcharo, Court Clerk, is hereby certified as a true copy of the original. F. A.MTARANIA DEPUTY REGISTRAR COURT OF APPEAL