Muhusi Sayi Beyu vs Republic (Criminal Appeal No. 7679 of 2026) [2026] TZHC 3135 (10 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SIMIYU SUB - REGISTRY AT SIMIYU CRIMINAL APPEAL NO. 7679 OF 2026 (Arising from the Judgment of the District Court of Bariadi (Hon. Nyangusi, SRM) in Criminal Case No. 1973 of 2026 dated 17th March 2026) MUHUSI SAYI BEYU ......................................................... APPELLANT VERSUS REPUBLIC......................................................................RESPONDENT RULING 26th May & 10th June 2026 MTEMBWA, J.: This Appeal stems from the decision of the District Court of Bariadi in Criminal Case No. 1973 of 2026, in which the Appellant was convicted and sentenced for the offence of rape contrary to sections 130(1)(2)(e) and 131(1) of the Penal Code, Cap 16 R.E 2023 . It was alleged that on January 7, 2026, near Sima Primary School within Bariadi District in Simiyu Region, the Appellant had sexual intercourse with a girl (name withheld) aged fifteen (15) years old. The Appellant resisted the charge. Having gathered the evidence adduced during hearing, the trial Court was satisfied that the offence with 1 which the Appellant was charged was proved beyond a reasonable doubt and proceeded to convict him. He was then sentenced (although not expressly stated in the records) to serve thirty (30) years imprisonment and pay a fine of Tanzanian Shillings 500,000/= to the victim. It was further ordered that the mobile phone make OKING be returned to the owner. Dissatisfied, the Appellant has preferred this appeal on the following grounds of appeal; 1. That the learned tria l M agistrate Court erred in law and fa ct to h o ld conviction in weak evidence w hile the R epublic fa ile d to prove the victim s age satisfactory m erely stated th at the victim has 15 years o ld w ithout m entioning the date, m onth o r year o f b irth o f the sa id victim . 2. That the tria l m agistrate Court erred in law and fa ct to h old conviction in h u m ilities w hile the victim d id n ot rep ort the m atter im m ediately a fte r raped b u t she reported one day a fte r the instance occurred 3. That, the tria l Court erred in law and fa ct to hold conviction in unreliable id en tification b y using S o lar lig h t on the road. 4. That the victim evidence lacked corroboration to ground conviction. 5. That, the tria l Court erred in law and in fa ct to convict the appellant w hile the victim d id n o t raise an alarm when raping. 6. That th is case was n o t established beyond reasonable doubt b y the prosecution side. 2 7 . That the learned tria l M agistrate Court erred in law and fa ct to pass sentence in contradiction evidence which adduced b y p u b lic w itnesses. On May 26, 2026, when the matter came for hearing, the Appellant appeared in person, while the Respondent was represented by Mr. Muganyizi Shubi, the learned state attorney. While preparing for the hearing, I noted that the Appellant was given an opportunity to be heard on March 4, 2026, when he testified as DW1. Thereafter, he prayed to arraign his other witnesses, an order that was entered in his favor. On the next scheduled date, the Appellant reported that he had been unable to arraign his witnesses. Having been so informed, the trial Court then scheduled the matter for judgment. In such circumstances, I called the parties to address me on the legal correctness of the stance taken by the trial Court. When prompted, Mr. Shubi submitted that, according to the records, the Appellant sought to call his other witnesses but did not provide their details or addresses. On the next scheduled date, the Appellant reported that he had not been able to obtain his witnesses. In view of section 248(4) of the Criminal Procedure Act, Cap 2RE 2023 (CPA), the trial Court was entitled to adjourn the matter and issue 3 summons to compel the Appellant's witnesses to appear and testify. Additionally, as the records reveal, the Appellant did not close his defence case. He thus implored this Court to remit the records to the trial Court, where the Appellant will be afforded an opportunity to call his witnesses and close his defence case. On his part, the Appellant acknowledged that he had additional witnesses who would have testified in his favor, but he could not secure them at the time. He blamed the trial Court for not helping him have his witnesses brought to Court. Indeed, on March 4, 2026, the Appellant was afforded the opportunity to present his defence, and he testified as DW1. At the conclusion of his evidence, he prayed to present additional evidence by calling other defence witnesses, a prayer that was granted in his favor. The matter was then adjourned for defence hearing on March 9, 2026. On the scheduled date, the Appellant reported that he was unable to arraign his witnesses. The record indicates as follows and I quote; PP: The case to proceed w ith defence hearing we are ready ACCUSED: I fa ile d to g e t the w itnesses. ORDER: Judgem ent on 16/3/2026 4 From the above excerpt, it is clear that the Applicant was unable to call his defence witnesses on the scheduled date of the defence hearing. According to Mr. Shubi, the trial Court was supposed to adjourn the matter to another day while invoking its powers under section 248(4) of the CPA to issue summons to compel the Appellant's witnesses to appear and testify in his favor. As that was not done, the Appellant's right to be heard was not seriously curtailed. On his part, the Appellant blamed the trial Court for failing to assist him in arraigning his witnesses. Additionally, based on the quoted passage from the proceedings, the Appellant did not close his defence case, nor did the trial Court's record indicate that the defence case was formally closed. From what I have observed, the fact that the matter was scheduled for judgment means the defence case was silently closed by the trial Court, as the record shows no indication that the Appellant prayed to close his defence case. In other words, it was the trial Court that forcefully closed the defence case, and, in my opinion, that was manifestly wrong and violated the Appellant's right to be heard. It must be noted that a magistrate or judge has no power under our laws to close either the prosecution or the defence case. That right is 5 manifestly left to the prosecution and the defense to close their respective cases. That also applies to civil cases in which the Plaintiff or the Defendant had the right to close their respective cases. This position was underscored in the case of Abdallah Kondo vs Republic (Criminal Appeal No 322 of 2015) 2016 TZCA 836 (28 September 2016), where the Court observed as follows; A s indicated above, the position is now se ttle d th at a m agistrate o r ju dge has no pow er, under our law s, to dose the prosecution case. I w ould add that the sam e applies in the case o f defence case th at a m agistrate o r ju dge is n ot m andated to dose the defence case. Both the prosecution and defence are a t lib e rty to close th e ir respective cases as and when they are satisfie d th at the evidence th e ir respective w itnesses have adduced is sufficient. The question is what if the Appellant continues to maintain the same story that he has been unable to arraign his witnesses. Should the Court continue to rely on the Appellant's endless empty promises? If so, for how long? I understand that if this is not checked, there is a risk of endless litigation, which may also result in backlogs. Mr. Shubi was very keen on this; he submitted that the correct procedure was to adjourn the matter and issue the summons to compel the Appellant's witnesses to appear and testify in his favor. As Mr. Shubi correctly noted, section 6 248(4) of the CPA is more helpful in such a situation. It provides as follows; Where the accused person states th at he has w itnesses to c a ll b u t th at they are n o t present in Court, and the Court is sa tisfie d th at the absence o f such w itnesses is n o t due to any fa u lt o r neglect o f the accused person and th at there is likelih o o d th at they could, if present, give m aterial evidence on b e h a lf o f the accused person, the Court m ay adjourn the tria l and issue process o r take other steps to com pel attendance o f such w itnesses. In light of the quoted law, if the Appellant (accused) fails to bring the witnesses he earlier promised to arraign, to avoid what I call endless litigation and to uphold the right to be heard, the trial Court may adjourn the matter and issue process to compel the witnesses, if any, to appear and testify in Court. Depending on the circumstances of each case, the Court may adjourn the matter for the last time. This procedure serves as the handmaid of justice and will let the Court know whether the witnesses named by the Appellant (Accused) are available, willing, and compellable to testify in Court. Therefore, in the interests of justice, the trial Court was compelled to exercise its powers under section 248(4) of the CPA and to adjourn the matter while issuing the process to compel the 7 appellant's witnesses to appear and testify. If I may recap, the trial Court also had no power to close the defense case without exercising such powers. Failure to observe such powers and procedures vitiated the respective proceedings. On the way forward, while I acknowledge that the Appellant has spent more than two months in prison, upon reflection, I am constrained to hold that the interests of justice do not demand that a total retrial be ordered; instead, the defence cases must start afresh. By this resolution, the proceedings from where the defence case commenced are hereby quashed. Similarly, the Judgment and all resultant orders of the trial Court are hereby vacated and set aside. In light of the foregoing, I order that the records be remitted to the trial Court, where the defence case will start afresh. Since the Appellant is a lay person and unrepresented, I remind the trial Court to remind him of the evidence given by the prosecution witnesses. Once that is done, the trial Court shall then prepare a judgment. Should the appellant be found liable, the time already spent in prison shall be deducted from the sentence to be imposed, if any. 8 It is so ordered. The right of appeal is fully explained. DATED at SIMIYU this 10th day of June 2026. H.S. MTEMBWA JUDGE 9