Abdi Abrahaman Saria vs Republic (Criminal Appeal No. 146575 of 2025) [2026] TZHC 3000 (5 June 2026)

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODOMA CRIMINAL APPEAL NO. 146575 OF 2025 (Arising from the decision of the District Court of Kondoa at Kondoa in Criminal Case No. 8040 of 2025 dated 13 th May 2025) ABDI ABRAHAMAN SARIA .......................................................... APPELLANT VERSUS THE REPUBLIC ....................................................................... RESPONDENT JUDGMENT U h May & 0 h June 2026 MASABO, J.:- Before the District Court of Kondoa at Kondoa ("the trial court") the appellant stood charged with the offence of rape contrary to section 130(l)(2) (e) and 131 (1) of the Penal Code, Cap 16. The particulars of the offence were that on 31 st May 2024 at Damai Village, Kondoa District within Dodoma Region, the appellant unlawfully had carnal knowledge of "LK", a girl of 5 years old. During the trial, the court was told that on 31/05/2024, the victim was coming from the shop to home at Damai Village. The court was told that on the date of the incident, the victim, while coming from the shop, met the appellant on the way. The appellant convinced her to go to his home to eat posho. The victim agreed and followed him. When they arrived at his home, the appellant undressed her trousers while he also undressed his trousers, took out his penis and put it into the victim's vagina. After he had finished raping her, he dressed her up and allowed her to go home, where she reported the incident to her mother. The incident was later reported at Kondoa police station, and upon obtaining a PF3, she was sent to the hospital. The accused, who was arrested on 17.01.2025, detained at Kondoa police station and later on arraigned before the trial court, offered a total denial. Page 1 of 6

The trial court, having analysed the evidence before it, was satisfied that the prosecution had built up a strong case against the appellant, and it proceeded to convict the appellant and sentenced him to 30 years imprisonment and a compensation of TZSl,000,000/= to the victim. This decision aggrieved the appellant. He has knocked on the door of this court armed with the following five(5) grounds of appeal, to wit: One, that the offence was not proved beyond reasonable doubt. Two, Exhibit Pl was wrongly tendered. Three, the charge sheet was defective. Four, the PF3 was wrongly admitted and marked. And, five, the evidence of PW1, PW2, PW3 and PW4 was contradictory and unreliable. During the hearing, the appellant was dully represented by Mr. Hasting Roy Mkuwa, learned advocate, while the respondent enjoyed the service of Mr. Lucas Komba, learned State Attorney. In determining the appeal, I will start with a point on the validity of the charge sheet, which is the third ground of appeal. While determining this issue, I observed that although the appellant had complained about the validity of the charge in the third ground, his complaint was on a minor curable issue and left a substantial issue unaddressed. In the interest of justice, I invited both counsels to address the court on whether the particulars of the charge sheet were proper. When they appeared before me, the learned counsels unanimously submitted that the charge was incurably defective and there was a glaring inconsistency between the charge sheet and the evidence as regards the name of the victim. They expounded that, in the charge sheet, the name of the victim is abbreviated as 'LK' while in her testimony, she identified herself by her real names and in the medical report, she is identified by her real names. They also unanimously submitted that, in the trial court's proceedings, there is no court order sanctioning the abbreviation of the victim's name; hence, the Page 2 of 6

charge was defective. Second, the variance of the names left the charge sheet unproved. Based on this, they submitted and prayed that the proceedings be quashed for having emanated from an incurably defective charge, the conviction and sentence be quashed and set aside, and the appellant be discharged. I will start with the use of an acronym in the charge sheet. It is a cardinal law in our jurisdiction that, a charge sheet being the foundation of all criminal trials, must be well drawn to reasonably alert the accused of the important elements of the offence he is facing. It must contain all the necessary particulars to enable him to prepare his defence (see Robert Elias Clemence vs Republic (Criminal Appeal No. 408 of 2023) [2025] TZCA 558 TANZLII. As held by the Court of Appeal in Isdori Patrice vs. The Republic (Criminal Appeal No. 224 of 2007) [2007] TZCA 2 TANZLII), this rule hinges on the basic rules of criminal law and evidence and the right to a fair trial, and it is provided for under section 138 of the Criminal Procedure Act, which states that: "Every charge or information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence charged." In the present case, as unanimously submitted by the learned counsels, in the charge sheet, the victim is not identified by an actual name. She is identified by the acronym "LK". In my firm view, this was improper as the name of the victim of the offence is of utmost importance, notably in the present case where the offence was committed on the person. Save where there are peculiar circumstances or a court order sanctioning its omission, it must be disclosed. For, without it, the accused would not know his accuser and would Page 3 of 6

certainly not be in the position to prepare a meaningful defence and exercise his right to be heard. This court, while aware of the need for protection of the dignity of the victims of sexual offences, which must have triggered the use of acronyms, is of the firm view that such protection, while desirable, must conform with the prevailing law. The Court of Appeal held so while dealing with a similar scenario in the case of Juma Mwandu vs the Republic (Criminal Appeal No. 872 of 2023) [2026] TZCA 289 TANZLIL Unlike in the present case, in that case, the charge sheet had the actual names of the victim, but in the proceedings, a pseudonym was interchangeably used with her actual name. Yet, there was no court order or anything in the record sanctioning the use of the pseudonym. The Court, held that the use of pseudonyms in the proceedings was inconsistent with the measures for protection of the identity of the victim of sexual offence envisaged in 192(3) of the Criminal Procedure Act [Cap 20 R.E 2023] and the Circular issued by the Chief Justice in 2018 to guide courts in handling cases involving children and victims of sexual offences in criminal and adoption proceedings. In the present case, there is no court or anything on record suggesting that the use of acronym was permitted. In the foregoing, I am of the firm view that the measures for protection at the disposal of the parties and the court were those set out under section 192(3) of the Criminal Procedure Act [Cap 20 R.E 2023], which provides for the manner of trial in sexual offence cases. The provision stipulates that: "3) Notwithstanding the provisions of any other law, the evidence of all persons in all trials involving sexual offences shall be received by the court in camera, and the evidence and witnesses involved in these proceedings shall not be published by or in any newspaper or other media, but this subsection shall not prohibit the printing or publishing of any such matter in a bona fide series of law reports or in a newspaper or periodical of Page 4 of 6

a technical character bona fide intended for circulation among members of the legal or medical professions." Further measures at their disposal are those found in the Circular issued by the Chief Justice in 2018 to guide courts in handling cases involving children and victims of sexual offences in criminal and adoption proceedings which, as held by the Court of Appeal in Juma Mwandu vs the Republic (Criminal Appeal No. 872 of 2023) [2026] TZCA 289 TANZLII, sanctions non disclosure of the name of witness and victims in the judgment and which would therefore apply to the judgment, not the charge sheet. In the foregoing, I concur with the learned counsel's unanimous submission that the use of the acronym was inconsistent with the law, and it rendered the charge sheet incurably defective. Accordingly, the trial court's proceedings were a nullity for having emanated from an incurably defective charge sheet are hereby nullifies. Having nullified the proceedings, the immediate question is what should follow. In resolving this question, I will be guided by the position of the Court of Appeal in Hamis Mohamed Mtou vs Republic (Criminal Appeal 228 of 2019) [2021] TZCA 478 TANZLII, where, resolving a similar issue, it held thus: "Having nullified the proceedings of the trial court, under normal! course of things we would have ordered a trial de novo. However, we would not take such a move because the charge which is the foundation of a criminal trial has been declared fatally defective. There is no charge upon which a retrial would be conducted. We find support on this stance in the Court's decision in Paulo Kumburu v. R, Criminal Appeal No. 98 of 2016 (unreported), where it was stated that: "Since in this case the charge sheet is incurably defective, implying that it is non existent, the question of a retrial does not arise." Page 5 of 6

In conclusion, we find the first ground of appeal meritorious. Having decided this ground in the affirmative, we find no need to deliberate on the remaining grounds. Consequently, we allow the appeal, quash the conviction and set aside the sentence. We further order the immediate release of the appellant Hamis Mohamed Mtou from prison unless he is held there for another lawful cause." For similar reasons, the question of retrial does not arise in the present case. Consequently, I allow the appeal, quash and set aside the conviction and sentence, and order the immediate release of the appellant unless he is otherwise held for a lawful cause. DATED and DELIVERED at DODOMA this 5 th day of June 2026 JUDGE Page 6 of 6 L. MASABO