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Citation
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Judgment date
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| June 2013 |
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Reported
Belated challenges to cautioned statements fail; corroborated co-accused confessions and other evidence sustain convictions.
Criminal law — cautioned statements — admissibility and voluntariness — failure to object at trial bars belated challenge (Criminal Procedure Act s169); Evidence Act s33 — confession of co-accused admissible against another if corroborated; sufficiency of corroborative evidence (extrajudicial statements, eyewitnesses, exhibits).
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25 June 2013 |
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Reported
An order quashing an acquittal and ordering retrial is not appealable to the Court of Appeal if it does not finally determine the charge.
Criminal procedure – Appealability – Whether an order quashing an acquittal and ordering retrial is a final decision appealable to the Court of Appeal; Appellate Jurisdiction Act s.5(2)(d) – Interlocutory/preliminary High Court orders not appealable unless they finally determine the criminal charge; Appellate Jurisdiction Act s.6(7)(a) – Appeal on point of law does not permit circumventing s.5(2)(d).
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25 June 2013 |
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Prosecutor improperly tendered an exhibit without being a sworn witness; conviction quashed for lack of proof beyond reasonable doubt.
Criminal procedure – admissibility of exhibits – prosecuting officer cannot tender evidence as if a witness; witness examined under section 198(1) CPA – improper admission of exhibit undermines proof beyond reasonable doubt – appellate interference where misdirection on evidence.
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25 June 2013 |
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Reported
Conviction quashed because the charge sheet omitted essential elements (intent and threatening) of attempted rape.
Criminal law — Attempted rape — Particulars of charge must allege essential elements (intent and threatening) — Defective charge incurable — Evidence cannot cure omission — Conviction quashed; retrial discretionary.
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25 June 2013 |
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A charge omitting intent and threat elements of attempted rape is incurably defective and conviction must be quashed.
Criminal law — Attempted rape — Charge must disclose essential ingredients (intent to procure prohibited sexual intercourse; threatening) under s132(1),(2)(a) — Defective particulars incurable — Evidence cannot cure defective charge — Conviction quashed; no retrial ordered.
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25 June 2013 |
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An order for retrial that does not finally determine the criminal charge is not appealable to the Court of Appeal.
Criminal procedure — Appealability — High Court order quashing acquittal and ordering retrial — Appellate Jurisdiction Act s5(2)(d) — interlocutory/preliminary decisions not appealable; AJA s6(7)(a) — appeals on questions of law.
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24 June 2013 |
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Charge omitted essential particulars and identification evidence was insufficient; conviction for attempted rape quashed.
Criminal law – Attempted rape – Particulars of offence – Necessity to disclose essential elements (s.132(2)(a) threatening) in charge sheet. Evidence – Identification – Victim’s failure to give descriptive/identifying particulars in sudden assault – insufficiency to ground conviction. Witnesses arriving after incident – inability to witness offence insufficient to corroborate identity.
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24 June 2013 |
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Appeal dismissed: identification reliable, non-production of vehicle not fatal, failure to cross-examine and recovered items corroborated conviction.
Criminal law – armed robbery – identity evidence and dock identification – prolonged opportunity to observe; non-production of stolen property – insufficiency to vitiate conviction where eyewitness and recovered items corroborate; failure to cross-examine – estoppel; confession and recovery of stolen parts – corroboration.
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24 June 2013 |
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Failure to allow accused to cross-examine child witnesses vitiated trial; conviction set aside and appellant released.
Evidence Act s.147(1) and Criminal Procedure Act s.229 – requirement to allow accused to cross-examine prosecution witnesses; denial of cross-examination of child witnesses vitiates trial; fair trial right under Constitution; competence of raising fundamental procedural defects on second appeal; retrial vs. release where delay may make retrial impractical.
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20 June 2013 |
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The applicant's conviction was quashed where identification, confession and recent-possession evidence were unreliable or improperly admitted.
Criminal law – Visual identification – Necessity to specify proximity, light source/intensity, duration and familiarity (Waziri Amani criteria). Criminal procedure – Cautioned/confessional statements – Requirement to afford accused opportunity to object and comply with s.50 CPA; failure to observe procedural safeguards renders confession inadmissible. Evidence – Doctrine of recent possession – Must show possession of property positively identified as complainant’s, recently stolen and forming subject of the charge. Appellate review – Concurrent findings may be disturbed where there is misapplication of law, misapprehension of evidence or miscarriage of justice.
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20 June 2013 |
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Dock identification of a stranger without an identification parade is unreliable and may vitiate a conviction.
Criminal law – Identification evidence – Visual identification by a victim who is a stranger – Dock identification inadmissible or of little value without prior identification parade; failure to give description to police and adverse scene conditions undermine reliability; concurrent factual findings may be disturbed where based on misapprehension of law or evidence.
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20 June 2013 |
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Dock identification without an identification parade is unreliable; conviction based on such visual ID quashed and appellant released.
Criminal law – Visual identification – Dock identification by a stranger without an identification parade is of limited value and unreliable. Evidence – Identification parades – Necessity for parade where witness did not previously know accused. Criminal appeal – Interference with concurrent findings – Permissible where findings rest on misapplication of law or wrong appreciation of critical evidence. Proof beyond reasonable doubt – Corroboration by nearby witnesses insufficient when primary identification is doubtful.
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20 June 2013 |
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Conviction quashed where complainant gave only generalized identification of allegedly stolen bicycles.
Criminal law – Theft/stealing – Identification of stolen property – Owner must give particularized identification (distinctive marks or proof) to sustain conviction. Evidence – Previous inconsistent statements – Admission under s.164(4) and procedural requirements of s.154 of the Evidence Act. Appeal – Sufficiency of prosecution evidence – Conviction unsafe where key identification is generalized.
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20 June 2013 |
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Conviction quashed because the appellant's alleged stolen property was not sufficiently identified.
Criminal law – Evidence – Identification of stolen property – Owner must positively identify property (distinctive marks/receipts) to sustain conviction. Criminal procedure – Admission of previous statements for impeachment – compliance with section 154 required; impropriety not decisive where statement did not determine conviction. Sufficiency of evidence – Circumstantial evidence of being found near items insufficient without positive identification.
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20 June 2013 |
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Rape conviction quashed where prosecution failed to prove penetration beyond reasonable doubt.
Criminal law – Rape – Essential element: proof of penetration; Evidence – complainant’s testimony must clearly establish penetration; Medical/corroborative evidence insufficient to substitute for absence of proof of penetration.
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20 June 2013 |
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Rape conviction quashed because prosecution failed to prove the essential element of penetration.
Criminal law – Rape – Proof of penetration is essential – Victim’s evidence must specifically establish penetration and non-consent – Medical absence of signs not decisive.
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20 June 2013 |
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The applicant's rape conviction was upheld, but sentence restored to 30 years due to uncertainty about the victim's age.
Criminal law Rape of a child: penetration proven; consent immaterial where victim under 18. Appellate review limited interference with concurrent factual findings absent perversity. Evidence child witness credibility supported by maternal observation and PF3/medical report. Procedure alleged contradictions on timing of medical examination held immaterial. Sentence uncertainty of victims age justified restoring trial courts 30-year term.
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20 June 2013 |
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Conviction for rape of a child under ten upheld; sentence reduced to 30 years due to age uncertainty.
Criminal law – Rape of a child – Credibility of victim and corroboration by medical and parent’s evidence; contradictions in timing of PF3 held immaterial; appellate interference with concurrent factual findings; sentencing adjusted due to uncertainty of victim’s exact age.
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20 June 2013 |
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Denial of right to cross-examine child witnesses vitiated trial; conviction set aside and appellant released.
Criminal procedure – Evidence – Examination in chief, cross-examination and re-examination – Compliance with s.147(1) Evidence Act and s.229 CPA. Right to fair trial – Accused’s right to cross-examine prosecution witnesses (including children) – Article 13(6)(a) CRC of Tanzania. Appeals – Raising fundamental procedural complaints for the first time on second appeal. Remedy – When retrial is impractical due to delay and witness availability; setting aside conviction and release; DPP discretion to re-prosecute.
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19 June 2013 |
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Conviction quashed for denial of accused's right to cross‑examine prosecution witnesses; immediate release ordered.
Evidence Act s.147(1) – requirement that witnesses be examined in chief, cross‑examined and re‑examined; right to cross‑examination of child witnesses. Criminal Procedure Act s.229 – duty of court to ask unrepresented accused if he wishes to put questions to prosecution witnesses. Constitutional right to fair trial (Article 13(6)(a)) – denial of cross‑examination vitiates proceedings. Remedy – conviction and sentence set aside; release ordered; discretion to DPP on retrial.
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19 June 2013 |
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19 June 2013 |
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Failure to conduct statutory voir dire for a child witness rendered her evidence inadmissible, making the rape conviction unsafe.
Evidence Act s.127 — child of tender years — mandatory voir dire to test competence and understanding of oath; failure to conduct voir dire renders child’s evidence inadmissible and to be expunged. Criminal law — Rape — requirement of proof of penetration; conviction unsafe where no admissible direct evidence of penetration. Hearsay — hearsay and investigatory evidence insufficient to sustain conviction in absence of admissible direct testimony.
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18 June 2013 |
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Rape conviction quashed where child-victim’s evidence was admitted without voir dire and proof of penetration was lacking.
Evidence — Child witness — Section 127 Evidence Act — Voir dire required to determine competence and understanding of oath for child of tender years; failure to conduct voir dire renders evidence of no evidential value. Criminal law — Rape — Section 130(4) Penal Code — Penetration (however slight) is essential element; victim’s admissible testimony is central; conviction unsafe where only hearsay remains. Appeal — Conviction quashed where mandatory procedure for child witness not followed and proof beyond reasonable doubt lacking.
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18 June 2013 |
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An affidavit whose jurat omits the attesting officer’s name is incurably defective and renders the applicant’s motion incompetent.
Civil procedure — Affidavit — Jurat — Omission of attesting officer's name renders affidavit incurably defective — Incurably defective affidavit cannot support a Notice of Motion — Amendment not permitted where preliminary objection under rule 107 is taken — Application struck out with costs.
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18 June 2013 |
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An affidavit whose jurat omits the attesting officer's name is incurably defective and renders the application incompetent.
Civil procedure – affidavits – jurat of attestation – requirement to state name of attesting officer – omission renders affidavit incurably defective. Civil procedure – preliminary objection – effect of incurably defective supporting affidavit on competence of application. Procedure – amendment – inability to cure incurable defects by amendment where objection to competence is taken.
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18 June 2013 |
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Reported
Appellant’s rape conviction quashed after child witness’s evidence was improperly admitted without a voir dire.
Criminal procedure – section 192 CPA – preliminary hearing: failure to conduct preliminary hearing does not automatically nullify trial but burdens prosecution. Evidence – child witness – voir dire: mandatory voir dire for tender‑age witnesses; failure to hold it requires expungement of child’s evidence. Evidence – hearsay and medical evidence: parental accounts may be hearsay absent the child’s testimony; medical findings alone may not identify the assailant. Confessional statement: caution in treating prior statements as confessions absent clear record support.
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18 June 2013 |
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Failure to conduct voir dire for a child witness led to expungement of evidence and quashing of the rape conviction.
Criminal law - Child witness evidence - Mandatory voir dire before receiving evidence of a child of tender years; failure to conduct voir dire requires expunction. Criminal procedure - Section 192 CPA preliminary hearing - non‑compliance does not automatically nullify trial but increases prosecution's burden. Evidence - Medical PF3 and parents' testimony insufficient to identify accused absent child’s testimony. Confession - Document used to impeach credit not necessarily a confessional statement.
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18 June 2013 |
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Failure to obtain statutory leave from the High Court rendered the appeal application incompetent and it was struck out.
Land law – appeals from High Court (Land Division) – section 47(1) Land Disputes Courts Act – requirement for leave to appeal. Civil procedure – competence of application – inability to cure jurisdictional defect by withdrawal. Court of Appeal Rules – Rule 58(1) – withdrawal of applications versus striking out incompetent proceedings – costs awarded to respondent.
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18 June 2013 |
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Reported
Conviction quashed where prosecutor‑tendered ballistic report and worthless statements deprived accused of fair testing of evidence.
Criminal law – armed robbery – conviction based on cautioned/extra‑judicial statements and ballistic report – admissibility and probative value of confessions and expert reports. Evidence – expert opinion – necessity for maker to testify and be available for cross‑examination; limits on prosecutor tendering expert reports. Criminal Procedure – whether omission to summon expert or object to report is curable under section 388(1). Requirement of nexus between recovered weapon and spent cartridges to sustain conviction.
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18 June 2013 |
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Conviction unsafe where expert ballistic report was tendered by the prosecutor and the maker was not available for cross-examination.
Criminal law – conviction based on cautioned and extra-judicial statements – when such statements lack probative value. Evidence – expert reports (ballistics) – maker should produce report or be available for cross-examination; prosecutor cannot substitute as witness. Evidence – requirement to test expert opinion (Rajabu principle) and the inadequacy of admitting untested expert reports. Evidence Act s.31 – confession leading to discovery insufficient absent proven nexus between recovered weapon and scene.
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18 June 2013 |
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The appeal was struck out because the appellant lodged an incomplete record of appeal without seeking directions or including omitted documents.
Civil procedure – Appeals – Record of appeal – Rule 96(1) proviso does not permit unilateral exclusion of trial proceedings; directions under Rule 96(3) required; Rule 96(6) allows inclusion of omitted documents within 14 days; incomplete record renders appeal incompetent and liable to be struck out.
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17 June 2013 |
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PF3 improperly admitted and penetration not proved; rape conviction quashed and alternative indecent assault conviction substituted.
Criminal law – Evidence – PF3 (medical report) – non-compliance with s.240(3) CPA renders PF3 inadmissible; Criminal law – Rape – penetration is essential element and must be proved; Criminal procedure – Appellate revision – alternative conviction (indecent assault under s.135(1) Penal Code) and exercise of s.4(2) Appellate Jurisdiction Act/ s.304 CPA.
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17 June 2013 |
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An affidavit with a jurat omitting the attesting officer’s name is incurably defective and invalidates the application.
Civil procedure – affidavits – jurat of attestation – omission of name/authority before whom sworn renders affidavit incurably defective; incurably defective affidavit cannot support Notice of Motion; advocate’s rubber stamp not part of jurat; amendment not permitted to cure competence objection.
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14 June 2013 |
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Identification and property linkage were inadequate; cautioned statement inadmissible; mandatory juvenile sentence unlawful.
Criminal law – Identification evidence – Visual identification at night requires detailed evidence of source and intensity of light to be watertight. Criminal law – Identification of property – Prosecution must identify recovered property conclusively (receipts, serial numbers, mobile number) to link it to alleged theft. Evidence – Cautioned statements – Recording beyond statutory time without extension under sections 50 and 51 Criminal Procedure Act renders statement inadmissible. Sentencing – Minimum Sentences Act – Does not apply to juveniles (under apparent age of 18); mandatory minimum sentence unlawful if offender is juvenile.
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10 June 2013 |
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Torchlight identification and delayed recent-possession evidence were unreliable; improperly admitted cautioned statement expunged; conviction quashed.
Criminal law – visual identification – night-time/torchlight identification – reliability and requirements for watertight identification. Evidence – doctrine of recent possession – requirements: possession, positive identification, recentness, and relation to charged offence. Criminal procedure – cautioned statement – necessity of inquiry into voluntariness before admission. Criminal appeal – interference with concurrent findings where there is misappreciation of evidence.
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8 June 2013 |
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The applicant’s identification challenge failed; medical and parade evidence upheld conviction for child rape.
Criminal law – Rape of a child – Identification evidence (dock identification and identification parade) and medical evidence as corroboration; Criminal Procedure Act – section 312(2) omission curable under section 388; committal provisions (section 289) not applicable to subordinate court trial procedure; admissibility of PF3 tendered by non-maker where maker testified; Evidence Act section 127 – child competency and voir dire; cross-examination rights at identification parade.
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7 June 2013 |
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Identification and an unlawfully recorded cautioned statement were insufficient; juvenile sentenced under minimum-sentence law unlawfully.
Criminal law — Identification evidence — Visual identification at night requires details of light source and intensity for watertight identification. Evidence — Cautioned statement — Recording beyond statutory time without extension renders it inadmissible. Property — Identification of allegedly stolen property requires conclusive description or serial/receipt evidence. Sentencing — Minimum Sentences Act excludes juveniles; statutory minima cannot be imposed on persons under eighteen.
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7 June 2013 |