Mushi, J.: The appellant in this case is Dhahiri Ally. He was charged and convicted for G the offence of defilement of a girl under fourteen years c/s 136(1) of the Penal Code. He was sentenced to thirteen (13) years imprisonment. The trial magistrate exceeded his jurisdiction in imposing the above sentence of thirteen years. The appellant is appealing against both conviction and sentence. H
In cases of defilement and rape, the victim, in the majority of cases, is the principal witness for the prosecution and in most cases the conviction is based on her evidence. Children under fourteen years, are, in our evidence, regarded as being of tender years as per section 127(5) of the Evidence Act. The Evidence Act provides for special I provisions for the reception of the evidence of children of tender years. Mr. Akaro, learned Counsel for the appellant submitted
that the evidence of PW2 - Asha who was the child of tender years, was wrongly A received and it should be discarded completely. The learned counsel stated, and I quote:
PW2 - was a child of tender years. Her evidence could only be received if she knew the nature B of oath or was possessed of sufficient intelligence and understands the nature of speaking the truth as required under section 127 of Evidence Act. The trial court must make a record of such findings. In the proceedings with regard to the evidence of PW2 - Asha Ndungo nowhere is recorded that the witness was possessed of sufficient intelligence to justify the reception of C her evidence.
Section 127 (2) of Evidence Act is relevant to this point and for ease of reference the subsections reads: D
127:(2) Where in any criminal cause or matter any child of tender years called as a witness does not, in the opinion of the court, understand the nature of an oath, his evidence may be E received, though not given upon oath or affirmation, if in the opinion of the court, to be recorded in the proceedings, he is possessed of sufficient intelligence to justify the reception of his evidence, and understands the duty of speaking the truth.
The provision is clear that if the child of tender years does not understand the nature of F an oath, her evidence may nevertheless be received without oath or affirmation if two conditions are satisfied.
These conditions are that:
She is possessed of sufficient intelligence and She understands the duty of speaking the G truth.
The trial magistrate must record in the proceedings that such investigation has been made to establish whether the two conditions exist and must make a specific finding of these H facts. In the proceedings in this case with regard to PW2 - the record reads as follows:
PW2 - Asha d/o Ndungo, Tanzania, Female, 11 years, Islam. I
Court:Witness is under the age of 14 years. In terms of
section 127 of the Evidence Act, she is cross-examined and she says: A
Witness: I am schooling at Masiwani Primary School. I am in standard three. I have affirmed to friends several times in our conversations. I do not know why I have been B doing that. I know the difference between a liar and one who speaks truth, but not exactly. Court: To the humble opinion of this Court, the witness does not know the nature of oath and she will proceed giving evidence unaffirmed. C
Here the trial magistrate clearly made a finding to the effect that PW2 - Asha did not understand the nature of an oath therefore he evidence could not be received on oath or affirmation. But the learned trial magistrate did not proceed to find out, before receiving D her evidence, whether she was possessed of sufficient intelligence and she understood the duty of speaking the truth. The Court of Appeal, considering similar provision in the case of Nyasani s/o Bichana v R.  E.A. 90 stressed this point when it said at page 191: E
It is clearly the duty of the Court under that section to ascertain, first, whether a child tendered as a witness understands the nature of oath, and, if the finding on this question is in the negative, to satisfy itself that the child is possessed of sufficient intelligence to justify the reception of the evidence and understands the duty of speaking the truth. This is a condition F precedent to the proper reception of unsworn evidence from a child, and it should appear upon the face of the record that there has been a due compliance with the section. G
Again in the case of Kibangeny v R.  E.A. at page 94 the same Court repeated the necessity of ascertaining whether the child is possessed of sufficient intelligence and understands the duty of speaking the truth when it was stated: H
... as we have seen, that where such a child does not in the opinion of the Court understand the nature of an oath his evidence may be received unsworn if the court is satisfied of his intelligence and that he understands the duty of speaking the truth. This necessarily implies I that before the child can be allowed to give evidence upon oath (or affirmation) the court
must satisfy itself that he does understand the nature of an oath. Such was the A interpretation placed on the passage by this court in the recent case of Nyasani s/o Bichana v R. (2), [l958] E.A. 190 (C.A.), where after reciting the section we held:
(A) It is clearly the duty of the court under that section to ascertain, first, whether a child B tendered as a witness understands the nature of an oath, and, if the findings on this question is in the negative, to satisfy itself that the child "is possessed of sufficient intelligence to justify C the reception of the evidence and understands the duty of speaking the truth.
Such an investigation need not be a length one but it must be done and the court record D must bear witness to it. In this case the proceedings do not show that the learned trial magistrate complied with the mandatory provision of the law with the result that the evidence of PW2 - Asha was wrongly admitted and acted upon. The evidence of this witness was crucial to the prosecution case because apart from touching on other E aspects of the evidence, it was the only evidence regarding the identification of the appellant as the person who defiled her. There was, of course, evidence which proved that PW2 was defiled but as who did it is where the evidence of PW2 was important. Under these circumstances, the appeal is allowed, and it is ordered that there should be a retrial of the appellant. F