FACULITY : FBIS

PROGRAMME : LL.B II

COURSE NAME : LAW OF EVIDENCE II.

COURSE ANTE : LAW 218

NAME OF THE INSTRUCTOR : ADV. KITANG’ITA, H.

TASK : GROUP WORK

PARTICIPANTS

S/N STUDENT NAMES REGISTRATION NUMBER SIGNATURE

1 NASMU MOHAMED LIWOLA MOCU/LL. B/1954/23
2 HAPPYNESS YONGO MAKAYA MOCU/LL. B/2046/23
3 ALBINUS R CHAHIZA MOCU/LL. B/2098/23

QUESTION.

1) with respect to the competence and comparability of witnesses’ accounts for the relevance and all
applicability of the following instruments.

a) Criminal Procedure Act [Cap 20, R.E. 2022].

b) Civil Procedure Code [Cap 33, R.E. 2019]
c) Law of Marriage Act [Cap 29, R.E. 2019]
d) Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, GN 119 OF 1983.
e) Primary Courts Criminal Procedure Code.
f) The Chief Justice Standard Guideline for taking Evidence from Children of 2023.

2) Appraise for the Redima of provision of s.132 to 141 of the Evidence Act [cap.6. RE.2022). On doing
so on read the case of Erenest Josephat v. Republic.
1) with respect to the competence and comparability of witnesses accounts for the relevance and all
applicability of the following instruments.

Witnesses play a very important role in the administration of criminal and civil justice. As per Black’s
Law Dictionary1 witness is the one who sees, knows, or vouches for something; One who gives testimony
under oath or affirmation in judicial proceeding. Judgments are normally made on the basis of evidence
given by witnesses. However not every witness is allowed to testify and also the Law compels other
witnesses, to testify and not compels others to testify. Witnesses, generally, can be classified into groups
like: (i) witnesses who are competent and compellable to testify; and (ii) witnesses who are competent but
not compellable. This brings us to the two important notions used in the law relating to witnesses namely,
“competency”, and “compellability”. Competency refers to the mental ability to understand problems and
make decisions. So, competent witness is a witness who is legally qualified to testify. 2 Section 127 (1) of
Evidence Act3 provided that all people are qualified as competent, unless the court finds that they cannot
due to tender age, old age, disease, and insanity are unable to understand questions or cannot give rational
answers. Compellability means a state of being forced. So, compellable witness is that witness who is
forced by the law to testify in determination of truth of certain case. 4 Generally, except for the accused
and his or her spouse,5 all competent witnesses are compellable. In other words, a witness is compellable
if he can be obliged to go into a witness box and to answer questions put to him or else sanctioned for
contempt of court if he refuses to do so.

Basically, the main issue in question is to provide comprehensive explanation of the competence and
compellability of witnesses with reference to the mandatory provisions of several legal instruments,
namely:

g) Criminal Procedure Act [Cap 20, R.E. 2022].

h) Civil Procedure Code [Cap 33, R.E. 2019]
i) Law of Marriage Act [Cap 29, R.E. 2019]
j) Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, GN 119 OF 1983.
k) Primary Courts Criminal Procedure Code.
l) The Chief Justice Standard Guideline for taking Evidence from Children of 2023.

So, here below is how the concepts of competence and compellability of witnesses are reflected in these
legal instruments.

1) Criminal Procedure Act (Cap 20, R.E. 2011).

The Criminal Procedure Act (Cap 20, R.E. 2011) is primary source of law regarding witness testimony in
criminal proceedings. The key provision addresses the concepts of compellability of witnesses are:

Section 142.

The first Section that address the issue of compellability of witnesses under Criminal Procedure Act (Cap
20, R.E. 2011) is Section 142. The Section says:

1
(8th ed. 2004), p4916.
2
Balck’s Law Dictionary (8th ed. 2004), p856 and 4917.
3
[Cap 6, R.E. 2022]
4
Balck’s Law Dictionary (8th ed. 2004), p852.
5
Section 130 of Evidence Act [Cap 6, R.E. 2022].
 “If it appears to the court that any person (who is competent) has material (important) evidence to
give, or possesses important documents or writings relevant to the case, then, the court has the
lawful authority to issue a summons, to require that person to attend court as a witness, or To
require them to bring documents or writings in their possession or control to the court for use as
evidence”.

So, this section gives courts a power to compel attendance and production of evidence necessary for a fair
trial. Section 100 to 107 of the Criminal Procedure Act (Cap 20, R.E. 2011) provided on procedure on
how to serve the summons issued by court for attendance of witness to testify. So, let over look these
provisions.

Section 100.6

The provision of Section 100 of the Criminal Procedure Act, Cap. 20 R.E. 2022, outlines the form,
content, and purpose of a criminal summons issued by a court.

Subsection (1): Requirements for Issuing a Summons.

In essence the Provision says:

A summons must be in writing (not oral), be made in duplicate (two copies: one for the person
summoned, one for court records), be signed and sealed, by the presiding officer (e.g.,
magistrate), or by another officer authorized under rules set by the High Court.

Subsection (2): Content and Direction of the Summons.

The Provision stipulate that:

The summons must be directed to the specific person being summoned, and it must clearly
specify: The time and place of the court appearance, that the appearance is before a court with
jurisdiction to deal with the alleged offence and a brief statement of the offence the person is
charged with (e.g., theft, assault).

The purpose of this Provision is to ensure a person understands why they are being summoned (that is to
testify), and knows when and where to appear.

Section 101.7

Subsection (1): Who Can Serve a Summons and How

Who can serve a summons:

“Every summons shall be served by a police officer or by an officer of the court issuing it or other public
servant or such other person as the court may direct”.

How is must be served:

6
Criminal Procedure Act (Cap 20, R.E. 2011)
7
Ibid.
“If practicable, be served personally on the person summoned by delivering or tendering to him one of the
duplicates of the summons”.

Subsection (2): Acknowledgment of Receipt.

The Provision in essence provided What happens after service:

The person served must sign a receipt (confirmation of receiving the summons) on the back of the second
copy, which the officer retains.

This serves as proof of service, to be submitted to the court.

Section 102.8

The provision, Section 102 of the Criminal Procedure Act, Cap. 20 R.E. 2022, provided for alternative
methods of serving a summons when personal service is not possible.

The Provision says:

“If, after making reasonable and active efforts ("due diligence"), the person summoned cannot be
located, the summons may be served by leaving one of the duplicates for him with some adult
member of his family, or with an adult servant residing with him, or with his employer and the
person with whom the summons is so left shall, if so, required by the serving officer, sign a
receipt for it on the back of the other duplicate."

Section 103.9

The provision of Section 103 of the Criminal Procedure Act [Cap. 20 R.E. 2022], addresses the last resort
method of serving a summons when both personal and substitute service fail.

The Provision says:

If the court officer cannot serve the summons by Personal delivery (Section 101), and leaving it
with a family member, servant, or employer (Section 102), even after making reasonable efforts,
then the officer must post or stick a copy of the summons on a visible place (e.g., the front door
or gate) at the accused’s usual home or homestead.

The place where the copy of summons put must be a conspicuous (easily seen) location to ensure that it
comes to the notice of the summoned person or those around them. And the provision says, Once the
summons is affixed properly, the law considers it to have been legally served even if the person did not
actually receive it by hand.

Section 104.10

This provision of Section 104 of the Criminal Procedure Act [Cap. 20 R.E. 2022] provides a special
procedure for serving a summons to someone who is an employee of the government or a public
corporation. This applies when the witness is currently employed in active service by: a government
ministry or department, or a public corporation (e.g., TANESCO, TRA,). How is the Summons Served in

8
Ibid.
9
Ibid.
10
Ibid.
Such Cases? The court prepares the summons in duplicate (two copies) and It sends both copies to the
head of the employee’s department or corporation. What Must the Head of Department/Corporation Do?
The head of department must ensure the summons is served personally, if practicable, as described under
Section 101(Delivered properly to the employee). The provision further states that, once summons served,
the head must return the second copy (duplicate) of the summons to the court, with his signature, and a
proper endorsement (confirmation that the summons was served, as per Section 101.

Section 107.11

The Provision of Section 107 of the Criminal Procedure Act [Cap. 20 R.E. 2022] addresses how a court
can serve a summons outside its own geographical jurisdiction. The Provision states that, "Where a court
desires that a summons issued by it shall be served at any place outside the local limits of its jurisdiction
it shall send the summons in duplicate to a magistrate within the local limits of whose jurisdiction the
person summoned resides or is to be served. The receiving magistrate will then be responsible for
ensuring the summons is properly served”.

Basically, the provisions of Section 142 and Section 100 to Section 107, talk about how
competent(material) witness when not brought by the party involved in a dispute, called to appear before,
the court to testify. So, what happen when a witness fails to comply with the summons issued by the
court? The answer is provided by provisions of the following Section of Criminal Procedure Act (Cap 20,
R.E. 2011).

Section 143.12

The provision of Section 143 of the Criminal Procedure Act [Cap. 20 R.E. 2022] is one of the provisions
that deals with the legal consequence when a witness fails to obey a court summons without a valid
reason. The provision stated that, if a witness has been properly summoned to appear in court, and the
witness fails to appear at the appointed time without giving a valid or legal excuse. What Must the Court
do First? Before taking action, the court must confirm that: the summons was properly served (in
accordance with Sections 100–107), and the witness was given reasonable notice (enough time to appear).
Only after confirming proper and timely service can the court proceed with enforcement. What Action
Can the Court Take? The court has the power to issue a warrant of arrest for the non-compliant witness.
This warrant, authorizes law enforcement to find and arrest the witness, Compels their appearance in
court at a specific time and place. Basically, this section applies after a witness has already been properly
summoned to attend court but fails to appear without a valid reason.

Section 144.13

The provision of Section 144 of the Criminal Procedure Act [Cap. 20 R.E. 2022] empowers the court to
act in advance before a summons is even disobeyed, if it believes a witness is likely to refuse to attend
unless compelled.

Section 144 of Criminal Procedure Act, says:

11
Ibid.
12
Ibid.
13
Ibid.
 If the court has reason to believe based on evidence given under oath, that a person would not
come to court voluntarily, it can immediately issue a warrant for that person’s arrest.

This Section applies before a summons is even sent. It is used when the court is convinced that
summoning the witness would not work, and compulsion is necessary from the start.

Section 145.14

The provision of Section 145 of the Criminal Procedure Act [Cap. 20 R.E. 2022] outlines what happens
after a witness is arrested under a warrant issued under Section 143 or 144. So, this provision applies after
the court has issued a warrant of arrest for a witness (either because the witness failed to obey a summons
under Section 143, or was believed unlikely to appear voluntarily under Section 144), and the witness has
been arrested and brought before the court. What Can the Court Do Next? The witness may be released if
they provide security (a type of legal promise or bond) to assure the court that they will attend the
hearing. This is done through a recognisance, which is, a formal agreement to appear in court, often
involving a financial penalty if the person fails to show up. If the witness refuses or fails to provide the
required security; The court will order the witness to be kept in custody (detained), until the date and time
of the hearing, where they will be produced in court to testify.

Section 147.15

The provision of Section 147 of the Criminal Procedure Act [Cap. 20 R.E. 2022] sets out the penalties and
enforcement procedures for a witness who fails to comply with a summons or disobeys the court's
authority after being summoned. Section 147(1) says, If a witness Is properly summoned, and Fails to
attend court, Without a lawful or valid excuse (e.g., illness, accident), Or a witness who leaves court
without permission, or Fails to return to court on the next date after an adjournment and a specific order
to attend, the court may impose a fine of up to Tshs 500. Section 147(2) provide how the Fine is Enforced
as it states, If the witness does not voluntarily pay the fine, the court may, seize (attach) their movable
property (e.g., phone, livestock, furniture), and sell it to recover the fine. This can only be done within the
local jurisdiction of the court. Section 147(3) says, If the court cannot recover the fine through property
sale, the witness may be imprisoned for up to 15 days as a civil prisoner (not a criminal punishment), but,
If the fine is paid before the 15 days are over, the imprisonment ends immediately. These provisions
reinforce the principle that witnesses are both compellable and accountable, hey have a legal duty to
support the justice system once summoned.

2) Civil Procedure Code [Cap 33, R.E. 2019].

Civil Procedure Code [Cap 33, R.E. 2019] is primary source of law regarding witness testimony in civil
proceedings. The key provision addresses the concepts of compellability of witnesses are:

Order XVI, Rule 1.16

This provision of the Civil Procedure Code [Cap. 33 R.E. 2022], explains how parties in a civil case can
apply to summon witnesses or request the production of documents. The provision says, Once a civil case
has been officially filed in court, either party (the plaintiff or the defendant) may apply to the court—or to

14
Ibid.
15
Ibid.
16
Civil Procedure Code [Cap 33, R.E. 2019].
an officer authorized by the court—to issue summons. These summonses can require a person to either
appear in court to give evidence as a witness or to bring specific documents needed for the case.

Example:

If you are a plaintiff in a breach of contract suit and need, a witness who saw the agreement signed, or a
copy of the original contract held by a third party, You may apply to the court under this rule for a
summons to Compel the witness to appear and testify, or Require the third party to produce the document
in court.

The purpose of the provision, is to enable parties to bring relevant witnesses and/or necessary documents
to court to help prove or disprove claims in a civil case, and to ensure the case is resolved based on
complete and credible evidence.

Order XVI, Rule 2(1).17

The provision of Order XVI, Rule 2(1) of the Civil Procedure Code [Cap. 33 R.E. 2022], explains the
responsibility of the party who applies for a summons to a witness, specifically about covering the
witness's expenses. In essence the provision says, If you (plaintiff or defendant) ask the court to summon
a witness, you must first deposit money with the court, Within a specific time set by the court, and Before
the court actually issues the summons. The money is intended to cover the witness’s transportation costs
(e.g., bus fare, fuel) to and from court. It also covers the cost of the witness attending court for one day,
such as: meals, time away from work, and other reasonable expenses for appearing.

Example:

If you're a plaintiff and want the court to summon someone who lives 50 km away, you must pay the
estimated cost for that person’s travel and daily allowance before the summons is issued.

Generally, the purpose of this provision is to ensure witnesses are not financially burdened for helping the
court.

Order XVI, Rule 2(2).18

This is Order XVI, Rule 2(2) of the Civil Procedure Code [Cap. 33 R.E. 2022], and it specifically
addresses how the court calculates the payment for expert witnesses. The provision says, in determining
the amount payable under this rule If the person being summoned is an expert witness (like a doctor,
engineer, accountant, etc.), not just a regular witness, The court may include in the payable amount
reasonable payment (remuneration) for, the time spent giving testimony in court, and the time spent doing
expert work related to the case (e.g., writing a report, examining evidence).

Example:

If a doctor is summoned to testify about a medical report, the party who requested the summons must pay:
transport and attendance costs, plus a reasonable professional fee for the doctor’s time preparing the
opinion and testifying.

17
Ibid.
18
Ibid.
Order XVI, Rule 3.19

The money that was deposited in court to cover the witness’s expenses (as explained in Rule 2) must be
given directly to the witness. So, when the summons is handed to the witness, they should also receive the
money for travel and attendance—as long as personal service is possible.

Example:

If a witness is being summoned and the summons is handed to them directly at their home or office. the
person delivering the summons must also give them the travel and attendance money.

This ensures the witness has no excuse not to attend due to lack of means.

Order XVI, Rule 4.20

The Order XVI, Rule 4(1) of the Civil Procedure Code [Cap. 33 R.E. 2022], it deals with what happens
when the money deposited in court for a witness’s expenses turns out to be insufficient. The provision
says:

If the court, or an officer it has appointed, finds that the money paid into court is not enough to
cover a witness’s travel costs or expert fees, it may order the party who requested the summons to
pay more. If that party fails to pay the additional amount, the court can recover it by seizing and
selling their movable property. Alternatively, the court may release the witness from the
obligation to testify, or it may both recover the money and excuse the witness from giving
evidence.

Order XVI, Rule 4(2) says.

If a witness must be kept for more than one day, the court can require the party who requested the
summons to pay money into court to cover the witness’s expenses for the additional time. If the
party does not pay, the court may recover the amount by seizing and selling their movable
property. Alternatively, the court may excuse the witness from giving evidence, or it may both
recover the money and discharge the witness

Order XVI, Rule 5.21

The provision says, every summons must clearly state when and where the person is required to appear in
court. But also, the summons must indicate if the person is required to testify as a witness, required to
bring and produce certain documents, or to do both. And if the summons requires the person to produce
documents, the summons must describe those documents clearly and specifically, so the person knows
exactly what to bring.

Order CVI, Rule 6.22

The provision says, A person can be required only to bring documents to court without needing to appear
as a witness or give testimony. And If the person who is summoned just to provide a document sends the

19
Ibid.
20
Ibid.
21
Ibid.
22
Ibid.
document to court without personally showing up, the court will consider that they have fulfilled the
requirement of the summons. That is, Personal attendance is not mandatory if only document production
is required.

Order XVI, Rule 7.23

The provision says; Any person present in court may be required by the court to testify or to produce any
relevant documents they currently have with them. The provision further stated that, However, the court
cannot force a person to produce a document if there is a law or legal rule that allows or requires that
document to be kept secret because its disclosure could harm the public interest.

Example:

If a witness is in court with business records, the court can ask them to hand over those records. But if the
documents are classified or legally privileged for public safety or security, the court cannot force their
production.

What is meant by the rule when said “any person who is physically present in court may be required by
the court to...”. Important points to understand, “any person present in court” does not automatically mean
anyone just sitting in the audience can be forced to testify. Usually, the court calls witnesses or parties
who have a legal connection to the case. However, if the court believes someone present has relevant
information or documents connected to the case, it can order that person to testify or produce evidence
even if they were not formally summoned before. In other words, if you are just an ordinary spectator
with no relevant connection to the case, the court normally would nott force you to testify. But if you are
present and the court knows or suspects you hold important information or documents related to the case,
the court may require you to speak or produce those documents.24

Example:

A neighbor comes to watch a trial. The court knows the neighbor has key evidence about the case.

The court can then require that neighbor to testify or hand over evidence — even though they weren’t
formally summoned earlier.

Order XVI, Rule 8.25

This rule is about how summonses to witnesses should be served. Any summons issued under Order XVI
(e.g., to call a person to court to testify or produce documents) must be served in the same way as
summonses are served to defendants in civil suits. The procedures and requirements for proving that the
summons was properly delivered (as described in Order V) also apply to witness summonses.

Order XVI, Rule 9.

23
Ibid.
24
Section 7 of Evidence Act [Cap 6, R.E. 2022]
25
Civil Procedure Code [Cap 33, R.E. 2019].
The rule says, when serving a summons to a witness, it must be done early enough — well before the date
and time the person is required to appear in court. The purpose is to give the witness enough time to Get
ready (e.g., organize documents, prepare mentally), and Make travel arrangements to reach the court on
time.

Order XVI, Rule 10.26

This rule deals with what the court must do if a summoned person fails to appear or fails to bring
documents as required. So, this rule is the one which direct talk about comparability of witnesses.

The Order XVI, Rule 10(1) says:

If a person who was summoned to appear in court or to produce a document fails to do so, the
court must check whether the summons was properly served. If the serving officer hasn’t
provided a sworn written statement (affidavit) confirming service, the court is required to
question the officer under oath—or have another court do it—to confirm whether the summons
was delivered. If an affidavit has been submitted, the court may still choose to examine the officer
under oath to verify the service.

Order XVI, Rule 10(2) says:

If the court believes that the testimony or document a person was summoned for is important, and
that the person either failed to comply without a valid excuse or deliberately avoided being
served, the court may issue a public notice (proclamation) ordering them to appear in court. This
notice must state the time and place for attendance, and a copy of the proclamation must be
posted on the outside of the person’s house (or another visible place) where they usually live —
to ensure they or the public are aware of it.

Order XVI, Rule 10(3) describes the additional powers the court has if someone fails to obey a summons
(either by avoiding service or not appearing without a lawful excuse). The rule says:

Instead of, at the same time as, or after issuing a proclamation for a person who ignored a
summons, the court may choose to issue an arrest warrant—with or without the option of bail.
The court may also order the seizure of that person’s property, but only up to an amount that
covers the cost of the seizure and any fine that could be imposed under Rule 12.

Order XVI, Rule 11.27

This rule explains what happens if the person whose property was attached (seized) later appears before
the court and gives a satisfactory explanation. The rule says:

If a person whose property was seized later appears in court and proves that they either had a
lawful excuse for not obeying the summons or didn’t avoid being served, and that they had no
timely notice of the proclamation, the court must release the seized property. The court will also
decide who should bear the costs of the attachment.

Order XVI, Rule 12.28

26
Ibid.
27
Ibid.
28
Ibid.
This rule explains the penalty the court may impose if a person fails to comply with a summons and
cannot justify their absence. The Rule says:

If the person fails to appear, or appears but doesn’t give a valid reason for ignoring the summons
or proclamation, the court may fine them up to 1,000 shillings, considering their financial
condition and the situation. The court can also order the seizure and sale of their property to cover
both the fine and the attachment costs. However, if the person pays these amounts to the court,
the property must be released.

Order XVI, Rule 13.29

This rule explains how property should be attached and sold when a person fails to comply with a
summons under Order XVI. The Rule says:

The same legal rules used for attaching and selling a person’s property when enforcing a court
judgment also apply when attaching and selling property under this Order. The person whose
property is seized will be treated as though they were a judgment debtor.

Order XVI, Rule 14.30

This rule gives the court the power to summon and examine a witness on its own initiative, even if that
person is not a party to the case and has not been called by either side. The Rule says:

If the court believes that someone (who is not a party to the case and was not called by either
side) has relevant evidence or documents, it can, on its own, order that person to come to court.
The court can then question them as a witness or ask them to provide the documents, at a date it
chooses—provided it follows the law and other procedural rules.

Order XVI, Rule 15.31

This rule sets out the basic obligation of a person who is summoned by the court. The Rule Says:

Anyone who is summoned to give testimony must appear in court at the specified time and place.
Anyone summoned to provide documents must either personally attend to bring the document or
ensure it is delivered at the required time and place.

Order XVI, Rule 16.32

This rule deals with the attendance obligations and security for witnesses summoned to court.

Sub-Rule 1 says:

A summoned person who starts attending court must keep attending every hearing until the case
finishes, unless the court decides otherwise.

Sub-Rule 2 says:

29
Ibid.
30
Ibid.
31
Ibid.
32
Ibid.
 If a party applies and pays any needed expenses, the court can require the summoned person to
provide a security to guarantee their attendance at future hearings. If the person fails to provide
this security, the court may detain them as a civil prisoner until the case concludes.

Order XVI, Rule 17.33

This rule links the consequences for a person who, after attending court as summoned, leaves without
permission or lawful excuse, to the penalties and procedures already outlined in Rules 10 to 13. The Rule
says:

If a person appears in court as summoned but leaves without permission or a valid excuse, the
court may apply the same penalties and procedures (like arrest warrants or fines) described in
Rules 10 to 13, wherever appropriate.

Order XVI, Rule 18.34

This rule covers what happens when a person arrested under a warrant is brought to court but cannot give
evidence or produce documents because the parties who summoned them are absent.

The Rule says:

If a person arrested under a warrant is brought to court but cannot give testimony or produce
documents because the parties who summoned them are absent, the court may require that person
to provide bail or security to ensure their future attendance. If bail or security is provided, the
person may be released; otherwise, they may be kept in custody as a civil prisoner.

There are a few reasons why a person arrested and brought to court might not be able to testify or produce
documents immediately. One of them, is if the parties who summoned the witness (e.g., plaintiff,
defendant, or their lawyers) are not present in court at that time, the witness might not be able to proceed
with giving evidence. Sometimes, testimony depends on the presence of those parties to ask questions or
to properly present the case.

Order XVI, Rule 20.35

This rule deals with the consequences for a party to the lawsuit (i.e., plaintiff or defendant) who is present
in court but refuses to give evidence or produce documents when the court orders them to do so. The Rule
says:

If a party involved in the case is in court but refuses to give evidence or produce documents when
the court requires, and they have no valid excuse, the court can make a judgment against them or
take any suitable action related to the case.

Order XVI, Rule 21.36

33
Ibid.
34
Ibid.
35
Ibid.
36
Ibid.
This rule states that when a party to a lawsuit (plaintiff or defendant) is required to give evidence or
produce documents, the rules that apply to witnesses will also apply to that party, as far as those rules
make sense in the context. The Rule says:

When a party to a lawsuit is asked to give testimony or provide documents, the same rules that
apply to witnesses will apply to that party as well, wherever applicable.

3) Law of Marriage Act [Cap 29, R.E. 2019].

Under the Law of Marriage Act [Cap 29, R.E. 2019], the most relevant provisions related to the
competence and compellability of witnesses are found in section 27.

Section 27 – Witnesses to a Marriage.

Subsection (1): Requires at least two witnesses for the marriage ceremony.

Subsection (2): Sets specific competence requirements for marriage witnesses which are:

 Must be 18 years or older.

 Must be mentally capable of understanding the ceremony (not intoxicated or suffering from
mental illness).
 Must understand the language of the ceremony (or have interpretation provided).

These Sections confirm that only individuals who understand what they are witnessing can serve—a clear
definition of competence.

Subsection (3): Declares that a district registrar (who officiates the ceremony) cannot act as a witness,
underscoring the requirement for independent witnesses.

4) Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, GN 119 OF 1983.

This is legal instrument that regulate civil case in primary courts. The key provisions in the Magistrates’
Courts (Civil Procedure in Primary Courts) Rules, GN 119 of 1983 that address the competence and
compellability of witnesses.

Rule 36 – Persons Present in Court May Be Called as Witnesses.

“Any person present in court may be required by the court to give evidence or to produce any document
then and there in his possession.” The court has authority to compel anyone in attendance—not just
summoned witnesses—to testify or provide documents. This reflects both competence (the person can
testify) and compellability (the court can require them to do so).

Rule 37 – Court-Appointed Witnesses (Sua Sponte).

“Where the court calls any witness of its own motion it may direct that the expenses ... be paid by any of
the parties…” Shows the court can act on its own initiative to summon witnesses it deems necessary.
Indicates that such witnesses are compellable (they can be mandated to attend).

Rule 38 – Duty of Persons Summoned.

“Whoever is summoned to appear and give evidence… shall be under a duty to attend... and to produce
documents... Provided that a witness shall be excused… if he has not been summoned in sufficient time.”
Specifies that once lawfully summoned, a person is competent and obligated to attend unless they weren't
given proper notice. This confirms the witness's duty to comply.

Rule 40 – Failure to Comply with Witness Summons

(1) If a summoned person fails to comply after being duly served, the court may issue a warrant for arrest.

(2) After arrest, the witness may be released on security or detained as a civil prisoner if security isn’t
provided.

Illustrates the court’s power to enforce compellability by compelling attendance through arrest and
detention.

Rule 41 – Parties as Witnesses.

“Where any party to a proceeding is required to give evidence or to produce a document, the provisions as
to witnesses shall apply to him so far as they are applicable.” Confirms that litigants themselves are held
to the same competency and compellability standards as other witnesses.

5) Primary Courts Criminal Procedure Code.

This is legal instrument incorporated in the Magistrates’ Courts Act [Cap 11, R.E. 2019], responsible for
regulating criminal cases in primary courts. The provisions in Primary Courts Criminal Procedure Code
that reflect both the compellability of witnesses are:

Rule 9 – Authority to Arrest for Non-Compliance or Contempt.

In relation to competence and compellability of witnesses the provision means:

(a) If a summoned witness fails to appear, or the court believes the person might evade service, it can
issue a warrant of arrest.

(b) If someone commits contempt (e.g., refuses to testify or insults the court in its presence), they may be
immediately arrested.

This provision enforces compellability: once summoned, a person can be legally forced to appear or
punished for disobedience.

Rule 10 – Procedure for Serving Summons.

Witnesses must be served properly, usually in person. If not possible, service can be made via family,
servant, or employer those individuals must help ensure the person gets the summons. How this Rule
relates to the concepts of competence and compellability of witnesses, A person can only be compelled to
appear if they are properly served.

Rule 11 – Powers and Validity of Arrest Warrants

A warrant gives legal authority to arrest a non-compliant witness. The warrant must be shown to the
person and explained, if they request. The warrant remains valid until it’s either used or cancelled. How
this relates to the concepts of competence and compellability of witnesses, This is the core enforcement
mechanism for ensuring compellability, witnesses cannot simply ignore the court.
6) The Chief Justice Standard Guideline for taking Evidence from Children of 2023.

These guidelines focus on supporting vulnerable witnesses (e.g., children, disabled individuals, etc.).

Guideline4 mentions accommodations like video testimony to prevent trauma.

Guideline 6 allows remote testimonies when personal appearance would risk witness safety.

Guideline 5 mandates in-camera hearings in sexual offence cases to protect child witnesses, supporting
section 127 of the Evidence Act (Cap 6 R.E 2022).

While these guidelines offer accommodations, they do nott remove the legal requirement for a witness to
attend court when summoned.

2) Appraise for the Redima of provision of s.132 to 141 of the Evidence Act [cap.6. RE.2022). On
doing so on read the case of Erenest Josephat v. Republic1983] TLR 170..

This appraisal examines Sections 132 to 141 of the Evidence Act [Cap. 6 R.E. 2022], focusing on their
provisions related to the examination of witnesses, including topics such as leading questions, refreshing
memory, and the impeachment of witness credibility. The analysis will incorporate the case of Ernest
Josephat v. Republic to illustrate the practical application of these legal principles.

Here's an appraisal of the provisions of Sections 132 to 141 of the Evidence Act [Cap. 6 R.E. 2022], with
reference to the case of Ernest Josephat v. Republic, suitable for a group assignment.

Appraisal of Sections 132-141 of the Evidence Act

Section 132 of Evidence Act is about Order of Examination: This appraisal examines Sections 132 to 141
of the Evidence Act [Cap. 6 R.E. 2022], focusing on their provisions related to the examination of
witnesses, including topics such as leading questions, refreshing memory, and the impeachment of
witness credibility. The analysis will incorporate the case of Ernest Josephat v. Republic to illustrate the
practical application of these legal principles. So this Section 132 of the Evidence Act addresses the order
of examining witnesses. It outlines the sequence in which witnesses are examined: examination-in-chief,
cross-examination, and re-examination. This structured approach ensures a fair and orderly presentation
of evidence. The order is crucial for allowing each party to present their case effectively and for the court
to assess the credibility of the witnesses. This section deals with the examination-in-chief, which is the
initial questioning of a witness by the party who called them. The purpose is to elicit the witness's direct
testimony about the facts of the case. This section is fundamental to the presentation of evidence.

Section 133: Examination-in-Chief in this Section 134 of the Evidence act concerns cross-examination,
the questioning of a witness by the opposing party. Cross-examination aims to test the witness's
credibility, challenge their testimony, and elicit information favorable to the cross-examining party. This
is a critical stage in the adversarial process.
Section 135 of Evidence governs re-examination, which occurs after cross-examination. The party who
initially called the witness can re-examine them to clarify any issues raised during cross-examination. Re-
examination is limited to matters arising from the cross-examination and cannot introduce new evidence
without the court's permission.

Section 136 addresses leading questions. A leading question is one that suggests the answer. Generally,
leading questions are not allowed during examination-in-chief or re-examination, but they are permitted
during cross-examination. This rule aims to prevent the examiner from putting words into the witness's
mouth and to ensure that the witness's testimony is based on their own recollection.

Section 137 states that witnesses must state facts. This section emphasizes that witnesses should testify
about facts they have personal knowledge of, rather than opinions or hearsay. This principle is essential
for ensuring the reliability and relevance of the evidence presented to the court.

Section 138 deals with refreshing memory. A witness may refresh their memory by referring to a
document if they cannot recall a fact. The document must have been made or verified by the witness at or
near the time of the event. The opposing party has the right to inspect the document and cross-examine
the witness about it.

Section 139 of the Evidence Act a, addresses the production of documents. If a witness uses a document
to refresh their memory, the opposing party can require the witness to produce the document for
inspection. This provision ensures transparency and allows the opposing party to challenge the accuracy
or reliability of the document.

Section 140 of the Evidence Act , outlines the methods for impeaching the credit of a witness. This
section allows a party to challenge the credibility of a witness through various means, such as:
Contradicting the witness's testimony with prior inconsistent statements. Proving that the witness has
been previously convicted of a crime. Showing that the witness is biased or has a motive to lie.

Section 141 of the Evidence Act , addresses questions that tend to corroborate the testimony of a witness.
This section allows a party to ask questions that support the witness's credibility or the truthfulness of
their testimony. This can include questions that show the witness's consistency, reliability, or lack of bias.

According to The case of Ernest Josephat v. Republic37 the following are the things introduced such as
Examination-in-Chief, Cross-Examination, Credibility of Witnesses, Witness Testimony, Admissibility of
Evidence The provisions of Sections 132-141 of the Evidence Act (Cap. 6 R.E. 2022) are fundamental to
the fair and efficient administration of justice in Tanzania. They provide a framework for the presentation,
challenge, and evaluation of evidence. The case of Ernest Josephat v. Republic, like any other case, would
have been decided based on the application of these sections to the specific facts and evidence presented.

REFERENCES.

Civil Procedure Code [Cap 33, R.E. 2019]

37
[1983] TLR 170.
Chief Justice Standard Guideline for taking Evidence from Children of 2023.

Criminal Procedure Act [Cap 20, R.E. 2022].

Ernest Joseph v R [1983] TLR 170.

Law of Marriage Act [Cap 29, R.E. 2019]

Magistrates’ Courts (Civil Procedure in Primary Courts) Rules, GN 119 OF 1983.

Primary Courts Criminal Procedure Code.