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IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (MOROGORO SUB REGISTRY) AT MOROGORO CRIMINAL APPEAL NO. 13556 of 2024 (originating from Criminal Case No. 11896 of 2024 at Kilosa District Court) AHMED ALLY AHMED APPELLANT VERSUS THE REPUBLIC RESPONDENT Date of Last Order: 22.07,2024 Date of Judgement: 30.07.2024 JUDGEMENT MAGOIGA,J. The appellant, AHMED ALLY AHMED was charged before Kilosa District Court (the trial Court) for one offence of unnatural offence contrary to section 154 (1) (a) and (2) of The Penal Code [Cap 16 R.E 2022]. The appellant pleaded guilty to the charge and facts read to him. Consequently, the trial Court convicted and sentenced him to life imprisonment. Aggrieved with both conviction and sentence, the appellant preferred this appeal armed with ten grounds of appeal couched in the following language; - 1. That, the learned trial court magistrate glosslly misdirected himself to enter plea of guHty without to give the appellant an opportunity to explain the circumstances and facts ofthe charge levied to him. '# 2. That the learned trial court erred In law and fact to determine the case and enter conviction on the defective charge against the appellant. 3. That, the learned trialcourt magistrate deliberately misdirected himself to enter plea ofguHty relaying on the words"it is true" without taking into account that the words do not mean admitting all Ingredients of the offence taking Into account the technicality ofthe offence. 4. That, the learned trial court magistrate erred in law and facts for not considering the facts that the plea was a result of misapprehension and mistake. 5. That, the learned trial court magistrate deliberately misdirected himseif for failure to explain the substance of the charge to enable appellant to understand It fully and to appreciate the consequences ofpleading guilty. 6. That, the learned trial court magistrate erred In law and facts in not noticing that the narration ofstatement offacts by the prosecutor was a mere repetition ofthe charge and not facts that contain all essential elements ofthe offence. Z That, the learned trial court magistrate misdirected himselffor failure to note that the plea ofguHty was procured as a result ofpressure and threats from Police Officers who brought me before the court. 8. That, the learned trialcourt magistrate deliberately misdirected himself to enter plea of guHty relaying on the words "It Is true " without exercising great care on this grave offence which attract severe sentence. 9. That the learned trial court magistrate erred In law and facts for admitting exhibit PI and P2 tendered by Incompetent person. 10. The trial court magistrate erred In law for sentencing the appellant Hfe Imprisonment® sentence without taking Into account the age ofthe purported victim that Is 11 years old. On the basis of the aforementioned grounds of appeal, the appellant respectfully prays to this Honorable Court to find merits of his appeal, thereby quashing the conviction, setting aside the imposed sentence and order his immediate release. The facts as gathered from the trial court were simple and straightforward that on 15^^ Day in April, 2024 at Msowelo within Kilosa district in Morogoro # region, the appellant did sodomize one, PYS (pseudo name) a boy aged 11 years. When the appeal was called on for hearing, the appellant appeared in person, under custody and without legal representation and ready to proceed with hearing. The respondent. Republic was represented by Mr. John Mkonyl, learned State Attorney. When the appellant was Invited to argue his appeal, he preferred the learned State Attorney to start, then, he opted reply later. I granted the prayer. Mr. Mkonyl strongly opposed the appeal In Its entirety, he argued that this appeal arises from the appellant's conviction on his own plea. According to the learned Attorney, out of ten grounds of appeal presented by the appellant contravene the provisions of Section 360(1) of the Criminal Procedure Act [Cap 20 R.E 2022 which bars an appeal for person convicted of his own plea of guilty except for legality of the sentence, which Is not the case here. Mr. Mkonyl further argued that. In this appeal, except for the 10^'^ ground of appeal, the remaining grounds pertain to the plea rather than the sentence. On the 5^^ and 8^^ grounds of appeal In which he challenges the plea, are all devoid of merit. The trial record clearly shows, at page three, that the appellant admitted to sodomizing the victim more than thrice and acknowiedged having carnai knowiedge of the victim against the order of nature. Therefore, these grounds are without merit, and he respectfully request their dismissal. Pertaining to the 2"^ ground of appeal, which asserts on defectiveness of the charge sheet, Mr. Mkonyi argued that this assertion is unfounded. The charge sheet contained all requisite eiements, including a statement and particulars of the offense, and was properly framed under Section 154(l)(a) and (2) of the Penal Code [Cap 16 R.E 2022]. Arguing on the 4^^ and 7^*^ ground of appeal together, Mr. Mkonyi averred that these grounds are not supported by the trial court proceedings, and appear to be afterthoughts on the part of the appeliant. In context of the 6^^ ground, which contends that the facts did not contain the necessary ingredients of the offense, Mr. Mkonyi argued that the facts, as detailed from pages three to five of the trial record proceedings, encapsulate all elements of the offense. Penetration of the penis into the anus of the victim is the most critical element of the offense which was proved. On the 9^^ ground, which alleges that exhibits PI and P2 were tendered by an Incompetent person, Mr. Mkonyl argued that the exhibits were admitted after the appellant acknowledged them during the reading of the facts. The competent person, the prosecutor, tendered these exhibits, and they were rightfully admitted as part of the proceedings. Lastly, on the 10^^ ground concerning the sentence and the victim's age, the learned State Attorney argued that the victim was 11 years old and the appellant was sentenced to life imprisonment. This sentence is appropriate and lawful. From the foregoing reasons, Mr. Mkonyl prayed this court to find that this appeal is without merits and proceed to dismissed it in its entirety. The appellant was invited to respond, but had nothing further to submit and respectively requested this Court to find merit in the appeal, quash the conviction, set aside the sentence, and order their release. Without undue haste, the principal task of this Court is to determine the merits and demerits of this appeal. I will address the grounds in the order presented by the learned State Attorney, Mr. Mkonyl, as follows. JiL Regarding the 3''', 5^*^ and 8^^ grounds of appeal argued jointly, Mr. Mkonyi argued that these grounds are devoid of merit, pointing out that page 3 of the record clearly shows the appellant pleaded guilty to the offense of sodomizing the victim on three separate occasions. Indeed, these grounds pertain to the issue of whether the plea was unequivocal. Upon reviewing the records at page 3, it is evident that the appellant pleaded to the charge three times, as shown below: 1®^ time: Ni kweli nilimwingilia kinyume na maumbUe Todi; 2"*^ time: Ni kweii nilimwingilia kinyume na maumbiie mtoto aitwaye Todi time: Ni kweii niiimwingizia uume wangu Todi sehemu ya mkundu wake. Subsequently, the facts of the case were read and explained to the appellant, who still agreed to have confessed before the police officer. The caution statement was tendered, reflecting his plea, and the appellant admitted that all the facts were true and correct, including that he did insert his penis into the victim's anus. All the above facts considered and these circumstances, the plea in my respective opinion, was unequivocal. It is clear that the , , appellant pleaded guilty three times and later admitted to the facts that he sodomized the victim against the order of nature. On the account of what really happened, therefore, I find these grounds to be without merit, and they are hereby dismissed. Regarding the 2"^ ground of appeal, Mr. Mkonyi contended that the allegation of the charge's defectiveness is unfounded, asserting that the charge sheet contained all requisite elements. I find the appellant's assertion to be too general, failing to specify which part of the charge is alleged to be defective. Considering the matter at hand, the charge sheet appears to bear all the prerequisites in accordance with the law, and the appellant was charged under section 154(l)(a) & (2) of the Penal Code [Cap 16 R.E 2022]. I find this ground baseless. Regarding the 4^*^ and 7^^ grounds, Mr. Mkonyi submitted that these arguments were afterthoughts, as they are not supported by the trial court proceedings. Concerning the appellant's response to the charge, the particulars of the offense, and the fact that the charge was read to him three times with corresponding responses, there is no indication of misapprehension or mistake. It is clear that he understood the charges. The issue of the plea being procured under pressure is unsubstantiated, as the appellant did not raise this matter during the proceedings. He had the opportunity to inform the trial magistrate, if he felt intimidated or pressured into pleading guilty. Hence, these arguments are deemed afterthoughts, and I proceed to dismiss these grounds of appeal as well. Regarding the 6^^ ground, Mr. Mkonyi argued that the facts detailed on pages three to five of the trial record encapsulate all elements of the offense, with the penetration of the penis of the appellant into the victim's anus being the most critical element. Having considered all, I fully concur with the learned State Attorney that the facts presented on pages three to five disclose the elements of the offense. The appellant openly admitted to the correctness of these facts and agreed to have inserted his penis into the victim's anus. I find this ground to be without merit and, therefore, is equally dismissed. Regarding the 9^^ ground, Mr. Mkonyi argued that exhibits PI and P2 were admitted after the appellant acknowledged them during the reading of the facts and were admitted as part of the proceedings. In the circumstances of this appeal, I concur that these documents were tendered as part of the facts to elucidate the plea made by the appellant before the police officer, as indicated in PI. However, it is not a matter of wasting this Court's time, as it is clear that the appellant pleaded guilty to the offense multiple times and admitted to the corresponding facts. Therefore, I find this ground to be baseless and is hereby dismissed. Regarding the ground, which pertains to the matter of the sentence, Mr. Mkonyi argued that the sentence was just and fair upon the appellant given the age of the victim and the offence charged. It is a well-established principle, as correctly noted by Mr. Mkonyi in opposing the appeal, that an individual who has been convicted based on their own plea of guilty generally has no right to appeal against such a conviction, except on grounds challenging the legality of the sentence. This principle is codified under Section 360(1) of the Criminal Procedure Act, [Cap 20 R.E 2022], which stipulates as follows: "No appeal shall be allowed In the case of any accused person who has pleadedguHty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence" 10 Pertaining the issue of legality of the sentence, under section 154(1)(a) & (2) of the Penai Code [Cap 6 R.E 2022] provides as follows: 154.-(1)Any person who- (a) has carnal knowledge of any person against the order of nature; (2) Where the offence under subsection fl)is committed to a child under the aae ofeighteen years the offender shall be sentenced to Ufa Imprisonment(Emphasis is mine) In accordance with the aforementioned provision, the victim was an 11-year- old child, beiow the age of 18 years. The law prescribes life imprisonment for an offender convicted of carnal knowledge of a child of this age. I agree with Mr. Mkonyi that the sentence imposed for this offense was just, fair, and consistent with the law. Given the explained stances on this ground of appeal, I find the tenth ground of appeal baseless and unsubstantiated and is equally dismissed. That said and done and for the reasons demonstrated above, I hereby dismiss this appeal in its entirety and consequently uphold the conviction and sentencing of the trial court. It is so ordered. 11 Dated at Morogoro this 30^^ day of Jiiily 2Q24 sm. JUDGE 30.07.2024 COURT: Judgement delivered in chambers at Morogoro in the presence of Appellant and Mr. John Mkonyi, learned state Attorney for the respondent today on 30^^ day of July, 2024. ;.M. MAGOIGA JUDGE 30.07.2024 COURT: Right of appe^ fully expl m e? GA a; > LU JUDGE r" ^30.07.2024 12