ALED LUCAS AND ANOTHER VS REPUBLIC

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (SUMBAWANGA DISTRICT REGISTRY)

AT SUMBAWANGA CRIMINAL APPEAL NO. 7786 OF 2024 MWENEMPAZI, J. The appellants herein named were arraigned in the District Court of Kalambo herein after referred to as ‘trial court’ for the offence of stealing animals contrary to section 258(1) and 268(1) and (3) of the Penal Code, [Cap 16 R.E 2022]. According to the particulars of the offence Aled s/o Lucas and Nestory s/o Mwanakatwe on the 4th day of March, 2023 at Mkowe Village within Kalambo District in Rukwa Region Willfully and unlawfully did steal one cow valued at Tshs. 650,000/= the property of one Baltazar s/o Sichilima @ Chambi. 1 The appellants pleaded guilty to the charge when the same was read over and explained to them in Swahili language, the language they are conversant with. The appellants, then accused persons, also admitted to the facts constituting the offence that they are true and correct. The trial court found the appellants guilty of the charge leveled against them and convicted them accordingly. Having found the accused/appellants herein as first offenders, the trial court sentenced them to serve a term of five (5) years imprisonment in jail. The appellants are aggrieved by the decision and sentence, have thus appealed against the whole judgment and sentence thereof on the following grounds: 1. That the Senior Resident Magistrate erred in law and in facts on convicting the appellants while the said plea was equivocal plea of guilty.

2. That the Senior Resident Magistrate erred in law and in facts in treating admitted facts by appellants as actually plea of guilty to each and every ingredient of the offence charged.

3. That the senior resident magistrate erred in law and in facts by not taking into consideration that the appellants admitted facts, his plea 2 was imperfect, ambiguous or unfinished and/or that reason the lower court erred in law in treating it as a plea of guilty.

4. That the sentence given to the appellants by the learned Senior Resident Magistrate is excessive and baseless to the tests for a plea of guilty to be unequivocal against the appellants. Relying on the grounds of appeal reproduced herein above the appellants pray for the judgment of the trial court to be quashed and set aside and judgment allowing the appeal. At the hearing, the appellants were unrepresented, and both appellants entered appearance; and the respondent was being represented by Mr. Mathias Joseph and Ms. Maura Tweve, Learned State Attorneys. The appellants were brief in their submission. They prayed the appeal be allowed alleging that they pleaded guilty to the charge after they had been threatened that if they won’t plea they will be killed. They submitted that despite there being a threat they did not tell the magistrate. Mr. Matthias Joseph, Learned State Attorney has submitted on behalf of the respondent. He has submitted that the conviction of the appellants was based on their own plea of guilty to the charge. He argued that the 3 law does not allow a person convicted on his own plea of guilty to appeal save for a sentence. In the case of Laurence Mpinga Vs. The Republic [1983] TLR 166 it was held that: 'yi/7 appeal against a conviction based an unequivocal plea of guilty cannot be sustained, although an appeal against sentence may stand” The counsel

submitted referring to the first page of proceedings and argued that the charge was read in swahili and both accused persons admitted. The plea of accused persons is clear and the same was recorded in the words they said themselves. The counsel relying on the cited case listed situations where the appeal against own plea may be allowed. In the cited case it was held: “an accused person who has been convicted by any court of an offence “on his own plea of guilty” may appealagainsttheconvictiontoahighercourtonanyof thefolowinggrounds: 4 1.That,eventakingintoconsiderationtheadmittedfacts, hispleawasimperfect,ambiguousorunfinishedandfor thatreasonthelowercourterredinlawintreatingitas apleaofguilty.

2. That he pleaded guilty as a result of mistake or misapprehension.

3. That the charge laid at his door disclosed no offence known to law; and 4. That upon the admitted facts he could not in law have been convicted of the offence charged. The counsel has submitted, the way the facts shows the appellants were arrested based on what they did and they admitted naming even owner of the property. The counsel submitted that even the sentence is in line to the law. He prayed that the appeal be dismissed. The appellants had nothing to rejoin. I have as well read the record and heard the submissions by the learned counsel for the respondent. Indeed the conviction of the appellants was based on the appellants own plea of 5 guilty to the charge. When the charge was read over and explained to the accused persons (appellants) the first appellant pleaded as follows: “Ni kweli niliba ng’ombe mmoja mali ya Baltazar s/o Chambi". The second appellant pleaded as follows: "Ni kwel niliiba ngombe mmoja mali ya Baltazar s/o Chambi” As to the facts constitution the offence, the appellants said: "I admit all the facts as adduced by the public prosecutor” With all due respect to the appellants submission, the plea of guilty was such unequivocal plea of guilty that it cannot be faulted as shown in the grounds of appeal raised. According to section 228(2) of the Criminal Procedure Act: "where the accused person admits the truth of the charge, his admission shal be

recorded as nearly as 6 possibleinthewordsheusesandthemagistrateshal convicthimandpasssentenceuponormakeanorder againsthimunlessthereappearstobesufficientcause tothecontrary”. I have quoted part of the proceedings at the plea, the Magistrate did comply to the law. As was decided in the case of Abdallah Issa Vs. Republic, Criminal Appeal No. 392 of 2022 [2024] TZCA 502 (1 July 2024): "Since the charge was accordingly read to the appellant, his plea of guilty was recorded, he admitted the facts which were subsequently narrated as ail being correct, he was recorded as such thus, convicted on his unequivocal plea of guilty” The offence the appellant were charged with is of stealing animals - cattle. The accused/appellants admit it was the property of one Baltazar Chambi, the complainant and they stole the same. The event occurred at Mkowe Village on the 04/03/2023. Those are facts they admitted which facts were read and explained to them by the prosecutor. 7 Under the circumstances, the appeal has no merit and I therefore proceed to dismiss the same. It is ordered accordingly. Dated and signed at Sumbawanga this 11th day of December, 2024. 8