alex mwanawima lackson vs republic 2023 tzhc 17423 30 may 2023

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

AT SUMBAWANGA CRIMINAL APPEAL NO. 19 OF 2023 (Originating from District Court of Kalambo at Matai in Criminal Case No. 25 of 2023) ALEX s/0 MWANAWIMA @ LACKSON ’rSfe.J

APPELLANT

VERSUS

THE REPUBLIC RESPONDENT JUDGMf|NT% 29/05/2023 & 30/05/2023. MWENEMPAZI J. The appellant herein named was'convicted of an offence of attempt Rape contrary to section 132(1) of the Penal Code, [Cap 16 R.E 2022] and sentenced'to serve a term of thirty (30) years imprisonment in jail. The conviction was based on his own plea of guilty to the charge. He Is aggrieved by the conviction and sentence. He has thus filed a petition of appeal raising four grounds of appeal, namely (I quote): i 1. That, I did not commit the said serious offence that alleged by the prosecution.

2. That, the trial Court erred In law point and fact to convict the appellant on the offence of rape (sic) which was not proved beyond all reasonable doubt. ’Wk 3. That, the trial Court erred in law pointfact for convicting and sentencing the appellant while it failed to disqoverthat: accused has a MiS® Mi:®A. ■’W®, problem of hearing. MM 4. That, the trial Magistrate Court ;erred’ Ihtlaiw point and fact for convicting and sentencing the * appellant without considering the Wk accused was insane when doing the offence. The appellant prayed that theAappeal be allowed, judgment and conviction be quashed and sentence beset aside and that he be set free from jail. At the hearing the appellant was unrepresented and the respondent was represented by Ms. Marietha Maguta Learned State Attorney. The appellant was reminded of the grounds listed herein above and he submitted he has nothing to add. He prays they be considered and the appeal be allowed. 2 In response to the submission by the appellant, Ms. Marietha Maguta, State Attorney submitted that the Respondents are supporting the appeal. She submitted that for a plea of guilty to stand, the accused must: be able to understand the nature the offence he/she is charged with. That was decided in the case of Laurent Mpinga Vs. Republic [1983]TLR 166. According to the proceedings of the trial CourtTit reveals that the: accused made an

unequivocal plea of guilty. But looking attthe .accused, he seems not to be mentally fit. Thus they haye-an-opihipn, the fourth ground of appeal may stand to have merit. The counsel submitted that the problem would have been resolved in a full trial and not on a plea of guilty as the-offence, the accused is charged with Tlx '’Wi? is a serious one. > Due To The circumstances, the appellant cannot be said to have understood the nature of the offence and that the plea is unequivocal due to his mental capacity but also the impaired hearing. The Learned State Attorney prayed that the appeal be allowed as looking at the accused condition and the proceedings, the plea was equivocal. The appellant had nothing to add in rejoinder and seemed eager to be allowed to go home. 3 I have also read the proceedings. Indeed the appellant was convicted on his own plea of guilty. Under section 360(1) of the Criminal Procedure Act, [Cap 20 R.E 2019]. "No appeal shall be allowed in the case of any accused person who has pleaded guilty and has been convicted onsuch plea by a subordinate court except as to the exteptlpt, legality of the sentence" '% H owever, according to the case ofLaurentMpingaVs.Republic [1983] TLR 166. "an accused person who.. has been convicted by any court of an offence on his own plea.ofguiltyfmany appeal against conviction 44..., to a higher Court bn any of the following grounds:- That, even taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and for that reason, the lower court erred in lawin treating it as a plea of guilty.

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 4. That upon the admitted facts he could not in law have been convicted of the offence charged'". According to the submission by the counsel for the respondent, it is possible the accused pleaded guilty as a result of mistake or misapprehension given his level of understanding and impaired hearing, Thqugh not medically verified but it is difficult to communicate with mifhjin rear life before this !!W Court. That in my view is a reasonable doubt toy/itiatethe plea by the accused/appellant. I had also a chahcbyto ■interview him as to what happened at trial court heyseemedhnot certain bUFmentioned that he is accused of rape; and informed this'cbuirt that there were no questions which were asked to him instead he was told he has committed the offence of rape. That shows, though he was convicted of attempted rape, he understood the allegation against him was the offence of rape. He said, then, they took him to the.prison. He could not even understand the process which landed him into prison Under the circumstance and reason, I find the plea was equivocal. In the case of Munisi Marko Nkya Vs. Republic [1989] TLR it was held that: 5 "An accused's plea should as near as possible be recorded as the accused says it A plea of "It Is true"

without amplifications is unsatisfactory as it may not amount to an admission of every constituent element of the charge(s)". w, In this case it was recorded by the trial magistrate afterlrecording the facts: "Court: Accused is asked ifhe admits facts asadducedby the Public Prosecutor Sgd: N.KSIiemu -W 15.02^023^:^ ....................................................................... : ■’tk Ilk Accused: I admit all facts-as adduced by the Public Prosecutor. r.: yx-'.jv .*»<<:.• Sign: accused person^ Sign: Public Prosecutor.: Sgd:N.K.Temu ~ SRM $ -15.02.2023" In my view, the accused, is said to have admitted to the facts as shown but it is not clear whether the accused (appellant) understood and admitted to the facts. For the reasons, I find the appeal have merit, the same is allowed. The finding of trial Court is quashed and sentence set aside. The appellant should thus; be released forthwith unless he is lawfully being held therein. 6 It is ordered accordingly. Dated and delivered at Sumbawanga this 30th day of May, 2023.