CRIMINAL APPEAL NO 637 OF 2021AMANI KAMUGISHA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA (CORAM: WAMBALI. J.A.. MAIGE. J.A. And MURUKE, J.A.l CRIMINAL APPEAL NO. 637 OF 2021 AMANI KAMUGISHA.................................................................... APPELLANT

VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Mwanza) (Rumanvika, 3.1 dated the 11th day of August, 2021 in Criminal Appeal No. 72 of 2021

JUDGMENT OF THE COURT 14th & 20th February, 2025 MAIGE, J.A: At the District Court of Bukombe, the appellant was charged with and convicted of two counts, namely; rape contrary to section 130 (1) (2) (e) and 131 (1) of the Penal Code, Cap. 16 of the Laws of Tanzania and impregnating a school girl contrary to section 60A (3) of the Education Act, Cap. 353 of the Laws of Tanzania. He was sentenced to 30 years imprisonment for each of the offences. The sentence was to run concurrently. The conviction was on account of his own plea of guilty. Being aggrieved, the appellant appealed to the High Court of i Tanzania at Mwanza (the High Court) for among other grounds that, the plea of guilty was unequivocal. At the hearing of the appeal before the High Court, it would appear, the learned State Attorney in the first place supported the appeal for the reason of the plea of guilty being not unequivocal. Nevertheless, in the course of her dialogue with the High Court Judge, she changed her position and opposed the appeal. In his reasoned decision, the High Court Judge found that the appellant's plea of guilty was unequivocal. He, therefore, upheld the conviction as well as the sentence and dismissed the appeal. Once again aggrieved, the appellant has preferred the current appeal faulting the concurrent decisions of the two courts below on six grounds in the initial memorandum of appeal and

three grounds in the supplementary one. The respective grounds of appeal, however, raise one pertinent issue namely; whether the appellant's plea was unequivocal. During the disposal of the appeal, the appellant appeared in person and was unrepresented. The respondent Republic enjoyed the services of Mr. Castuce Clement Ndamugoba, learned Principal State Attorney. When invited to address the Court on the appeal, the appellant just adopted the grounds of appeal in the two memoranda and asked us to allow the appeal. Initially, Mr. Ndamugoba was prepared to oppose the appeal, on reflection, however, he fully supported it. He submitted that, while in the charge sheet, the two offences are shown to have been committed in two different dates, in the facts of the case which were read out, it is suggestive that, the same were committed on the same day. In such a situation, he submitted, it cannot be said that the respective plea is free from any ambiguity. He prayed, thus, the appeal be allowed. Having heard the submissions, we shall consider the merit or otherwise of the appeal. As pointed out elsewhere in this judgment, the conviction of the appellant was based on his own plea of guilty. In terms of section 360 (1) of Criminal Procedure Act Cap. 20, decisions of this nature are generally not appealable. Appeal can only lie as against the extent or legality of the sentence. The rule

stated in respective provisions, constitutes a general rule which, however, is not absolute. As held in Ramadhani Halima v. R, Criminal Appeal No. 213 of 2009 (unreported), it accepts some exceptions one of which being that, if the plea was on the face of it so imperfect or ambiguous that, a prudent magistrate or judge would have treated it as a plea of not guilty. See also Hussein Rashid Jumanne v. R., (Criminal Appeal No. 55 of 2020) [2023] TZCA 17641 (22 September 2023, TANZLII). As correctly submitted by Mr. Ndamugoba for the respondent Republic, the charge sheet asserts that the offence of rape was committed on unknown date and time in January, 2021 and the offence of impregnating a school girl on unknown date and time in January, 2020. When the charge was read out, the appellant just pleaded, in respect to each of the offence, "it is true". We have said, in a number of cases that, such a general plea without specifying what in particular the accused is admitting to be true, is an incomplete plea which cannot amount to an unequivocal plea of guilty. For instance, in Noel Paulo @ Kizungo v. R, (Criminal Appeal No. 377 of 2020) [2020] TZCA 194 (19 March 2024, TANZLII), we stated: "As intim ated earlier, when the charge was read out, the appellant stated, "It is true." It is dear that the expression "it is not true" was im perfect, am biguous and unfinished. In other words,

it was hardly sufficient to have conclusively assured the tria l court o f an adm ission o f the truth o f the charge in term s o f the requirem ent o f section 228 (2) o f the CPA. It is doubtful whether that expression by itself, without any further elaboration by the appellant constituted a cogent adm ission o f the truth o f the charge." Applying the above principle in the current case, therefore, it can be said without hesitation that, as the appellant just stated that "it is true" without elaborating or caused to elaborate what in particular is true, the purported plea of guilty was not clear and unambiguous as to what exactly the appellant was admitting. We note, however that, after the facts had been read out, the appellant pleaded that, 'I t is true that I did have sexual intercourses/ carnal knowledge o f Herleth Juma a g irl aged sixteen years old, a form two student a t Uyovu secondary school and made her pregnant." In view of the High Court Judge who presided over the first appeal, the said statement coming after the facts of the case had been read out, cleared the ambiguity and thereby making the plea unequivocal. A similar argument was made in the case of Noel Paulo @ Kizungo v. R (supra) where, like here, though the appellant was facing a serious offence attracting heavy punishment, he was an unrepresented lay person and the Court stated: " Though the appellant

adm itted the facts o f the case, given the im perfectness o f h is plea, it was unsafe to rely on it to convict the appellant. A s the appellant com plained in this case that, he entered the plea w ithout knowing its im plication, we fin d it fa ir to give him a benefit o f doubt." Assuming, for the sake of argument that, an elaborate plea of guilty subsequent after the facts had been read out, would in law clear the ambiguity in the initial plea, it is our view that, that would not apply in the current case. The reason being that, while in accordance with the charge sheet, the first offence was committed on unknown date in January, 2021 and the second one was committed on unknown date in January, 2020, the facts of the case aside from being silent on the month and year when the offence was committed, suggest that, the two offences were committed simultaneously. On top of that, the names of the victim in the charge sheet is at variance with those in the facts. With these discrepancies, therefore, it cannot be said, with certainty that, the appellant's plea was free of ambiguity. It remains ambiguous, in our view, whether the appellant was admitting two offences which were committed in two different years or those which were committed in the same year. In view of the foregoing deliberations, therefore, we are settled that, the appellant's plea of guilty to the offences in

question was not unequivocal and the appeal is allowed. As a result, we quash the conviction and set aside the sentence. On the other hand, considering the circumstances of the case, we remit the record to the trial court for retrial before another magistrate. In the meantime, the appellant shall remain in custody awaiting his trial, unless admitted on bail. DATED at MWANZA this 18th day of February, 2025. F. L. K. WAMBALI

JUSTICE OF APPEAL I. 1 MAIGE

JUSTICE OF APPEAL Z. G. MURUKE

JUSTICE OF APPEAL The Judgment delivered this 20th day of February, 2025 in the presence of the appellant in person and Mr. Ibrahim Idd Salim, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original.