20160302 TZHC Arusha

IN THE HIGH COURT OF UNITED REPUBLIC Of TANZANIA (DISTRICT REGISTRY) AT ARUSHA. CRIMINAL APPEAL NO 51 OF 2015 (From Babati District Court Criminal Case No. 540 of 2009) ANDAZI PIUS .......................... ;.................... ~ ..... APPELLANT VERSUS THE REPUBLIC 1111 ■ 11111 ■ I ■■ I ■ I ■■ I ••••• I •• I I■ ■I I I 11 I ii I ■ •• ~ ••• RESPONDENT JUDGMENT MWAIMU, J. The appellant Andazi Pius yvas before the· Babati District Court charged with the offence of Rape contrary to section 130 (1) and (2) (e) and 131 (1) of the Penal Code Cap 16 RE 2002. He pleaded guilty to the charged offence and; the court se.ntenced him to life ' imprisonment. He was not pleased with the de_cision of the court and therefore preferred the instant appeal to challe.nge the decision. In his petition of appeal the appellant has listed four grounds but the first, second and third grounds the, appellant claims that his conviction (if any) was based on an equivocal plea. His complaint is that the facts were not amplified to constitute the ingretjients of the offence as charged. 1 The learned State Attorney who appeared for the respondent conceded to the appeal urging that the plea was equivocal as the facts were ambiguous. On the face of it I would agree that the plea was equivocal. Firstly, the charge sheet showed that Stella d/o Francis who is alleged · to be the victim of the offence was five years old. The facts did not disclose the age of the victim so as to bring in one of the fundamental elements of the charged offence of rape under section 130 (1) and (2) (e) of the Penal Code. Secondly, when the accused was called in to respond to the Q correctness of the facts as narrated by the prosecution he made the following answer: "Accused reply: I did raped (sic!) the girl but I did not escape not other facts are correct and true." Then the trial magistrate went on to convict and sentence the appellant. Reading of the facts it is clear that the answer given by the appellant was not rational to the charged offence. From the face of it the answer is ambiguous. The trial Court should have entered a plea of not guilty to enable the appellant to undergo a full trial. In Laurence Mpinga V Republic 1983 TLR 166 this Court listed a number of principles under ·which an accused may appeal against a conviction on own plea of guilty. The Court said: 2 "(ii) an accused person who has been convicted by any court of an offence ''on his own plea of guilty" may appeal against the conviction to a higher court on any of the following grounds: 1. that even taking into consideration the admitted facts, his plea was imperfect ambiguous or unfinished and, for that reason/ the lower court erred in law in treating it as a plea ofguilty; 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 N In the circumstances the trial magistrate wrongly recorded the plea of guilty as it was ambiguous. I allow the appeal by quashing the conviction and setting aside the sentence imposed against the appellant. Having found so, I felt duty bound to decide on whether to order for a retrial. The appellant was charged with the offence of rape of a girl child which its maximum sentence upon conviction is life 3 ' imprisonment. So far he has already spent about seven years in 41- custody. However, with the seriousness of the offence, and the gravity of its sentence, I find it fit to order for a retrial. The case file is remitted back to the trial court for trial de nova before another magistrate with competent jurisdiction. Meanwhile, the appellant should further remain in custody unless he is granted bail upon application. (SGD): M.P.M. Mwaimu JUDGE 29/02/2016 Judgment delivered on this 29th day of February, 2016 in the presence of both parties. (SGD): M.P.M. Mwaimu JUDGE 29/02/2016 ~ hereby certify this to be a true copy of the original HIGH COURT ARUSHA I