RAMADHANI SAIMON

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SHINYANGA SUB REGISTRY AT SHINYANGA CRIMINAL APPEAL NO. 20240527000014288 (Criminal Appeal No.202405272000014, before Kishapu District Court) RAMADHANI SAIMON KINIGA....................................APPELLANT VERSUS REPUBLIC ...............................................................RESPONDENT JUDGMENT 24th& 27th June 2024 F.H. MAHIMBALI, J The appellant herein was arraigned before the trial Court for the offence of causing grievous harm contrary to section 225 of the Penal, Cap 16 RE 2022. It was alleged that on 20-1-2024 around 19:30 hrs the victim Emmanuel s/o Njile, 16 years of age with his friend Richard Ntega while walking from madukani headed to Mhunze met with the appellant, the appellant came close to the victim and while walking towards the same direction the appellant took his screwdriver (bisibisi) and stabbed the victim on his elbow at the top, accusing the victim of stealing his mobile phone and the victim under severe pain denied the allegation. 1 When the charge was read, the accused pleaded guilty. Thereat, the trial court convicted the appellant and sentenced him to suffer seven years’ imprisonment and he was ordered to pay two million shillings being compensation to the victim. The appellant is not amused with the conviction and sentence of the trial court, he has therefore appealed before this Court armed with three grounds of appeal which all fall under the question of procedural irregularities, the plea was equivocal and that the sentence meted by the trial court was too excessive. During the hearing of this appeal, the appellant appeared in person and unrepresented while Mr. Kadata learned State Attorney appeared on for the respondent who was resisting the appeal. Arguing for the appeal, the Appellant submitted that he is aggrieved by the conviction and sentence imposed by the trial court, alleging that there was duress and cohesion in the procurement of the said plea, thus wrongly convicted and sentenced. Moreover, he contests that, the sentence imposed was so excessive in the circumstances of this case. He therefore prayed for his grounds of appeal be adopted by the 2 Court to form part of his appeal submission. He finally pressed for an acquittal. On the side of the respondent, Mr. Kadata resisted the appeal, submitting that the grounds of appeal as filed and argued are meritless in the circumstances of this case. Mr. Kadata further averred that with the first ground of appeal, it is meritless as it is first an afterthought. In his view, Mr. Kadata fortified that the appellant when was first read over with the charge in the language he understands commonly, he pleaded guilty. The records also show that the said charge sheet was read over to him twice; on 9th February 2024 and secondly on 20th February 2024. In both situations, the appellant pleaded guilty to the charge in the language he understood. When the facts of the case were read over and explained to him, he also admitted them all as the same were explained to him in the language he thoroughly understood it. He also did not object the admissibility of the PF3 exhibit. Therefore, the trial court’s records as seen, does not show any element of cohesion or duress as alleged. With the second ground of appeal, Mr. Kadata stated that the same is meritless as per law. As per section 225 of the Penal Code, the sentence of seven years imposed by the trial court, is commensurate as 3 per law. Therefore, the sentence being proper, the trial magistrate was proper in taking into account the nature and circumstances of the case. With the third ground of appeal, Mr. Kadata submitted that the appellant is invoking the legal concern of legal irregularity. In his view Mr. Kadata alluded that as per what was said by the Court of Appeal in the case of Laurent Mpinga V. Rep, (1983) TLR 166 in which the CAT set four legal criteria for irregularity to be ground of appeal which fits in the current case. He urged this court not to consider any of the grounds of appeal as lodged, them being meritless. Thus, appeal be dismissed for lack of sufficient cause. The appellant had nothing to rest his submission, instead, he insisted on his submission in chief. Having heard both parties on merit, I have now to determine this appeal and the issue for deliberation is whether this appeal has been brought with sufficient cause. The appellant has complained for severe punishment meted against him and that there were procedural irregularities. I have endeavored my mind to go through the records of the trial court. The issue for consideration is whether the appellant’s plea before 4 the trial court is unequivocal. It is a common practice that once the accused is first brought before the court of law, charges must be read and explained to him in the language he understands; he must be asked if he admits the offence or not. The accused’s reply must be recorded immediately as soon as possible. In the case of Kibori Ramadhani V. Republic [1980] TLR 136 it was well settled that the substance of the charge shall be stated to the accused person by the court and shall be asked whether he admits or denies the content of the charge. See the case of Buhimila Mapembe V. Republic [1988] TLR No. 174. In another case of Republic V. Tilu Petro [1998] TLR No. 395 High Court Tabora. It was settled that; ".... Whether in a proper charge, an accused pleads guilty, the prosecution must be called upon to adduce facts only in presence of the accused, who is then required to admit them, the law does not allow adductions of facts in the absence of the accused and plea of guilt cannot be implied but must be express....." In order for the plea of guilty to be valid to purpose convictions without trial under Section 228(2) Criminal Procedure Act, it must meet conditions as set out by the CAT in the case of Michael Adrian Chaki 5 V. Republic, Criminal Appeal No. 399 of 2017 (Unreported). For an unequivocal plea of guilty to be valid, the following conditions must exist. 1. The appellant must be arraigned on a proper charge. That is to say, the offence, section and particulars thereof must be properly framed and must explicitly disclose the offence Known to law. 2. The court must satisfy itself without any doubt and must be clear in its mind that an accused fully comprehends what he is actually faced with, otherwise injustice may result. 3. When an accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228(1) of the Criminal Procedure Act Cap 20 RE2022. 4. The facts adduced after recording a plea of guilty should disclose and establish all the elements of the offence charged. 5. The accused must finally be asked to plead to each and every ingredient of the offence charged and the answer must be properly recorded and must be clear. 6. Before conviction on a plea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced, disclose or establish all the elements of the offence charged. 6 See also the decision on similar situation in the case of Rex V. Folder (1923) 2KB 400, Laurab Mpanga V. Republic [1983) TCR No. 166, and Kalos Punda V. Republic, Criminal Appeal No 153 of 2005 (Unreported), all discussing the same point. In the instant matter the charge was read to the appellant for two different times and in both times, he pleaded guilty. When facts of the case were read over, clearly, the appellant admitted them all as being true and correct. The same established the elements of the previous offence charged with, conviction and sentence he was serving and the escape done from the lawful custody. The argument that his plea was due to cohesion against him cannot hold water as per evidence in record, rebutting his assertion. I agree with Mr. Kadata that the argument by the appellant is an afterthought and the same does not qualify impeachment of the plea of guilty entered into equivocal plea. Thus, easier to conclude that the appellant’s plea was unequivocal. This ground has no merits and is accordingly dismissed in its entirety. Generally, a person convicted of an offence on his own plea of guilty is barred from appealing against conviction. He can only appeal against the extent or legality of the sentence imposed. That is, in terms of section 360(1) of the Criminal Procedure Act, Cap. 20 R. E. 2022 (the 7 CPA). That strictness of the law notwithstanding, courts have taken cognizant of certain circumstances which may render a plea equivocal when a conviction on one's plea of guilty may successfully be challenged by way of an appeal. The guiding cases on that are Rex vs Folder (1923) 2 KB 400, Laurent Mpinga vs Republic [1983] TLR 166 and later cited with approval in Karlos Punda vs Republic, Criminal Appeal No. 153 of 2005 (unreported). Clearly, the appellant had complained over excessive sentence meted against him. Apparently, the appellant was sentenced to suffer seven years’ imprisonment, and further he was ordered to pay compensation to the victim of two million. Mindful, the appellant was charged under section 225 of the Penal Code(supra). I found prudent to reproduce it. Section 225 reads; “Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years” Acknowledging the provision herein, I am of the firm view that, the provision fixes discretion to the court in passing a sentence to a person convicted of such an offence up to seven years. In other words, 8 depending on the nature and circumstances on the commission of the charged offence, the sentence can range from minimum to maximum. In the instant matter, the trial court passed the maximum sentence provided by the law without apprehending the nature and circumstances of the occurrence of the offence and injuries sustained by a victim via the plea of guilty entered by a convict. Meanwhile, the trial court did not consider the mitigating factors entered by a convict. Considering the fact that he was the first offender, he pleaded guilty, if all these would have been considered, the trial court would have pronounced a lesser sentence, including 1/3 deduction of his sentence. See the Sentencing Manual at page 39 and the case of Tabu Fikwa vs Republic [1988] TZHC 10. Worse, the appellant was ordered to pay compensation to the victim to the tune of two million. Glaring the facts, I am persuaded to agree with the appellant that the sentence meted against him was too excessive. It is reversed and the appellant is now ordered to pay only compensation to the victim to the tune of 500,000/= in lieu of the custodial sentence. The same be paid in one month time from today. With all the said, I find this appeal to have been brought with sufficient cause and consequently is allowed to the extent explained 9 herein above. The sentence of seven years is quashed and set aside. I order the appellant's immediate release from custody unless otherwise lawfully held. Right of appeal explained. DATED at SHINYANGA this 27th day of June, 2024. F.H. Mahimbali Judge. 10