Kulwa Makoye Judgment

Page 1 of 12 IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA SUB-REGISTRY OF GEITA AT GEITA CRIMINAL APPEAL NO. 16472 OF 2024 (From Criminal Case No.9690 of 2024 in the District of Bukombe at Bukombe) KULWA MAKOYE……………………………………………………………...APPELLANT VERSUS REPUBLIC……………………………………………………………………..RESPONDENT JUDGMENT Date of last Order: 26/07/2024 Date of Judgment: 31/07/2024 MWAKAPEJE, J.: The Appellant was charged and convicted based on his own plea of guilty in the District Court of Bukombe for the offences of abduction and rape as per sections 134 and 35; and 130(1)(2)(e) and 131(1) of the Penal Code, Cap. 16 R.E 2022, respectively. Consequently, he was sentenced to serve 5 years and 30 years imprisonment for the first and second counts, respectively. The aforementioned sentence was to be served concurrently. Briefly, in the trial court, the appellant faced the charges of abducting and raping a 14-year-old girl, whose identity is protected for privacy reasons. The offences reportedly took place between February and March 2024 on unspecified dates. The appellant allegedly eloped with the victim, cohabiting Page 2 of 12 with her as if they were married in Mtukula Runzewe, Buntubili Village, Bukombe District, Geita Region. A medical examination confirmed the victim had been penetrated. Subsequently, the appellant was arrested and confessed to the crimes. Upon hearing the charges, he pleaded guilty and was duly convicted and sentenced. Dissatisfied with both his conviction and sentence, the appellant has filed an appeal with this court, presenting five grounds for appeal, namely: (1) That the trial Magistrate Court erred in law and facts to convict the Appellant by using the plea of guilty of the Appellant, which has misunderstandings, ambiguous and imperfect. (2) The Trial Magistrate Court erred in law and fact in convicting the Appellants without following in detail why the Appellant pleaded guilty. In fact, the Appellant and the Victim lived as a wife and husband; even all the Parents knew fully that the Appellant married the victim. The victim's parents demanded that the Appellant give them a dowry of Tsh.1,000,000/=, which he was on his way to pay. (3) That the trial Magistrate Court erred in law and facts to convict the Appellant without the prosecution side bringing any witnesses to prove that he saw the Appellant abducting and raping the Victim. (4) That the Trial Magistrate Court erred in law and facts to convict the Appellants excessive conviction of 30 years each without considering the defences given by the Appellant. (5) That the Trial Magistrate Court erred in law and facts to convict the Appellants without any explanation of the parents and any evidence to prove the Age of 14 years old. Page 3 of 12 On the hearing date, the Appellant appeared in person while the Republic was represented by Ms Luciana Shabani, a learned Senior State Attorney. When this court invited the Appellant to address his grounds of appeal, he had nothing to say. On the other hand, when Ms Shabani took the floor, she partly supported the appeal and argued the first ground only as she was of the opinion that the same was enough to dispose of the appeal. In her submission, she stated that when an accused is brought before the court, and a charge is read, the procedure requires the accused to enter either a guilty or not guilty plea. If the accused pleads not guilty, the case proceeds to trial with witnesses from both sides. If the accused pleads guilty, the facts are established, enabling the court to proceed with conviction and sentencing. Ms Shabani further argued that in cases where the accused enters a guilty plea, the plea should be unequivocal and devoid of ambiguity. She enhanced her submission by referring to the case of Onesmo Alex Ngimba vs Republic, Criminal Appeal 157 of 2019 CAT at Mbeya. Ms Shabani contended that the accused faced two counts: abduction under sections 135 and 138 and rape under sections 130 (2) (e) and 131 (1) of the Penal Code. The accused's responses to these charges were: for the Page 4 of 12 first count, "Ni kweli nilimpoka/kumtorosha binti tajwa supra” and for the second count, "“Ni kweli nilifanya naye tendo la ndoa/kujamiana na binti tajwa mwenye umri wa miaka 14 supra.” She was of the view that these statements did not meet the criteria for a valid guilty plea concerning the offences charged. The plea was equivocal and unclear, and the trial magistrate had recorded statements that the Appellant did not make. Additionally, she submitted that the plea did not stipulate the ingredients of the offence as required. On the facts read, Ms Luciana argued that the law requires the facts to state the ingredients of the offence. For the first count, it should have been stipulated that the victim was below 14 years old and was taken away from her parents without their consent for the purpose of marriage. The age of the victim was not stated. For the second count, the elements were that the victim should be below 18 years old and that she was penetrated. The age of the victim was again missing. She concluded by stating that the prosecution should have been required to bring forth witnesses to hear the matter in full since the plea did not meet the required standard. She, therefore, prayed that the conviction, Page 5 of 12 proceedings, and sentence be set aside and that the case start afresh in the court with competent jurisdiction. After this submission, the Appellant had nothing to respond in his rejoinder. Having heard the parties, I now turn to consider the grounds of appeal accordingly. As stated in section 228(1)&(2) of the Criminal Procedure Act, Cap 20 R.E. 2022 (CPA), the procedure where an accused enters a guilty plea after a charge is read against him follows that the trial court proceeds to convict and sentence the accused person accordingly. The said section provides that: “ (1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth of the charge. (2)" Where the accused person admits the truth of the charge, his admission shall be recorded as nearly as possible in the words he uses, and the magistrate shall convict him and pass sentence upon or make an order against him unless there appears to be sufficient cause to the contrary." Once the accused has been convicted upon his own plea before the court, the general rule dictates that he is precluded from lodging an appeal against said conviction. However, he retains the right to contest the sentence in accordance with section 360(1) of the CPA. The said section provides that: Page 6 of 12 “360.-(1) An appeal shall not be allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence.”[Emphasis supplied] Despite the general principle laid in this section 360(1), case law, however, has laid down exceptions regarding the applicability of the provision, where one is allowed to appeal on his own plea of guilty against the conviction as well. In the case of Laurent Mpinga vs Republic [1983] TLR 166, which was referred by the Court of Appeal with approval in the case of Kalos Punda vs Republic (Criminal Appeal 153 of 2005) [2009] TZCA 14, the following factors were set for one to appeal against conviction on his own plea of guilty. These are: - “1. That even taking into consideration the admitted facts, the plea was imperfect, ambiguous or unfinished, and for that reason, the lower court erred in law in treating it as a plea of guilty; 2. That the appellant pleaded guilty as a result of mistake or misapprehension; 3. That the charge laid at the appellant's door disclosed no offence known to the law and 4. That upon the admitted facts, the appellant could not, in law have been convicted of the offence charge.” These factors were reinforced in the case of Michael Adrian Chaki vs Republic, Criminal Appeal No. 399 of 2019, and referenced in the case Page 7 of 12 of Onesmo Alex Ngimba vs Republic (supra). In this case, conditions to be met were set when a person is considered to have unequivocally pleaded guilty. It was stated thus: “1. The appellant must be arraigned on a proper charge. That is to say, the offence section and the 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 the 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 CPA. 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 be asked to plead and must actually plead guilty to each and every ingredient of the offence charged, and the same must be properly recorded and must be clear (see Akbarali Damji vs R. 2 TLR 137 cited by the Court in Thuway Akoonay vs Republic [1987] T.L.R. 92); 6. Before a 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.” Page 8 of 12 In the present appeal, the appellant challenges not only the sentence but also the conviction on a plea he deems equivocal. Guided by the aforementioned authorities, when addressing this ground of appeal, I am compelled to delve into the trial court proceedings where the accused allegedly entered a plea of guilty to the charges levelled against him. The proceedings of the court when a plea was taken were as follows: “Mahakama: Hati ya Mashitaka inasomwa kwa lugha ya Kiswahili na Mshitakiwa anajibu: Majibu ya Mshitakiwa: Kosa la kwanza “Ni kweli nilimpoka/kumtorosha binti tajwa supra Kosa la Pili. “Ni kweli nilifanya naye tendo la ndoa/kujamiana na binti tajwa mwenye umri wa miaka 14 supra” Mahakama: Mshitakiwa amekiril/kubali makosa yote mawili aliyosomewa na M/M.” After recording the pleas, the prosecutor was invited to narrate the facts of the case and thereafter tendered a caution statement of the appellant and the PF3 of victim. Again, the appellant was invited to state the correctness of the facts, and it was recorded as follows: “Mhe. Nakubaliana na maelezo (facts) yaliyosomwa pamoja na vielelezo M1&M2 vya Jamhuri ni kweli tupu” Page 9 of 12 In view of the preceding, the issue to consider is whether the appellant's plea was equivocal and whether the same met the conditions in the cases referred to herein, i.e., Laurent Mpinga vs. Republic and Michael Adrian Chaki vs. Republic (supra). The record of the trial court indicates that the appellant when invited to plea, stated that “Ni kweli nilimpoka/kumtorosha binti tajwa supra” for the first count and” “Ni kweli nilifanya naye tendo la ndoa/kujamiana na binti tajwa mwenye umri wa miaka 14 supra”, for the second. The question that immediately follows is, could the appellant, in such statements, be considered to have pleaded guilty in these circumstances? Section 228(2) requires the accused's plea to be recorded as nearly as possible in the words he uses. This was stressed in the case of Clement Pancras versus The Republic, Criminal Appeal No. 321 of 2013: Court of Appeal of Tanzania at Mwanza (Unreported). In any case in which a conviction is likely to proceed on a plea of guilty, it is most desirable not only that every constituent of the charge should be explained to the accused but that he should be required to admit or deny every constituent of the offence and that what he says should be recorded and in a form that will satisfy an appeal court that he fully understood the charge Page 10 of 12 and pleaded guilty to every element of it unequivocally” [Emphasis supplied]. To me, the appellant's plea was inadequately transcribed in his exact words and the same is not satisfactory enough to prove that the appellant fully understood the charge. Respectfully, the inserted term "supra" is not a Swahili term and did not constitute a valid plea, as mandated by section 228(2) of the Criminal Procedure Act. It is evident that what the appellant articulated was not accurately documented; instead, it was a phrase introduced by the presiding magistrate. This recurring term seems to be idiosyncratic to the magistrate, appearing frequently throughout the proceedings without regard for its appropriateness in context. Additionally, on the second count, the appellant's plea was stated as follows: “Ni kweli nilifanya tendo la ndoa/kujamiiana…..” Upon thorough examination the terms used, the varied interpretations stemming from the context of these terms highlight significant differences in meanings, connotations, and usage contexts, rendering the plea ambiguous. Therefore, in my expert assessment, the appellant's plea in the trial court failed to meet the criteria outlined in paragraphs (2), (3), and (5) as established in the case of Michael Adrian Chaki vs Republic (supra). Upon review of the records, Page 11 of 12 it is evident that the appellant did not fully grasp the charges against him. Furthermore, there was no evidence to suggest that the charge was adequately explained to him, nor did he plead guilty to each element of the charge. The lack of a clear and accurate recording of his plea is regrettable. Based on the aforementioned observations, I concur with Ms Shabani's argument that the appellant's pleas were indeed ambiguous. Given that this alone is sufficient to address the current appeal, I will not delve into the remaining grounds of appeal or the second aspect of Ms Shabani's submission. In conclusion, I allow the appeal, quash the conviction and set aside the sentence imposed on the appellant. I further order that the case be remitted to the trial court before another magistrate with a direction that a plea of not guilty be entered against the appellant and the case proceed where it ended before the appellant purportedly pleaded guilty, conduct a preliminary hearing and proceed with the trial. Considering the duration of incarceration the appellant has endured, I hereby direct the immediate commencement of the trial. Should he be found Page 12 of 12 culpable, the time served as a prisoner should be considered when determining the appropriate sentencing It is so ordered. DATED at GEITA this 31st day of July 2024. G.V. MWAKAPEJE JUDGE The Judgment is delivered this 31st day of July 2024 in the presence of the Appellant in Person and Ms Scolarstica Teffe, learned State Attorney. G.V. MWAKAPEJE JUDGE