NJIRE BUNDARA FOR TANZLII

IN THE HIGH COURT OF TANZANIA DODOMA SUB - REGISTRY AT DODOMA DC. CRIMINAL APPEAL NO. 18089 OF 2024 (Arising from Criminal Case No. 15191 of2024 in the District Court of Iramba at Kiomboi) NJILE BUNDALA...................................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT JUDGMENT 11th September & 4h October, 2024 MUSOKWA, J. In the District Court of Iramba (trial court), the appellant was charged with the offence of rape and thereafter convicted on his own plea of guilty. The said offence of rape allegedly violated section 130 (1) (2) (e) and 131 (1) of the Penal Code Cap. 16 R.E. 2022 (Penal Code). Upon entering a plea of guilty, the appellant was sentenced to serve thirty (30) years imprisonment. The facts provide that on 15th May, 2024 at Songambele Village within Iramba District and Singida Region, the appellant had carnal knowledge of a i female child aged 14 years. For the purpose of protecting her identity, the said female child shall hereinafter be referred to as the victim. Aggrieved by the decision of the trial court, the appellant is challenging both the conviction and sentence based on the following grounds of appeal reproduced hereinafter verbatim: - 1. That the trial court grossly erred in law and in fact for believing and treating the piea recorded from the appellant as an admission of offence charged. 2. That the appellant pleaded guilty as a result of misapprehension of the charge laid before him by the prosecution side. 3. That particulars of the charge sheet were read over to the appellant in a language he is not understood. On the date scheduled for the hearing of this appeal, the appellant appeared in person. The respondent had the legal services of Ms. Patricia Mkina, senior state attorney. Upon the appellant waiving his right to begin, the respondent was the first to submit. At the onset, Ms. Mkina stated that the respondent does not contend this appeal. The learned counsel for the respondent proceeded to submit on incurable irregularities that had been observed, that are apparent on the face of the records. 2 The counsel for the respondent referring to the printed proceedings of the trial court, stated that the conduct of the preliminary hearing violated the requirements of the law. Specifically, that the plea that was entered by the appellant herein, upon the charge being read over to him, was an equivocal plea. Citing the provision of section 288 of the Criminal Procedure Act, Cap. 20, R.E. 2022 (CPA), Ms. Mkina stated that the law requires the trial court to record the plea in the words of the accused person. The learned state attorney proceeded to state that, while the plea was duly recorded in the accused's own words, the said plea however was not a proper plea of guilty for the purposes of the law. The respondent's counsel submitted that the law requires for a plea of guilty to be an admission of each element of the offence charged. Thus, at the trial court, the plea of guilty that was entered by the appellant ought to have been an admission of each of the elements of the offence of rape. Ms. Mkina asserted further that the statement of the appellant in admission to the offence charged, was ambiguous as it did not amount to an admission of each fact which constitutes the offence of rape. In that regard, the purported plea of guilty that was entered by the trial court was in fact, an 3 equivocal plea and therefore it cannot be deemed to be a proper plea of guilty. The case of Frank Mlyuka vs Republic, Cr. Appeal No. 404 of 2018 (unreported) was preferred by the respondent to cement this point. Therefore, Ms. Mkina prayed that the proceedings of the trial court be nullified, the conviction and sentence be quashed and sentence set aside. Further that, the case file be re-mitted to the trial court for the preliminary hearing to be conducted properly in accordance with the law. On his part, the appellant being a lay person had nothing substantial to submit, merely praying that the appeal be considered in his favour. I have carefully examined the petition of appeal and the records thereto. The issue for determination is whether or not the impugned plea of guilty was equivocal. As the general rule, the law prohibits an appeal against conviction, that was entered based on a plea of guilty, except as to the extent or legality of the sentence. This is provided under section 360 of the CPA, which stipulates that: - 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 added] 4 Further, in the case of Njile Samweli @John vs The Republic, Criminal Appeal No. 31 of 2018 (unreported), the Court of Appeal of Tanzania (CAT) referring to the case of Laurence Mpinga vs Republic [1983] TLR 166 observed that: - /. /I/? appeal against a conviction based on an unequivocal plea of guilty generally cannot be sustained, although an appeal against sentence may stand; 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; 4. that upon the admitted facts he could not in law have been convicted of the offence charged." The CAT's case of Msafiri Mganga vs Republic, Criminal Appeal No. 57 of 2021 (unreported) further provides that: - "... This goes to insist therefore that in order to convict on a plea of guilty, the court must in the first place be satisfied that the plea amounts to an admission of every constituent of the charge and the admission is unequivocal." [emphasis added] 5 Being guided by the above authorities, in order for the appellant's plea to be deemed unequivocal, the said plea must have constituted an admission of each element of the offence of rape. The offence of rape to which the appellant stands charged is provided for under section 130 (1) (2) (e) of the Penal Code. The section provides as hereunder: - "130-(l) It is an offence for a male person to rape a girl or woman, (2) A male person commits the offence of rape if he has sexual intercourse with a giri or a woman under circumstances falling under any of the following descriptions: (e) With or without her consent when she is under eighteen years of age, unless the woman is his wife who is fifteen or more years of age and is not separated from the man. [emphasis added] The aforementioned section establishes the offence commonly referred to as statutory rape as was held by the CAT in the case of George Claud Kasanda vs The DPP, Criminal Appeal No. 376 of 2017 whereby the CAT stated that: - "In essence that provision creates an offence now famously referred to as statutory rape. It is termed so for a simple reason that; it is an offence to have carnal knowledge of a girl who is below 18 years whether or not there is consent, "[emphasis added] 6 In light of the above cited case, the ingredients of the offence of rape include carnal knowledge (penetration), and the age of the victim to be below 18 years. In statutory rape, consent is immaterial, as indicated in the above legal authorities. In this regard, the plea of the appellant ought to have constituted the ingredients of the offence of rape. The proceedings of the trial court relating to the preliminary hearing are reproduced for convenience: - "PROCEEDINGS Pros: It is a fresh case. I pray to read it over. Court: Charge is read over and explained to the accused person who is asked to plead thereto in a language understood: Accused: Ni kweli kabisa ni/imvizia nikiwa juu ya mti. By Court: Entered a plea of guilty. Pros: I pray to read over the summary facts of the case under section 228 (1) of the CPA, Cap. 20 R.E. 2022. Court: On 15/5/2024 by 3:00hours (evening) the victim while on way back from Ushora Primary Schoo/ in Songambe/e village in Iramba District Singida Region, with her other fellows, on way did meet the accused person who came from up a tree, then managed to catch the said student victim, pulled her in a bush and raped her while her other fellows managed to run away. The said young victim gid was taken to a health centre at Ndago on the discovery, 7 was examined, and was found to have been carnally known. The matter was reported at police post Ndago and the accused person was then arrested. Today, the accused person has been arraigned here to court and has pleaded guilty to the charge of rape as framed on the charge sheet. Accused person: I agree with the whole narration." [emphasis added] Looking at the records, the purported plea of guilty which is recorded as: "Nikwe/i kabisa ni/imvizia nikiwa juu ya mti" does not constitute an admission of the ingredients of the offence of rape. Accordingly, I concur with the respondent's counsel that the purported plea of guilty was equivocal. For the foregoing reasons and being guided by the aforementioned authorities, this appeal is hereby allowed. Consequently, the proceedings of the trial court are hereby nullified, the conviction and sentence are also quashed and set aside. I further order the case file to be remitted to the trial court for the preliminary hearing to be conducted afresh in accordance with the requirements of the law. It is so ordered. Right of appeal fully explained. 8 DATED at this 4th day of October, 2024. I.D. MUSOKWA JUDGE Judgment delivered in the presence of the appellant and in the presence of Ms. Mashina Faudhiat, state attorney, for the respondent. 9