ENOCK MWENDO Vs

IN THE HIGH COURT OF TANZANIA (DODOMA SUB REGISTRY) AT DODOMA DC CRIMINAL APPEAL NO. 12764 OF 2024 (Arising from the decision of the District Court of Iramba at Kiomboi dated 04/03/2023 in Criminal Case No. 27 of 2024 before Hon. L. Khamsini, SRM) ENOCK MWENDO..………………………….……………………………………APPELLANT Versus REPUBLIC……………........................................................................RESPONDENT JUDGMENT Date of last order: 26th August, 2024. Date of Ruling: 04th October, 2024. E.E. KAKOLAKI, J. In this appeal the Court is invited by the appellant to quash his conviction and set aside the sentence of four (4) years imprisonment meted on him by the District Court of Iramba at Kiomboi on 04/03/2024, following his own plea of guilty to the offence of Causing Grievous Harm, Contrary to section 225 of the Penal Code, [Cap. 16 R.E 2022]. He has so done through the petition of appeal comprising two grounds of appeal going thus: 1. The trial court grossly erred in law and fact for believing and treating the plea recorded from the accused person as an admission to the charged offence. 2. The trial court grossly erred in law and fact for convicting and pass excessive sentence without considering the circumstances of the case and of the accused person. 1 Briefly before the trial court it was prosecution case that, on 01/03/2024 at Kinyangiri village within Mkalama District in Singida Region, the appellant wilfully and unlawfully harmed one Jesca Ezekiel by using blunt object on the body and caused her to suffer serious injuries. After the charge was laid at his door it appears the appellant returned a plea of guilty to the offence charged with hence convicted on his own plea after admission of facts of the case in support of the charge that were read to him. He was thus sentenced to four (4) years imprisonment the conviction and sentence which seem to have displeased him hence the present appeal. At the hearing of this appeal appellant appeared represented by Mr. Tumsifu Mdhela, learned advocate while the respondent enjoying the services of Mr. Gothard Mwingira, learned State Attorney. Both parties were heard viva voce. Addressing the Court on the merits of this appeal Mr. Mdhela, commenced with the 1st ground arguing that appellant’s plea was equivocal and insufficient to warrant his conviction for not meeting the six (6) conditions for a plea to be considered as unequivocal one as well expounded in the case of Michael Adrian Chaki Vs. R, Criminal Appeal No. 399 of 2019 (CAT-unreported). Submitting on them the learned counsel argued that, one, the charge did not disclose the offence of Grievous Harm as specified in section 225 of the Penal Code read together with section 5 of the same Act. Due to that deficiency he explained, the trial Court could not be sure whether the 2 appellant comprehended nature of the charge facing him before entering plea hence the 2nd condition not met. He contended, the recorded plea of ‘Ni kweli kuwa nilimpiga na fimbo’ does not necessarily mean the appellant caused the victim grievous harm as always the use of stick would cause grievous harm. As to the 3rd condition he complained, the same was not met as the charge was not read and explained to the appellant before taking his plea. On the 4th condition he contended, after recording his plea the facts narrated to him did not disclose the offence of Grievous harm as stated under section 225 of the Penal Code read together with section 5 of the Penal Code. He amplified that, from the facts read to him there is nowhere it is stated the appellant caused the victim grievous harm apart from stating that she suffered serious injury without more. Since the facts did not disclose properly elements constituting the offence, he submitted the deficiency led the appellant to admit what was not clear to him. Regarding the 5th condition he claimed the appellant did not plead to each and every ingredient of the offence charged with nor were his answers in respect of every ingredient were clearly recorded. And on the last condition he asserted, the same was not met as the trial court never satisfied itself before convicting the appellant that, the facts adduced disclosed or established all the elements of the offence facing him. It was his submission therefore that with all those deficiencies it could not be 3 concluded that the prosecution proved the charge facing the appellant to warrant the trial court convict him. On the second ground he contended, the sentence imposed on the appellant was excessive given the circumstances of the case where misunderstandings in marriage is unavoidable. He thus prayed this Court to quash the conviction and set aside the sentence imposed on the appellant after allowing this appeal. Countering appellant’s submission Mr. Mwingira stated from the outset that the respondent was resisting the appeal. He opted to start with the 2nd ground of appeal on sentence in which he argued, the sentence imposed on the appellant was fair and complied with the law considering the circumstances of this case. He said, the offence in which the appellant was charged with attracted maximum sentence of 7 years imprisonment but the trial court after having considered the mitigation factors reduced it to 4 years, the sentence which to him was not excessive. Next was on the 1st ground of appeal in which he contested the submission by Mr. Mdhela that the plea was equivocal, arguing that the ground is unmeritorious hence should be dismissed. It was his submission that, the law under section 360(1) of the CPA provides that, Court shall not entertain an appeal on plea of guilty except one preferred under certain circumstances as 4 stated in the Laurence Mpinga Vs. R, [1983] TLR 166 cited in the case of Njile Samweli @ John Vs. R, Criminal Appeal No. 31 of 2018 (CAT) Tanzlii. According to him, appeal on plea of guilty can only be entertained when one, a plea is ambiguous, imperfect or unfinished. Secondly, where the accused pleaded guilty as a result of mistake or misapprehension, thirdly, when the charge disclosed no offence known at law and lastly that, upon the admitted facts he could not in law have been convicted of the offence charged with. In this matter he contended, the appellant has failed to exhibit before this Court existence of these four criteria. As to the conditions leading to unequivocal plea as stated in the case of Michael Adrian Chaki (supra) and the submission made in support of by Mr. Mdhela he retorted, the same have not shaken the prosecution case. On the 1st criteria he explained nothing. As to the 2nd condition on the Court's duty to satisfy itself that the appellant/accused comprehended the nature of his accusation and the submission by Mr. Mdhela that the recorded plea ‘Ni kweli kuwa nilimpiga na fimbo’ was equivocal, he countered with the force of argument that, the same was unequivocal as the appellant not only pleaded guilty to the charge but also went further to qualify his plea by explaining as to how he committed the offence by using a stick. With the particulars of the offence as found in the charge sheet he submitted, the appellant was aware of the nature of the accusation facing him before entering his plea hence unequivocal plea. As to proof of the said harm he admitted that, it is true no exhibit was tendered to 5 exhibit existence of grievous harm but was quick to argue that, such omission did not prejudice the appellant anyhow as there is also no stated law cited by Mr. Mdhela which was violated by the prosecution. He said, section 228(1) and (2) of the CPA requires the court to record the plea as nearly as possible on the words used by the accused in which the trial Court adhered to in this case, the learned State Attorney stressed. Responding on the 3rd criteria regarding the complaint that charge was not explained to the appellant he countered that, the charge was explained to him as shown at page 2 of the proceedings that, it was read and explained to him in the language he understood. As to the 4th condition the respondent also made no response. On the 5th criteria for the appellant to plead guilty to every ingredient of the offence he contended that, there was no violation of that requirement by the Court as the charge and facts were read to him before he admitted all facts read to him as seen at page 2 of the proceedings. Regarding the complaint on 6th criteria for the court to satisfy itself that the adduced facts are disclosing or establishing elements of the offence he argued that, the criteria was complied with by the prosecution as the facts were to the effect that, the appellant attacked one Jesca Ezekiel with a blunt object thereby causing him serious injuries, the facts which he submitted constitute the offence of Grievous harm. As to what amount to grievous as stated in section 5 of the Penal Code he submitted, it includes suffering serious injuries 6 in which in this case the prosecution proved existence of grievous harm. According to him having considered the admitted fact the trial Court was satisfied that, the offence of grievous harm was established before proceeding to convict him. In view of the above submission Mr. Mwingira prayed this Court to dismiss the appeal for want of prosecution. In rejoinder Mr. Mdhela, reiterated his submission in chief with prayers thereto. On the exceptions in appealing against conviction on plea of guilty as cited case of Laurent Mpinga (surpa) and submitted on by Mr. Mwingira he countered that, the same supports the appeal as the criteria specified therein have been demonstrated by the appellant to exist in this matter. Regarding to application of section 360(1) of the CPA he responded that, the same restricts appeal on own plea only when the conditions stated in the two cases referred above have been met and not in the situation where the same are violated like in the present case. He also contested the submission by the respondent that, it was not necessary for the prosecution to tender exhibit in support of the facts read as in the R Vs. Ynasani Egau [1942] 9 E.A.C.A 65 at 67 which is cited in the case of Michael Adrian Chaki (supra) the Court said in taking admission of the accused to the charge all the ingredients of the offence must be made clear to him before he enters a plea, the position which was not taken in this matter. He rested his rejoinder by praying the Court to allow the appeal. 7 I have dispassionately considered the rival submission from both parties, revisited the complained of proceedings in the record and travelled through the law related to plea of guilty by the accused person. In this matter it is undisputed fact that, the charge laid at the appellant’s door was Causing Grievous Harm under section 225 of the Penal Code, [Cap. 16 R.E 2022]. The said section 225 of the Penal Code reads: 225. Any person who unlawfully does grievous harm to another is guilty of an offence and is liable to imprisonment for seven years. From exposition of the above cited provision, for the offence of Grievous Harm under section 225 of the Penal Code to be proved three elements must be established by the prosecution. One that, the victim sustained grievous harm (injuries), second, the said injuries were unlawfully caused to him/her and thirdly, it is the accused person who caused it/them. See the decision of this Court in Ally Nassoro Vs. R, Criminal Appeal No. 147 of 2023 (HC) Tanzlii. It is also common law under section 360(1) of the Criminal Procedure Act, [Cap. 20 R.E 2022] (the CPA) that, appeal from conviction on own plea of guilty is barred save for excessiveness or legality of the sentence imposed. See also the cases of Laurence Mpinga Vs. R (1983) TLR 166, Njile Samwel @ John (supra) and Charles Samwel Mbise Vs. R, Criminal Appeal No. 355 of 2019 (CAT) Tanzlii. However, the only exception under which appeal can be preferred against conviction on own plea of guilty is 8 when the same is considered to be equivocal. The circumstances or criteria under which conviction on own plea can be appealed against were spelt in the case of Rex Vs. Folder (1923) 2 KB 400, the decision which was followed by this Court in the case of Laurent Mpinga (supra) and later on cited with approval in the case of Karlos Punda Vs. R, Criminal Appeal No. 153 of 2005 (CAT-unreported). 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 law; and 4. That upon the admitted facts the appellant could not in law have been convicted of the offence charged. The four factors were expounded by the Court of Appeal in the case of Michael Adrian Chaki (supra) when stated that there cannot be an unequivocal plea on which a valid conviction may be founded unless six (6) conditions are conjunctively met. These are: 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; 9 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 Thuw ay Ak oonay 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. Having revisited the law governing plea of own guilty, I now move to consider and determine the first ground of appeal in which the glaring issue for determination by this Court is whether the trial court was correct to treat appellant’s plea as unequivocal and proceed to convict and sentence him basing on the said own plea. What is discerned from the set of conditions in the above cited cases for a conviction on plea of guilty to stand Court must satisfy itself that the plea emanates from admission of every constituent of the charge and the admission is unequivocal. This legal stance was taken in 10 the case of Msafiri Mganaga Vs. R, Criminal Appeal No. 57 of 2012 (CAT- unreported) as cited in the case of Njile Samweli @ John (supra) where the Court is addition to the existing conditions stated thus: ’’….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]. With the above position of the law let me now examine whether the appellant’s plea was unequivocal or not. In doing so I find it apposite to reproduce part of the charge in which he stood charged as well as the court proceedings on the said 04/03/2024. To start with the charge the relevant parts are the statement of offence and particulars of offence which read thus: STATEM ENT OF OFFENCE Causing Grievous Harm; Contrary to section 225 of the Penal Code, [Cap. 16 as Revised Edition 2022] P ARR I CULAR S OF OFFENCE Enock Mwendo is charged on 01st day of March, 2024 at kinyangiri Village within Mkalama District, in Singida Region, wilful and unlawful did harm to one Jesca Ezekiel by using with blunt object in the body and caused to suffer serious injuries. Dated at Kiomboi this 1st day of March, 2024. Sgd. 11 Public Prosecutor. As to the Court proceedings of 04/03/2024 the same partly read as follows: P R OCEEDI NG P ros: Ass Insp Maiko Accused: Present C/ C: Zawadi Mselle – RMA P ros: The matter is a fresh one. I pray to read it over. Court: Charge is read over and explained to the accused person in a language understood, who is asked to plea thereto: Accused: Ni kweli kwamba nilimpiga na fimbo. B y Court: Entered a plea of guilty. P ros: I pray to read over the facts of the case in summary under section 228(1) of the CPA Cap 20 RE 2022. Court: That on 1/3/2024 around 3:00 after mid night in Kinyangiri village in Mkalama district in Singida region, the accused Enock Mwendo did assault one Jesca Ezekiel his married wife by using a blunt object and caused her suffer serious injuries. The victim has been hospitalized at Hydom referral Hospital to the moment and her health condition is critical. The accused was arrested on 1/3/2024 and was arraigned at police Nduguti, he was interrogated and his statement taken by one WP 9839 Dtv. Cpl Upendo in which he admitted on the offence. Today, 4/3/2024, the accused has been arraigned to court, charge read over and has admitted. 12 Accused: I agree with the whole narration. P ros: I have no any exhibit to produce. Court: The accused person has been convicted upon his own guilty plea. P ros: I have no previous criminal records regarding the accused person. These actions are very repetitive in Mkalama, I pray for courts action. Accused person’s mitigation: I pray for mercy of court since the family depends. SENTENCE On the submission by the prosecution, the court has noted the offence to be a serious one since the victim has been admitted at Hydom referral hospital in a very critical condition. The accused on the other hand has requested for mercy of court which however this court is only allowed to make a reduction of 2/3 of the deserved sentence following a self-guilty plea. On the basis, the accused person is sentenced to serve an imprisonment term of four years (4) in jail upon the said reduction. Right of Appeal against sentence explained. Now to start with the 3rd condition and complaint by the appellant as submitted by Mr. Mdhela that, the charge was not read and explained to the appellant, I find the same to be unfounded as the record speaks against his claims for clearly indicating on how the charge was read and explained to him in the language understood by him before his plea was recorded where he 13 responded ‘Ni kweli kwamba nilimpiga kwa fimbo. I therefore find this condition was met by the court. As to the 1st condition on whether the charge was properly framed and explicitly disclosed the offence known to law I find the same to be compliant for disclosing the necessary ingredients that, the accused wilfully and unlawfully harmed or assaulted one Jesca Ezekiel on her body using a blunt object thereby causing her to suffer serious injuries as grievous harm as defined under section 5 of the Penal Code includes serious injuries. It is however doubtful basing on appellant’s plea that ‘Ni kweli kwamba nilimpiga na fimbo’ whether the Court satisfied itself with clear mind that, the appellant (accused) had comprehended his accusations before entering his plea. I so doubt as while in the particulars of offence it is claimed by the prosecution that the weapon used to assault the victim is a blunt object in his plea the appellant said it was a stick. Variance on appellant response regarding the weapon used during the alleged assault in my view tells it all that he did not understood or comprehend his accusations. Had the trial court considered such important fact I believe would have entertained doubt as to whether the appellant was really admitting his accusations, hence I agree with Mr. Mdhela that the 2nd condition was not met. Next for determination is the 4th condition as to whether after recording a plea of guilty facts read to the appellant disclosed and established all elements of the offence. Having glanced at the facts read to appellant it is the finding of 14 this Court that, the same fell short of disclosure and establishment of all elements of the offence that faced the appellant. I will explain why? One, while it is claimed in the particulars of offence that appellant unlawfully caused harm to Jesca Ezekiel the facts are silent on the circumstances that led him to assault her which are necessary facts for establishing unlawfulness of his act. Second, while it is stated in the particulars of offence that, the weapon used was blunt object no further description on the type of the said blunt object used was disclosed by the prosecution to enable not only the appellant but also the court appreciate whether the same could cause serious injuries as alleged or not. Thirdly, while it is alleged the assault was aimed or directed on the victim’s body no descriptions were disclosed on the parts of the body affected and fourthly and last, it was not sufficient to merely allege in the facts that the victim suffered serious injuries without any evidence to that effect. In my humble view facts adduced in Court ought to have stated more on size or nature of the wounds sustained so as to establish that the same were grievous ones. Since the adduced facts did not disclose unlawfulness of the accused/appellant’s act nor nature of the wounds sustained by the victim if any and parts of body affected, there is no possibility any reasonable man could conclude that the 4th condition was met. As to the 5th conditions it clear from the record as deduced down herein above that, appellant did not plead to each and every ingredient of the offence 15 charged with as his response to the facts read to him was a blanket plea or admission that, ‘I agree with the whole narration’’. It is settled law that, court can properly enter a plea of guilty if it is clearly shown that the accused person has admitted all the ingredients which constitute the offence charged with. See the cases of R Vs. Ynasani Egau [1942] 9 E.A.C.A 65 and Kato Vs. R [1971] E.A 542 which was cited in the case of Salehe Mohamed Vs. R [1971] HCD No. 176 and Michael Adrian Chaki (supra). Since the trial court did not satisfy itself that the appellant had pleaded to each and every ingredient constituting the offence as adumbrated herein above when considering the 4th condition, I find the 5th condition was not met too by the trial court before making its findings on a plea of guilty entered by the appellant. Had the trial court considered all these deficiencies before entering conviction I am plenty sure that it would have resolve that, the facts adduced did not disclose or establish all elements of the offence of Causing Grievous Harm that faced the appellant. As it failed to so do, I find the 6th condition was also not satisfied by the trial court before embarking on its decision to convict the appellant on own plea of guilty. As all six conditions necessary for securing conviction on plea of guilty as stated in the case of Michael Adrian Chaki (supra) were not met save for the 3rd condition, I disagree with Mr. Mwingira that, appellant’s plea was unequivocal to warrant his conviction. Thus the issue raised above in the first 16 ground of appeal is answered in negative that, the trial court was in error to treat the plea by the appellant as unequivocal and proceed to convict him on his own plea before it erroneously sentenced him. As the first ground disposes of the appeal I do not find any pressing need to delve into determination of the second ground as I choose to rest here. All said and done, I find the appeal meritorious and proceed to allow the same as appellant’s conviction is ordered quashed and the sentence meted on him set aside. It is hereby directed that the trial court’s record be remitted back to the trial court for it to deal with the appellant as if he had not pleaded guilty to the offence charged with and proceed to hear the case to its finality after conducting the preliminary hearing. Should he be found guilty of the offence charged with and convicted I further direct consideration of the time spent by him in prison serving sentence be taken before he is sentenced. In the meantime the appellant shall remain in custody awaiting for his trial. It is so ordered. Dated at Dodoma this 04th of October, 2024. E. E. KAKOLAKI JUGDE 04/10/2024. Court: The Judgment has been delivered at Dodoma today on 04th day of October, 2024, in the presence of the appellant in person, Mr. Gothard 17 Mwingira, State Attorney for the Respondent and Ms. Veradina Matikila, Court clerk. Right of appeal explained. E. E. KAKOLAKI JUGDE 04/10/2024. 18