SAMWEL EMMANUEL 1

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA DODOMA SUB REGISTRY AT DODMA DC CRIMINAL APPEAL NO. 37585 OF 2023 (C/F Criminal Case No. 91 of 2023 before the District Court of Iramba at Kiombol) SAMWEL EMMANUEL......................................................... APPELLANT VERSUS REPUBLIC..................................................................... RESPONDENT JUDGMENT Date of Last order: 2nd May, 2024 Date of Judgment: 24th May, 2024 MASABO, J.:- In Criminal Case No. 91 of 2023 before the District Court of Iramba, at Kiomboi, Samwel Emmanuel, the appellant herein, was charged and convicted on his own plea of guilty to one count of causing grievous harm contrary to Sections 225 of the Penal Code Cap. 16 R.E. 2022. Upon I conviction, he was sentenced to four years imprisonment and was iordered pay a sum of one million shillings as compensation for the victim. The same had to be paid within one year from the day he was sentenced. I I The facts leading to the conviction were that on 18th August 2023 at'Ruruma village within Iramba District in Singida Region, the appellant willfully and unlawfully harmed one Fredrick Makala and caused him to suffer serious injuries and a loss of his lower lip together with one tooth. When the charge was read out to the appellant, he pleaded guilty. He was thereafter, Page 1 of 9 convicted and sentenced as shown above. Dissatisfied, the appellant lodged this appeal based on the following three grounds of appeal: one, the trial magistrate erred in law and ifact by convicting and sentencing the appellant and ordering him to1 pay a I compensation sum of Tshs 1,000,000/= to the victim while his plea was equivocal. Two, the fact adduced did not establish the offence of grievous harm. Three, the whole proceedings are marred by procedural irregularities. When the parties appeared for a viva voce hearing, both parties were represented. Mr. Francis Kesanta, learned State Attorney, represented the * i respondent whereas Mr. Denis Odhiambo, learned counsel represented the appellant. At the commencement of the hearing, Mr. Kesanta, the learned State Attorney, seized the first opportunity to address the court. He submitted that the Republic is in support of the appeal as the proceedings show clearly that the plea leading to the appellant's plea was equivocal. He proceeded that, I as per the record, after the appellant entered his plea, the facts were not i read over to him contrary to the procedural requirements. Instead of reading out the facts, the Public Prosecutor simply stated that the facts were "as per chargesheet." He submitted further that, the facts in the chargesheet do not ; disclose important particulars. For instance, the name of the Victim is undisclosed. Hence, there was no offence for the appellant to plea or admit I ! I Page 2 of 9 to. In conclusion, he prayed that the appeal be allowed to the extent that the case be remitted back to the trial court for a fresh trial. On his part, Mr. Odhiambo supported Mr. Kesanta's submission as regards the irregularities in the plea and the prayer that the appeal be allowed. However, he objected to the prayer for a retrial. He argued that it would be prejudicial to the appellant who has already spent a fairly long time In jail. I have carefully and dispassionately considered the submissions and; prayers above alongside the lower court's records placed before me. The sole question for determination is whether the appellant's plea before the trial court was equivocal. Both parties agree that the plea upon which the appellant was convicted, was marred by irregularities and his plea was, therefore, equivocal. Before I venture into the record of the appeal, I find it apposite to start with the provision of section 360 (1) of the Criminal Procedure Act, Cap 20 R.E 2022 which deals with appeals emanating from a '■ h J conviction entered following the appellant's plea of guilty. Principally, this provision bars such appeal save where the appeal is in respect of the legality and extent of the sentence passed. It provides: - i 360 (1) No appeal shall be allowed in the case of any । accused person who has pleaded guilty and has been : convicted of such plea by a subordinate court except as I to the extent or legality of the sentence, [the emphasis is of this court], developed Page 3 of9 A second exception was developed through case law and applies where the plea is equivocal. Propounding this exception in the case of Lawrence Mpinga v. Republic (1980) TLR 166, the court held that: "An accused person who had been convicted by court of an offence on his own plea of guilty, may appeal against the conviction to a higher court on the following grounds: J. That 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 of guilty; 2. That he pleaded guilty as a result of a mistake or misapprehension; 3. That the charge laid at his door disclosed an offence not known to law; and that upon the admitted facts, he could not in law have been convicted of the offence charged. Cementing this position and elaborating what amounts to an unequivocal plea, the Court of Appeal in Michael Adrian Chaki v. Republic ^Criminal Appeal No. 399 2019 [2021] 454 TanzLII underlined the following six I conditions that must be conjunctively met for a plea to be considered unequivocal and sufficient to warrant a valid conviction:- 1. The appellant must be arraigned on a proper charge, i That is to say, the offence section and the particulars thereof ■ J must be properly framed and must explicitly disclose the | offence known to law; Page 4 of 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 plea 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 1 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 I court in Thuway Akoonay vs Republic [1987] T.L.R. 92); • 6. Before a conviction on a plea of guilty is entered, the I court must satisfy itself without any doubt that the facts ! adduced disclose or establish all elements of the offence ' charged. With guidance from these landmark authorities, I will now revert to the merit of the present appeal. In his submission in support of the appeal, Mr. Kesanta has ironed out two irregularities. The first is that the facts of the case were Page 5 of 9 not read over to the appellant after he entered a plea of guilty. The Second is that the chargesheet charge did not disclose essential particulars of the offence. I will leave the record to speak for itself. Pages 3, 4 5 of the word processed proceedings reveal/demonstrate what transpired in court on 12/09/2023 after the appellant was arraigned in court. A self-explanatory part of the proceedings is as follows: Date: 12/09/2023 Coram: L.O. KHAMSIN - PRM PROSEC: INSP. SALUM ACCUSED: PRESENT C/CLERK: ZAWADI-RMA PP: The matter is coming for preliminary hearing today, and lam ready. ACCUSED: I am ready as well. 1 Court: Charge is read over and explained to the accused I person who is asked to plea thereto. Accused: "Ni kweli kabisa". By court: Entered a plea of guilty. Sgd: L.O. KHAMSINI- PRM 12/09/2023 Page 6 of 9 PP. The facts are just as per charge sheet. Court: The particulars of the accused are as per charge sheet. On 18/08/2023 at 04.00 night at Luluma village Iramba District, Singida Region the accused did injure the : victim by biting him on his lower lip and managed to cut it off, he also took out one tooth, thus causing grievous injury I to the victim. That is all. Accused: I agree with all facts. PP: I have a PF3 of the victim person, I pray for his admission. COURT: The PF3 admitted and marked PEI. The accused is convicted upon his own guilty plea. Sgd L.O.KHAMSINI- PRM 12/09/2023 When this proceeding is considered in the light of the guidance above, it i patently exhibits the alleged procedural irregularities. Following the appellant's plea of guilty, it was incumbent for the facts of the offence to be read over and explained to him by the prosecutor. As the appellant was I charged with causing grievous harm, the facts so read had to disclose and I establish all the essential ingredients of the offence of grievolis harm. i Surprisingly, this step was omitted. Instead of reading the facts, the prosecutor simply stated that "the facts are just as per the charge sheet". Further, and in total abrogation of the procedural requirements,:the trial Page 7 of 9 magistrate recorded facts whose origin is unknown as they were not stated in the charge sheet. The particulars of the offence appearing in the chargesheet are that: "PARTICULARS OF THE OFFENCE That, SAMUEL S/O EMMANUEL is charged on 18th day of August 2023 during daytime at Roma Village within Iramba' District in Singida did harm one FREDERICK S/O MAKALA1 by arching on his lower lip an act that caused him to suffer serious injuries arid losing his lower lip together with one tooth." The inconsistencies between these particulars and the facts recorded by the magistrate are appalling. For instance, whereas the particulars of the offence show that the offence was committed in the daytime, the facts recorded by the magistrate show that the offence was committed at 04.00 night. With this appalling disparity, it cannot be overemphasized that even if the approach taken was acceptable, the conviction would not be sustained. Also, as correctly submitted by Mr. Kesanta, there is a disparity in the particulars of the victim. Whereas the particulars of the offence set out in the charge sheet show the name of the victim, the facts recorded by the trial magistrate are silent on the name of the victim of the offence. Thus, there 'were no sufficient particulars for the appellant's admission to stand on. I t I . I In the foregoing, I concur with both counsels that the appellant's plea of guilty was equivocal. In the foregoing, I allow the appeal. The conviction, Page 8 of 9 sentence, and compensation order are quashed and set aside. The record is remitted back to the trial court for a fresh trial. DATED and DELIVERED at Dodoma this 24th day of May 2024. Page 9 of 9