BAHATI JUDGMENT

IN THE HIGH COURT OF TANZANIA (MWANZA SUB-REGISTRY) AT MWANZA CRIMINAL APPEAL NO. 32082 OF 2024 (Originating from Criminal Case No. 29495 of 2024 in the District Court of Nyamagana at Nyamagana) LEONARD BARAKA BAHATI………………………………………………APPELLANT VERSUS REPUBLIC………………………………………………………………….RESPONDENT JUDGMENT 3rd & 17th March, 2025 KAMANA, J. This is an appeal against the judgment of the District Court of Nyamagana (Kubaja, PRM) entered on 21st October, 2024 through which Leonard Baraka Bahati, the appellant, was convicted of an offence of rape contrary to sections 130(1) and 2(e) and 131 (1) of the Penal Code, Cap. 16 [RE.2022]. The conviction was preceded by a plea of guilty. He was sentenced to imprisonment for a term of thirty years. Briefly, the facts had it that on 30th September, 2024, FB, the victim aged 15 years old was in the Nata area waiting for her host when she was approached by the appellant who promised to accommodate her in his living quarters. Stranded, FB went with the appellant to the 1 latter’s house located at Nyakabungo within Nyamagana District where they had sexual intercourse. The incident was reported to Nyamagana Police Station and on 3rd October, 2024 the appellant was arrested and taken to the Police Station. He was interrogated and confessed to having sexual intercourse with the victim. The victim was taken to Sekou Toure Hospital where she was examined. The examination revealed that FB’s pudendum was penetrated. PF3 was filled and admitted. On 21st October, 2025 the accused was arraigned before the trial court and the charge was read to him. He entered a plea of guilty by stating: “Ni kweli mhe hakimu nilimuhadaa muhanga na kufanya nae mapenzi nikijua ni kosa.” Following the plea, the facts constituting the offence as illuminated above were read to him and he replied thereto: ‘Your Honour I have understood all the above facts read out to me, they are all truthful.’ From there, the trial court convicted the appellant on his guilty plea and sentenced him to serve thirty years in prison. Upon reflection, the appellant preferred this appeal premised on three grounds. One, the 2 trial court erred in law by convicting him on an equivocal plea of guilty and not complying with section 192(3) of the Criminal Procedure Act, Cap. 20 [RE.2022] (CPA); two, the trial court erred in law by convicting him on the unproved charge sheet as Nyakabungo area is not in Nyamagana District but in Ilemela District; and three, the trial court erred in law by not considering that the prosecution failed to prove the case against him beyond a reasonable doubt. At the hearing of this appeal, the appellant had no legal representation. Hence, he beseeched this court to consider his grounds of appeal and set him free. In opposing the appeal, the respondent had the services of Ms. Stella Minja, learned State Attorney. Submitting against the first ground, Ms. Minja contended that the appellant’s plea was unequivocal as it was not tainted with ambiguity or made by mistake or misapprehension. She expounded further that the appellant pled guilty to the offence known in law whose ingredients were disclosed in the charge sheet read out to him. Ms. Minja went on to argue that the appellant agreed with the facts they were read out to him which disclosed the ingredients of the offence. Given that, the learned State Attorney implored this court to consider that the appellant’s plea was unequivocal and dismiss the 3 ground as baseless. To support her arguments, the learned State Attorney took solace in the cases of Laurent Mpinga v. Republic [1983] TLR 166; and Michael Adrian Chaki v. Republic, Criminal Appeal No. 399 of 2017-CAT (Unreported). Responding as to whether there was compliance with section 192(3), Ms. Minja conceded that the section was not complied with as the appellant did not append his signature after agreeing with the facts read over to him. However, the learned counsel held the view that non- compliance with the said section is cured under section 388 of the CPA. She added that since the appellant agreed to have understood the facts, he was not prejudiced. Strengthening her argument, she cited the case of Masamba Musiba @ Musiba Masai Masamba v. Republic, Criminal Appeal No. 128 of 2019-CAT (Unreported). Having taken that position, Ms. Minja beseeched this court to dismiss the ground as baseless. On the second ground, Ms. Minja attacked the same as baseless. She argued that as per the charge sheet, Nyakabungo is within Nyamagana District and not Ilemela District. As regards the third ground, Ms. Minja held the view that the ground is baseless as the prosecution is not bound to field witnesses 4 when the accused pleads guilty. She buttressed her view by referring this court to the case of Joel Mwangambako v. Republic, Criminal Appeal No. 516 of 2017-CAT (Unreported). Having heard Ms. Minja’s submission, the appellant reiterated his prayer that the grounds be considered and he be set free by this court. In determining the first ground, I wish to underscore the position of the law that a person who was convicted on his plea of guilty is generally barred from appealing against the conviction. He is only allowed to appeal against the sentence. This principle is provided in section 360(1) of the CPA as follows: ‘360.- (1) No appeal shall 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.’ However, through case law, there are exceptions to the general rule stated in section 360(1) whereby a person convicted on his plea of guilty may challenge the conviction. The exceptions were restated in the case of Juma Seleman @Paul v. Republic, Criminal Appeal No. 394 of 2016-CAT (Unreported). In the said case, the Court quoted with approval the holding of this court (Samatta, J. as he then was) in the 5 case of Laurence Mpinga v. Republic [1983] T.L.R 166 in which it was held: ‘..an accused person who has been convicted by any court of an offence “on his own plea of guilty” may in certain circumstances appeal against the conviction to a higher court. Such an accused person may challenge the conviction 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 of guilty; 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; and, 4. that upon the admitted facts he could not in law have been convicted of the offence charged.’ That being the position of the law, the question that ensues is whether the plea of guilty entered by the appellant falls within the stated exceptions. Before determining the question, it is apposite to 6 understand what constitutes an equivocal plea. The plea was defined by the Court of Appeal in the case of Abdallah Jumanne Kambangwa v. Republic, Criminal Appeal No. 321 of 2017-CAT (Unreported) as follows: ‘... an ambiguous or vague plea that is a plea in which it is not clear whether the accused denies or admits the truth of the charge. Pleas in such term as "I admit" ''nilikosa fI or "that is correct" and the like/, though prima facie appear to be pleas of guilty may not necessarily be so. In fact invariably such pleas are equivocal. It is for this reason that where an accused person replies to the charge in such or similar terms/ facts must be given and accused asked to deny or admit them. Only by doing so can a magistrate be certain that accused's plea is one of "not guilty" or "unequivocal plea of guilty.’ I have considered the appellant’s plea and the facts that were read out to him which were recapitulated hereinabove. Indeed, I am satisfied that the appellant’s plea was unequivocal. The appellant’s plea “Ni kweli mhe hakimu nilimuhadaa muhanga na kufanya nae mapenzi nikijua ni kosa”, in my opinion, that plea was neither vague nor ambiguous. 7 Further, the facts that were read to the appellant disclosed the offence of rape and the appellant admitted the ingredients of the offence as narrated by the prosecution. That being the case, it is my finding that the appellant’s plea was unequivocal and cannot be saved by the stated exceptions. On the other limb of the first ground, I think it is apposite to reproduce the contents of section 192(3) hereunder: ‘(3) At the conclusion of a preliminary hearing held under this section, the court shall prepare a memorandum of the matters agreed and the memorandum shall be read over and explained to the accused in a language that he understands, signed by the accused and his advocate (if any) and by the public prosecutor, and then filed.’ Having gone through the section, despite Ms. Minja’s concessions that section 192(3) of the CPA was not complied with as the appellant was not called to append his signature after making his plea, I am of the considered view that the said section has nothing to do with the procedures relating to plea of guilty. In essence, section 192(3) is about the procedures relating to a preliminary hearing when the accused 8 pleads not guilty. With such remarks, it is my finding that the first ground is devoid of merits. Coming to the second ground, the same will not detain me. I shake hands with Ms. Minja that Nyakabungo is within Nyamagana District and not Ilemela District. In holding that, I took notice of Government Notice No. 797 of 2024 published on 6th September, 2024 which notified the general public that Nyakabungo is within Nyamagana District. The ground crumbles. On the third ground, I hasten to agree with Ms. Minja that when the accused pleads guilty, the prosecution is relieved from the obligation to field witnesses. This position was stated by the Court of Appeal in the case of Joel Mwangambako v. Republic (Supra) in which the Court had this to state: ‘’Indeed, the applicable procedure when an accused person pleads guilty to a charged offence, as stated in numerous decisions of the Court, involves no production of proof of the charge but a procedure for ascertaining if the appellant’s plea is unequivocal.’ 9 In view of that, since the accused unequivocally pleaded guilty to the offence he was charged with, the prosecution was not bound to parade witnesses. The ground fails. In the circumstances, it is ordered that the appeal be and is hereby dismissed in its entirety. Order accordingly. Right To Appeal Explained. DATED at MWANZA this 17th of March, 2025. KS KAMANA JUDGE The Judgment was delivered this 17th day of March, 2025 in the presence of the appellant and Ms. Minja, learned State Attorney for the respondent. KS KAMANA JUDGE 10