CHARLES FARAJAWALI NJUGU VERSUS REPUBLIC

IN THE HIGH COURT OF TANZANIA DODOMA SUB REGISTRY AT DODOMA DC CRIMINAL APPEAL NO. 32401 OF 2024 (Arising from District Court of Kongwa in Criminal Case No 853 of 2023) BETWEEN CHARLES FARAJA @WALI NJUGU………………APPELLANT VERSUS THE REPUBLIC………………………..………….RESPONDENT JUDGMENT Date of last Order: 25/03/ 2025 Date of the Ruling: 08/04/ 2025 LONGOPA, J.: This is an appeal against conviction and sentence to serve life imprisonment for offence of rape C/S 130(1), (2) and 131(3) of the Penal Code, Cap 16 R.E. 2022. It was alleged that the appellant on 3rd August 2023 did have a carnal knowledge of a girl aged 3 years old. The appellant was convicted and sentenced on his plea of guilty and sentenced to serve a 1|Page life imprisonment term. Also, the appellant was ordered to pay compensation of Tanzanian ten million Shillings (TZS 10,000,000/=). On 14th November 2024, the appellant instituted an appeal against whole decision both conviction and sentence on the following reasons, namely: 1. That, the Honorable Court erred in law and fact by misleading itself by concluding that the plea of guilt was unequivocal. 2. That, the Honorable Court erred in law and fact by failing to consider that the appellant may have been insane so as not to be responsible for his action at the time when the act was done according to the nature of the case, and subsequently reasonably order the appellant to be detained in a mental hospital for medical examination as provided in section 220 of the Criminal Procedure Act, Cap 20 R. E. 2022. 2|Page 3. That, the Honorable Court erred in law and fact by not considering that the appellant may have no capability of understanding the nature and consequences of the charge against him. 4. That, the trial court erred both in law and fact when convicted and sentenced the appellant based on a poorly and improperly investigated case. 5. That, the trial Court erred in law and fact when convicted and sentenced the appellants while the charge was not proved beyond a reasonable doubt. On 25th March 2025, the parties appeared before me for viva voce hearing. The appellant appeared in person via vide conference fending for oneself and the respondent was represented by Nancy Rugaihuruza and Linda Mbaga, learned State Attorneys. It was the appellant’s submission that all the grounds of appeal were adopted. The appellant stated that he never pleaded guilty to the offence as he never raped the alleged victim. 3|Page It was a further submission of the appellant that never understood the whole of the proceedings and the charge he was facing before the trial court. It was stated that the appellant did not commit an offence but also the appellant did not understand, comprehend and admit the charge when the same was read. The appellant prayed that the court be pleased to find out that the plea was equivocal thus there was not plea of guilty known in law at all. Conversely, Ms. Nancy Rugaihuruza, learned State Attorney objected the appeal against the conviction and sentence. She argued that the appellant was convicted and sentenced for offence of rape of a child of 3 years old contrary to section 130(1), (2) and 131(3) of the Penal Code, Cap 16 R.E. 2022. It was submitted that in Kongwa District Court the appellant was convicted on his own plea of guilty thus sentenced the appellant to life imprisonment and compensation of Tanzanian shillings ten million (TZS 10,000,000/=). The respondent’s learned State Attorney stated that the appeal is grounded on five grounds of appeal which are objected in their entirety. 4|Page It was argued by respondent that for the fourth and fifth grounds of appeal are misplaced as the appellant was convicted on plea of guilty. It was stated that section 360(1) of the Criminal Procedure Act, Cap 20 R.E. 2022 provides that no appeal lies on plea of guilty. The question of proof of the case beyond reasonable doubts and poor investigation are misplaced. In respect of the first ground, the plea of guilty was an unequivocal. On page 1 of the proceedings, the plea was very clear and he informed the court that he raped the person named. The learned State Attorney stated that in the case of Lawrence Mpinga versus Republic [1983] TLR 166, at page 168 the Court provided exceptions to the plea of guilty. But for the guilty to be unequivocal the following must be observed. First, the charge must be read. Second, the accused should enter plea. Third, the facts must be read to disclose the elements of the offence. All these aspects were adhered to as reflected on pages 1-2 of the proceedings. Also, in Onesmo Alex Mgimba vs Republic, Criminal Appeal No. 457 of 2019, the Court of Appeal stated the same requirements to be 5|Page followed. They added that if the offender mitigates the offence to a lesser offence that is the revelation that he understood the nature of the offence. It was submitted that on page 3 of the proceedings the offender prayed for lenient sentence thus his plea was clear. This was for the reason the appellant cannot be heard that he did not understand the charge while he pleaded guilty and prayed for leniency. On defectiveness of the charge, it was submitted that that the charge was based on Section 130(1), (2) and 131(3) of the Penal Code which relate to statutory rape. Despite that weakness, the respondent argued that section 388 of the Criminal Procedure Act, Cap 20 R.E. 2022 can cure the anomaly. The provision of section 388 of the CPA allows the court to disregard irregularities as the same does not offend the guiltiness unless the accused person was prejudiced. The respondent’s counsel stated that the appellant was not prejudiced in any sense as the lack of citation of subsection (e) of section 130(2) was cured given the particularly of the offence disclosed the age of 6|Page the victim. The case of Jamal Alli@ Salum vs Republic, Criminal Appeal No. 52 of 2017 at page 16, the Court of Appeal stated that non-citation of the provisions of section 130(2)(e) of the Penal Code was curable under section 388 of the Criminal Procedure Act, Cap 20 R.E. 2022. For the 2nd and 3rd grounds of appeal, it was submitted that the appellant understood the nature of the charge. There is nothing on record on record indicating that the appellant had insanity issues thus it cannot be presumed. That aspect was not demonstrated thus this set of grounds is an afterthought to escape criminal liability/ justice thus the grounds lack merits. The respondent argued that for those reasons, the conviction and sentence were properly entered by the trial court thus in respondent’s view the appellant continue serving his imprisonment sentence because the appellant pleaded guilty to the offence. Having heard on the submissions of the parties in support and against the appeal, this court is duty bound to determine the validity of the 7|Page appeal in the light of preferred grounds of appeal. This court has thoroughly reviewed the proceedings before the trial Court on the matter, the applicable legal principles both statutory and judicial precedents as well as the charge. I entirely concur with the respondent’s learned State Attorney that most of the grounds preferred by the appellant are misplaced. The second ground on insanity was not raised in the trial court, the 3rd ground failure to understand the charge, 4th ground on poorly investigated case and the 5th ground on failure to prove the case beyond reasonable doubts are not relevant to the instant appeal. However, the first ground on the plea of guilty being equivocal is the most appropriate ground in address the appeal given the fact that appellant was convicted and sentences on own plea of guilty. To commence the analysis, it is important to state that the appeal is against the conviction and sentence on own plea of guilty. The law generally prohibits appeal is against conviction based on the plea of guilty. The provisions of section 360 (1) of the CPA limits the appeal against plea 8|Page of guilty unless the same relates to severity of the sentence. The Act provides 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. Generally, the appeal against conviction is precluded unless it is proved that the conviction was based on plea of guilty that is not unequivocal but rather equivocal plea. There are exceptions to that general rule which allow the court to allow the appeal on circumstances that are set out in case law despite the plea of guilty by the appellant. For instance, in the case of Simon Ndikulaya vs Republic (Criminal Appeal No. 231 of 2014) [2015] TZCA 300 (17 February 2015), at pages 8-9, Court of Appeal of Tanzania stated that: 9|Page We note that in upholding the appellant's conviction, the learned first appellate Judge sought the guidance of the decision of the Court in Kalos Punda vs. R. which had affirmed the criteria for interfering with convictions that were based on pleas of guilty which the High Court had identified in Laurent Mpinga vs. Republic [1983] T.L.R. 166. These criteria 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. There are no doubts that the charge was defective as it cited only Section 130(1), (2) and 131(2) of the Penal Code, Cap 16 R.E. 2022. These 10 | P a g e are clear in the facts of the case. However, on conviction and sentence, the trial magistrate cited that conviction was based on section 130(1), (2) and 131(3) of the Penal Code, Cap 16 R.E. 2022. Given the fact that trial court did not cite the proper provision creating one of the important ingredients of the offence, that is, age of the victim whereas appropriate subsection of section 130 would be (2)(e) of the Penal Code, the charge was not proper charge at all. In Jack Mahembega vs Republic (Criminal Appeal No.369 of 2020) [2023] TZCA 17821 (10 November 2023), at pages 9-10, the Court observed that: The tests in determining whether a plea is complete and unequivocal, were enumerated in the case of Michael Adrian Chaki v. R, Criminal Appeal No. 399 of 2017 (unreported). In that case, the Court stated that:- "...there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met:- 11 | P a g e 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 12 | P a g e charged and the same must be properly recorded and must be clear. 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." [Emphasis added] In our view, the above case law is instructive, among other things, that for a trial court to convict a person on his plea of guilty, the convicting court must satisfy itself that the accused's plea is a complete admission of guilt to the offence he or she is charged with. See also; Samson Kitundu v. R, Criminal Appeal No. 195 of 2004 and Onesmo Alex Ngimba v. R, Criminal Appeal 157 of 2019 (both unreported). In this appeal, it is lucid that the charge was not proper. The charge did not cite the provision of section 130(2) (e) which applies to the circumstances of the case. 13 | P a g e Further, the facts of the case stated categorically mentioned section 131(2) of the Penal Code while the conviction and sentence cited a different provision of section 131(3) of the Penal Code. These two subsections have different implications in law. Subsection (2) of section 131 deals with child offender and the maximum sentence is five years imprisonment term with corporal punishment for a recidivist offender. This is what is cited in page 2 of the proceedings of the trial court. On the hand, subsection (3) of section 131 of the Penal Code deals with sentence where a child below age of eighteen (18) is the victim thus enhancement of the sentence to life imprisonment against the offender. This is what is appearing on pages 3 and 4 of the proceedings. In those circumstances, it cannot be said with certainty that the offender understood the charge and facts of the case given the trial magistrate demonstration of mixing up of the sections appearing in the facts and those used in the conviction and sentence thereto. It is lucid that the appellant was convicted on provisions which were not forming part of the facts of the case. Thus, there was no complete, unambiguous and 14 | P a g e perfect plea rather there was imperfect, unfinished and ambiguous plea of guilty. Though the learned State Attorney urged this court to consider that the defective charge could be curable, I cannot concur that should be the best approach to take. It would proper to do so if the case was heard on merits and the evidence was tendered in court to categorically address all the doubts on the age of the victim not in a plea of guilty where no evidence was tendered in court. The criteria in Jack Mahembega vs Republic (supra), was never met in the instant appeal as the charge was not proper, the plea was not unequivocal as the facts adduced in the proceedings to establish the offence referred to different from the findings of the court thus conviction and sentence was not based on the facts allegedly to have been admitted. Further, it would appear that there was a clear misapprehension on part of the appellant at the trial Court. The facts stated that on 3rd August 2023, the appellant had carnal knowledge of the victim aged 3 years old. 15 | P a g e The response is recorded that “…the appellant admitted to have raped one THM who is a child.” The response appears to have not tallied with the particulars which have not used the word “rape” at all. In case the appellant pleaded guilty to the charge he was facing he would have used the words that reflect what he stood charged. It is certainly that there was a clear misapprehension on the party of the appellant which makes the plea of guilty as unfinished, ambiguous and imperfect thus it cannot sustain the conviction and sentence of life imprisonment against the appellant. For all those reasons, the whole proceedings in the trial court is vitiated. The first ground of appeal that plea was not unequivocal plea has merits and this court shall proceed to uphold the same. This appeal has merits and it is hereby upheld. 16 | P a g e In totality of events, the conviction on own plea of guilty entered against the appellant is quashed and the sentence of life imprisonment is set aside. Similarly, the order of compensation of Tanzanian ten million Shillings (TZS 10,000,000/=) is set aside. It is further ordered that the appellant is to be released from custody forthwith unless he is held for other lawful purpose. It is so ordered. DATED at DODOMA this 8th April 2025 E.E. LONGOPA JUDGE 08/04/2025. 17 | P a g e