20180831 TZHC Mwanza

IN THE HIGH COURT OF TANZANIA I AT·MWANZA . I . APPELLATE JURISDICTION I . CRIMINAL APPEAL NO 101 OF 2018 I ( Original Criminal Case Number 322 of 2017 of the Distrfct Court Of Bunda District At Bunda Befor~ Mariki Esq, Resident Magistrate} I JACOBO MICHAEL @LUGOYE ..................... APPELLANT VERSUS THE REPUBLIC u . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . RESPONDENT I JUDGMENT 17.08.2018 & 31.08.2018 Matupa,J. The trial at the district court defied practice. On the 22 nd day of . I I • August 25, 2017, the appellant was charged with two counts of burglary contrary to section 294(1 )(2) of Jhe "Tanzania Penal Code cap 16 and of the laws ·R.E 2002" and stealing contrary to section 258 and 265 of the "Tanzania Penal Code Cap 16 Vol. 1 of the laws RE 2002." 1 .,- ·:. The particulars of the offence in relation to the first count were that, ' 1 ( on the lih day of August, 2017 during night time at Bunda Stoa street within Bunda District, in Maril Rebion, the app~llant and another perscin, who was acquitted, did enter into a dwelling house of one William s/o I I Sulusi with intent to commit an offence therein; to wit, stealing. In relation . I . to the second count, the facts were that the appellant did steal one motorcycle valued at Tshs 2,000,000/= the property of one William Sulusi. Wheri the charge was read over tj the appellarit, he entered the following I plea "Ni kweli" in respect of both counts. Then, the prosecution read over the following facts to the appellant~- . j . Names personal particulars offence I section and law are as per I charge sheet. That on the 17/8/2017 at night hours at Bunda Stoo area within Bunda District in Mara Region accused did break into. dwelling house of William Masizi for purposes of committing an I offence. Having broken the laid house he stole m/cycle make l Sanlag Reg. number MC 678 AQD valued at shillings ?000/000/= the property of Wlliam Su/us Accused was taken to Police Bunda and on being interrogated he I confessed being found in possession of the M/cycle. Today when I . charged in count accused has pleaded guilty to the charge. I would like to tender in court accused cautioned statements· M/cycle Registration Card. 2 Accused no objection C Court:-Admitted collectively as each. Pl . I .Court: Accused admit all the facts and exhibits without I qualifications. . I· Then the court convicted the appelllant as charged. In so doing the court had the following to say: "consequent to own plea of guilty to the charge and admission of all the facts and exhibits accusbd is hereby convicted as charged for both counts. // I . I . The appellant is complaining that the plea was equivocal. Ms. Ajuaye Bilishanga who represented the RJpublic, has submitted that the plea is unequivocal. On the facts, the appellant admitted that he broke into the house at I night and he stole a motor vehicle. iThe appellant complained that the facts were read to him in English, but he pleaded in Kiswahili. Going by the record it is true that the facts were read to the appellant in English and he pleaded in English. In so doing, he said in English that he "the facts and the exhibits are correct." There !re three issues. One is whether the appellants spoke ·the words in Kisjahili or in English. Two if the former ;s the case, is the translation in English correct?. Three, assuming that 3 ,. ~ the appellant spoke the words as recorded whether they amount to ·( admission of the offence. As a matter of practice, where . the I court intends to proceed on a plea. of I guilty, the conviction shall be entered on words, which are clear and ! unambiguous as to the intent of t~e accused person to plead guilty. This is the standing principle. Chacha s/o Wambura EA (1953) 20 CA 307 where the court emphasized that:- "The actual words used by an accused in pleading guilty to a l charge should be recorded verbatim// In the case o(John Faya versus the Republic criminal ·appeal no 198 of 2007 (CA) (Mwanza Registry), ''In any case in which a conviction is likely to proceed on a plea of I guilty, it is most desirable not only that eve,y constituent of the charge should be explained to the accusect but that he should be required to admit or deny every constituent/ and that what he I says should be recorded in thb form which will satisfy the appeal I court that he fully understoodI the charge and pleaded guilty to every element of it unequivocally'' I R v Yonasani Egalu and others (1942) 9 EACA 65, Daniel Shayo Versus the Republic criminal appeal no 234 of 2007 CAT (Arusha) 4 /' l"', / () ( I I (unreported) and John Faya versus the Republic criminal appeal no 198 I of 2007 (CA) (Mwanza Registry). ! On the first issue, of whether the plea of the facts by the appellant in I I English that "the facts and the exhibits are correct" was a correct I ; interpretation of what the appellaht said in court, the case of John Faya I above was not inclined to interpre~ a plea, which was given in Kiswahili as one which was recorded in English,: I I On the meaning of the pl~a, that whether the appellant admitted I that he indeed broke into the house and he stole the motorcycle. The facts I are that the appellant stole a i motorcycle. The exhibits, which the I prosecution tendered in court, incl~ded registration card of the motorcycle, ' which the prosecution did not allege that he stole together with the ' motorcycle. But again the plea was that the facts and Exhibits are true. ' That is patently ambiguous as to the meaning of pleading for example that I I "it is true I broke into the house ~nd I stole the motorcycle". At any rate I ) this plea was supposed to be recorded in Kiswahili, and not in English, unless the. appellant pleaded in English; in which cas~ the fact that the plea I was given in the English language in which the plea was recorded was also supposed to appear on the record. 5 ,~, From the foregoing facts, I am satisfied that the plea of the facts by ~.·" the appellant was not unequivocal. .I will therefore allow the appeal, quash the .conviction and set aside the sentence. I will direct that the appellant shall enter a fresh plea and he shall be tried de nova, with a proper plea, which plea the trial court shall take in accordance with the standing guidance on plea taking. Should the court convict the appellant after the trial, it shall take into account the period, which the appellant has served. In the meantime, the appellant shall remain fn remand custody, until the time when he may be granted bail by the trial court, should the court find it fit so to do. 6 Date: 3~.08.2018 ~. ( .,, Coram:,Hon. Matupa, J Appellant: present Respondent: Georgina Kinabo B/c: Denis Mjuni Order: ' The judgment of the court w~s delivered in chambers in the presence of the appellant and Georgina Kitbo (State Attorney) this 31 st day of August, 2018. 7