william kundete vs republic 2022 tzhc 3075 27 april 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DAR ES SALAAM DISTRICT REGISTRY) AT DAR ES SALAAM CRIMINAL APPEAL NO. 186 OF 2021 WILLIAM KUNDETE APPELLANT VERSUS THE REPUBLIC .^^SPON&ENT (Being an appeal from the dedsion of the Distric^QteJ>f KiloiTKro at Ifakara (Hon.T. A. Ka^i(RM; dated the 24^ da^of Auqu^ 20: in Criminal Cag^o. 2020 DGMENTO E COURT Date of Last Order Date of Judomerf 27/ S.M. fore strict Court of Kllombero at Ifakara (herein referr he trial court") the appellant was charged with two counts, in the first count he was charged with conspiracy to commit an offence; and the second was breaking into a building with intet^^ to commit an offence. According to the records, the charge sheet which was placed before the trial court reads: "1^ COUNT CONSPIRACY TO COMMUT AN OFFENCE: Contrary to section 384 of the Penal Code Cap. 16 of the Revised Edition law of2002. PARTICULARS OF THE OFFENCE: That S/0 KUNDETE charge on 02nd day of f^bruary at about 22:00hrs in Michenga within ro D. in Morogoro Region did con^ire th who are not yet arrested tdSommit offe of breaking into a building and stea^ 2F^ COUNT STATEMENT OF. FE Breaking inti buih mitting an offence: c/s 296(a) a Pi a Code CAP 16 of the laws RJ^Oi PARTICU FFENCE: That WILLIAMS/0 E ed on 3^ day of February 2020 on tWi 02:00!^ at KININGINA within KHombero goro Region did break and enter into fJONAS S/O NDUMBALA and steal there in Balance make Cameiia valued at Tshs. 000/= Two cret of bears valued at Tshs. IS 00/=, Two Plastic Chairs valued at Tsh ',000/=, Boxes of Biscuits valued at Tshs. 15,000/=, Two chargers valued at Tshs 10,000/= Two extension cables valued at Tshs 30,000/=, Airtei/Tigo Vouchers valued at Tshs 30,000/=, Two Bars of Jamaa Soap valued at Tshs 5000/=, One Subwoofer make Aborder valued at Tshs 300,000/=, aii total valued at Tshs 798,300/= the property JONAS S/O NDUMBALA." The records before the trial court show that on 24*^ February 2020 when the charges were read and explained to the accused, he pleaded guilty to the two counts. The records read as follows: "Cdurt: Charge read over and explained to language understood to him and gfea here below: Accused: Count: Ni kwell 2^ Count: Ni kweir Court: E.P.G SGD. RES. T ISTRA 2 02 Just for the G practice of the court meant "Entered as Pi eafter the facts were read over by the proseojfl^tQjiihichJr is alleged that the appellant stated; "7 admE all th true". The trial court was convinced that the annpimt had Aaded guilty to the charges, as a result the appellant was convicted as charged and sentenced to three (3) years and ten (10) years imprisonment for the 1^ and 2"'' count respectivel The appellant senses something is not right with the decision of the learned trial magistrate. He has approached this Court on an appeal. His memorandum of appeal contains four grounds; one, that is the guilty plea was not freely made, two, that the sentence was excessively high; three, that no witness was callow) prove that he took part in the commission of the offence; four, court erred in convicting him with cons acy w g the co- conspirators. At the hearing of ap lant was unrepresented, he thus appeared i 0 leather hand, the respondent, Republic, was represe ordgud Eliamani and Mr. Tony Kilomo le S te Atto^ys. n sup of e appeal the appellant contended that he was tortur being asked to sign a document which he did not know or informed of the contents. He pleaded that the sentence be reduced as he was not responsible for the alleged wrongdoings,^ In response, Mr. Eliamani proposed to respond to the grounds of appeal generally and jointly. He argued that the appellant was convicted based on his own plea of guilty which had complied with the provisions of sections 228 (1) and (2) of the Criminal Procedure Act, Cap. 20 R.E. 2019 C'the CPA").^^elaborating his point, Mr. Eliamani referred the Court to paoe two^Lo^yped proceedings where the appellants plea reco sisted that the plea was unequivocal. The co that since the plea were unequivocal. and nt did not object to the tendering of the exhibijf fExhibit then the conviction and sentence were proj^^s l^irocedJfe was flawed. In hi^^f e appellant said he had nothing to add. He Iq^ Lu LT^^oil^o.consider his grounds of appeal. I . Eliamani did, I propose to approach the grounds of appeal generally and In doing so resolving the question whether the appellant was properly convicted and sentenced based on his own plea of guilty. This proceeds from the findings of the trial couri^^ The first point to start would be to examine, albeit briefly, the prerequisite procedure for taking a plea of guilty as provided for under sections 228(1) and (2)of the CPA reads: ''228.- (1) The substance of the charge shall be stated to the accused person by the^ourt, and he shall be asked whether he ammL.or denies the truth ofthe charge. (2) Where the accusedpersonlBt^Us the truth of the charge, hi^^^dmi^ilQ be recorded as nearly in the words he uses atyftfb^B^^at^shall convict him an^oas^^pi^^^^spon or make an ord^^^^stiw^ unless there appears t^o^ sum^nt j^use to the contrary." 'Empha^ is mine] In a in section, the Court of Appeal (Massati, 3.A.) of Joseph Mahona @ Joseph Mboje @ Mag M ije vs Republic (Criminal Appeal 541 of 2015) [2016] 19 (29 April 2016) adopted with approval the steps enumerated in the case of Adan vs R- (1973), EA 445. The said procedures include the condition that; one, the charge and all the ingredients of the offence should be explained to the accused i language he understands; two, the accused's own words should be recorded and if they are an admission, a plea of guilty should be accordingly recorded; three, thereafter the prosecution should state the facts and the accused should be given an opportunity to dispute or explain the facts or add any relevant facts; ivir, in case the accused does not agree with the fact or raiafiS any qiSkipi^f his guilt, his reply must be recorded and ange ered; and five, where the accused does IS a, a conviction should be recorded and a s of oie facts relevant to sentence together with the accu rep ho recorded. Mr. Eliamani irW he above procedure was fully compiled tnl courtlmd hence the conviction and sentence of pella ^ with the law. The counsel added that, in view of 360 )of the CPA, it is not open for an accused person who has pleaded guilty to seek to challenge his own plea of guilty as of right. Admittedly, section 360(1) of the CPA provides that no appeal shall lie in the case of any accused who has pleaded guilty and h been cxDnvicted on such plea by a subordinate court. However, the section allows for appeals in relation to the extent or legality of the sentence. I am alive that, the law as it stands is that an accused person who had been convicted and sentenced based on his own plea of guilty, may appeal against the conviction to%hiqher court on the following grounds; 1. That taking into consld^tion tl^^adTFUf&d facts his plea was^ rf amOypous or unfinished and,^th^ as lower court erred In law ixtreaTAa It at a of guilty; 2. That he ieaded>A^ty result of a mistake or Qi&apawiension 3. .^bat tWchard^laid at his door disclosed an ice no£^i6wn to law; and the admitted facts, he could not in aw lave been convicted of the offence :harged." See of Lawrence Mpinga vs Republic (1980) T.LR. 166; and Khalid Othumani v. Republic, Criminal Appeal No. 103 of 2005(unreported^^^ Mindful of the above position of the law, I will now delve into determination of the appeal. I propose to start with substance of the charges levied against the appellant at the trial court. From the records, there is no dispute that before the trial court the appellant was charged with two counts, the first count conspiracy to commit an offence; and the second was breaWyg into a Bydiog with intent to commit an offence. As regard 0 the conspiracy to commit an offence it is settled e of conspiracy cannot stand where the actuarolwce iTte been committed. As such, since the offence of bre^ng irit^ bn^g with intent to commit an offence was comroAd, OTieast ar^rding to the records, it was thus not proper ^y^%qe a11|^onvict the appellants of the offence of conspiray^teaarom^KiT Magobo Njige & Another vs Republic (Crirtial AppW 4^f 2017)[2021] TZCA 375(17 August 2021). Further to that, I am aware that the charge of conspiracy requires at least two persons to convict the accused. In the present case the co-conspirators were not apprehended or named as such it was not proper for the trial court to proceed to convict and sentenq the appellant based on a charge of conspiracy in which the co- conspirators were not known or identified. How would one comprehend that the appellant had conspired with someone when you cannot establish the other co-conspirator? For the foregoing reasons I am of a decided view that it was not r for the trial court to convict and sentence the appeliaat on th :e of conspiracy. Next, I will consider the s sta 0 a which formed the basis for the appellant's on se need. It is apparent on record that when t rges ad over to the appellant he pleaded "Ni kweli" rW^ni 'It is tri/e"to both counts. The trial court ^W^edg plea owuilty on all the charges. Thereafter, the con e^two counts were readout and the appellant, alleg said admit all the facts to be true". As I am aware, the law Is now settled that, where an accused says, "it is true" a trial court should ask an accused to elaborate in his own words as to what he is saying "is true". This means that the trial court must make efforts to ensure that the accused has to clarifies exactly what is tru 10 from the facts read over to him. The idea is to confirm what is exactiy is it that the accused is saying to be true. This view was expressed in the case of Safari Deemay v. Republic, Criminai Appeai No. 269 of 2001(unreported), where it was heid that: 'We are also of the settled vl t would be mare idea! for an app who has pleaded guilty mo than just, "It Is should ask an accused^to elMforath In his own words p^B^wnaMe mrsaymg "Is true". ph. IS m On my part, ami le records I am satisfied that in the instant reading out the charges and facts to the appellant, th 'on the records to show whether the trial courl took efforts to ascertain what exactiy did the appellHyne^when he said, "it is true". It was important for the trial court to satisfy itself that the appellant had admitted to the correct facts constituting the essential ingredients of the offence for which he was charged with. In absence of a clear indication that th 11 appellant was aware of what he was pleading to, it cannot be vouched with conviction that the plea was unequivocal. Even assuming, without deciding here that the plea was properly recorded after the trial court had made extra efforts to inform the appellant to elaborate on what he wafffl^ing to,vthere is an issue on whether the facts read over e ap were sufficient to disclose the very impo ingr e offence against which the appellant is 0 ittled that in a situation where conviction isjike pr on a plea of guilty, it is most desirable not only hat CO :uent of the charge should be explained to the%cu^|U]ut he should be required to admit or deny evej^S ^|:itue^^j^ what he says should be recorded in a form appeal court that he fully understood the char and pi ea guilty to every element of it unequivocally. This view wa by the now defunct East African Court of Appeal in the case of R. vs Yonasani Egalu and Others(1942)9 EACA. 69 at page 67.^^ 12 I have had an opportunity of going through the records of the trial court and I am satisfied that the facts read over to the accused person did not sufficiently disclose all the essential elements of the offence under section 296 (a) and (b) of the Penal Code. The respective section reads: ''296. Any person who- (a) breaks and enters a^hooi warehouse, store, workshofs^ara^ offidb or counting house, or to a dwelling hou^a^^SflH^lw it but Is not part oflt,d^^^uilaHia used as a place of worship aQtnbmmn^n otpdnce therein; (b)havlrlkcomnm^lany/fence In any building refej^ l^n para^oh (a) breaks out of the buiia^^is^^^^f^n offence and Is liable to rlso^sntfor ten years. or above cited section the prosecution has ther re to ve a breaking and entering; (2) into one of the specifi gs; (3) the commission of a felony therein; and (4) participation of the appellant. The facts read over to the appellant appeared to suggest that on February, 2020 the appellant together with other unidentified individuals conspired and did brea 13 into a shop, the property of one Jonas Ndumbala and did steal several items. However, as pointed out earlier, the facts did not disclose the exact particulars of the said breaking. Further to that the identity of the said unknown assailants was not disclosed. I have also gathered that there were no set of facts linking tfciAppellant to the crime, be it that he was seen at the crime sceiie^r that^wa^round in possession of the stolen items. All ro as to just list the items said to have been sti sta hing how those properties were linked to pelRHjt. Stealing, an important element of the offence, as no uateiy established. There was, therefore, evide te in the facts connecting the appellant wi rime; and as such it cannot be said that his plpa_wa<; sufficient to sustain his conviction and sent ce Fd ove reasons which I think, are sufficient to dispose of this appeal, I am satisfied that the trial court proceedings were marred with irregularities which were so serious that the guilty plea emanating therefrom could not be considered as being unequivocal. 14 will therefore allow the appeal and proceed to quash the conviction and set aside the sentence. Normally after nullifying the trial proceedings, an order of retrial would follow. But in deciding whether or not to order a retrial some principles have to be taken into consideration. T erai principle is that a retrial will be ordered when the ori tria al or defective. However, the position is thaHietriai v\)fld noPro ordered when conviction is set aside ieiiK' of evidence or for the purpose of enablina th o ion to fill up gaps in its evidence at the first ttfei. principle is that a retrial should only be mdokf i^^ntfi^mterests of justice to do so each case dependmg^h its cmymstances. (see, Masaba vs Republic (Crimi 14)[2016] TZCA 68(19 October 2016);). the nt case, I have pointed out that the charge of conspira^^Juid not stand because the other two conspirators were not identified. Further to that conspiracy cannot stand where the offence had been committed. As for the offence of breaking into a building with intent to commit an offence, the participation of 15 appellant was an essential ingredient especially given that the basis of the charge was conspiracy. However, as pointed out earlier, evidence of that element in the present proceedings is wanting and falls far short of establishing and proving the case against the appellant. In the circumstances, as was hel Masaba vs Republic (supra) an order of retrial would work ioiOsbce to the appellant, as it would amount pe use it would allow the prosecution to fill ev ce. That said, I order tha the llaht be released from custody forthwith and set free, ess held there for some other lawful cause. It is;i^n SALAAM this 27^ day of APRIL, 2022. c X S.M. KALUNDE V. ■Z X > v- JUDGE if 16