hamis jilala nkwabi 1 another vs the republic 2023 tzhc 18506 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB-REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL 36 OF 2022 {Originating from Igunga District Court in Criminal Case No. 72 of2021) HAMIS S/O JILALA @ NKWABI q >— MOHAMED S/O ATHUMAN @KASSIMU J............. APPELLANTS VERSUS THE REPUBLIC......................................................... RESPONDENT JUDGMENT Date: 17.4.2023 & 23.6.2023 BAHATI SALEMAJ.: The appellants Hamis Jilala Nkwabi and Mohamed Athuman Khasim were arraigned in Igunga District Court facing two (2) counts of burglary contrary to section 294(1) (a) of the Penal Code, Cap. 16 [R.E 2022] and second count of stealing contrary to section 231 of the Penal Code, Cap.16 [R.E 2022] and were sentenced to serve a custodial sentence of seven (7) years in jail. Being dissatisfied with the impugned decision of the District Court, they * »•» 1< are appealing against the conviction and sentence, on the following grounds •• namely: - 4 ] 1 i. That, the case for the prosecution against the appellants was not proved, against the appellants beyond reasonable doubts as required by the law; ii. The alleged plea of guilty by the appellants was ambiguous and equivocal; Hi. That failure by the prosecution to tender the cautioned statement to show that they confessed to the commission of the offence charged as alleged in the facts of the case put to the appellants by the prosecution, affected the alleged plea of quilt by the appellants; and iv. That the sentence imposed upon the appellants by the trial court was 'J manifestly excessive. The appellants prayed to this court to allow this appeal, quash the conviction, set aside the sentence, and order for the appellants' release front prison custody. The particulars of the offence can be narrated as thus;;. Hamisi Jilala and Mohamed Athuman Khasim were charged with two counts. On 11/2/2021 during the night hours at Masanga Street within Igunga District Tabora region did break and enter into the house of one Hanifa d/o Thabiti@ Batenga with intent to stealing therein. Also, on 25 /3/201 during night hours at Masanga street within Igunga * '«• District Tabora after breaking they entered into the house of one Hanifa£ J-’ Thabiti @Batenga and stole one Television monitor make Boss 43 inches •u valued at TZS 900,000/=. They all pleaded guilty to the offence and were sentenced to 7 years imprisonment. * ‘I 9 ••, 2 | ■5 • In the course of the hearing of this appeal, the appellants being unrepresented appeared in person via virtual court, while Ms. Tunosye Luketa, learned State Attorney appeared for the Republic. Being laymen, the appellants had nothing to add other than denying to have had committed the offence of burglary and stealing. The appellants also adopted their grounds of appeal in the petition to form part of their submissions; and leaving it to the court to decide. In her reply, submitting on the first ground, Ms. Tunosye Luketa, learned state attorney stated that according to the proceedings, the appellants pleaded guilty to the commission of the offence on the first and second counts. I**: As to the second ground of appeal, she averred in respect of W*’ ambiguous and ambiguity that the statements of the appellants were read and both of them were asked if it was true or not. The first appellant pleaded guilty to both counts and also the second appellant admitted to both counts, .z * She further stated that TV Monitor was tendered in court and all accused ■ had no objection to its admission. Reinforcing her argument, she stated that section 228 (1) and (2) of the Criminal Procedure Act, Cap. 20 [R.E 2022] X w provides, thus; " The substance of the charge should be read to the accused, who shall be asked to plead thereto." If he admits the truth of ’F the charge, his admission shall be recorded as nearly as possible '1 in the words he uses and the magistrate shall convict him and r. pass sentence upon or make an order against him, unless there I appears to be sufficient cause to the contrary." ■I Hence the trial was correct to convict. On the third ground of appeal, Ms. Luketa submitted that in respect of the cautioned statement, it does not prejudice at all, they were convicted as per their confessions. Thus, there were no necessity of tendering the cautioned statements. To conclude in respect of excessive penalty, she submitted that the accused were charged with two offences. Section 265 of the Penal Code, Cap. 16 provides for 7 years and section 294 (2) for 20 years. She submitted that it was right for the trial court to convict them. s In their rejoinder, the 1st appellant submitted that he was arrested and3 tortured by police whereas the 2nd appellant stated that what was written was not true. •5*0 Having heard from the both parties, the issue is whether the appeal is r meritorious. Section 360 (1) of the Criminal Procedure Act, Cap. 20 bars•» >•’Iff*’ appeals from a conviction based on plea of guilty. It provides that; "No appeal shall be allowed in the case of any accused person ' who has pleaded guilty and has been convicted on such piea by a subordinate court except as to the extent or legality of the sentence. " " 3 x As a general rule, a person convicted on his own plea of guilty can only appeal against the extent or legality of the sentence imposed by the subordinate court. However, the Court of Appeal in several decisionsJ expressed exceptions to that general rule. The courts have provided circumstances under which a person who is convicted upon his own plea of guilty may appeal against his conviction. Some of such cases are Laurence 4 I t Mpinga v. Republic [1983] T.L.R. 166 and Josephat James v. Republic, Criminal Appeal No. 316 of 2010, CAT, Arusha Registry (unreported). In the latter case of Josephat James (supra) the court stated that under certain circumstances an appeal arising a plea of guilty may be entertained by ah appellate court where: "(I) The plea was imperfect, ambiguous, or unfinished and, for that reason, the lower court erred in law in treating it as a plea "if of guilty; (ii)An appellant pleaded guilty as a result of a mistake or misapprehension; 1 (iii) The charge levied against the appellant disclosed no offence known to the law; and (iv)Upon the admitted facts, the appellant could not in law have been convicted of the offence charged. (See Laurence Mpinga v. Republic, (1983) T.L.R. 166 (HC) cited with approval in Ramadhani Haima's case (Criminal Appeal No. 213 of 2009, •t CAT, (unreported). In short, the appellate court may entertain an appeal based on a plea of guilty where it may be successfully established that 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." In this matter at hand, looking at the trial court's record, there is no doubt that when the charge was read over to the appellants by the trial court and upon being required to enter a plea, the 1st appellant and 2nd appellants stated and I quote; 5 1st Count: "True" and the court entered a plea of guilty. 2nd Count: "True" and the court entered a plea of guilty. 1st Count: "True" and the court entered a plea of guilty. 2nd Count:" True" and the court entered a plea of guilty. Court: Both accused are asked as to whether all the facts read to them by the prosecutor are true or false. 1st accused: I have heard all the facts, all of them are true. 2nd accused: AH facts are true." Therefore, the facts constituting the offence were read over to them. The appellants, likewise, agreed with them to be correct, as can be gathered on pages 6-7 of the proceedings of the trial court. The accused admitted all' the facts which were read over to him. For that reason, I find the appellant's plea was unequivocal plea of guilty. The charge was clear, pointing out elements of the charge. Regarding subordinate courts, the procedure is provided under section n 228 (1) and (2) of the Criminal Procedure Act, Cap. 20 [R.E 2019]. It g provides, thus; " The substance of the charge should be read to the accused, who shall be asked to plead thereto." If he admits the truth of ■>< the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary." 6 r*-> ?; It is also the stand of the law that the violation of the procedure demonstrated above warrants an appellate court to quash the proceedings, the conviction, and set aside the sentence. This is done on the grounds of denying the accused's right to a fair trial. In the matter at hand, as stated by the State Attorney, the record of the lower court particularly, the typed proceedings shows that the learned trial magistrate observed the proper procedure narrated earlier. Therefore, the first and second grounds have no basis. . 4 T The third ground points to failure by the prosecution to tender the • V cautioned statement to show that the appellant had confessed to the commission of the subject offences. I also subscribe to the view articulated •? by the learned State Attorney that, since they admitted to the offence, there is no legal requirement that the documentary exhibits intended for the trial after a plea of guilty must be tendered. This ground also has no basis. As to the last ground of appeal, as rightly submitted by the State Attorney, that section 265 and 294 respectively imposed attract 7 and 20 years. Therefore it is my considered view that the trial court was right to convict them. In the result the appeal is unmerited and it is hereby dismissed. Order accordingly. A. BAHATI SALEMA / -r-S JUDGE 7 23/06/2023 Court: Judgment delivered in presence of both parties. 7 A. BAHATI SALEMA JUDGE 23/06/2023 Right of Appeal fully explained. A. BAHATI SALEMA f JUDGE 23/06/2023 8