hamis mahona v the republic 2023 tzhc 19341 21 july 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE DISTRICT REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL NO 45 OF 2022 (Originating Criminal Case No. 213 of 2011 in the District Court of Nzega before Hon. S.l Kainda, RM.) HAMIS S/O MAHONA............................................. APPELLANT VERSUS THE REPUBLIC..................................................... RESPONDENT JUDGMENT Date of Last Order: 20/07/2023 Date of Delivery: 21/07/2023 MATUMA, J„ Hamis Mahona has appealed to this Court against the decision of the District Court of Nzega in which he was convicted for his own plea of guilt for the offences of Armed Robbery c/s 287A and Rape c/s 130 & 131 of the Penal Code [Cap 16 R.E 2002], The prosecution alleged that on the 14th day of December 2011 at about 10:00hrs in Kaselya Village within Nzega District, the appellant did steal cash money Tshs. 10,000/= and one mobile phone make Nokia valued at Tshs. 50,000/= the properties of Paulina D/O Elisha whereas immediately before, during, and after such stealing, he did use a sharp knife in order to obtain and retain the said property. And also, after stealing did have canal knowledge with Paulina D/O Elisha. 1 Upon his own plea of guilty, he was convicted and sentenced to serve 30 years imprisonment for the offence of armed robbery and 30 years imprisonment for the offence of rape. Aggrieved by the said convictions and sentences, Hamis Mahona is now before this court on appeal on four grounds which mainly carries the complaint that the plea of guilty was equivocal and that the right to be heard was not fully provided since the tendered exhibit was neither read out loud nor given to him for examination and that the proceedings were held in Swahili language while he entered into the prison knowing only sukuma language. At the hearing of this appeal, the appellant was present in person and opted the learned State Attorney to start addressing the court. M/S Eva Msandi and M/S Anneth Makunja learned State Attorneys represented the Respondent. M/S Eva Msandi (SA) addressed the court opposing the appeal. She contended that the appellant's plea was unequivocal and that he knew the language used when he pleaded guilty. She asserted that the appellant admitted the facts read out and the records do not show that he complained to have not understood what was going on. She referred to Section 360(1) of the Criminal Procedure Act which stops an appeal against conviction entered following a plea of guilty. She also cited the case of Khalid Athumani vs The Republic, Criminal Appeal No. 103 of 2005 where the Court of Appeal on page 4 held that the court is enjoined to ensure that an accused person is convicted on his own plea where it is certain that he really understands the charge that has been laid at him. „ 2 The learned State Attorney further submitted that the appellant's complaint that his cautioned statement was not read out to him in Court is without any merits because in the case of Frank s/o Mluka vs The Republic, Criminal Appeal No. 404 of 2018 the Court of Appeal has already ruled out that when the conviction is based on a plea of guilty, tendering of exhibits is not a legal requirement. In that respect, she insisted that the appeal is without merit hence it deserves to be dismissed since the appellant does not befit to appeal in terms of the grounds stated in the case of Laurent Mpinga vs The Republic (1983) TLR166. The appellant in reply thereto argued that he was sent to court when he did not know Kiswahili language as he was speaking Sukuma language but the Court told him that it had no time to hear his language. Had submitted that he had not attended school and had he known the Swahili language he would have defended himself against the allegations of the prosecution. I have carefully listened to the submissions of both parties and reviewed the records of the trial Court. Let me start with the issue of the exhibit which was admitted without being read out loud and given to the appellant for examination. The appellant in his petition of appeal stated that the documentary exhibit was not read over after it was admitted in evidence. The learned State Attorney however was of the view that tendering documents when an accused pleads guilty is not a legal requirement citing the case of Frank s/o Mluka supra. With due respect, to the learned State Attorney, I find that she had misdirected herself since the case she cited 3 was about tendering an exhibit but in this case at hand the exhibit was already tendered and admitted before the trial court. It is a trite law that in order for any documentary evidence to be acted upon, it must pass three stages namely, clearance, admission, and reading it out in court. See Robinson Mwanjisi and 3 Others vs Republic [2003] T.L.R 218 and Lack s/o Kiiingani vs Republic Criminal Appeal No. 402 of 2015. The records of the trial court avail that exhibit Pl (PF3) was not cleared for its admission and the appellant was not accorded any opportunity to object it before it is admitted in evidence. After the arbitrary admission, the same was not read out to avail the appellant an opportunity to hear its contents before he is invited to admit to the facts. Since the PF3 formed part of the facts read to the appellant whose contents were not read out and explained to the appellant, I cannot say that the facts narrated by the prosecution left no doubt on the question of whether or not the appellant fully understood the extent of the charge of rape to enable him to confirm the narrated facts as being true. In the circumstance I expunge exhibit Pl from the records of the trial court. Having expunged the PF3 then the facts alone do not have any substantial elements to establish penetration even if they were admitted. Not only that the charge of rape was fatally defective for not specifying the category of the alleged rape. It was stated in the Statement of the offence that the appellant committed the offence of rape under sections 130 and 131 of the Penal Code. The charge sheet was thus not made clear to the appellant as to what category of rape he was facing and there would be consequences'after his conviction. His 4 plea on this charge cannot, therefore, be ruled out that it was not preceded by misapprehension of the facts. I accordingly allow the appeal against the conviction in the rape offence. I now turn on the offence of armed robbery. It is quite clear as contended by the learned state attorney that the provisions of section 360 (1) of the Criminal Procedure Act prohibit appeals from a conviction based on a plea of guilty. However, as again pointed out by the learned state attorney notwithstanding a plea of guilty an appeal against conviction may be entertained in four special circumstances as stated in the case of Laurent Mpinga supra, thus; It was held in that case that an accused person may challenge the conviction on any of the following grounds; 1. That 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 a mistake or misapprehension; 3. That the charge laid at his door disclosed an offence not known to law; and; 4. That upon the admitted facts, he could not in law have been convicted of the offence charged. The trial Court records show that the appellant was called upon to plead to the charge after the substance had been explained to him. The prosecutor then proceeded to outline the facts revisiting how the appellant went to the victim's home at about 10:00 hours while in possession of a knife and found the victim at her home and demanded to be given cash money to the tune of Tshs. lO,000/=. After the victim 5 had refused the appellant threatened to cut her with a knife then the victim gave him the money and a mobile phone. I find that the facts of the offence of armed robbery are rather suspicious since the offence was alleged to have been done at around 10:00 hours which is during the day. We are not told whether the appellant broke into the house or he was welcomed, whether the victim was alone or not in the house. Whether she raised an alarm for help or not. Whether she had the alleged Tshs. 10,000/= at hand or she had to go and pick it up somewhere. For the gravity of the offence and its stiff punishment and in the premises that there are some clicking questions into the mind that bears no answer on record, it was in the interest of justice that a plea of not guilty could have been entered so that the prosecution would have brought witnesses to prove their case against the appellant. I find that the trial court acted on the weakness of the defence to convict the appellant and not on the strength of the facts of the prosecution. That is why the trial magistrate did not even bother to rule out whether the narrated facts proved the allegations to the required standard or not. He merely entered the conviction just because the appellant admitted the facts; "Accused has admitted the facts as nothing but truth. And are correct. Accused hereby convicted as charged". The conviction on a plea of guilty does not automatically follow after the admission of the facts by an accused person. Such facts must sufficiently establish all elements of the offence and clearly explained to the accused before he is invited to admit them. The trial court must as a matter of procedure scrutiny the facts and rule-oijt whether they have carried the necessary summary of evidence that would have been produced had the case gone on a full trial and whether such facts are capable of being relied upon to convict. In the instant matter, the trial court did not make any finding to the prosecution facts. Even though as the first appellate court I have stepped into the shoes of the trial court and found that the facts of the prosecution were not enough to establish the offence of armed robbery against the appellant as stated supra. I, therefore, find that the appellant was wrongly convicted of the offence merely because he admitted the facts. I would have ordered the appellant to be retried of the offence but taking into consideration the eleven (11) years he has already spent in custody; I find that the interest of justice does not demand such an order. I, therefore, allow the appeal, quash the conviction, and set aside the sentences inflicted upon the appellant. In its totality, this appeal is allowed and I order that the appellant be released from custody forthwith unless otherwise lawfully held for some other lawful cause. 7 COURT; Judgement delivered in chambers in the presence of M/S. Aneth Makunja and M/S Suzan Barnabas learned State Attorneys for the 8