CamScanner 05 08 2024 16

IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI fCORAM: WAMBALI. J.A.. KITUSI. 3.A. And NGWEMBE. J.A.) CRIMINAL APPEAL NO. 479 OF 2020 EDWARD S/O EMMANUEL KARIPEI............................................. APPELLANT

VERSUS THE R EP U B LIC ........................................................................ RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Mutungi, J,) dated the 30th day of September, 2020 in DC. Criminal Appeal No. 74 of 2019

JUDGMENT OF THE COURT 30mApril, & 8th May, 2024 KITUSI, J.A.: The appellant Edward Emmanuel Karipei is challenging the decision of the High Court, upholding the District Court's decision that convicted him for statutory rape of a 16 - year - old girl. He was sentenced to the maximum prison term of 30 years. The conviction was upon the appellant's own plea of guilty and admission of the facts. It was alleged that the appellant had carnal knowledge of the victim between December 2017 and July 2018 at Sanya Station Village within Hai District. Both at the High Court on first appeal and before us, the appellant is mainly challenging the finding that his plea was unequivocal. The brief background of the matter as far as it is relevant to this appeal is as follows: On 5th July, 2018 when the appellant first appeared before the District Court of Hai, the court read over the charge to him to which he pleaded guilty. Thereafter, the facts of the case were narrated, showing that on diverse dates between December 2017 and July 2018 at Sanya Station Village within Hai District he had carnal knowledge of a girl whom we shall henceforth refer to as the victim. The appellant was called upon to state whether those facts were true or not. Satisfied that the appellant had admitted the facts as true, the court convicted the appellant with the offence of rape and proceeded to sentence him to 30

years as indicated earlier. He was dissatisfied so he preferred an appeal to the High Court. Five out of the six grounds of appeal that the appellant presented to the High Court on first appeal, sought to fault the trial court's conclusion that the appellant had unequivocally pleaded guilty to the charge and admitted the facts as true. The learned State Attorney who appeared at the hearing before the High Court, supported the appeal and prayed for remission of the record to the trial court for it to record a fresh and proper plea. However, the learned High Court judge was of the view that the appellant entered an unequivocal plea of guilty and was properly convicted and sentenced. It dismissed the appeal, hence this second appeal. Before us, the appellant raised 6 grounds of appeal in the original memorandum of appeal and in five of them, he brought up the issue of the plea again. In the supplementary memorandum of appeal, the appellant's three grounds went on to challenge the conclusion that his plea was unequivocal. Likewise, in the latest supplementary memorandum of appeal filed on 9/4/2024 he still raised the same protest in the one ground of appeal. Such consistency in the appellant's appeals makes it imperative for us to consider two twin issues namely; whether the appellant made an unequivocal plea of guilty and whether the trial court observed the procedure relevant to

the case. Ms. Grace Madikenya, learned State Attorney who represented the respondent Republic at the hearing, assisted by Mr. Philbert Mashurano, and Peter Utafu, also leaned State Attorneys supported the appeal wholly submitting that the appellant's plea was equivocal. Upon this concession, the appellant who was unrepresented, referred us to two of our decisions on the issues and prayed for orders in his favour. The cases he cited are; 3 Amani Yusuph v. Republic (Criminal Appeal No. 124 of 2019) [2023] TZCA 48 (28 February 2023,) TANZLII and Amani Onesmo @ Rume v. Republic (Criminal Appeal No. 248 of 2020) [2023] TZCA 17677 (29 September 2023,) TANZLII. Ms. Madikenya agreed with the submissions of the appellant and supported his reliance on the case of Amani Yusuph (supra). We will go by what actually took place during the trial, and we better let the record speak: "Court: Charge read over and explained to the accused person who is asked to plead thereto: Accused: it is true. Court: plea of guilty entered to THE charge. Sgd: D. J. MSOFFE- RM 5thJuly, 2018

FACTS OF THE CASE 1. That personal particular of the accused are as shown in the charge sheet.

2. That accused stands charged with one count as charge sheet shows.

3. That on December, 2017 up to January, 2018 accused created relationship with Elizabeth Charles, a maasai by tribe, a student of class six at Obrien Primary School. 4 . That the said girl was from home to school, she used to meet accused and they used to make love.

5. That for all those times that they met accused knew that victim was a student but he kept on making love with her and he happened to make love at his bed room and when doing so he used to wear condom.

6. That after finishing making love to her accused used to give her Tshs. 10,000/=.

7. That after that the said victim disagreed to proceed with school and said that she wants to marry the accused herein.

8. That after the said statements she also tendered phone number o f the accused to her parents.

9. That the victim's father called the accused herein and arrested him and they all went to Bomang'ombe Police Station.

10. That case was opened and Elizabeth was given PF3 and she went to hospital and in the PF3, Elizabeth was seen to have been raped several times.

11. That after that the PF3 was taken to police as exhibit.

12. That accused was interrogated and he agreed to tender his statements alone and he agreed to have made love with Elizabeth as she was his friend for a long time. 5 That is all.

MEMORANDUM OF UNDISPUTED FACTS Accused: It is true that I happened to make love with her and the last time to meet her was on December, 2017 though I never gave her any money any day, therefore the rest o f the fact are correct except the fact that I never gave her any money at all. Sgd. Accused person Public prosecutor 5thJuly, 2018 Court: From the plea o f guilty entered herein I find accused herein guilty o f the offence that he stands charged with, and I convict him basing with the offence that he stands charged with. Sgd: D. J. MSOFFE- RM 5thJuly, 2018 Previous Criminal Records Prosecutor: We have no criminal record. I pray him be punished so that it can be a lesson to other people o f this habit. Sgd: D. J. MSOFFE- RM 5thJuly, 2018

MITJGA TION OF SENTENCE Accused: I pray this court to consider me. I decided to speak the truth so that I can be free. 6 Ipray to be acquitted. I will never repeat again. That is all.

SENTENCE Court: Accused is a first criminal offender but in order to be a lesson to other people of this habit I sentence him to serve a prison for 30 years c/s 130 (1) (2) (e) and 131 o f the Penal Code CAP 16. Vol. I of the Laws R.E.

2022. Sgd: D. J. MSOFFE- RM 5thJuly, 2018" In our view, there are two main steps to be followed by a magistrate who records an accused person's plea of guilty. The first is the plea to the charge in terms of section 228 (1) of the CPA. What the appellant is recorded to have stated upon the charge being read over to him in this case, that it is true sufficiently demonstrates that he pleaded guilty. The second step is the accused's response to the facts of the case. Did the trial court conduct this second step as per established practice? The established practice is to be found in the famous case of Adan v. Republic [1973] EA 445 cited by the Court in many of its decisions on the subject. This elaborate statement was reproduced in Khalid Athuman v. Republic (Criminal Appeal No. 103 of 2005) [2005] TZCA 7 84 (26 January 2005,) TANZLII and in Hyansit Nchimbi v. Republic (Criminal Appeal No.109 of 2017) [2019] TZCA 251 (21 August 2019,) TANZLII. It goes thus: "When a person is charged, the charge and the particulars should be read out to him so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand. The magistrate should then explain to the accused person all the essential ingridents o f the offence charged. I f the accused then admits all those essential elements, the magistrate should record what the accused has said,

as nearly as possible in his own words, and then formerly enter a piea o f guilty. The magistrate should next ask the prosecutor to state the facts o f the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant facts. I f the accused does not agree with the statement o f the facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change o fplea to "not guilt" and proceed to hold a trial. I f the accused does not deny the alleged facts in any material respect, the 8 magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement o f fact and the accused's reply must, o f course, be recorded." The above procedure has nothing to do with what takes place during preliminary hearing conducted under section 192 of the CPA aimed at ascertaining the disputed and undisputed facts for purposes of calling witnesses. We have previously set out the difference between the facts read out under section 192 and those read out under section 228 (2) of the CPA. See the case of Paulo Kaparage v. Republic, (Criminal Appeal No. 73 of 2021) [2023] TZCA 17703 (3 October 2023,) TANZLII. In this case however, the magistrate proceeded in a way that was neither under section 228 of the CPA nor under

section 192 of the CPA. This is because, while she read out facts purportedly under section 228 of the CPA, she thereafter drew what she referred to as Memorandum of Undisputed Facts, an alien procedure under that section. There is another error in our respectful view in that the appellant's response to the facts, was qualified when he said he last met the victim in December, 2017 and further that he was admitting the facts except that he never gave money to the victim. In Hyansint Nchimbi (supra) we set out circumstances which may render a plea to be equivocal including where as in this case, a plea is ambiguous or unfinished. See also Laurence Mpinga v. Republic [1983] T.L.R.

166. The same principles are reflected in the cases cited by the appellant and accepted by Ms. Madikenya. With respect, we are constrained to hold that had the learned judge of the High Court considered the grounds of appeal and the submissions of the learned State Attorney, she would not have concluded that the appellant's plea was unequivocal. Ms. Madikenya has moved us to invoke our revisional powers under section 4 (2) of the Appellate Jurisdiction Act (ADA) to nullify the proceedings of the trial court and quash its orders, set aside the sentence. Ms. Madikenya is right, in our view, just the same way the learned State Attorney who appeared before the High Court, was. The proceedings before the District Court were a nullity for violation of statutory and established procedures governing conviction on one's plea. With respect, the High Court also erred in law in insisting that the plea was unequivocal. Since we find merit in the single ground of appeal, and agree with the learned State Attorney, we proceed to nullify the entire proceedings before the District Court of Hai, quash the conviction and set aside the sentence imposed. In the same vein, we allow the appeal against the judgment of the High Court on the ground that after 10 nullification of the proceedings of the trial court, the proceedings and judgment of the first appellate court would have no legs on which to stand. We remit the record to the District Court for it to record a proper plea as soon as possible. Meanwhile, the appellant is to remain in custody. DATED at MOSHI this 7th day of May, 2024. F. L. K. WAMBALI

JUSTICE OF APPEAL I. P. KITUSI

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL Judgment delivered this 8th day of May, 2024 in the presence of the Appellant in person and Mr. Philbert Mashurano, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. J. E. FOVO

DEPUTY REGISTRAR

COURT OF APPEAL li