ELIA KACHWERE

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA IN THE SUB-REGISTRY OF SHINYANGA

AT SHINYANGA

CRIMINAL APPEAL REF. NO. 202410192000029910 ELIA KACHWERE @ KURWA ……….……………….……… APPELLANT

VERSUS REPUBLIC ................................................................. RESPONDENT (Appeal from the Judgement of the District Court of Kahama in Criminal Case with Ref. No. 202405102000012475 dated 31st July, 2024, by Hon. D.D. MSALILWA – SRM)

JUDGMENT 12th & 12th December, 2024. S.M. KULITA, J. This is an appeal from Kahama District Court. The Appellant herein was convicted and sentenced to 30 (thirty) years imprisonment for Rape, contrary to the provisions of sections 130(2)(e) and 131(1) of the Penal Code [Cap 16 RE 2022]. The record transpires that during the pea taking the Appellant pleaded guilty to the charge. Aggrieved with both, conviction and sentence, the appellant herein lodged this appeal before this court relying on 5 (five) grounds. 1 Upon hearing the Appellant’s submissions in support of his appeal, the State Attorney conceded the appeal on the ground that, the plea of guilty by the appellant was improperly taken during trial. The reasons behind according to the State Attorney is that, facts of the case that had been presented before the trial court, after the Appellant’s plea being taken, do not tally with what the Appellant had narrated in his plea, and that, the procedures in taking the plea of guilty were not adopted by the trial court. The Counsel submitted that, while the accused person (appellant herein) pleaded by stating that sexual intercourse was conducted in his (appellant’s) room, facts of the case shows that the venue was the victim’s room. The Counsel further stated that, the trial Magistrate didn’t take trouble to ask the accused (Appellant) on each element of the offence, as they

have been narrated in the facts of the case, so as to grasp the accused’s reply on each of them. She said that, that could be a proper and transparent procedure in satisfying that the accused real admits to have committed the alleged crime. The Counsel averred that, instead, the trial Magistrate asked the Accused person in general, if he admits facts of the case that had been narrated by the prosecution. 2 The State Attorney urged that, that is wrong, as the accused was supposed to be made knowing as to what he is alleged to have done. Further, the Court becomes in a position to know if the facts that have been narrated by the prosecution constitute the charged crime for containing all ingredients of the offence, and whether the Accused admits all those ingredients. The counsel is of the view that, since that was not done, the procedure in dealing with the Appellant’s plea of guilty was not properly conducted. She thus prays for trial de novo of the case. The Appellant had no rejoinder. Hence, submissions ended up there. From the above submissions and upon going through the record, I have noted that there is a contradiction on a place where the crime is alleged to have been committed, whether it is in the accused’s (Appellant’s) room as per the facts of the case, or it was in the victim’s room as per the Appellant’s recorded plea. Further, it is a position of the law as per

JERADA CHUMA V. R, Criminal Appeal No. 114 of 2016, CAT at Mbeya, that in taking the Accused’s (Appellant’s) plea of guilty, the Court should go further by explaining to the accused person each element of the offence that he has been charged with, 3 and ask him to reply each of them as to whether he admits them. The aim of doing so is for the court to ascertain if the accused person really pleads guilty to the said offence by admitting all ingredients which constitutes the charged offence. If the reply involves admission for some ingredients and dispute others, that cannot be entered as a plea of guilty. It is regarded as a plea of Not Guilty, thus, the case should go to a full trial. From what I have stated herein above, as the said procedural mode of taking Plea of Guilty was not adopted by the trial court, I find the Appellant’s plea of guilty was un-procedurally taken. That being the case, I hereby quash the whole proceedings of the trial court and its consequent orders. Instead, I hereby order for the mater to be tried de novo. That should be done by another Magistrate with competent Jurisdiction. S.M. Kulita

JUDGE 12/12/2024 4 DATED at SHINYANGA this 12th day of December, 2024. S.M. Kulita

JUDGE 12/12/2024 5