hamis jilala nkwabi 1 another vs the republic 2023 tzhc 18504 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL 40 OF 2022 (Originating from Igunga District Court in Criminal Case No. 72 of2021) HAMIS S/O JI LA LA @ NKWABI MOHAMED S/O ATHUMAN @KASSIMUJ ...................... APPELLANTS VERSUS THE REPUBLIC RESPONDENT JUDGMENT Date: 17/4/2023 & 23/6/2023 BAHATI SALEMA, J.: The appellants Hamis Jilala Nkwabi and Mohamed Athuman Khasim were arraigned in Igunga District Court facing two counts. The first count burglary contrary to 294(l)(a) of the Penal Code, Cap. 16[R.E 2022] and the second count of stealing contrary to section 231 of the Penal Code, Cap. 16 and sentenced to serve a custodial sentence of seven (7) years in jail. Being dissatisfied with the impugned decision of the District Court, they are appealing against the conviction and sentence, on the following grounds: namely: - J i. That, the case for the prosecution against the appellants was not proved, against the appellants, beyond reasonable doubts as required by the law; i 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 guilt by the appellants 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 from prison custody. 7 The particulars of the offence can be discerned as thus; Hamis Jilala Nkwabi and Mohamed Athuman Kassim on 27 March,2021 during night hours af Kamondo Street within Igunga District in Tabora did break and enter into the house of one Khalfan Hamad with intent to commit an offence of stealing therein. y On the second count Hamis Jilala Nkwabi and Mohamed Athuman Kassim charged on 25 day of March 2021 during the night hours at Kamondo Street within Igunga District in Tabora region after breaking they entered into the' house of one Khalfan Hamad did steal one television monitor make Sinsung 43 inches valued at TZS 800,000/= the property of Khalfan Hamad.They all pleaded guilty and were sentenced to 7 years imprisonment. 2 In the course of hearing of this appeal, the appellants being unrepresented appeared in person via virtual court while Ms.Tunosye Luketa, 1' 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, adopting their grounds of appeal in the petition to form part of their submission, and leaving it to the Court to decide. * In her reply, Ms.Tunosye Luketa, state attorney submitted on the first •F ground that the appellants confessed to the commission of the offence on the first count of stealing. In the proceedings the appellants admitted to the second count of burglary. • »• As to the second ground of appeal, she averred that in respect of ambiguous and ambiguity. The statements of the appellants were read and both of them were asked if it was true or not. The first appellant pleaded guilty and likewise the second appellant admitted to the offence. She further stated that TV Monitor was tendered in court and he had no objection. Also the second appellant pleaded guilty to the charge. Therefore she submitted the trial court was correct according to section 228 (1) (2) of the Criminal I Procedure Act, Cap. 20 [R.E 2022]. As to the third ground of appeal, in respect of the cautioned statements She submitted that this does not occasion to injustice, since the appellants were convicted on their plea of guilt. Hence there were no necesity of tendering the caution statement. 3 On the 4th ground of appeal in respect of excessive penalty. She submitted that it was right for the trial court to convict them since the appellants were charged with two offences. The Penal Code, Cap. 16 [R.E 2022] under Section 265 attracts a punishment of 7 years and section 294 (2) attracts punishment of 20 years. In their rejoinder, the 1st appellant submitted that he was sick while in court and hence he was not given the right to be heard he prayed for retrial whereas the second appellant prayed to this court to allow his appeal. 5 Having heard from the both parties, the issue is whether the appeal is 'I' meritorious. Section 360 (1) of the Criminal Procedure Act, Cap. 20 bars appeals from a conviction based on plea of guilty. It provides that; I "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. " 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 decisions expressed exceptions to that general rule. The courts have provided circumstances under which a person who is convicted upon his own plea of•*x guilty may appeal against his conviction. Some of such cases are Laurence 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 4 latter case of Josephat James (supra) the court stated that under certain S' circumstances an appeal arising a plea of guilty may be entertained by an 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 of guilty; (ii)An appellant pleaded guilty as a result of a mistake or misapprehension; (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. I Republic, (1983) T.L.R. 166 (HC) cited with approval in Ramadhani Haima's case (Criminal Appeal No. 213 of 2009, 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'rf court erred in law in treating it as a plea of guilty." In this matter at hand, regarding at the trial court's record, there is no doubii’ 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; 1st count: "True" and the court entered a plea of guilty. 5 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: All the facts read to me are true. 2nd accused: All the facts read to me are true. Therefore the facts constituting the offence were read over to them. The appellant likewise agreed to be correct, as it can be gathered from page 6- 7 of the proceedings of 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 228 (1) and (2) of the Criminal Procedure Act, Cap. 20 [R.E 2019]. It provides, thus; ‘‘v " 77?e 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 J and the magistrate shall convict him and pass sentence upon or makb an order against him, unless there appears to be sufficient cause to the contrary." 6 It is also a 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 of the typed proceedings shows that the learned trial magistrate observed the proper procedure narrated earlier. Therefore the first and second appeal has no basis. ? As to the third ground that failure by the prosecution to tender the cautioned statement to show that they confessed to the commission of the offence. 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 after a plea of guilty must be tendered. This ground also has no basis. - ft As to the last ground of appeal, as rightly submitted by the State Attorney, that the sentence imposed by the trial court, the Penal Code; Cap 16 under section 265 and 294 attract 7 and 20 years respectively^ 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. BAH ATI SALE MA JUDGE 23/6/2023 7 Court: Judgment delivered in presence of both parties. A. BAHATI SALEMA JUDGE 23/6/2023 Right of Appeal is hereby explained. A. BAHATI SALEMA JUDGE 23/6/2023 8