hamis jilala nkwabi 1 another vs the republic 2023 tzhc 18498 23 june 2023

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA THE SUB -REGISTRY OF TABORA AT TABORA DC. CRIMINAL APPEAL 41 OF 2022 {Originating from Igunga District Court in Criminal Case No. 73 of2021) 1. HAMIS S/O JILALA @ NKWABI 2. MOHAMED S/O ATHUMAN @KASSIMU ........... APPELLANTS VERSUS THE REPUBLIC................................................................... RESPONDENT JUDGMENT Date: 17A.2023 & 23.6.2023 BAHATI SALE MAJ.: The appellants Hamis Jilala Nkwabi and Mohamed Athuman Khasim were arraigned in Igunga District Court facing two counts of burglary contrary to section 294(l)(a) of the Penal Code, Cap. 16, and the second count of stealing contrary to section 231 of the Penal Code, Cap. 16 [R.E 2022] and sentenced to serve a custodial sentence of seven (7) years in jail. The particulars of the offence can be narrated as that Hamis Jilala Nkwabi and Mohamed Athuman Kassim on 6th February, 2021 during night hours at Kamondo Street within Igunga District in Tabora did break and entered into the house of one Onasis s/o Jackson Mwagusila with intent to commit an offence of stealing therein. 1 On the second count Hamis Jilala Nkwabi and Mohamed Athuman Kassim on 25 day of March, 2021 during the night hours at Kamanda Street within Igunga District in Tabora region after break and entered into the house of one Onasis Jackson Mwagusi; did steal one television monitor make 43 inches valued at TZS 1,100,000/=, one laptop HP valued at TZS 900,000, one fan at 45,000/=all total valued at TZS 2,045,000/= the property of Onasis Jackson Mwagusila. The appellants were convicted on their own plea of guilty and were sentenced to 7 years imprisonment. Being dissatisfied with the impugned decision of the District Court, now they are appealing against the conviction and sentence, on the following grounds namely:- 1. That, the case for the prosecution against the appellants was not proved against the appellants, beyond reasonable doubt as required 5 by the law, 2. The alleged plea of guilty by the appellants was ambiguous and equivocal, 3. 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 piea of guilt by the appellants, 4. That the sentence imposed upon the appellants by the trial court was manifestly excessive. 2 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. When the matter was called on for hearing, the appellants being unrepresented appeared in person via virtual court, while Ms.Tunosye Luketa, learned State Attorney appeared for the Republic. Being laymen person, the appellants had nothing to add than denying to have committed the offence of burglary and stealing, adopting their ground^ of appeal in the petition to form part of their submission, and leaving it to the Court to decide. 3 In her reply, Ms. Tunosye Luketa submitted on the first ground that the appellants confessed to the commission of the offence on the first count of stealing and on the second count of burglary. 3 ) As to the second ground of appeal, she averred that in respect of ambiguous and ambiguity. She submitted that the statement of the appellants were read and both of them were asked if it was true or not. The first appellant pleaded guilty and also the second appellant admitted to the offence. She further stated that TV Monitor was tendered in court and they had no objection. Therefore she submitted that according to section 228 (1) (2) of the Criminal Procedure Act, Cap. 20 the trial court was correct in convicting the accused persons. On the third ground, on failure by the prosecution to tender the cautioned statement that they confessed as alleged, she submitted that this did not prejudice since they were convicted on their own plea. 3 Lastly, on the fourth ground of appeal that the penalty is excessive. She stated that the appellants were charged with two offences. The Penal Code, Cap. 16 [R.E 2022] under section 265 provides imprisonment for 7 years and section 294 (2) imprisonment for 20 years. She submitted that it was right for the trial court to convict. In their rejoinder, the 1st appellant submitted that he was sick while in court and he was not given the right to be heard. He prayed to this court for retrial whereas the second appellant prayed to this court to allow his appeal. Having heard from both parties, the issue is whether the appeal is meritorious. Section 360 (1) of the Criminal Procedure Act, Cap. 20 bars appeals from 1 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." t 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 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 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 14 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 pled of guilty where it may be successfully established that the piea was imperfect, ambiguous, or unfinished and, for that reason, the lower .7 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; 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: I have heard all the facts, all of them are true. 2nd accused: All facts are true. Therefore the facts constituting the offence were read over to them. The appellants likewise agreed to be correct, as can be gathered from page 5-6 of the proceedings of the 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. As regards to 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; 1 5 " The substance of the charge should be read to the accused, who shallI 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 6 an order against him, unless there appears to be sufficient cause to the contrary." 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. □ As rightly 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. sj 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 thaf the documentary exhibits 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 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 correct to convict them. In the result the appeal is unmerited and it is hereby dismissed. 7 Order accordingly A. BAHATI SALEMA JUDGE 23/6/2023 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