CRIM APP NO 136 OF 2023 JOSEPH SARIA VS THE REPUBLIC

IN THE COURT OF APPEAL OF TANZANIA

AT MOSHI ( CORAM: MWANPAMBO, 3.A.. KIHWELO, 3.A. And MGEYEKWA, J.A,^ CRIMINAL APPEAL NO. 463 OF 2022 JOSEPH JOAKIM SARIA........................................................... APPELLANT

VERSUS THE REPUBLIC.......................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Moshi) (Simfukwe, 3.) dated the 1st day of April, 2022 in Criminal Appeal No. 74 of 2021

JUDGMENT OF THE COURT 17th& 19th March, 2025 MWANPAMBO, J.A:. The issue in this appeal revolves around the propriety of the appellant's conviction by the District Court of Moshi at Moshi on a plea of guilty to the charge involving unnatural offence contrary to section 154 (1) (a) and (2) of the Penal Code. According to the prosecution, the appellant was alleged to have had carnal knowledge of a five years old boy against the order of nature on 5 1 September 2021 at a place called Newland within Moshi District. When the charge was read to him on 17 September 2021, the appellant is recorded to have admitted that he inserted his manhood into the victim's anus following which, the trial court entered a plea of guilty before the prosecution read the facts in support of the case to which the appellant similarly admitted and hence conviction and the mandatory life sentence. Aggrieved, the appellant tried his luck by appealing to the High Court at Moshi in Criminal Appeal No. 74 of 2021 essentially faulting his conviction on a plea of guilty which he contended to have been equivocal. However, that appeal was dismissed by Simfukwe, 1 who was satisfied that the appellant's plea was unequivocal warranting conviction on his own plea of guilty which was not open to appeal in terms of section 360 (1) of the Criminal Procedure Act (the CPA). From that decision, the appellant has preferred the

instant appeal on two but related grounds; that his plea was imperfect, ambiguous and unfinished and, that he made the plea as a result of mistake and misapprehension. The appellant appeared in person, unrepresented at the hearing of his appeal and urged the Court to consider his grounds as meritorious and allow the appeal quash the conviction, set aside sentence and order his release from custody. The respondent was represented by a formidable legal team comprising, Mses. Rose Sulle and Agatha Pima, learned Senior State Attorneys together with Mses. Bertina Tarimo and Bora Mfinanga, both learned State Attorneys. It was, Ms. Tarimo who addressed the Court resisting the appeal. The learned State Attorney began her submission with the established principle on bar to appeals from conviction on the accused's own plea of guilty citing the Court's decision in Elia Lucas v. Republic [2023] TZCA 17397, 11 July 2023 TANZLII. Elaborating, Ms. Tarimo argued that it is glaring from the record at pages 5 and 6 that, after the charge was read, the appellant admitted in his own words that he inserted his manhood into the victim's anus following which, the trial court entered a plea of guilty. The learned State Attorney argued that, the learned trial Resident Magistrate entered the plea of guilty upon being satisfied that it was an admission to the ingredients of unnatural offence constituting

the charge. Submitting further, Ms. Tarimo pointed out that, before entering conviction, the trial court had adjourned the hearing for 20 minutes to allow the prosecution prepare the relevant facts of the case. Upon the court resuming, the facts were read and the appellant made clear admission on 3 the facts constituting the offence. It was thus argued that, the complaint that the admission was incomplete and ambiguous is baseless. Placing reliance on the Court's decision in Khalid Athuman v. Republic [2005] TZCA 84, 26 January 2005, TANZLII, Ms. Tarimo argued that the conditions precedent for the trial court to convict an accused person on his own plea of guilty on the basis of admission to all ingredients of the offence were fully met in respect of the appellant. Accordingly, she impressed upon us to accept, as the High Court did that, the trial court was right in convicting the appellant on his own plea of guilty. Essentially, the learned State Attorney's submissions on the 2nd ground was that the appellant's complaint that his plea was a result of mistake or misapprehension is baseless. This is so, she argued, the appellant had opportunity to change his plea after the court had adjourned the hearing pending preparation of the facts by the prosecution despite which, he reiterated the plea. She thus invited the Court to find no merit in the appeal and uphold the decision of

the High Court which dismissed his first appeal based on the same complaint. When given the opportunity to respond to the respondent Republic's submission, the appellant had nothing to say except praying for the Court's mercy considering that he is the only surviving child from his mother who is now disabled requiring his assistance. He thus prayed for his release to enable him join his ailing mother. Having examined the grounds of appeal in the light of the decision of the High Court, we acknowledge that, the first appellate court dealt with the same complaint now under our consideration and determination. The appellant's complaint before the first appellate court was essentially that the trial court wrongly convicted him on the basis of a plea of guilty which was not unequivocal. The High Court had regard to the provisions of section 228 (2) of the CPA which stipulates that: "(2) Where the accused person 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 an order against him, unless there appears to be sufficient cause to the contrary." Guided by the above provision, the learned first appellate judge was satisfied that the record was glaring that the trial court convicted the appellant on his own plea of guilty after following the procedure prescribed by

section 228 (2) of the CPA. As mentioned earlier, the 5 appellant's complaint in this appeal is predicated upon the same complaints. For all intents and purposes, the appellant wants us to overturn the first appellate court's decision and hold that his plea was, but equivocal which should not have warranted conviction. Be it as it may, to agree with the appellant, the Court must be satisfied that, in entering conviction, the trial court and the first appellate court misapprehended the conditions necessary for sustaining a conviction on the accused's own plea of guilty underscored by the High Court in Laurence Mpinga v. Republic [1983] T.L.R 166 and cited with approval by the Court in its numerous decisions including, Elias s/o Lucas v. Republic (supra) cited to us by Ms. Tarimo. It is significant that, in that decision, the Court referred to, amongst others, a decision of the defunct Court of Appeal for East Africa in Adan v. Republic [1973] 1EA 445 on the procedure to be followed where an accused person admits the charge before entering his plea of guilty and conviction on such plea thus: "If 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 formally enter a plea o f guilty. The magistrate should next ask the 6 prosecutor to state the facts of the alleged offence

ana\ 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 deny the alleged facts in any material respectthe magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused's reply must\ of course, be recorded." Skipping the details, section 228 of the CPA mirrors the above holding. As submitted by the learned State Attorney, and mindful of the reasoning by the first appellate court, there is no dispute that the appellant's conviction on his own plea of guilty was entered on the basis of an unequivocal and unambiguous plea of guilty to the charge and express admission to the facts in support of the charge in the manner required by section 228 (2) of the CPA. On the other hand, we are unable to agree with the appellant that his admission was a result of mistake or misapprehension. On the contrary, we agree with Ms. Tarimo that, the appellant had an opportunity to retract from his plea had he considered that he realized that the plea he had made was a result of misapprehension when the Court resumed before reading the facts of the 7 case by the prosecution. The appellant's complaint cannot be, but an afterthought. Like the High Court, we are satisfied that the appellant's challenge against his conviction on his own plea of guilty is misplaced. Consequently, we reject the complaints in both grounds for being baseless and dismiss the appeal in its entirety. DATED at MOSHI this 18th March, 2025. L. J. S. MWANDAMBO

JUSTICE OF APPEAL P. F. KIHWELO

JUSTICE OF APPEAL A. Z. MGEYEKWA

JUSTICE OF APPEAL Judgment delivered this 19th day of March, 2025 in the presence of the Appellant in person and Ms. Bertina Tarimo, learned State Attorney for the Respondent/Republic, is hereby certified as a true copy of the original. \ I . .. ) , x ..... S. P. M W A I S E J E ' \ ?\\ Ag. DEPUTY REGISTRAR ! I” i, , ' COURT OF APPEAL 8