20050613 TZHC Dar es Salaam

IN THE HIGH COURT OF TANZANIA

AT DAR ES SALAAM CRIMINAL APPEAL NO. 121 OF 2004 1. KIDOLE SENGE 2. KULWAMADANGANA }.: ... APPELLANTS 3. HOJA MW ALIBU

VERSUS - - ~ E UNITED REPUBLIC .... :·········· RESPONDENT

JUDGMENT MANENTO, JK: This is an appeal by the three accused persons. They were all charged .. and convicted of one count of grievous harm c/s 225 of the Penal Code. They were convicted on their own plea of guilty. They were sentenced to three (3) years imprisonment each. On reaching at the prison, they thought and believed that their conviction and sentence was wrong. Hence, they engaged an advocate who preferred an appeal before this Court. There are three grounds of appeal, namely: ( 1) The court having recorded a plea of not guilty to the charge for the 1st and 3 rd accused persons, before the facts were read out, the same.court could not thereafter proceed to convict them when the facts were not read out, and those facts never 2 mentioned them and therefore no existence of an unequivocal plea of the two to the charges facing them. (2) There could be no unequivocal plea of guilty to the charges by the second accused for grevious harm when there was no existence of PF3 to show the extent of the harm if any existed. (3) The sentence of three years was on the High side. The particulars of the offence were briefly that the three accused persons jointly and together charged on 22/8/2004 at 20.00 hrs at Kidimu Mofu village within Kilombero District did grievous harm to Emmanuel Lyasaa, Varantine Ndopweli and Piwa Mkindangi by beating them on their heads by using sticks and caused

them to suffer cut wounds. The learned counsel for the accused persons submitted mainly on the procedure to be taken by the trial court in finding the accused person guilty and convicting them. He rightly submitted that the alleged plea of guilty were equivocal. The same was accepted by the Republic, but on a little bit different way. The Republic therefore did not support the conviction arid hence, the sentences. To understand the nature of the appeal and reasons why both the learned counsel and the Republic does not support the conviction, it is better for the proceedings to speak by itself. I ' 3 Coram:: .............. District Magistrate Prosecutor ............................. . Accused both present Court clerk .................. .. Charge read over and explained to the accused person who are asked to plead: 1st accused: It is true 2 nd accused: It is true rd 3 accused: It is true Court: PNG entered to the charge in respect of the 1st and 3 rd accused. And entered as a plea of guilty to the charge in respect of the second accused. Signed .................... . 28/8/2004

FACTS The 2nd accused on 22/8/2004 did grievous harm to Lyasa by beating them on the head. He was arrested and charged with this offence. Accused: Facts are correct. I • 4 Count: Accused are convicted as charged for their own plea of guilt to the charge.

MITIGATION OF THE ACCUSED We pray for lenience. SENTENCE: Each accused is sentenced to serve three (3) years imprisonment. Sgd ................ DM 26/8/2005 Mr. Kashumbugu, learned counsel draw the attention of the Court to the court file, where the District Magistrate showed to be not sure of what actually he was doing. At first, the 1st and 3 rd accused persons were recorded to have pleaded not guilty where they were recorded to have said "it is not true" but the word not was then cancelled in order that the plea could be read as "it is true". It really shows that the first and 3 rd accused persons did not plead guilty. This is seen in the proceedings and it was only the 2 nd accused who was called upon to admit or not admit the facts by the prosecutor. He was recorded as having admitted the facts to be correct. Surprisingly, all the three accused persons were convicted as charged as if they had all entered a plea of guilty. On mitigation, they were all recorded to have said, collectively "we pray for lenience" That was an omnibus 5 recording. Each accused must have been recorded as nearly as possible in the words he used. That was an error by the magistrate. Even the second accused who was recorded to have admitted the charge, was not called upon to, reply to the facts of the charge before he was finally convicted. The procedure as elaborated by this court in the case of

Stanslaus VR (9169) HCD 150, it was that the prosecutor has to outline the facts which must be agreed by the accused before he is convicted. Failure by the magistrate to call upon the 2nd accused to agree on the facts was an error material to his conviction. Worse still, even the 1st 3 rd accused persons, who were not even connected to the facts by the prosecutor were convicted. What a big error too, which resulted into the curtailing of the freedom of movement of the accused persons who had been condemned to prison. Even if the 2 nd accused had admitted the brief facts produced by the prosecutor, those facts did not prove the offence of grievous harm c/s 225. For the offence of grievous harm to be proved, there must be evidence of harm which amounts to a main or dangerous harm or serious or permanently injuries to health or which is likely so to injure health etc. Such evidence will only be found if the complainant had been medically examined and the doctor who examines him prepare the PF3 which would then be produced as exhibit by the prosecutor when reading the facts to the accused person. I < 6 Therefore then, even the plea of guilty by the 2nd accused was unequivocal one. This court in the cases ofWambura Kiranga VR 91968) HCD 44 and in LEKOLE Mengwa VR (1967) HCD 397 refused to uphold the convictions and went on to say: "Before a plea is accepted as one of guilty , it

should express and contain a full and explicit admission of all the facts and ingredients which constitute the offence charged . . . The facts presented to the court, should comprehend a full account of the commission of the offence and where there are more than one accused the part played by each. They should not be a 1nere repetition of the particulars in the charge sheet." Even though the Republic did not support the conviction, yet it drew to the attention of this court the fact that there is no appeal on a plea of guilty. See Section 360 of the Criminal Procedure Act, 1985. I agree with the learned state attorney that no appeal on a plea of guilty. The appeal is only allowed to the extent of legality of sentence. However, could the learned state attorney say that the 2nd accused was convicted on a plea of guilty if she admits that the plea was equivocal? The 2 nd accused's plea of guilty was not unequivocal. There were no particulars of the facts of the case, nd stating the ingredients of the charge nor did the 2 accused admitted to the 7 facts as submitted by the prosecutor. Had the prosecutor stated the ingredients of the offence and the 2 nd accused admitted to be true, then I could join hands to the learned state attorney. Otherwise, the plea of guilty by the 2 nd accused was not unequivocal, so it did not amount to plea of guilty in the eyes of the law as analysed by

the cited cases above. On the circumstances, I would and do hereby invoke the supervisory and reversionary powers of the High Court under section 3 72( 1) of the Criminal Procedure Act, 1985 due to the irregularity of the proceedings of the subordinate court. The practice of the court is to order a retrial if the proceedings were irregularly conducted. But I don't see any good course to do so in this case. The appellants were sentenced to three years imprisonment on 26/8/2004. Until now, they have been in prison for about ten (10) months. Before I end this appeal, I would like to call upon the magistrates in the subordinate courts to be keen when handling these criminal proceedings. They must follow the procedure, which, if properly followed, would not lead to the injustice which had been occasioned to the appellants in this appeal. Their freedom of movement had been interfered with for about ten months now for no good cause. The sentence imposed on the accused persons were .. . . 8 I equally in the high side, which were to be interfered with if the appeal had been allowed. On the whole, the appeal by all the three accused persons is allowed. They are to be set free immediately unless otherwise lawfully held. ~ A.R. Manento JAJI KIONGOZI. 13/6/2005 13-6-2005 Coram: A.R. Manento, JK For respondent: Mr. Kabisa State Attorney Assisted by Mrs. Rutahiwa State Attorney For Appellants: Absent (Mr. Kashumbugu Advocate) Court: The judgment is read in the presence of the learned state attorney and Mr. Kashumbugu Adv. For the accused persons. JAJI KIONGOZI. 13/6/2005