kulwa so dominic kishina vs republic 2022 tzhc 15024 8 december 2022

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA

MWANZA DISTRICT REGISTRY

AT MWANZA CRIMINAL APPEAL No. 58 OF 2022 (Originating from Criminal Case No. 52 of2022 of the District Court of Misungwi at Misungwi) KULWA S/O DOMILIC @ KISHINA................ APPELLANT

VERSUS THE REPUBLIC................... ............. ...............—-...... RESPONDENT

JUDGMENT Last Order: 05.12.2022 Judgment: 08.12.2022 M.MNYUKWA, J. The appellant, Kulwa s/o Domilic was charged and arraigned before the District Court of Misungwi at Misungwi for the offence of Attempted Rape contrary to sections 132(1) (2)(a) of the Penal Code Cap. 16 RE: 2019 (now RE: 2022). The prosecution alleged that, on the 20th May 2022 at Mwasonge village within the District of Misungwi in Mwanza region, Kulwa s/o Domilic, the appellant did attempt to rape a young girl aged three (8) years, who, for purposes of concealing her identity will be referred to, in this judgment, as the victim. i At the trial, the accused pleaded guilty to the charge and was accordingly convicted followed by a statutory minimum sentence of thirty (30) years imprisonment. Dissatisfied, the accused has lodged the present appeal before this court appealing against the conviction and the sentence. The accused fronted three grounds of appeal thus:- 1. That, the trial magistrate erred in law and in fact by entering a piea ofguilty which plea was equivocal.

2. That, I pleased your honourable court to reduce sentence of thirty years (30) imprisonment.

3. That, the trial magistrate erred in law and in fact by sentencing the appellant 30 years imprisonment for the offence ofattempt to rape while particulars in the charge sheet does not disclosed in the charge and statement in the fact adduced by the prosecution. When the matter was called for hearing, the appellant appeared in person unrepresented and the Ms. Jainess Kihwelo represented the respondent, the Republic. The appellant prayed for the respondent to submit first. Submitting first, Ms. Kiwhelo get the attention of this court that, the appellant was convicted on his own plea. Even though he advanced three grounds of appeal, the law is settled that the appellant who was convicted 2 on his own plea, can only appeal against the sentence. He can only appeal against conviction if his plea was ambiguous or on the defective charge that did not constitute the ingredients of the offence charged. After the introductory remarks, the counsel for the respondent submitting on the first ground of appeal that, the trial magistrate erred in law and in fact by entering a plea of guilty in which the plea was equivocal. She claims that, the appellant was charged with the offence of attempted rape c/s 132(l)(2)(a) of the Penal Code Cap. 16 Re: 2019 which he pleaded guilty and also when the facts were read the accused agreed to the facts to be true. She submitted further that, the accused

plea was contrary to the facts read over to him. She went on that, according to the facts, there was a penetration that made it rape and not attempted rape as pleaded by the accused. Citing section 130(4)(a) of the Penal Code Cap. 16 RE: 2019, she insisted that, the law is clear that even the slight penetration proves the offence of rape. She, therefore, concluded that the accused was supposed to be charged with the offence of rape and not attempted rape as charged and for that reason, she supported the first ground of appeal and prays the case to be remitted back to the trial court for proper plea taking. To support her prayer, she cited the case of Philipo Faustini @ 3 Chitembele vs R, Criminal Appeal No. 666 of 2020 CAT. Since the first ground of appeal dispose of the appeal, the respondent did not submit for the remaining grounds. Responding to the respondent's submissions, the appellant supported the respondent's prayer that, the case be remitted to the trial court for proper plea-taking and hearing. In the determination of the legal issue submitted by Ms. Kihwelo, for the respondent, I perused the court's records to find that, no doubt that the appellant was convicted by the trial court on his own plea of guilt. What is tasking before me is, whether the appellant was properly convicted on his own plea of guilty. As submitted for by Ms. Kihwelo, she claims that, the plea

taken by the appellant differs from the facts read to him. She insisted that, while the accused person was charged with the offence of attempted rape c/s 132(l)(2)(a) of the penal code Cap 16 RE: 2019, the facts show that, there was penetration and therefore the accused ought to be tried of the offence of rape. On the records, the facts in relation to Ms. Kiwhelo's contention reads: - 1. N/A 2. On 20/05/2022 at noon time in Mwasonge Village within Misungwi District in Mwanza Region, the accused did take a (victim) a giri of 8 years to touch her and undress her pants and lay her down the accused tried to insert his penis in her vagina but the accused person left. From the excerpt above, I do not hand with Ms. Kihwelo that, the facts as read above connote that there was a penetration that qualifies the offence of rape as claimed. The records did not suggest in either way that there was penetration rather, in the absence of proof of penetration the facts suggest that it was the offence of attempted rape. The law under section 132(2)(a) of the penal Code cap 16 RE 2019, provides for among other elements of the offence of attempted rape. Section 132(2)(a) for which the accused was charged states: - ".„/4 person attempts to commit rape if, with the intent to procure prohibited sexual intercourse with any girl or woman, he manifests his intention by- (a) threatening the girl or woman

for sexual purposes.." Thus, in attempted rape, there must be an attempt accompanied with an intention to procure prohibited sexual intercourse. Based on the fact that the accused was convicted and sentenced on his own plea of guilty, the law under section 228(2) Criminal Procedure Act Cap. 20 RE: 2019, provides: - 5 "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." The above section 228(2) of the Criminal Procedure Act, Cap. 20 RE. which was interpreted by the Court of Appeal set conditions to be met in the case of Michael Adrian Chaki v. R, Criminal Appeal No. 399 of 2017. In this case, the Court of Appeal stated that there cannot be an unequivocal plea, on which a valid conviction may be founded unless these conditions conjunctively exist: - 1. The appellant must be arraigned on a proper charge. That is to say, the offence, section and the particulars thereof must be properly framed and must explicitly disclose the offence known to law.

2. The court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with otherwise injustice may result.

3. When the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228(1) of the CPA.

4. The facts adduced after recording a plea of guilty should disclose and establish all the elements of the offence charged.

5. The accused must be asked to plead and must actually plead guilty to each and every Ingredient of the offence charged and the same must be properly recorded and must be dear.

6. Before a conviction on a plea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements of the offence charged." See also, Karlos Punda v. R, Criminal Appeal No. 153 of 2005 CAT, Onesmo Alex Ngimba vs Republic, Criminal Appeal No. 157 of 2019, CAT. From the above principles laid down by the Court of Appeal, I referred the same to the case at hand whether the accused plea, matched with the principle in Adrian Michael Chaki (supra). One of the basic ingredients of the offence of attempted rape in which the Appellant is charged with, as stated in the law, is that the accused must threaten the girl or woman for sexual purposes. This must be specifically stated by the prosecution when a person is charged under section 132(2)(a) of the Penal Code, Cap. 16 RE: 2019. In the case at hand, the facts narrated by the prosecution did not state that, the accused did threaten the victim for 7 sexual purposes as required and therefore fail short of the required standard to make the accused plea unambiguous. In totality, that is a fatal irregularity which goes to the root of the case and as a result, both proceedings, conviction and sentence against the appellant is a nullity. That said and done, I proceed to nullify the proceedings, conviction and sentence of 30 years meted to the appellant Kulwa s/o Domilic @Kishina and in fine, I remit the case to the trial court to be tried afresh. It is so ordered. fU J

JUDGE 08/12/2022 Court: Judgement delivered on 08th December 2022 in the presence of the appellant in person. M.MNYUKWA

JUDGE 08/12/2022 8