LESIL DANFORD 2222Edited

THE JUDICIARY OF TANZANIA

IN THE HIGH COURT OF TANZANIA AT MANYARA CRIMINAL APPEAL NO. 000007790 OF 2024 (Originating from conviction and sentence in Criminal Case No. 49 of 2020. at Kiteto District Court) LESIL DANFORD............................................... COMPLAINANT / APPELLANT / APPLICANT

VERSUS DPP.......................................................................................................... RESPONDENT / DEFENDANT

JUDGMENT D. C. KAMUZORA, J. 27th May & I Oth June, 2024 The Appellant was arraigned before the district court of Kiteto (hereinafter referred to as the trial court) and charged with two counts; rape contrary to section 130 (1), (2)(e) and 131 (1) of the penal code [CAP 16 RE 2002, now R.E 2022] and the offence of impregnating secondary school girl contrary to section 60A of the Education Act [CAP 353 RE 2002] as amended by section 22 of the Written Laws Miscellaneous Amendment Act No. 2 of 2016. It was alleged that, in March 2020 the Appellant had carnal knowledge with a girl aged 16 years old who was a secondary school girl at Dongo Secondary School and as a result, the girl became pregnant for the Appellant. It is on record that the Appellant was convicted on his own plea of guilty in respect of the first count and was sentenced to serve 30 years imprisonment. The Appellant was aggrieved with the conviction and sentence meted out against him and has preferred the instant appeal with three grounds of appeal as follows: 1. That, the trial court erred both in law andfact in convicting and sentencing the Appellant of the offence of rape on what the court termed as Appellant’s own plea of guilty.

2. That, the trial court erred in law and in fact by holding that the Appellant pleaded guilty while the facts read and explained to him did not disclose the ingredients ofthe offence. Paoe I Hnn DF.VOTHAKAMUZORA 3. That, the learned trial magistrate erred in law and in fact for violating section I60B of the penal code when sentencing the Appellant. When the appeal was called for hearing, the Appellant appeared in person while Ms. Rhoida Kisinga. learned State attorney appeared for the Respondent, republic. When invited to argue his appeal, the Appellant prayed and was allowed by the court to adopt his Swahili written submissions as his submission in support of appeal and the leaned State attorney made oral reply thereto. In his submission in support of the first ground of appeal, the Appellant faulted the trial court for convicting him basing on the plea of guilty maintaining that the said plea was equivocal. He argued that, by saying “it is true” does not mean he was admitting to the offence. He urged this court to refer the case of Peter Shangwea vs Republic Criminal Appeal No. 282 of 2015 Court of Appeal of Tanzania at Arusha (unreported). On the second ground, the Appellant faulted the trial court for holding that he pleaded guilty to the offence while the facts read to him did not disclose the offence he was charged with. The Appellant argued that, the trial court should

have not convicted him based on facts which did not disclose the offence committed. He referred the case of John Charles vs Republic Criminal Appeal No. 554 of 2017 Court of Appeal of Tanzania at Arusha (unreported). Submitting on the third ground of appeal, the Appellant submitted that he was 17 years old by the time he was convicted and sentenced on 21/5/2020. He argued that, his sentence was in violation of section 160B of the penal code and to buttress his arguments, the Appellant referred the case of Zuberi Mohamed @ Mkapa vs Republic Criminal Appeal No. 563 of 2020 (unreported). In concluding, the Appellant urged this court to allow the appeal, quash and set aside the conviction and sentence meted out against him and set him free from the prison. In reply, Ms. Kisinga expressed her stance that she partly supported the appeal on the 1st and 2nd grounds of appeal. She submitted that it is true that the Appellant's plea was not unequivocal for it was not a complete plea. She noted the following from the proceedings; that, at page 1 of the proceedings the Appellant responded to the 1st count that 'Ni kweli nilipitiwa kubaka ila nina miaka 17' and the trial court recorded the Appellant to have pleaded guilty. That, on the 2nd count the Appellant responded ‘sijui kama ana mimba’ and the trial court entered a plea of not guilty. That, since the Appellant claimed to have 17

years, the trial court asked the Appellant to prove his age with evidence and he promised to submit the birth certificate on the next date. That, on 21st May, 2020, the Appellant appeared before the trial court for purpose of presenting his proof but he had no proof hcncc he was reminded of his charge. That, on the first count, the Appellant responded Wz kweli' and the trial court entered plea of guilty while on the second count, the Appellant responded that 'sijui, sio kweli' and the trial court entered plea of not guilty. That, after the Appellant had pleaded to the charge, the facts for the 1st count were read to him and the Appellant admitted the facts and therefore he was convicted and sentenced to 30 years imprisonment. The learned State attorney readily conceded that the plea was equivocal because by stating ‘ni kweli', the plea was not clear of what the Appellant was admitting. She argued that, the Appellant was supposed to be led to state Pane 7 Hnn DFVOTHA KAMII7.ORA what he was admitting for his plea to be complete. The learned State attorney further submitted that, the facts of the case at page 3 did not disclose the elements of the offence of rape. She argued that, the offence of rape must have the following elements; the date the offence was committed, the proof that the victim was penetrated, the age of the victim where the victim is below 18 years and the fact

that the accused in court is the one who committed the offence. She conceded that, the facts read to the Appellant did not disclose elements of the offence and as to when the offence was committed. She explained that, the year 2020 seen in the charge sheet is not indicated in the facts. Equally, the age of the victim was not specified in the facts while the charge sheet indicates that the victim was 16 years. She referred the case of Elias Shani Vs Republic. Criminal Appeal No. 657 of 2020 [2020] TZCA 17662, Tanzlii on the criterial to be considered in unequivocal plea. The learned State attorney prayed this court to quash and set aside the proceedings, conviction and sentence passed by the trial court but be pleased to remit case file to the trial court for the Appellant to enter a proper plea. The learned State attorney raised a concern that, although the Appellant pleaded not guilty to the 2nd count, no hearing was conducted in respect of that offence. She therefore urged this court to remit the matter to the trial court for hearing of the matter in respect of the second count. After the Respondent's submission the Appellant had nothing on rejoinder thus, this court will assess the record and submissions by parties in making its decision. From the record, it is clear that the Appellant was convicted and sentenced on his own plea of guilty. It is settled law that no appeal

can be preferred against conviction resulting from plea of guilty except the legality of sentence meted out. Such prohibition is provided for under section 360(1) of the Criminal Procedure Act [CAP 20 RE 2022]. (hereinafter referred to as the CPA| the said provision reads; 360.-(1) No appeal shall he allowed in the case of any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court except as to the extent or legality of the sentence. [Emphasis added]. From the referred provision of the law and as a matter of general rule, appeal against conviction on plea of guilty is not allowed except for the legality of the sentence. However, in every general rule, there is an exception. In the case of Laurence Mpinga Vs. Republic [1983] TLR 66 the court expounded instances under which appeal against conviction on plea of guilty, like the present one can be preferred. It was held; "'An accused person who has been convicted by any court of an offence "on his own plea ofguilty " may appeal against the conviction to a higher court on any of the following grounds: 1. That, even taking into consideration the admittedfacts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in law in treating it as a plea ofguilty: 2. That, he pleaded guilty as a result of mistake or misapprehension: 3. That, the charge laid at his

door disclosed no offence known to law; and Pane 3 Hnn DFVOTHA KAMII7ORA 4. That, upon the admittedfacts he could not in law have been convicted of the offence charged. " In the instant matter the Appellant's plea was equivocal since he just replied as “it is true” on the first count without further explanation. The learned State Attorney supported the appeal as she agreed that the Appellant’s plea was equivocal. I laving gone through the record. I have similar observation with the learned State attorney. On the first day when the Appellant was arraigned before the trial court, the charge was read and on the first count he replied; ni kweli nilipitiwa kubaka, ila nina miaka 17”. The trial court entered a plea guilty for the first count and when the second count was read the Appellant replied ‘si/ui kama kweli ana mimba’ and the trial court entered a plea of not guilty. Since the Appellant claimed to be below 18 years old the matter was adjourned for him to submit proof of his age but when the matter resumed on 6/5/2020 the Appellant prayed for another date so that he could submit his birth certificate. The matter was again adjourned to 21/5/2020 and on that date, the trial court indicated that the Appellant failed to prove his age and proceeded with the matter. The Appellant was then reminded of the charge and in respect of the first count and he replied “ni kweli” but in

respect of the second count, he replied ‘si/ui, sio kweli'. Thereafter, the prosecution read the facts of the case and when the Appellant was given a chance to respond to the facts, he stated that all facts are true except for fact No. 5 because he did not know if the victim was pregnant and if she was a student. As well argued by the Appellant and supported by the learned State attorney, the position is very clear that the accused’s response to the charge by the words “ni kweli” is not by itself satisfactory to conclude that the plea is unequivocal. There is need for further explanation by the accused on the offence he is admitting. The procedures for unequivocal plea were well laid down by the Court of Appeal in the case of The Director of Public Prosecutions Vs. Salum Madito, Criminal Appeal No. 108 of 2019 (unreported) where the Court of Appeal quoted the decision in Adan v. Republic (1973) E.A 445 where it was stated that: "When a person is charged, the charge and particulars should be read out to him, so far as possible in his own language, but if that is not possible then in a language which he can speak and understand. The magistrate should then explain to the accused person all essential ingredients of the offence charged. 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 of guilty. The magistrate should next ask the prosecutor to state the facts of the alleged offence and when the statement is complete, should give the accused an opportunity to dispute or to explain the facts or to add any relevant facts. If the accused does not agree with the statement of facts or asserts additional facts which if true, might raise a question as to his guilty, the magistrate should record the change of plea to "not guilty" and proceed to hold a trial. If the accused person does not deny the alleged facts in any material aspect the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. Statement offacts and the accused's reply must, of course, be recorded." [Emphasis added]. It is unfortunate that the learned trial magistrate did not follow the above laid procedures for there is no clear words of the offence the Appellant was admitting to. Equally, the facts that were read by the prosecution Pane 4 Hnn DF.VOTHA KAMII7ORA did not disclose the offence against which the Appellant was charged. From the proceedings, the facts reveal that the Appellant was having sexual relationship with the victim who was a student at Dongo secondary school from 2018 to 2020 when she was discovered pregnant. There is no fact establishing the offence of rape for the age of the victim was not mentioned in

the facts as ably argued by the learned State attorney. In other words, the facts did not disclose the essential element which is the age of the victim for the Appellant was charged for statutory rape under section 131( I )(2) (e) of the penal code. Since the Appellant was convicted for statutory rape, in the absence of the age of the victim, it cannot be said that the statement of facts disclosed the offence of rape. I therefore agree with both parties that the trial court erred in convicting and sentencing the Appellant for the offence of rape while his plea was ambiguous and the facts of the case did not disclose an offence. In considering the decision in Laurence Mpinga v Republic (supra), an appeal against conviction was proper and, in the circumstance, the Appellant’s conviction and sentence meted out against him are quashed and set aside. I was also reminded by the learned State attorney of the abandonment of the second count by the trial court. It is on record that the Appellant was charged with two counts; rape and impregnating school girl. However, after the trial court had convicted the Appellant for the offence of rape, it said nothing regarding the second count of impregnating a school girl which the Appellant had pleaded not guilty. The procedures required the trial court after convicting the Appellant for the offence of rape to call for evidence on the offence of

impregnating school girl which the Appellant pleaded not guilty. To the contrary, the proceedings were closed after the Appellant was convicted for one count of rape instead of hearing to the contested count. I agree with the learned State attorney that this was a serious irregularity and for that reason. I accede to the prayer by the learned State attorney that the matter be remitted to the trial court, for hearing. In the upshot, the appeal is allowed by quashing and setting aside the proceedings, conviction and sentence passed against the Appellant. I order the case file to be remitted back to the trial court before another magistrate who shall take a fresh plea for all counts and proceed with the matter in accordance with the law. DATED at BABATI this I Oth Day of June, 2024. I). C. KAMUZORA

JUDGE Dated at THE HIGH COURT OF TANZANIA AT MANYARA this 13th of August 2024 . Pane Hnn DFVOTHA KAMUZORA D. C KAMUZORA

JUDGE OF THE HIGH COURT Paop A Hnn DFVOTHA KAMUZORA