magembe shiwa vs the republic 2021 tzhc 9429 17 december 2021

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA (DODOMA DISTRICT REGISTRY)

AT DODOMA (DC) CRIMINAL APPEAL NO. 73 OF 2020 (Originating from Singida Court at Singida in Criminal Case No. 96 of 2019) MAGEMBE SHIWA..................... APPELLANT

VERSUS THE REPUBLIC........................ RESPONDENT 16/12/2021 & 17/12/2021

JUDGMENT MASAJU, J The Appellant, Magembe Shiwa, was charged with, and convicted of UNLAWFUL POSSESSION OF PROHIBITED PLANTS contrary to section 11(1) (d) of the Drug Control and Enforcement Act, 2015 in the Resident Magistrate' Court of Singida. He was sentenced to serve thirty (30) years imprisonment. Hence the Appeal in the Court. The Appellant's Petition of Appeal is made up of six (6) grounds of appeal as he takes issues with the preliminary hearing and the proof of the prosecution case beyond reasonable doubt, if any, given the alleged plea of guilty. When the appeal was heard in the court on the 16th day of December, 2021, the layman Appellant appeared in person. He adopted his grounds of 1 appeal to form his submissions in support of the appeal in the Court. He prayed the Court to allow the appeal as he added that the did not commit the crime. The Respondent Republic in the service of the learned Senior State Attorney, Mr. Harry Mbogoro, supported the appeal reasoning that there was incurable procedural irregularity on Preliminary Hearing under section 192 of the Criminal Procedure Act, [Cap 20 RE 2019]. Indeed, if the Appellant had pleaded guilty to the charge, there could not have been Preliminary Hearing but facts of the case in support of the charge. The Respondent Republic submitted further that the documentary evidence that was admitted in evidence collectively as

Prosecution Exhibit Pl, namely, the Government Chief Chemist Report, Cautioned Statement, Letters by the OC-CID, and The Measurements and Weight Agencies and the Certificate of Seizure, were not read over to the Court upon its admission in evidence. That being the case, it cannot be said that the facts of the case in support of the charge, the Appellant allegedly pleaded guilty of were made known to the Appellant for the would be unequivocal plea of guilty. The Respondent advised that since the said documentary evidence (prosecution exhibits) were not read over to the trial court they should be expunged from the body of evidence on the record of trial Court. The Respondent prayed the court to revise the proceedings and, judgment, conviction and sentence of the trial court as against the Appellant nullifying them accordingly pursuant to section 372 of the Criminal Procedure Act [Cap 20 RE 2019] and order trial de novo under section 388(1) of the Criminal procedure Act, [Cap 20 RE 2019]. 2 In rejoinder, the Appellant appreciated the Respondent's submission on the merit of his appeal save the prayer for trial de novo. He stated that he had already served his sentence and he would like to be let free so that he can go back home to take care of his family including his sick daughter in law and wife. The Court appreciates the parties for their informed submissions on the appeal.

Indeed, the procedural irregularity in light of the alleged plea of guilty and the questionable Preliminary Hearing under section 192 of the Criminal Procedure Act, [Cap 20 RE 2019] it follows that there was no unequivocal plea of guilty by the Appellant hence entitled to appeal under section 360(1) of the Criminal Procedure Act,[Cap 20 RE 2019]. The collectively prosecution Exhibit Pl is hereby expunged from the record of the trial court for having been unprocedurally made part of the record. That done, the prosecution case evidence hangs on a too this thread to support conviction on the alleged plea of guilty. That said, since the alleged plea of guilty by the Appellant was equivocal, his appeal is hereby allowed accordingly. The conviction and sentence of thirty (30) years imprisonment thereof severally and respectively are hereby quashed and set aside. The Appellant shall be released forthwith from prison unless there was a lawful cause. GEORGE M. MASAJll

JUDGE 17/12/2021 3