JUDGEMENT NDEMEYE FARES

THE JUDICIARY OF TANZANIA IN THE HIGH COURT OF UNITED REPUBLIC OF TANZANIA AT KIGOMA CRIMINAL APPEAL NO. 000028127 OF 2024 NDEMEYE S/O FARES .............................. COMPLAINANT / APPELLANT / APPLICANT VERSUS REPUBLIC .............................. RESPONDENT / DEFENDANT JUDGMENT RWIZILE, J The Appellant one Ndememeye Fares was arraigned before the District Court of Kigoma charged on two counts. The first count was rape contrary to section 130(1)(2)(b) and 131(1) of the Penal Code, Cap.16 [RE.2002]. It was alleged by the Prosecution that on 31st day of 2023 at Jandya village within Buhigwe district, the appellant had carnal knowledge of a girl (to be referred as FD) aged 18 without her consent. On the second count, she was charged of impregnating a schoolgirl contrary to section 60A (3) of the Education Act, Cap. 353 [RE.2002] as amended by section 22 of the written laws miscellaneous amendment No. 2) Act 2016. It was alleged that on 31st day of May 2023 at Jandya village within Buhigwe district, the appellant impregnated a girl of 18 years who was a form two student at Jandya secondary school. When the charge was read to him, he pleaded not guilty to the 1st count. But pleaded guilty to the 2nd count. He was convicted and sentenced to serve ten years imprisonment. Upon conviction and sentence, the prosecution however, was pleased and decided to withdraw the first count of rape. Some months later, the appellant thought was aggrieved by both conviction and sentence and successfully got an extension of time to file this appeal.The following are grounds for which this appeal is based: - 1. That the trial court erred in law and in fact for not giving me an opportunity or right of being heard a fact which goes contrary to our mother land law means constitution of united republic of Tanzania of 1977 as amended. 2. That the trial court erred in law and in fact for conviction and sentence imposed upon me without proof of the case beyond reasonable doubt where the prosecution side failed to bring any witness Page. 1 Hon. AUGUSTINE RWIZILE to testify that FD was a student at Janda secondary school or any legal or any authorized document to testify that FD was schooling at Janda secondary school. 3. That the prosecution side continued to fail to prove the case beyond reasonable doubt for failure to bring any legal document, parents or any relatives to prove the age of FD. The fourth ground of appeal could not be clearly understood but based on the Kiswahili version of the grounds of appeal, it can be translated as hereunder. 4. That, your honour, hearing this appeal, you will discover that my plea of guilty was based on the fact that FD (the victim) was not a schoolgirl, that is why the prosecution did not tender any evidence or documents to prove this case, but decided to shorten this case. It is very sad, for the conviction and sentence which came from nowhere. At the hearing, the appellant appeared in person. The respondent was under services of Mr. Dickson Makongo learned, state attorney. The appellant briefly made three points in support of the appeal; that he was given no right to be heard which is against the constitution and the laws of the land On the second ground, he was clear that the age of the victim was not proved. He added, even the status of the victim that she is a schoolgirl was not proved. Lastly, he submitted that despite failure to prove age of the victim, he admitted because he knew she was not a schoolgirl. He asked this court therefore to allow this appeal. Mr. Makongo learned state attorney generally argued all grounds of appeal contesting that under section 282 of the CPA, when the offence is admitted the court may enter conviction. That done, he added, there is no evidence needed to prove the admitted offence. Since the appellant admitted the offence, Mr. Makongo argued, there was no need to call for evidence. According to him section 360 of CPA, provides for no appeal when the offence is admitted, that can only be done against sentence. In his view, the imposed sentence of 10 years imprisonment was not proper, it should be enhanced to a mandatory sentence of 30 years imprisonment. To support his point, he cited the case of Juma Hassan Teka vs Republic, (CAT), Criminal Appeal No. 51 of 2022 and Frank Mlyuka vs The republic, Criminal Appeal 404 of 2028 which underscored no need for evidence when the offence is admitted. He further argued that based on the case of Chacha Makonge@Mwasi vs Republic, Criminal Appeal No.510 of 2020, where it was held that when a memorandum of facts is read and well explained to the accused without doubt such facts are enough to prove the case. He added that the proceeding of the trial court was a reflection of what happened, and that since the same were admitted it should be so Page. 2 Hon. AUGUSTINE RWIZILE believed, citing the case of Simon Manywele @ Muhabi v R, Criminal Appeal No. 150 of 2023, the court was asked to dismiss this appeal. I have carefully considered what the record presents and submissions of the parties. I have to basically hold that the appellant has no automatic right of appeal since he pleaded guilty to the charge. As submitted by Mr. Makongo, section 360(1) of the CPA provides that; An appeal shall not be 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. Guided by the law, looking at the memorandum of appeal, it is clear to me that the appellant is not challenging the sentence. He is attacking the finding of the trial court on his guilty upon admission. But this court has under certain circumstances allowed appeals arising from a plea of guilty provided the situation falls in any of the following; 1. That the admitted facts were imperfect, ambiguous or unfinished plea and so it could not by any trace be taken as a plea of guilty 2. That the plea of guilty was a result of mistake or misapprehension 3. That the charge facing the accused disclosed no offence known to law and 4. That upon admitted facts the accused could not in law have been convicted of the offence charged. See the case of Mkinga V R, [1983] TLR 166. It is discernible from the foregoing that despite the appellant not raising a sentence issue, still, he may appeal upon pleading one of the above points. Upon going through the grounds of appeal, it is clear to me that the 1st, 2nd and 3rd grounds have no base since they are attacking the finding of the trial court as if the case was heard on merit and therefore need to call for proof of the charge beyond reason doubt. It was held in the case of Emmanuel Ambrous vs The Republic, (CAT), Criminal Appeal No. 555 of 2017, on pages 16-17 that: - “...the applicable procedure when an accused person pleads guilty to a charged offence, as stated in numerous decisions of the Court, involves no production of proof of the charge but a procedure for ascertaining if the appellant's plea is unequivocal...” The main issue here therefore is to venture into the facts to see if the plea was unequivocal. The appellant on the 4th ground of appeal held the view that he admitted based on the belief that the victim was not a schoolgirl. In order to appreciate the grievance raised by the appellant and for the purposes Page. 3 Hon. AUGUSTINE RWIZILE of clarity, I will reproduce what transpired in court Court: Charge read over and explained to the accused person in Swahili Language which he understands, and he is asked to plead thereto. Accused: 1st Count: “Ni kweli nilifanya nae mapenzi kwa ridhaa yake” 2nd Count: Ni kweli nilimpa mimba” Court: Entered as a plea of not guilty in the 1st Count and as a plea of guilty in the 2nd count. Public prosecutor: We pray to proceed with summary facts in the second count which the accused person has pleaded guilty. Court: Prosecution prayer is granted. Public Prosecutor: SUMMARY OF FACTS FOR SECOND COUNT. That the names and addresses of the accused person are as they as they appear on the charge sheet. That the accused person and the victim FD (true name withheld by this court) are people who know each other as the live in the same village which is Janda Village within Buhigwe District. That the accused and the victim had a love affair since April 2023 and they used to have sexual intercourse. That the accused had a love affair with FD and had sexual intercourse with her while he knows that she was a form two student at Janda Secondary School. That due to their sexual intercourse, on 31/5/2023 the accused impregnated FD while at Janda Village within Buhigwe District in Kigoma Region. That after FD became pregnant, she informed the accused person, and the accused told her to go hospital to undergo a pregnant test. That on 31/12/2023 FD went to Janda Health Center together with her parents who are (name concealed) and when she was tested, she was found to be pregnant. That, it was then the matter was reported at Janda Police Station and the accused person was arrested and taken to the Police Station for Further Legal Action. Page. 4 Hon. AUGUSTINE RWIZILE That, the accused impregnated FD who is a girl of 18 years old and a form two student at Janda Secondary School and caused her to fail attending school regularly. After the investigation was complete the accused person was today arraigned before this court with the offence of Rape Contrary to section 130(1), (2) and 131(1) of the Penal Code Cap 16 RE 2022) in the 1st Count to which he pleaded not guilty and he was also charged with offence of impregnating a school girl contrary to section 60A (3) of Education Act Cap 353 RE 2002) as amended by section 22 of the written laws miscellaneous amendment Act no 2) Act of 2016 in the 2nd Count to which he has pleaded guilty That all. Court: The facts are read over and explained to the accused person in Swahili Language which he understands and he is asked if he admit all facts as true and correctly and he reply there to as follows; Accused: ‘I admit all facts as true and correctly. K. V. MWAKITALU, SRM, FINDINGS: The accused person pleaded guilty to the offence charged in the second count for the offence of Impregnating a school girl contrary to section 60A(3) of Education Act Cap 353 RE 2002 as amended by section 22 of the written laws(Miscellaneous Amendment no 2) Act of 2016, and he has also admitted as true and correctly to the summary of facts adduced by the prosecution side which i am of the opinion that have successfully established all ingredients of the offence charged. It is on that basis i hereby convict the accused person as charged in the second count basing on his own plea of guilty. Order accordingly PREVIOUS CRIMINAL RECORDS AND AGGRAVATING FACTORS: PUBLIC PROSECUTOR Assistant Inspector Eliah:: We have no previous criminal records of the accused person but we pray for stiff penalty to serve as a lesson to the Accused person and other people who have the same behavior of having sex with student and causing them to be pregnant and fail to attend school MITIGATIONS: I pray for forgiveness True to the facts, upon examination of the same, it is clear to me that the appellant indeed admitted the offence. Facts which were put to him sufficiently and with clarity stated the victim was 18 years and a Page. 5 Hon. AUGUSTINE RWIZILE student at Janda secondary school. The same words were repeated at least more than one time throughout the proceedings. He admitted all the same. As if that was not enough, he also was given a change to mitigate, where he simply said, he was asking for forgiveness. If by admitting the second count, he honestly believed, the same was not a schoolgirl he could have raised that under mitigation. He did not do so. I have no doubt the appellant had a clear mind and his plea of guilty was clear, unambiguous and true. I therefore dismiss the fourth ground as well for being unmerited. Having dismissed all grounds, the fate of the entire appeal is to be dismissed for being without merit. But before, I pen off, I have to respond to the prayer by Mr. Makongo learned state attorney that this court is to enhance the sentence to 30 years as a minimum requirement of the law. I think this is a clear misconception. The law is not set in mandatory terms as to sentence. In sentencing principles, a minimum sentence must be expressly stated by the law. The words as set provide, that on conviction, the accused is liable to a sentence of 30 years. The trial court was therefore justified to impose the sentence of ten years. I have no reason to interfere with the same. Dated at KIGOMA this 4th of April 2025 . A. K RWIZILE JUDGE OF THE HIGH COURT Page. 6 Hon. AUGUSTINE RWIZILE