salehe so omary vs republic 2016 tzhc 2256 21 september 2016

IN THE HIGH COURT OF TANZANIA AT DODOMA (DC) CRIMINAL APPEAL NO 03 OF 2014 (From Original Traffic Case No. 8 of 2013 of the District Court of Mpwapwa at Mpwapwa) SALEHE s/o OMARY .................. APPELLANT VERSUS THE REPUBLIC ................... RESPONDENT JUDGMENT 31/08/2016 & 21/09/2016 SEHEL, J. In the District Court of Mpwapwa at Mpwapwa, the Appellant was convicted on his plea of dangerous driving contrary to Section 42 (c) and 63 (2) (b) of the Road Traffic Act, Cap. 168. He was convicted as charged and was sentenced to serve three years imprisonment. The appellant, being aggrieved by the conviction and sentence, preferred the present appeal. The appellant advanced one main ground that his plea was equivocal since the trial Cour*t failed to explain the facts. In his memorandum of appeal, he opted not to be present. At the hearing of the appeal Ms. Mgeni, learned State Attorney appeared to represent the respondent /Republic. Ms. Mgeni, learned State Attorney supported both the conviction and sentence by arguing that the trial magistrate did comply with the provisions of Section 228 of the Criminal Procedure Act, Cap. 20. She said after the accused have admitted the charge then the trial magistrate was correct in convicting the appellant. She thus prayed for the appeal to be dismissed. My starting point will be to review the provision of Section 228 of the Criminal Procedure Act, Cap. 20. It provides: “228(1) The substance of the charge shall be stated to the accused person by the court and he shall be asked whether he admits or denies the truth of the charge. (2) If 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 question that follows is whether Section 228 of the Criminal Procedure Act, Cap. 20 was complied with for the Appellant's plea to be unequivocal. In order to properly determine the issue at stake in this appeal, it is essential that I reproduce the appellant's plea of guilty as recorded by the trial court on 17/12/2013. It reads: “Court: COREA who asked to plea there to. Accused plead in his own words: “kweli” Court: Court: EPG Sign V.C. Kawiche R.M 17/12/2013 Pros: Pray to tender w/facts as part of Court proceeding^ Accused: I admit all the facts of the charge to be true & correct. Accused: Sign. 17/12/2013 Pros: Sign 17/12/2013 Sign: V.C. Kawiche RM 17/12/2013 Court: I hereby convict accused person for his unequivocal plea of guilty. Sign: V.C. Kawiche RM 17/12/2013” The above is what transpired at the trial Court. The charge sheet was read out and explained to the accused person who pleaded thereto, but it is not shown if the facts were read over to the accused person. In the case of Khalid Athuman Vs. Republic, Criminal Appeal No. 103 of 2005 (Ureported) which is cited in the case of Waziri Saidi Vs. Republic, Criminal Appeal No. 39 of 2012 (Unreported it was stated: “When a person is charged, the charge and the particulars should be read out to him, so far as possible in his own language, but if that is not possible, then the language which he can speak and understand. The magistrate should then explain to the accused person all the ingredients of the offence charged. If the accused then admits all those essential elements, the magistrate should record what the accused said, as nearly possible in his own words, and then formally enter a plea of guilty. The magistrate should next ask the prosecution to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts or to add any relevant fact. If the accused does not agree with the statement of facts or asserts addition facts which, if true, might raise a question as to his guilt the magistrate should record a change of plea to “not guilty” and proceed to hold a trial. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence. The statement of facts and the accused reply must, of course be recorded.” (Emphasis is mine). In the matter at hand, the prosecution instead of stating the facts it tendered them before the trial Court to form part of proceedings. This is contrary to the dictates of the procedure as laid down in the case of Waziri (Supra). Due to the fact that the appellant might have completed his sentence then a retrial will not be in the interest of justice (See the case of Idrisa Rajabu & Another Vs. Republic, Criminal Appeal No. 350 “B” & 351 “B” of 2009 (Unreported)). In terms of Section 372 of the Criminal Procedure Act, Cap. 20 I do hereby invoke my revisional powers by quashing the conviction and set aside the sentence imposed by the trial Court. The appellant, if is still in custody, is to be released forthwith, unless he is held up for some other lawful cause, Ordered accordingly. DATED at Dodoma this 21st day of September, 201 6 JUDGE Judgment delivered in open court at Dodoma under my hand and seal of the court, this 21st day of September, 2016 in the presence of the appellant and Ms. Kezilahabi, learned State Attorney representing the respondent. Right of appeal fully explained to the parties. B.M.A Sehel JUDGE 21st September, 2016.