Spirian Sikunyingi Mihenda

IN THE COURT OF APPEAL OF TANZANIA

AT IRINGA (CORAM: MKUYE, J.A.. MGEYEKWA. J.A. And NGWEMBE, J.A/l CRIMINAL APPEAL NO. 516 OF 2021 SPIRIAN SIKUNYINGI MIHENDA ........................... ........................ APPELLANT

VERSUS THE REPUBLIC ....................... ...................................................... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) f Matoaolo, 3.1 dated the 24th day of September, 2021 in RM. Criminal Appeal No. 18 of 2021

JUDGMENT OF THE COURT 3rcl & 5l" December, 2024 MGEYEKWA. J.A: Spirian Sikunyingi Niihenda, the appellant herein, was convicted and sentenced to thirty years imprisonment by the District Court of Kilolo at Kilolo, after pleading guilty to the unnatural offence. It is essential, at the outset, to look at what transpired during the appellant's arraignment on 6th June, 2020. It was alleged that on 19th April, 2020 at Mlafu Village within Kilolo District in Iringa Region, the appellant did have carnal knowledge of Y. L (his name is withheld to protect his dignity), a boy aged 12 years against the order of nature. When the charge was read over and explained, the appellant pleaded guilty to the offence and thus the trial court entered a plea of guilty. The brief facts of the case, as gathered from the record of appeal reveal that the appellant and the victim were village mates residing at Mlafu Village in Kilolo District within Iringa Region. The appellant has worked as a farm laborer for the victim's parents since 2019.. He consistently shared a single bed with the victim in the victim's parents' house. On the material day around 19: 00 hours, the victim went to sleep and later the appellant followed him and had carnal knowledge him against the order of nature. The appellant was arrested and interrogated by a police officer, one, WP 608 Mwanahamisi who alleged that the appellant

confessed to having sodomized the victim and signed the cautioned statement. After the facts of the case were read over, the appellant was not asked whether the same was true. Instead, the prosecution prayed for an adjournment. On 11th June, 2020, the matter was called on for hearing, and the prosecution prayed to tender the cautioned statement which was admitted and marked as exhibit PI. Thereafter, the magistrate proceeded to convict the appellant of the offence on his own plea of guilty and sentenced him to thirty years imprisonment. Undeterred, the appellant presented a Petition of Appeal to the High Court at Iringa whereas, (Matogolo, J. as he then was) found and held that the appellant's conviction was apposite but that the sentence of thirty years was wrong under section 154 (2) of the Penal Code, as the same should have been life in prison. The High Court then set aside the sentence imposed by the trial court and substituted it with a sentence of life imprisonment. Still aggrieved, the appellant has come to the Court in a second and final appeal premising his grievance on five (5) grounds. However, for the reasons which will be apparent shortly, we deem it not appropriate to reproduce them herein. At the hearing of the appeal, the appellant entered appearance unpresented. The respondent Republic was represented by Mr, Amani Kyando and Ms. Winifrida Mpiwa, both learned

State Attorneys. To start off, the appellant prayed that, we adopt his grounds of appeal and chose for the learned State Attorney to reply to his grounds of appeal but reserved his right to rejoin later if need would arise. On the adversary side, Ms. Mpiwa declared her stand that, she supported the appeal. In addressing us on the grounds of appeal, she consolidated ail the grounds into a single argument: that the first appellate court erred in law by dismissing the appellant's appeal without considering that the plea of guilty was ambiguous. Ms. Mpiwa began by stating that, although generally in terms of section 360 (1) of the Criminal Procedure Act (the CPA), except for the sentence, no appeal lies against a conviction grounded on a plea of guilty. However, she submitted an appeal may lie against conviction under certain circumstances, such as illegality of a sentence and if the appellant's plea was improper or ambiguous. Fortifying her submission, she referred us to our earlier decision in Hussein Rashid Jumarine v. Republic, Criminal Appeal No. 55 of 2020 [2023] TZCA, 17641 (22 September, 2023 TanzLII), where the appeal was allowed after the appellant's plea was held imperfect and ambiguous. The learned State Attorney submitted that on 5th May, 2020 when the charge was read over and explained to the appellant, he responded "It is not true. I d id not sodom ize the victim."

Then, the hearing was adjourned until 9th June, 2020, after the charge was read over and explained to the appellant, the appellant replied, "It is true. I did sodom ize the victim on the m aterial date when we were sleeping together on the bed.” The learned State Attorney went on to submit that, the prosecution prayed for the court to read over the facts of the case since the appellant had pleaded guilty. The facts were read over and the same disclosed the ingredients of the offence. Thereafter, the hearing was adjourned until 11th June, 2020, when the prosecution tendered the cautioned statement which was admitted and marked as exhibit PI. She added that, thereafter, the trial court proceeded to convict the appellant and sentenced him. Ms. Mpiwa pointed out that, the plea of the appellant was unfinished and ambiguous because there is no indication that the appellant admitted the facts of the Case, She reinforced her submission; by referring us to the case Aden v. Republic, (1973) 1 EA 445, where the Court emphasized the importance of following the seven steps before recording a plea of guilty as unequivocal, short of that the plea is rendered equivocal. In the premises, she argued that the plea was equivocal and it should not have been acted upon to convict the appellant. On the way forward, Ms. Mpiwa implored us to allow the appeal, nullify the proceedings of the lower courts

and order the plea to be taken afresh according to the law. When the learned State Attorney was probed by the Court if the cautioned statement met the requirements outlined in section 50 (1) (a) of the CPA, Ms. Mpiwa acknowledged that the cautioned statement was recorded out of time because the record shows the appellant was arrested on 2nd May, 2020, and the statement was recorded on 4th May, 2020. However, she took a different swipe and submitted that, aside from the cautioned statement, the prosecution has other evidence to rely on in proving the case against the appellant. For his part Mr. Kyando implored the Court to allow the appeal, nullify the proceedings of the lower courts, and order the plea to be taken afresh. His submission was based on the fact that, during the preliminary hearing (page 4 of the record of appeal), the prosecution indicated to call five witnesses and present a PF3 to support its case against the appellant. In his rejoinder, the appellant urged us to consider his grounds of appeal and set him free. As previously mentioned, the first appellate court is faulted for upholding the conviction based on the appellant’s plea, which was unclear and flawed. Having reviewed the appellant's complaint, the parties’ submissions, and the record before us, our task is to determine the propriate of the appellant's conviction plea which led into his conviction and

sentence. We are alive to the general rule that, section 360 (1) of the CPA bars an appeal against the conviction by a subordinate court based on the accused's own plea of guilty. However, case law has expanded the scope by establishing that in certain circumstances may justify an appeal against a conviction based on a plea of guilty, where it is established that the plea was imperfect, ambiguous, or unfinished, the appellant pleaded guilty as a result of a mistake or misapprehension, the charge leveled against the appellant disclosed no offence known to the law, and upon the admitted facts, the appellant could not in law have been convicted of the offense charged. See Rex v. Forde (1923) KB 400 at 403 and Frank Mlyuka v. Republic, Criminal Appeal 404 of 2018 [2020] TZCA 1738 (20 August 2020 TanzLII). Turning to the appellant's complaint in relation to the recorded plea of guilty, we agree with the learned State Attorney that, in the present case, on the day when the case came for the second time for hearing the appellant pleaded guilty to the charge, however, it was unsafe to rely on it to convict the appellant because when the facts of the case were read over on 9th May, 2020, the record does not show if he admitted on those facts of the case. As rightly submitted by the learned State Attorney, failure to indicate if the appellant admitted the facts of the case, rendered the

appellant's plea imperfect, unfinished, and ambiguous. So, we find it fair to give him a benefit of doubt. Therefore, we hold that the plea was equivocal and it should not have been acted upon to convict the appellant. For the aforesaid reasons, we find the appeal has merit and allow it. Consequently, we quash the conviction and set aside the sentence. Going forward, we agree with both learned State Attorneys that, under the circumstances of this case, retaking the plea afresh will be sufficient. Therefore, we direct the appellant to be placed before the trial court for a fresh plea which is to be taken expeditiously before another magistrate with a competent jurisdiction. Meanwhile, the appellant shall remain in custody awaiting his trial, unless admitted on bail. DATED at IRINGA this 5th day of December, 2024. R. K. MKUYE

JUSTICE OF APPEAL A. Z. MGEYEKWA

JUSTICE OF APPEAL P. J. NGWEMBE

JUSTICE OF APPEAL The Judgment delivered this 5th day of December, 2024 in presence of the Appellant in person and Mr. Sauli Makori, learned State Attorney for