20180831 TZHC Mbeya

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

ATMBEYA CRIMINAL APPEAL NO. 60 OF 2017 (Appeal from the conviction and sentence of the District Court of Rungwe at Tukuyu, Criminal Case No. 65 of 2017) WATSON LAIMON MWAMPAKA....................SU.I.SI...APPELLANT

VERSUS THEREPUBL..IC..............................,.................I..I.....RESPONDEI'IT

JUDGMENT Hearing date: 2710812018 Judgment date: 311812018 NGWEMBE, J: This is an appeal against conviction and sentence entered by the District Court upon plea of guilty on the offence of carnal knowledge with a cow contrary to section 154 (b) of the Penal Code Cap 16 R.E.

2002. It is alleged that the appellant Watson Laimon Mwampaka on 28th March, 2017 at Lupata Village within Rungwe District in Mbeya Region, had carnal knowledge with an animal (cow) property of Gwamaka Mwasambungu. It is on record that on 31 March, 2017 the appellant was arraigned in court for plea to the charge, he pleaded guilty and the trial magistrate proceeded to record his plea. The prosecution read facts of the case and when he was 1 Through the interpreter, the appellant submitted that he is married to one Hadija in year 1995 and the two have four children, the elder child is 20 years living with his uncle at Dar es Salaam. His wife is always visiting him in prison. He further submitted that, he never committed the offence and he could not have done so while he has his wife since 1995 to date. He submitted further that he had no opportunity to explain during trial for he was beaten throughout by police and the complainant. He further, submitted that if all that beating was due to a cow, he promised to compensate the complainant with another cow. Finally, submitted that his third child is dumb who need special assistance, therefore the court may consider all that facts and let him free for he never committed the offence. The respondent was represented by the learned State Attorney F"lr. Baraka Mgaya who submitted that the trial court failed to perform its duty

properly for it is on record that when the charge was read to the accused, he pleaded not guilty, but later pleaded guilty. It is a trite law that in order for an accused to be guilty the plea must be unequivocal. The accused must plead guilty when charge is read over and when facts also read over. In the contrary the appellant pleaded not guilty when the charge was read to him, but when facts were read over, he pleaded guilty. The State Attorney submitted further, by asking questions, that what was he admitting and what was he denying? In the circumstances the trial magistrate was obliged to enter plea of not guilty in order for the prosecution to produce evidence. In the circumstances, the remedy is to order retrial. The State Attorney, noted and submitted that the appellant doesn't understand any other language than Kinyakyusa, then how did the trial Court managed to 3 ) communicate with him during trial without an interpreter? Finally, submitted that section 360 of the Criminal Procedure Act prohibit appeals from conviction on plea of guilty, but in the circumstances of this case, this appeal is legally correct before this court. Having heard both parties, I have carefully reviewed, the proceedings of the trial court and I have arrived into the conclusion, as rightly submitted by the learned State Attorney, that this appeal is legally correct before this court, and is

capable of being entertained. Section 360 restrict any appeal on unequivocal plea of guilty, but in the circumstances of this case, there was no unequivocal plea of guilty, indeed there was no plea known by law. What was recorded in the proceedings, leaves a lot to be desired, if the appellant doesn't know any other language than his tribe language, can this court safely conclude that there was any plea on the charge read over him? I think this court is not ready to arrive to that conclusion. The appellant has language barrier; how could the trial court and the prosecutor communicate with the accused during trial? These questions have no answers and this court cannot provide one. The one to provide answers to those questions should be none than the trial Magistrate and the prosecutor who are not in this court. Section 360 (1) of the CPA is quoted hereunder for easy of reference: - "No appeal shall be a//owed in the case of any accused person who has pleaded guilty and has been convicted on such p/ea by a subordinate court except as to the extent or legality of the sentence ' 4 0 ) In order for the appellant to have been pleaded unequivocally, certain procedures must be followed as rightly promulgated in the case of Adan V. Republic (1973) EA 445, the court considered the manner in which pleas of guilty should be recorded and the steps to be taken: "The charge and all the

essential ingredients of the offence should be explained to the accused in his language he understands; The accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded; The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or add any relevant facts; If the accused does not agree to the facts or raises any question of his guilt his rely must be recorded and change of pleas entered; If there is no change of plea a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded' In perusal of the record of trial court, leaves no doubt that the procedure laid down in this case was not followed. I am indeed, satisfied that the appellant did not plead and the court proceeded to convict him contrary to the agreed principles of law set in the case cited above. 5 ) Judge Samatta J (as he then was) in Laurent Mpinga versus Republic [1983] TLR 166, provided criteria for tampering with conviction on plea of guilty and circumstances on which appeal against the conviction to a higher court may be entertained. Such circumstances include: - I. That the event of taking into consideration the admitted facts, his plea was imperfect, ambiguous or unfinished and, for that reason, the lower court erred in

law in treating it as a plea of guilty; ii. That he pleaded guilty as a result of m,take or misapprehension; N. That the charge laid at his door disclosed no offence known to law; and iv. That upon the admitted facts he could not in law have been convicted of the offence charged. The records of the trial court suggest that criteria one and two were not followed for the appellant had no capacity to plead. Therefore, this court has a statutory duty under section 366 (1) (a) of the Criminal Procedure Act to reverse the decision of the trial court. But before arriving into conclusion there is another important issue to discuss. The appellant is alleged to have carnal knowledge with a cow of three (3) years. Under normal circumstances a cow of three years is matured enough to bear a calf. How could the appellant do so in a day light in place where movement of people is an order of a day? This question cannot be answered but commonsense does not dictate that the offence was committed. The whole circumstances of this case seem to have been actuated by ill motives which this court cannot recon to. ) Also the appellant has already been in jail for one year and six months, for an offence which is not known if at all was committed. To return this case for retrial may create more sufferings to the appellant. In the circumstances of this appeal, justice demand that the appellant should be released from jail. Increasingly, this appeal has merit, the same is allowed. The conviction is quashed and the sentence of 30 years is hereby set aside and order an immediate release of the appellant from prison unless otherwise lawfully held P.J. NGWEMBE

JUDGE 31/08/2018 d at Mbeya in Chambers on this 31st day of August, 2018 in the presence of the Appellant and Miss. L. Mwakilasa, State Attorney for the Respondent. Right to appeal to the Co'urt of Appeal explained. P.J. NGWEMBE

JUDGE 31/08/2018 7