Remmy Rashid Marandu vs Republic (Criminal Appeal No. 77 of 2023) [2026] TZCA 380 (31 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA CORAM: MKUYE. J.A., RUMANYIKA, 3.A. And AGATHO, J.A. CRIMINAL APPEAL NO. 77 OF 2023 REMMY RASHID MARANDU......................................................APPELLANT VERSUS THE REPUBLIC ..... ............................................................... RESPONDENT (Appeal from the decision of the Resident Magistrate's Court of Mbeya at Mbeya) (Makube. PRM Ext. Jurist dated the 13th day of September, 2022 in Criminal Appeal No. 01 of 2022 JUDGMENT OF THE COURT 16th February & 31st March, 2026 RUMANYIKA. 3.A.: The appellant, Remmy Rashid Marandu, together with three others who are not parties to this appeal, were charged with and convicted for three offences on counts, as follows; First, burglary contrary to section 294(1) (a) (b) and (2) of the Penal Code. Second, stealing contrary to sections 258(1) (2) (a) and 265 of the Penal Code, and three, unlawful possession of stolen property contrary to section 311(1) of the Penal Code, with respect to the third accused only. i It was alleged that, on the night of 14/07/2019 at Ichenjezya Village in Mbozi District and Mbeya Region, the appellant unlawfully broke into the house of one Boniface S/o Myobege Mwala and stole an assortment of property. The list included a flat screen television (make Zek), a Samsung-deck, gas cooker (Oryx), a bag, and pair of shoes, all valued at TZS. 535,000.00 the property of the said Boniface. That, on being interrogated on 30th July 2019 the appellant was positive to the charged offences. On being arraigned before court on 05/08/2019, he denied the charges. However, about two months later on 09/10/2019 when the case came up for preliminary hearing and the charge re-read over and explained to him in Kiswahili language, the appellant pleaded guilty, revoking his previous plea, in respect of the first two counts, as charged. Then, upon material facts of the case being narrated in court, the appellant accepted them as all being correct, as is appearing on page 11 of the record of appeal. Consequently, he was accordingly convicted on his own unequivocal plea of guilty and sentenced, as charged. In mitigation, the appellant declined to give any. On the other side, the antecedents revealed that the appellant was a habitual offender, reportedly a convict of Mbozi District Court in Criminal Case No. 90 of 2019. Consequently, he was sentenced to fifteen years' imprisonment for the offence of burglary and five years for stealing. The sentences were 2 ordered to run consecutively. Dissatisfied, he appealed against that decision before Makube PRM- (Ext. Jurisdiction), vainly. Still protesting his innocence, the appellant is before the Court seeking to assail the said decision. He has presented four grounds. TTiey are paraphrased, thus; One, failure of the first appellate court to have directed the Criminal Case Numbers 91, 92 and 87 of 2019 to be consolidated, two, failure of the first appellate court to find that the appellant's guilty-plea conviction, entitled him to get a lenient sentence. Three, the sentence imposed illegally exceeded power of the trial magistrate, contrary to section 170(1) of the Criminal Procedure Act (the CPA) and four, failure of the first appellate court to direct the sentences to run concurrently. At the scheduled hearing of the appeal, the appellant appeared in person unrepresented whereas Ms. Rosemary Mgenyi, learned Senior State Attorney and Mr. Elibariki Mpinga, learned State Attorney represented the respondent Republic. The appellant chose to have the learned Senior State Attorney respond to the grounds of appeal first, while reserving his right of rejoinder, should the need to do so arise. From the very outset, Ms. Mgenyi urged the Court to discount the first ground for being newly introduced, as the claim to consolidate of the cases did not feature before the first appellate court. Being layman, the appellant did not have any conceivable response, let alone a useful one to the learned Senior State Attorney's concern. We agree with Ms. Mgenyi, with regard to the first ground of appeal, on a contention that this Court is precluded at this stage from entertaining such a new factual complaint. It is also so, because it is tantamount to running the risks of faulting the High Court on a matter which was not brought to its attention for determination. Put in other words, we have no jurisdiction to entertain this complaint, to say the least. It is hereby discounted. The second ground of appeal challenges the sentence for being severe than the deserving one, disregarding the appellant's guilty-plea conviction. Uprightly, we agree with the appellant that, indeed, he readily pleaded guilty to the charged offence, which ordinarily factors in sentencing. To Ms. Mgenyi, there is nothing to fault the High Court for deciding as it did. To show that, the appellant's conviction was founded on unequivocal plea of guilty, Ms. Mgenyi gave three main grounds; One, when the charge was read over to the appellant for the first time on 05/08/2019 he pleaded not guilty, with respect to both counts, two, he revoked his previous plea of not guilty on 09/10/2019 when the case came up for preliminary hearing and the charge re-read to him and; three, on 4 all occasions, the trial court recorded all as closely in the same words as uttered by the appellant, in response to the charges. Also, Ms. Mgenyi, asserted, the trial court imposed the sentences immediately, in line with section 245 of the CPA. That, a full trial was uncalled for in the circumstances of the case. Further, it was contended that, unlike in the present case where the appellant was a habitual offender, the case of Senga v. R [1992] T.L.R 357 cited by him, that he deserved a lenient sentence is distinguishable. As such, Ms. Mgenyi implored us to also dismiss this complaint for being unmerited. As regards the deserving sentence, we would agree with Ms. Mgenyi on a contention that, habituality of an accused to involve himself in criminal acts counts most as an aggravating factor, when it comes to sentencing. Moreover, we note that, the effect of the accused's unequivocal plea of guilty to the charged offence cannot be overemphasized. It is a settled law that such a plea generally is taken as a sign of remorse and acceptance of the responsibility. It is no wonder very often than not, courts treat it as a mitigating factor, justifying lenience in sentencing. We stressed this stance also in Samwel Inzengo @ Malaja v. R (Criminal Appeal No. 347 of 2013) [2014] TZCA 245 ). This is also born out in the Tanzania Sentencing Guidelines 2023, at pages 21- 22. It is also worth noting that, the preceding rule of sentencing does not 5 take on board the crooks and habitual offenders. However, we are respectfully unable, in the present case to agree with Ms. Mgenyi that, the appellant was a habitual offender. It is so, while mindful of the fact, as is gleaned from the record that, at times the appellant faced trials for three Criminal Case Numbers 87, 91, and 92 of 2019. That, besides, it was Criminal Case No. 87 of 2019 which is the subject of the present appeal. With respect, we want to make it clear, that, in ail fairness it is the accused's previous conviction, if any, that counts as aggravating factor and not any simultaneous pending criminal cases, whatever the number. As such, it did not come out to us clearly, that at the time of the entering the impugned conviction, already the appellant had the alleged previous convictions. Nonetheless, we dismiss the second ground of appeal and the reason shall follow. On the third ground of appeal, where the appellant queries the trial court's power of sentencing, Ms. Mgenyi contended that the complaint is misconceived. She asserted that, being of such a senior rank, it was right, for the trial magistrate to impose the custodial sentence of 15 years, in terms of section 173 (2) of the CPA. That, the sentence cannot be interfered with by the Court. To bolster her point, Ms. Mgenyi cited our decision in Patrick Anthony Kingalu @ Dickson A. Kayombo v. R 6 (Criminal Appeal No. 646 of 2022) [2024] TZCA 595. She therefore implored us to find this complaint unmerited and to dismiss it. Notably, Section 170(1)(a) of the CPA sets out the sentencing powers of subordinate courts' judicial officers. Generally, under the preceding provision, the trial magistrate could impose any custodial sentence for a term not exceeding five years, unless the offence is one specified under the Minimum Sentences Act. However, the proviso to subsection (2) of section 170 of the CPA stipulates, clearly that the said limitation is not applicable in respect of any sentences passed by a Senior Resident Magistrate of any grade or rank. The Court observed so in Yeremiah Jonas Tehani v. R (Criminal Appeal 100 of 2017) 2020 TZCA 65. It is worth noting, in the present case that the trial was presided over by one Mkwawa, ranked as a Senior Resident Magistrate. It is unfortunate that the Senior Judicial Officer is faulted for having sentenced the appellant to the terms of fifteen years imprisonment for burglary, contrary to section 294(1) (a) (b) and five years' imprisonment for stealing contrary to sections 258(1) (2) (a) and 265, as alluded to before. Too, this complaint crumbles. About the fourth ground of appeal, where the two sentences are challenged for not being ordered to run concurrently, Ms. Mgenyi readily supported the complaint. She asserted that, indeed the appellant 7 committed the charged offences in the same transaction, whose resultant sentences, therefore, ought to be served concurrently. We agree with Ms. Mgenyi, because that is the correct position of the law. Next for our consideration is the appellant's complaint that the sentence imposed is excessive and thus, liable to be reduced. Being mindful of a general legal principle that, no appellate court can interfere with the sentence passed by the trial court, Ms. Mgenyi also cited some exceptional cases and the deserving circumstances. For instance, where it is evident that the sentencing court acted on a wrong principle, as it is in the instant case. To cement her point, she cited our decision in Mkula Mkama v. R, Criminal Appeal No. 308 of 2020 [2024] TZCA 458. Rejoining, the appellant pleaded ignorance of law as the reason for having readily pleaded guilty to the charged offences. He prayed for a lenient sentence, without more. Upon considering the parties' contending submissions, the authorities cited and having scanned the entire record, more so, Ms. Mgenyi's concession on the fourth ground of appeal, we are now called to determine two vital issues; One, whether the appellant's plea was equivocal and two, the legality or otherwise of the impugned custodial sentences being ordered to run consecutively. 8 With regard to the appeal against conviction, our thorough perusal and review of the record will show, clearly that the appellant was convicted on his own plea of guilty. The trial court, without much ado, found it to be unequivocal. For the avoidance of doubt, therefore, when the charge was read to him, for the first count the appellant is on record on page 10 to have stated: "It is true I a/one did [break] into the said house with intent to steal therein” For the second count, he stated that: "It is true I did steai the said items [from] that house, I was atone". Then he admitted the material facts of the case which subsequently were narrated to him in court, in accordance with the law, as all being correct, as is appearing on page 11 of the record of appeal. Therefore, any attempt to challenge the said a guilty-piea conviction is inconsistent with the dictates of section 360(1) of the CPA, This section has been tested by the Court several times, such as in Rashidi Nzovu v. R (Criminal Appeal No. 545 of 2016) [2018] 17CA 735. We are, however, very much aware of the exceptions to the aforementioned general principle, for instance, where the accused is considered to have misapprehended the charge laid at his door, or where his plea was unfinished/imperfect. To mention a few, as it was held by the Court in Laurent Mpinga v. R [1983] T.L.R. 166. However, there is nothing in the present case to suggest that the appellant's complaint has met the threshold. Consequently, this complaint too, is without merit. It is dismissed. The next issue for determination is whether the appellant deserved a lenient sentence. Notably, in imposing the impugned sentence, the trial court also took on board the appellant's plea of guilty to the charged offence. Moreover, the trial court also put on board, though wrongly, the appellant's alleged previous criminal record, as a habitual offender. In other words, it would have been a different scenario had the appellant been a habitual offender or not readily pleaded guilty to the charge. See- John Mayala v. R (Criminal Appeal No. 345 of 2016) [2019] TZCA 726. ). As such, the appellant was actually not a habitual offender, as he was reported and considered to be, as alluded to before. This complaint is merited and allowed. As for the sentences being ordered to run consecutively and its illegality, the provision of section 168(2) of the CPA takes care of this in favour of the appellant. The said section clearly vests the trial court with a discretion to direct that the sentences run either concurrently or consecutively. See- also page 11 of the Tanzania Sentencing Guidelines. However, the Court has consistently observed that this discretion should always be exercised judiciously and sparingly. We have observed so times and again, such as in Ramadhani Hamisi @ Joti v. R (Criminal Appeal 10 No. 513 of 2016) [2019] TZCA 771. That, where an accused is convicted of two or more offences arising out of the same transaction, the resultant custodial sentences, if applicable, shall run concurrently, unless there are exceptional circumstances, justifying a departure from the general rule. It is unfortunate, in the present case that the trial court ordered the sentences to run consecutively, for the offences of burglary and stealing which naturally are committed in one and the same transaction. Notably, no any valid exceptional circumstances, were recorded to justify the departure from the principle stated above. We want to stress that, the rule regarding concurrence in serving any custodial sentences intends to prevent a convict from double jeopardy sentences. It is always presumed that, no simultaneous-guilty minds of a subject would give him a room for a "once-more" motive. With all this in minds, therefore, we find this to be a fit case for the Court to interfere with the trial court's power of sentencing. As such, on that account the above relevant two principles of sentencing were wrongly applied, as observed above. We are inclined to alter the impugned sentences. For the avoidance of doubt, therefore, we order for the custodial sentences of fifteen years and five years for the offences of burglary and stealing, respectively, to run concurrently. li In the final result, the appeal hereby succeeds to the extent explained above. DATED at DODOMA this 30th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 31s t day of March, 2026 in the presence of the Appellant in person, Ntegwa Mpinyagwa, learned State Attorney representing the respondent/Republic, through Virtual Court and Mr. Shafii Kassim, the Court Clerk, is hereby certified as a true copy of the original. 12