Tatizo Mbugi vs Republic (Criminal Appeal No. 214 of 2022) [2026] TZCA 308 (13 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA ( CORAM: MKUYE. J.A., RUMANYIKA, 3.A. And AGATHO, J.AQ CRIMINAL APPEAL NO. 214 OF 2022 TATIZO MBUGI ........................ ...............................................APPELLANT VERSUS THE REPUBLIC ...................... ............................................. RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) fMonaella, J.1 ) dated the 28th day of February, 2022 in Criminal Appeal No. 120 of 2021 JUDGMENT OF THE COURT 23rd February & 13th March, 2026. MKUYE. 3.A.: This is a second appeal. In the District Court of Mbarali at Rujewa, the appellant, Tatizo Mbugi, was charged in Criminal Case No. 235 of 2021 with an offence of rape contrary to sections 130 (1) (2) (e) and 131 (3) of the Penal Code, Cap 16, R. E. 2019. It was stated in the particulars of offence that, the appellant, on 24th day of October, 2021 at Liyombweni Village within Mbarali District and Mbeya Region, did willfully and unlawfully have sexual intercourse with JM (her name is withheld) a girl aged 9 years. When the charge was read over and explained to the appellant in a language understood to him, the appellant stated, "It is true I did sexual intercourse with J.M". The plea was recorded as a plea of guilty. The prosecution, then, proceeded to adduce the facts of the case. At the end of the said narration, the appellant is recorded to have stated: "AH the facts are correct". Upon the appellant's unequivocal plea of guilty and his admission of the facts as being correct, the trial court convicted him of the offence of rape and sentenced him to life imprisonment. Aggrieved with the trial court's verdict, he appealed to the High Court (Criminal Appeal No. 120 of 2021) but it was unsuccessful. Still disgruntled, he has now lodged this second appeal to this Court on six (6) grounds of appeal to the effect that: One, the first appellate court disregarded the petition of appeal filed by the appellant. Two, the appellant's appeal was dismissed without taking into account that the prosecution failed to tender the birth certificate, clinic card or other documents to prove the age of the victim rendering the sentence passed to be excessive. Three, the appellant's appeal was dismissed without evaluating the plea of the appellant and the name of the victim which differed in the charge sheet, in the facts of the case and in the PF3. Four, the appellant's appeal was dismissed without taking into account that the appellant's plea was imperfect and unfinished. Five, the appellant's appeal was dismissed without taking into consideration that the PF3 (Exhibit PI) was not read out in court; and Six, the appellant's appeal was dismissed while the conviction based on a plea in which the trial court only showed the language used to read and explain the charge to the appellant while all other proceedings were recorded in English which was not the language of the appellant. At the hearing of the appeal, the appellant appeared in person unrepresented, whereas Mses. Naomi Mollel and Hannarose Kasambala, both learned Senior State Attorneys teaming up with Mr. Rajabu Msemo, learned State Attorney, appeared representing the respondent Republic who at the outset intimated to the Court that they did not support the appeal. The appellant sought to adopt his memorandum of appeal and opted to let the respondent respond first to his grounds of appeal while reserving his right of rejoining later, if need arises. It was Mr. Msemo who argued the appeal for the respondent. In relation to the 1st ground of appeal in which the appellant's grievance is on the first appellate court's failure to consider his petition of appeal, Mr. Msemo urged us to dismiss it arguing that it had no merit. He argued that the appellate judge considered them at pages 24 to 27 of the 3 record of appeal. He elaborated that, though the appellant through his advocate brought four (4) grounds of appeal, he abandoned ground no. 4 and argued the other grounds which were on plea of guilty and failure to read the PF3 and cautioned statement. He added that, the first appellate court was satisfied that the plea was unequivocal as the appellant agreed to the facts of the case to be corrected after being read out to him. As regards the exhibits, the appellate judge said it was not a legal requirement to tender them where the accused pleads guilty. In support of his argument, the learned State Attorney referred us to the case of Frank Mlyuka v. Republic [2020] TZCA 1738. As a general rule, the first appellate court is not bound to deal with the grounds of appeal seriatim as listed in the petition of appeal. The court may also, if convenient, address the grounds of appeal generally or address the decisive grounds only or discuss each ground separately. This was a position taken by the Court in Firmon Mlowe v. Republic, [2022] TZCA 694. In the case at hand, the record of appeal at pages 24 to 27 shows that the first appellate court considered the core grievances raised by the appellant. As was rightly submitted by Mr. Msemo, the appellant's advocate abandoned ground no. 4 and argued the remaining grounds which were challenging the plea of guilty and failure to tender the PF3 where upon the Judge found the plea of guilty to be unequivocal and that tendering of a PF3 was not a legal requirement as the conviction based on a plea of guilty. See: Frank Mlyuka (supra). We, thus agree with Mr. Msemo that the appellant's complaint that the petition of appeal was not considered is not true as the appellate court considered it as shown above. This ground is, therefore, unmerited, and we dismiss it. In the second ground of appeal, the appellant's complaint is on the failure to produce a birth certificate or clinic card or any other document to prove the age of the victim, which according to him, resulted into an excessive punishment of life imprisonment. The learned State Attorney resisted it contending it was unmerited. Though he admitted that no certificate of birth, clinic card or any other document was tendered to prove the victim's age, he argued that, this was a case where conviction of the appellant based on the appellant's own plea of guilty and, hence, such document were not necessary. In any case, he argued, the appellant understood that the victim (J.M.) was aged 9 years through the particulars of offence and the facts constituting the offence which were read over to him. We think, this issue should not detain us much. As was rightly argued by Mr. Msemo, this matter was resolved through an unequivocal plea of guilty where upon the appellant pleaded guilty after having understood the particulars of offence and the facts constituting the offence that were read over to him. The said particulars and facts explicitly indicated that the victim JM was aged 9 years old. The appellant does not show that there was misapprehension of facts. At any rate, as already alluded to earlier on, it is a well established principle of law that where the accused pleads guilty to the charge, proof of any fact or production of exhibits in support of a charged offence is not a legal requirement as was stated in the case of Onesmo Alex Ngimba v. Republic, [2022] TZCA 26. (See also: Mathias Barua v. Republic, [2015] TZCA 532). It seems the basis of the appellant's complaint is that failure to bring a birth certificate or clinic card has culminated into his being sentenced to the severe life imprisonment. However, we agree with the learned State Attorney that, such claim is not backed up by any legal requirement. It should be noted that, the offence to which the appellant was charged with and convicted was statutory rape which attracted a mandatory sentence of life imprisonment in accordance with section 131 (3) of the Penal Code. In additional to that, so long as the appellant pleaded guilty to the charge and admitted the facts of the case which mentioned the age of the victim to be correct, the need of procuring the birth certificate or clinic card did not arise. This ground also fails. 6 The complaint in the 3rd ground of appeal is on the first appellate court's failure to evaluate the victim's name which varied in the charge sheet, facts of the case and the PF3. It was Mr. Msemo's argument, to which we subscribe that, though there were such discrepancies in the name of the victim, her name in the charge sheet and facts constituting the offence which were read over to appellant was the same. The appellant pleaded guilty and agreed to the facts to be correct before he was convicted on his own plea of guilty. It may be true that the victim's name in the PF3 was different as she was named Jane Minga. However, as stated earlier on the PF3 did not have any effect to the plea as it was tendered after plea had already been entered. A part from that, it was not a requirement to cases of this nature. See Frank Mlyukas case (supra). We think, raising such issue at this stage is an after thought. We find no merit in this ground and we dismiss it. Further to that, the other complaint is that the PF3 was not read over after being admitted in evidence. Mr. Msemo while citing the case of Frank Mlyuka (supra) contented that failure to read the exhibit where the appellant pleaded guilty is an omission which is not fatal. We find this ground to be misplaced because, tendering of exhibits in a matter ended on a plea of guilty is not a legal requirement. Therefore, even if the said PF3 was not read out, it was not a fatal irregularity. In 7 the case of Josephat James v. Republic, [2012] TZCA 301, the Court emphasized that where a plea of guilty involves an admission by accused person of all the necessary legal ingredients of the offence charged, the PF3 was not necessary to be tendered in a matter resolved by way of plea of guilty. In any case, even if it was a requirement to tender it, its evidential value is vitiated due to the fact that it was not read over after it had been admitted in evidence. However, in the circumstances of this case, the effect of failure to read it is not fatal. With regard to the 4th ground of appeal where the appellant's complaint is on the plea of guilty being imperfect, ambiguous and incomplete, the learned State Attorney objected to it. He referred us to the case of Laurent Mpinga v. Republic, [1983] T.L.R. 166, where the Court pronounced a number of principles in which it can interfere on a matter resolved by a plea of guilty. On the issue that the plea was imperfect, ambiguous and incomplete the case of Laurent Mpinga (supra) provides for guiding principles in which interference to a plea of guilty can be made. Such interference would be, on among others, where the plea is improper, ambiguous and incomplete; the plea is entered as a result of mistake or misapprehension; that no offence known in law is disclosed; or the admitted the facts do not constitute the offence. 8 In this case, as alluded to before, the record bears out that when the charge was read out to the appellant, he unequivocally said "It is true I did sexual intercourse with J.M " Similarly, when the facts constituting the offence were read over to him as shown at page 4 of the record of appeal, he said VI// the facts are correct ." With this revelation, it is crystal clear that the appellant pleaded to something which he understood. There is nothing which connotes that the plea was imperfect, ambiguous or incomplete. And, according to Laurent Mpinga's case (supra) his plea was unequivocal. This ground is devoid of merit. It is hereby dismissed. As to the 6th ground of appeal, the appellants' complaint is that, the record of appeal does not show the language that was used in proceedings as it only shows that the charge was read out and explained to him in Kiswahili language. His main complaint is that all other proceedings were recorded in English language, which he does not understand. The learned State Attorney argued that, according to the record the charge was read over and explained to the accused in a language understood to him (see page 3). He said, looking at the manner appellant responded, it is clear that he understood the charge. He therefore urged the Court, to disregard this ground of appeal. 9 It is a requirement of law that the charge and all the ingredients of the offence must be read and explained to the accused in a language he understands. This position was propounded in the case of Adan v. Republic [1973] IEA 443 as quoted in the case of Kigundu Francis and Another v. Republic [2011] TZCA 71 where it was stated as follows: "...the charge and aff ingredients o f offence should be explained in his language, or in a language he understands". In the matter at hand, as was contended by the learned State Attorney, the record is very clear at page 3 that the charge was read over and explained to the appellant in a language he understood. The record is silent as to whether the facts were also read and explained in a language understood to him. However, he responded to it as stated earlier on. This can be shown even in the appellant's responses at every stage of the proceedings depicting his comprehension of what was read and explained to him. On top of that, it is crystal clear in the record that the appellant never raised an objection concerning language barrier throughout the proceedings which could have enabled the trial court to seek intervention of interpreter. In the absence of evidence that the appellant was deprived his right of a fair trial due to language barrier, we find this ground to have no merit and we dismiss it. 10 In the final analysis, we are satisfied that the appellant was convicted and sentenced on his unequivocal plea of guilty and, therefore, the appeal is devoid of merit. Hence, the appeal is hereby dismissed in its entirety. DATED at MBEYA this 11th day of March, 2026. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. 1 AGATHO JUSTICE OF APPEAL The Judgment delivered this 13th day of March, 2026 in the presence of the Appellant in person, Ms. Imelda Aluko, learned State Attorney representing the respondent/Republic and Ms. Jasmin Kazi, Court Clerk, is hereby certified as a true copy of the original. C. M. MAG ESA DEPUTY REGISTRAR COURT OF APPEAL li