Isaka Mawe vs Republic (Criminal Appeal No. 648 of 2023) [2026] TZCA 288 (9 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA fCORAM: WAMBALI. J.A.. MAKUNGU. 3.A. And MGEYEKWA. 3.A . ) CRIMINAL APPEAL NO. 648 OF 2023 ISAKA M A W E ............. ................................................... ............APPELLANT VERSUS THE REPUBLIC .... ................................ .......................RESPONDENT (Appeal from the decision of the High Court of Tanzania at Shinyanga) f Massam, 3 .) dated the 4th day of August, 2023 in Criminal Appeal No. 23 of 2023 JUDGMENT OF THE COURT 17st February & 9th March, 2026 MGEYEKWA. J.A. The appellant, Isaka Mawe stood trial at the District Court of Meatu for rape contrary to sections 130 (1) and (2) (e) and 131 (1) of the Penal Code. It was alleged that on 20th October, 2020 about 09:00 hrs at Mwakaluba village within Meatu District in Shinyanga Region, the appellant had carnal knowledge of a girl aged 7 years, a pupil of standard two at Mwakaluba Primary School. For purpose of this judgment we shall refer the girl as a victim. It is noted that after the charge was read over and explained to the appellant on 2n d November, 2020, he pleaded guilty. Then the Magistrate recorded a plea of guilty in terms of section 228 (1) current 245 of the CPA. Then the prosecution prayed to adduce the facts of the case. The appellant was again reminded the charge and called upon to enter a plea whereby he admitted, the trial magistrate also entered a plea of guilty. The facts were adduced by the prosecutor. In response, the appellant disputed some facts adduced. What followed is that the magistrate simply wrote section 192 (2) of the CPA is complied with and purportedly proceeded to conduct the preliminary hearing and later granted bail to the appellant. Moreover on 10th November, 2020 the trial magistrate called upon the first witness for the prosecution to adduce evidence even before he changed the plea of guilty of the appellant which had been recorded on 2n d November, 2020. The question is whether this was proper. To establish its case, the prosecution paraded a total of three witnesses and tendered one documentary evidence, a Police Form No. 3 (PF3) of the victim (exhibit PI). The appellant was the only witness for the defence side and he did not tender any documentary evidence. After the trial, the appellant was convicted and sentenced to serve thirty years imprisonment. For the reason to be apparent shortly, we do not intend to revisit the substance of the evidence for both sides. The appellant unsuccessful preferred the first appeal to the High Court at Shinyanga, hence this second appeal. The appellant lodged a memorandum of appeal comprising five grounds of appeal. As intimated earlier with respect to the factual background of the case; we do not intend to reproduce the respective grounds of appeal herein. At the hearing of this appeal, the appellant appeared in person, unrepresented, while the respondent Republic was represented by Mr. Anenius Kainunura, learned Principal State Attorney. Before the hearing of the appeal on merit commenced, an issue arose of the propriety of the arraignment proceedings conducted by the District Court of Meatu on 2n d November, 2020. According to the record of appeal, it was questionable whether the District Court complied with the provisions of section 245 (2) (then 228) of the Criminal Procedure Act, Cap. 20 [R.E 2023] (the CPA) during the arraignment of the appellant. 3 Given the nature of the plea-taking proceedings, we called upon the parties to address the Court on their propriety. In response, the learned Principal State Attorney submitted that the procedure during the preliminary hearing was not properly followed. Mr. Kainunura referred the Court to the record of appeal and asserted that the charge was read over, and the appellant entered a plea of guilty. He further added that on the same day, the charge was read over, and the appellant reiterated a plea of guilty. Thereafter, the material facts were read over, but the appellant disputed part of the facts, and the trial court nonetheless decided to proceed to conduct a trial. In the circumstances, he contended that the procedure for recording a plea of guilty was not in compliance with the law. He explained that where an accused pleads guilty but disputes part of the material facts which were read over, the trial court is duty-bound to clear the record by vacating the previous plea, recording a plea of not guilty, and conducting a trial. He further submitted that the failure of the trial court to vacate its previous order rendered the proceedings defective and vitiated the trial. On the way forward, Mr. Kainunura urged the Court to invoke the provision of section 6 (2) of the Appellate Jurisdiction Act, Cap. 141 [R.E 2023] (the AJA) to revise and nullify the proceedings of the District Court in Preliminary Inquiry Case No. 54 of 2020 and those of the High Court in Criminal Appeal No. 23 of 2023, quash the conviction of the appellant, and set aside the sentence and remit the case file to the trial court to conduct afresh plea taking in accordance with the law. When called upon, the appellant welcomed the concession of the learned Principal State Attorney and urged the Court to examine the trial and first appellate court proceedings and find that they were flawed. Having considered the submissions of both parties, we begin by agreeing with Mr. Kainunura that the procedure during the arraignment of the appellant at the District Court of Meatu on 2n d November, 2020, did not comply with the requirements stipulated under section 245 (2) of the CPA. For ease of reference, we reproduce the relevant portion of the District Court proceedings as follows: ’PROCEEDINGS DATE 02 . 11.2020 J.A. MPUYA, SRM D/C MWALIMU C. JOSEPH Present CORAM PR C/C ACC Court: Charge read over and expounded to the accused who is asked to plead thereto: Accused: Ni kweli Court: EPG S.228 (1) o f the CPA is C/W SGD: J. A. MPUYA SRM 02 . 11.2020 Prosecutor: Your honor, facts are ready, Court: Accused is reminded o f his charged offence and therefore asked to re- plea thereto: - Accused: Ni kweli mheshimiwa Court: EPG SGD: J.A. MPUYA SRM 02 . 11 . 2020 " It is evident from the above excerpt that on 2n d November, 2020, when the charge was read over and explained, the appellant entered a plea of guilty, which the trial court duly recorded as such. On the same day, the charge was read over again, and the appellant once again pleaded guilty. Thereafter, the material facts were read over to the appellant. The relevant proceedings at the trial court unfolded as follows: "MATERIAL FACTS 1. Name and address o f the accused as per the charge sheet 2. That on Oct 20,2020 at 0900 HRS while at Mwakaluba village within Meatu District in Simiyu Region the accused forcibly pulled MARTHA d/o PETRO aged 7-year-old girl, a standard II pupil o f Mwakaluba Primary School whereby he stripped her underpants to naked and raped her. 3. On the same date soon after the event accused was caught/ apprehended by the victim mother and/ under the assistance o f other people. 4. On the same date , the accused was arrested by the police officer of Mwandoya Police Post. 5. On Oct 23,2020 the accused was brought at Meatu Police Station where he was booked under caution statement, he confessed. 6. Today Nov 2, 2020 the accused is brought before this court to face trial, he pleaded guilty. 7. Also, today after the accused was reminded o f his charged offence, he re-pleaded guilty. 8. Also, today the facts o f this case is read over to the accused. Court: The accused asked if there are any facts he disputed. Accused: I dispute fact No. 2, also I partly dispute fact No. 3 that I was caught by her mother then called other people” From the above, it is evident that the appellant admitted certain material facts, while expressly disputing others. Apparently, it is taken that the appellant had changed his plea of guilty and thus the trial court had to follow the procedure by recording plea of not guilty. Despite the existence of that clear contest, the trial court proceeded with the preliminary hearing without first vacating the piea of guilty. This was a clear procedural error, as the law imposes a duty on the trial court to vacate any previous plea once it is challenged or withdrawn, since such a plea loses all legal force and evidential value. In Adan v. Republic [1973] EA 445, the defunct Court of Appeal for the Court for Eastern Africa outlined the proper procedure for recording pleas of guilty, specifying the steps that must be followed to ensure that the plea is validly and properly taken: (i) "The charge and all the essential ingredients of the offence should be explained to the accused in his language or in a language he understands; (ii) the accused's own word should be recorded and, if they are an admission, a plea o f guilty should be recorded; (Hi) the prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts. (iv) if the accused does not agree the facts or raises any question o f his guilty his reply must be recorded and change o f plea entered; and (v) if there is no change o f piea a conviction should be recorded and a statement o f the facts relevant to sentence together with the accused's reply should be recorded." [Emphasis supplied.] 8 From the foregoing, it is evident that in the present appeal, the trial court did not vacate the appellant's initial plea, but proceeded to conduct the preliminary hearing as if such plea had ever been entered. The record of appeal clearly shows that this defective plea influenced the trial court's finding of guilt. It was incorrect for the trial court to base its decision on a plea that had already lost all operative effect. This misdirection cannot be treated as a mere technical lapse, as it goes to the very root of the case. The subsequent proceedings in both the trial court and the High Court, arising from these nullity proceedings, are therefore equally null and void. Had the learned Judge noted this irregularity, the appeal could not have been properly entertained. Given the nature and extent of the District Court's noncompliance with section 245 (2) of the CPA, we agree with the appellant and the learned Principal State Attorney that the failure to vacate the plea of guilty was unlawful and rendered the proceedings of both the District Court of Meatu and the High Court a nullity. On the way forward, we invoke the provision of section 6 (2) of the AJA to revise and nullify the proceedings of the District Court of Meatu and the High Court, quash the conviction of the appellant and set aside the sentence. 9 Consequently, in the interests of justice, we order that the case file be remitted to the District Court of Meatu to conduct a fresh appellant's plea before another magistrate as soon as practicable. We further order that the appellant should remain in custody pending his plea and subsequent proceedings that may follow. DATED at SHINYANGA this 6th day of March, 2026. F. L. K. WAM BALI JUSTICE OF APPEAL 0. 0. MAKUNGU JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL The Judgment delivered this 9th day of March, 2026 in the presence of the Appellants in person, Mr. Leonard Kiwango, learned State Attorney for the Respondent/Republic, via virtual Court, and Mr. Elias Nkwabi, Court Cle v J. E. FOVO DEPUTY REGISTRAR COURT OF APPEAL 10