Amos Frank @ Mwamahonja vs Republic (Criminal Appeal No. 583 of 2022) [2026] TZCA 264 (6 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA (CORAM: MKUYE, 3.A., RUMANYIKA. 3.A. And AGATHO. J.A.^ CRIMINAL APPEAL NO. 583 OF 2022 AMOS FRANK @ M W AM AHONJA ....................................................... APPELLANT VERSUS THE REPUBLIC................................................................................RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Nqunyale, J.^ dated the 11th day of November, 2022 in Criminal Appeal No. 66 of 2022 JUDGMENT OF THE COURT 19th February & 6th March, 2026. MKUYE, J.A.: The appellant, Amos Frank @ Mwamahonja, was charged before the District Court of Chunya at Chunya with committing unnatural offence contrary to section 154 (1) (a) of the Penal Code. It was alleged that, on 15th day of December 2021, at Mapogoro Village in Chunya District and Mbeya Region, the appellant did have carnal knowledge of N. L (who in order to conceal her identity shall be referred to as "P W l" or "victim") a pupil of 10 years against the order of nature. i

When the charge was read out to him on 17/12/2021, the appellant entered a plea of not guilty. Then, as the same charge was read over to him 20/12/2021 when the matter was fixed for preliminary hearing, he pleaded guilty using these words: "Ni kwe/i nilim wingilia N .L kwa kumbaka kinyume na maumbile yake " When the facts constituting the offence were read over by the public prosecutor as shown at pages 6 and 7 of the record of appeal, the appellant replied that: "AH facts read over and explained to me are true correct and adm it (sic) them a ll" After the PF3 was tendered and admitted as Exhibit PI the trial court convicted him accordingly on his own plea of guilty. The prosecution gave antecedent that the appellant had no previous record but prayed for a severe sentence. In mitigation, the appellant stated that: "It is my first time to do such act I regret ; therefore I pray for lenient sentence " Thereafter, the trial court after considering the prosecutor's antecedents that the appellant was a first offender and his remorse for committing such offence, sentenced him to 30 years' imprisonment. 2

Dissatisfied with the trial court's verdict, he appealed to the High Court where his major complaint was that the trial was conducted in Kiswahili language which he did not understand as he only spoke Malila vernacular. He also complained that the absence of an interpreter rendered his plea to be involuntary and unfair trial. In its deliberation, the High Court dismissed the appeal on ground that his complaint on linguistic barrier was an afterthought since he communicated in Kiswahili language throughout the proceedings without raising such an issue. The High Court was satisfied that the plea was unequivocal. Still discontented, the appellant has lodged this appeal to this Court fronting two memoranda of appeal consisting a total of four grounds. The grounds of appeal in the memorandum of appeal are as follows:

1. That, the first appellate court erred in law when it dism issed the appellant's appeal without regarding and evaluating deeply the petition o f appeal filed by the appellant.
2. That ; the first appellate court erred in law when it dism issed the appellant's appeal without evaluating deeply the prosecution case and the defence a n d __ dism issed the appellant's appeal illegally. 3

The grounds of appeal in the supplementary memorandum of appeal can be paraphrased as follows:

1. The first appellate court did not take into account sections 228 and 192 of the CPA, Cap 20 R.E. 2022 considering that: (a) only plea was recorded in Kiswahili while the rest of proceedings were recorded in English. (b) the admitted facts were not properly arranged.
2. The first appellate court dismissed the appeal without taking into account that there was a variance between the charge sheet and the PF3 - [exhibit] PEI as they relate to different complaints. When the appeal was called on for hearing, the appellant fended himself whereas the respondent Republic was represented by Mr. Alex Mwita, learned Senior State Attorney teaming up with Ms. Veneranda Masai, learned State Attorney. On being invited to elaborate his grounds of appeal, the appellant sought the indulgence of the Court to adopt them and opted to let the learned State Attorneys respond first while reserving his right to rejoin later if need would arise. Mr. Mwita took off by declaring their stance that they did not support the appeal. Having done so, he consolidated grounds 1 and 2 of the

memorandum of appeal and argued them together. He then took us to page 5 of the record of appeal to show that the appellant pleaded guilty to the charge read over to him in Kiswahili the language he understood, which is an indication that he understood the charge against him. He pointed out that, even the exhibit such as (the PF3), exhibit PI was admitted and read over in court before he was convicted. In addition, the learned Senior State Attorney contended that the appellant went on admitting the offence even during mitigation when he said "It was my first time to do such act I regret and therefore, I pray for a lenient sentence. That is all". In his view, this was an indication that the appellant's plea was unequivocal as he understood the charge and the facts constituting the offence read over to him and admitted them to be true. For that matter, he urged the Court to dismiss the two grounds of appeal. Regarding ground no. 1 of the supplementary memorandum of appeal, he dismissed it arguing that the facts read to the appellant were under section 222 of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA) now section 245 of Cap 20 R.E. 2023 and not under section 228 and 192 now 198 of CPA used in preliminary hearing. 5

In relation to ground no. 2 of the supplementary memorandum of appeal on the variance between the charge and PF3, he argued that the two documents bear the same name of the victim. He thus prayed to the Court to dismiss the two grounds of appeal. Mr. Mwita went on to address the Court regarding the sentence of 30 years that was imposed on the appellant, being a point of law, that it was illegal. He argued that, since the appellant was charged with unnatural offence to a child aged 10 years the proper punishment is life imprisonment and not 30 years. He thus implored the Court to invoke its revisional powers under section 6 (2) of the Appellate Jurisdiction Act, Cap 141 R.E. 2023 (the AJA) and enhance it to life imprisonment. Otherwise, he prayed that the appeal be dismissed in its entirety. In reply, the appellant adamantly urged the Court to consider his grounds of appeal and insisted that he was merely forced to plead guilty. The issue for this Court's determination is whether the High Court Judge erred in not finding that the appellant's plea of guilty was equivocal. Basically, in terms of section 360 (1) of the Criminal Procedure Act, Cap 20 R.E. 2019 now section 381 (1) of Cap 20 RE 2023 a conviction reached out of unequivocal plea of guilty cannot be appealed against 6

except where one is challenging a sentence. [See: Juma Selemani @ Paul v. Republic [2019] TZCA 482; Chacha Ghati @Magige v. Republic [2025] TZCA 32; and Dunda v. Republic [2009] TZCA 14. However, there are circumstances where the appellate court may deal with an appeal against conviction meted out of plea of guilty if it is established that the plea was imperfect, ambiguous or unfinished; where the appellant pleaded guilty out of mistake or misapprehension; where the charge levied against the appellant does not disclose an offence known under the law; and that upon the admitted facts, the appellant could not have been convicted of the offence charged. See: Laurent Mpinga v. Republic [1983] T. L. R. 166. The charge in this case in which the appellant stood charged had the following particulars of offence: "P A R T IC U LA R S O F O FFEN CE . Amos s/o Frank @ Mwamahonja on or about 15th day o f December, 2021 at Mapogoro Village within Chunya D istrict and Mbeya Region ; did have carnal knowledge o f one N d/o L, a pupil o f 10 years old against the order o f nature." Also, as afterthecharge including The particulars o fjffe n ce were read over to the appellant, he pleaded guilty in the following words: 7

"Ni kwe/i nilim wingilia N .L kwa kumbaka kinyume na maumbile yake". Translated literally; "It is true, I sodomised N. L " The record of appeal also shows that after the appellant had pleaded guilty to the charge, the prosecutor prayed and was granted leave to read the facts of the case. After the facts constituting the offence were read over to the appellant and asked by the court whether they were true, correct and admits them, he replied: "All facts read over and explained to me are true, correct and adm it them a ll" Yet, when he was availed opportunity to mitigate before pronouncement of sentence he is on record stating that: "It is m y fir s t tim e to do su ch a c t I re g re t T h erefo re, I p ra y fo r a le n ie n t se n te n ce [Emphasis added] It is gathered from the record of appeal that the appellant's unequivocal plea of guilty was supported by his admission to the facts to be true and his mitigation and hence he cannot be heard to challenge the conviction. See: Punda v. Republic [2009] TZCA 14. It is therefore, clear tftat the appellant's “plea was undlsputedly unequivocal irT the

circumstances of the case. In this regard, grounds nos. 1 and 2 of the memorandum of appeal are dismissed. Regarding the manner, the plea of guilty was taken under section 228 now section 245 and not under 192 now section 198 of the CPA, it is true that the facts were read over to the appellant under section 228 now section 245 of the CPA. It should be emphasized here that the manner the facts are read out under section 198 of CPA is different from how they are read out under section 245 of the CPA because they have a different effect. Whereas the facts read out under section 198 of the CPA are intended to accelerate the proceedings after the accused has not pleaded guilty, the facts read over under section 245 are geared towards finalizing the matter following the plea of guilty of an accused person. It was, therefore, correct to conduct the case under section 245 of the CPA since that was the proper procedure after the appellant had pleaded guilty to the charge. At any rate, there was no miscarriage of justice to the appellant as he was sufficiently involved in the case in all steps by being availed with opportunity to enter his plea, to comment on the facts as well as to mitigate before punishment was pronounced to him. Clearly, this was an indication of fair trial. Therefore, this ground is unmerited and it is hereby dismissed.

In the 2n d ground of supplementary memorandum of appeal, the appellant's area of complaint is that there was variance in the name of the victim N.L. as appearing in the charge sheet and the PF3 (exhibit PEI) meaning that the plea of the appellant was as a result of mistake and misapprehension. There is no dispute that in the charge the name of the victim is referred to as N.L. In the PF3 (exhibit PEI) as shown at pages 10 and 11 of the record of appeal, the same name of N.L. is referred to. We wonder why the appellant raised such an issue. Thus, the complaint that the appellant might have entered a plea of guilty as a result of mistake or misapprehension of facts cannot stand. All in all, we are satisfied, as was submitted by Mr. Mwita that the appellant was properly convicted on his own unequivocal plea of guilty to the charge levied against him and also his admission to the facts constituting the offence read out by the prosecution to be true. We now move to the issue raised by the learned Senior State Attorney that the sentence imposed on the appellant was inadequate. We ask ourselves whether there is a good ground for enhancing sentence from 30 years imprisonment to life imprisonment. We understand that the appellant resisted it. 10

The provision of law under which the appellant was charged is section 154 (1) (a) and (2) of the Penal Code which provide: "154 (1) Any person who: (a) has carnal knowledge o f any person against the order o f nature; or (b) N/A. (c) N/A. commits an offence and is liable to imprisonment for life and in any case to imprisonment for a term o f not less than thirty years. (2) W here th e o ffe n ce u n d e r su b se c tio n (1 ) is co m m itte d to a c h iid u n d e r th e ag e o f e ig h te e n y e a rs th e o ffe n d e r s h a ll b e se n te n c e d to life im p riso n m e n t / ' [Emphasis added] The above provision creates an offence of unnatural offence and it also provides for the punishment to a person proved to have committed such offence. The emphasis in that provision is that where the offence is committed to a person below the age of eighteen years, such person will be punished for life imprisonment. We are aware that, in order to interfere with the sentence, there are guiding legal principles which are to be met. In the case of Masanja ii

Charles v. Republic, Criminal Appeal No. 219 of 2011, the Court restated such principles as follows:

1. Where the sentence is manifestly excessive or is so excessive as to shock; ----- 2. Where the sentence is manifestly inadequate;
2. Where the sentence is based upon a wrong principle o f sentencing;
3. Where the trial court overlooked a m aterial fact;
4. The period the appellant had been in custody pending trial. We think, this was as a situation where the trial court might have overlooked a material fact. In this case, according to the charge sheet, the victim to whom the offence was committed was ten (10) years old. This fact was reiterated in the facts constituting the offence in which the same referred the age mentioned in the charge sheet. Yet, the same age is mentioned in the PF3 (Exhibit PEI) showing the age of the victim to be 10 years. There is no doubt that the victim was aged 10 years at the time when the offence was committed. Unfortunately, as was submitted by Mr. Mwita, the sentence imposed on the appellant was thirty years imprisonment. This was illegal. 12

We are therefore, in agreement with the learned Senior State Attorney that the sentence of 30 years which was meted out against the appellant by the trial court and confirmed by the High Court was contrary to the law. We, therefore, in terms of section 6 (2) of the AJA revise and enhance the sentence of thirty years to life imprisonment. In the event, we find the appeal to be devoid of merit and it is dismissed in its entirety. DATED at MBEYA this 5th day of March, 2026. Judgment delivered this 6th day of March, 2026 in the presence of the appellant in person, Mr. Augustino Magesa, learned State Attorneys for the Respondent/Republic and Mr. Shafii Kassim, Court Clerk is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL S. M. RUMANYIKA JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL f C. M. MAGESA ----- D e p u t y r e g i s t r a r ICCfrURT OF APPEAL A