Petro Marmo @ Garaa vs Republic (Criminal Appeal No. 285 of 2024) [2026] TZCA 246 (5 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA fCORAM; MWANPAMBO. J.A., MWAMPASHI, J.A. And MLACHA, J.A/) CRIMINAL APPEAL NO. 285 OF 2024 PETRO MARMO @ GARAA...............................................................APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from the Judgment of the Resident Magistrate's Court of Manyara, at Babati) (Lusewa, PRM-Ext-Juris.^ dated the 26th day of March, 2024 in Criminal Appeal No. 124 of 2023 JUDGMENT OF THE COURT 18th Feb & 5th March, 2026 MWAMPASHI, J.A,: Petro Marmo @ Garaa, the appellant herein, was convicted by the District Court of Mbulu at Mbulu (the trial court) on his own plea of guilty to three counts namely; house breaking contrary to section 294 (1) (a) (b), stealing contrary to sections 258 (1) & 265 and lastly to an alternative third count of unlawful possession of stolen property contrary to section 311, all of the Penal Code [Cap. 16 R.E. 2019] (the Penal Code). Having so convicted, he was sentenced to a term of 14 years imprisonment on i the first count, 7 years on the second count and 10 years on the third count. The sentences were ordered to run concurrently. It was alleged by the prosecution in respect of all three counts that, on 18.02.2022 at Kwemusi Village within the District of Mbulu in Manyara Region, the appellant broke and entered in the dwelling house of one Steven Bayo with intent to commit an offence therein. It was further alleged that, having entered in, the appellant stole cash money TZS. 527,000.00 together with an assortment of items all valued at TZS. 1,113,300.00 the property of Steven Bayo. Regarding the third count, which as alluded to above, was charged in the alternative, it was alleged that, on 25.02.2022, the appellant was found at Mangisa Village within the District of Mbulu in Manyara Region while in possession of two mobile phones (make Nokia and Samsung), one small backpack bag, two Nokia and Tecno mobile phone batteries, seven gas matches and a pair of sandals, the properties stolen from Steven Bayo. On 07.03.2022, when the trial court read over and explained the charge to the appellant, he pleaded not guilty to all three counts. Thereafter, on 21.03.2022, when the case was called on for preliminary hearing, he again pleaded not guilty to all counts but when the facts of the case were narrated by the prosecution, the appellant agreed to ail the facts as given by the prosecution. To this effect, the appellant is recorded at page 7 of the record of appeal, to have stated that; 7 agree to a ll the facts which read and explained to me". At this point, after the appellant had agreed to the facts of the case as narrated by the prosecution, the trial court, again, read over and explained the charges to him to which he pleaded guilty to all the counts and a plea of guilty in respect of all three counts was accordingly entered by the trial court. Thereafter, the prosecution was sked to state the facts of the case and as reflected at page 8 of the record of appeal, the facts stated were as hereunder: 1. That the accused is charged as per charge sheet 2. That on 18/2/2021 a t about 18:00 hours the victim one Steven Bayo received a call from his wife one Emmanuela Honga that their house is broken . The victim went a t the scene o f crime and found the mentioned properties stolen. 3. That the victim reported the m atter a t the police station, the investigation conducted. 4. That on 25/5/2022 the accused one Petro s/o Marmo @ Garaa was arrested and found with the mentioned properties on the 2n d count and identified by the complainant. 5. That the certificate o f seizure fille d in, the accused had taken to the police station for investigation. The accused was interrogated and adm itted to commit the offence charged with . 6. That later on the accused was brought before this court to face the charge against him . The above stated facts were agreed by the appellant who is recorded stating that; 7 agree a ii facts read and explained to m e" This was followed by the prosecution tendering one pair of sandals, two mobile phones (make Nokia and Samsung), one small backpack bag, seven gas matches and two batteries of Nokia, which were collectively admitted in evidence as exhibit "P" without objection. Based on the appellant's admission of the facts of the case as stated by the prosecution and on the exhibits tendered, the trial court found that the plea of guilty had been substantiated and it accordingly convicted him on his own plea of guilty followed by sentencing him in the manner we have alluded to earlier. On the appellant's first appeal it was only the conviction on the 3rd count which was quashed and the respective sentence set aside by the first appellate court. It was reasoned by the first appellate court, rightly so to us, that, after being convicted on the 1st and 2n d counts, the appellant could not have been convicted on the 3rd count which was charged in the alternative. The trial court's conviction and sentences on the 1st and 2n d counts were upheld hence the instant second appeal before us. In this appeal, the first appellate court is being faulted on seven grounds of complaint contained in two memoranda of appeal. However, having examined the said grounds, we think the complaints in the memorandum of appeal lodged on 14.08.2024 are all well captured within the 3 grounds of complaints in the supplementary memorandum filed on 13.02.2026 which can be paraphrased as follows: 1. The appellant did not plea to a ll Ingredients o f the offences charged. 2. The plea was Imperfect, ambiguous and unfinished. 3 . The facts adm itted did not tally with the offences charged At the hearing of the appeal, whereas the appellant appeared in person unrepresented, the respondent Republic had the services of Ms. Mary Lucas, learned Principal State Attorney and Mr. Raphael Rwezahula, learned State Attorney. When invited to argue his grounds of appeal, the appellant simply implored the Court to consider his grounds of complaint and allow the appeal. On the other side, Mr. Rwezahula who addressed us for the respondent Republic, contended that the grounds of complaints raised by the appellant boil down to one ground which is; whether or not the appellant's plea was unequivocal. Addressing us on that ground, it was his position that, the plea was unequivocal and thus the conviction on the appellant's own plea of guilty was proper. Referring us to section 381 (1) of the Criminal Procedure Act, Cap 20 (the CPA) and to our decision in Mkula Mkama v. Republic [2024] TZCA 458 and that of the High Court in Laurent Mpinga v. Republic [1983] T.L.R. 166, initially, Mr. Rwezahula argued that, in the first place, the appellant was not entitled to appeal against the conviction based on an own plea of guilty. It was further submitted by Mr. Rwezahula that, the facts as stated by the prosecution disclosed all the ingredients of the offences and the plea of guilty by the appellant was thus unequivocal, unambiguous and finished. When prompted by the Court, the learned State Attorney conceded that the facts on the 1st count did not disclose ail the relevant ingredients. That notwithstanding, he prayed for the appeal to be dismissed for being baseless. Having examined the ground of appeal and considered the submissions made by Mr. Rwezahula, the only issue calling for our determination is whether or not the appellant's plea of guilty was 6 unequivocal. Recently, in the case of Deus Magili & . Another v. Republic [2026] TZCA 121, the Court reiterated the principle that there cannot be an unequivocal plea of guilty unless the accused person is arraigned on a proper charge, the facts disclose all the ingredients of the offence charged, the accused person fully apprehends what he is faced with and he pleads to each ingredient of the offence charged. Earlier, in the case of Msafiri Mganga v. Republic, Criminal Appeal No. 57 of 2012 (unreported), the Court stated that: "This goes to insist therefore that in order to convict on a piea o f guilty, the court m ust in the first place be satisfied that the plea amounts to an admission o f every constituent o f the charge and the admission is unequivocal" Likewise, in Josephat James v. Republic [2012] TZCA 301, it was stated by the Court that: "...a piea o f guilty involves an admission by an accused person o fa ll the necessary legal ingredients o f the offence charged. The duty is that o f the prosecution to state the facts which establish the offence with which an accused person is charged. The statem ent o f facts by the prosecution serves two purposes . It enables the m agistrate to satisfy him self that the plea o f guilty is really unequivocal and that the accused has no defence" 7 In tackling the issue earlier posed whether the appellant's plea was unequivocal and guided by the above cited authorities, the point of interest for us has been on the facts stated by the prosecution after the appellant had pleaded guilty to the three counts hence his conviction on his own plea of guilty. The question we have asked ourselves has been whether the facts stated by the prosecution, as earlier reproduced, disclose all the ingredients of the offences charged. Looking at the facts stated, it is apparent that, of all the facts, save for facts given in item 4 which is in respect of the 3rd count on the appellant being found in possession of stolen properties, there were no facts stated connecting the appellant with the commission of the two offences of house breaking and stealing on the 1st and 2n d counts. The facts stated in item 2 are only to the effect that the house of one Steven Bayo was broken and his properties stolen. It was not stated in the facts that it was the appellant who broke the house and stole the alleged properties. It is crystal clear that the appellant admitted the facts which did not implicate him. Linder these circumstances it cannot be said that his plea amounted to a plea of guilty warranting for his conviction. Upon the admitted facts, the appellant could not have been convicted of the offences of house breaking and stealing with which he was charged. We therefore find that the appellant's plea was not unequivocal. Consequently, we allow the appeal, quash the conviction and set aside the sentences meted against the appellant. We also set aside the plea of guilty entered by the trial court and substitute it with a plea of not guilty in respect of all counts. Having done so, we direct that the record of the case be remitted to the trial court for the case to be tried according to law by another magistrate of competent jurisdiction. Further, we order that, in the meantime, the appellant has to remain in remand prison awaiting his trial. Order accordingly. DATED at ARUSHA this 4th day of March, 2026. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 5th day of March, 2026 in the presence of the Appellant in person and Mr. Philbert Morrison Msuya, learned State Attorney for the Respondent / Republic and Ms. Anna Utou Court clerk, is hereby certified as a true copy of the original.