Peter Masingija vs Republic (Criminal Appeal No. 492 of 2018) [2026] TZCA 257 (4 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA (CORAM: LEVIRA. J.A., MDEMU. J.A. And ISSA. J. A.^ CRIMINAL APPEAL NO. 492 OF 2024 PETER MASINGIJA ...................................................................... APPELLANT VERSUS THE REPUBLIC......................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania, at Mwanza) (Mqeyekwa, J.) Dated the 4th day of April, 2019 in Criminal Appeal No. 349 of 2018 JUDGMENT OF THE COURT 24th February & 4th March, 2026 MDEMU, J.A.: On 31s t October, 2018, the District Court of Sengerema convicted the appellant on his own plea of guilty of the offence of rape and sentenced him to serve life imprisonment. The offence with which he was convicted was committed to a 14 years old girl at Isung'angholo Village in Sengerema District. According to the record of appeal, the appellant appeared before the trial court on 31s t October, 2018 for plea taking. When the charge was read over to him, he pleaded guilty. Accordingly, a plea of guilty was entered by the court. It followed for the prosecution to state the facts

explaining the manner through which tne offence of rape was committed. The appellant was again called upon to plead to those facts. He admitted and in view thereof, the trial court proceeded to convict him on his own plea of guilty. As stated above, life imprisonment sentence was passed upon the appellant. The appellant was unhappy with both conviction and sentence thus lodged a first appeal to the High Court alleging that, the plea he entered was equivocal and the sentence imposed was illegal. The High Court heard him and the respondent Republic; and was satisfied that, the plea was an unequivocal, thus sustained the conviction. It however varied the sentence. Given the nature of the offence, a sentence thirty of (30) years imprisonment was substituted in lieu thereof. Being further aggrieved, the appellant is now before the Court armed with five grounds of appeal filed by his counsel which we do not find any compelling need to reproduce them. The reason is not far fetched as in their totality, the main complaint is that the plea of guilty was equivocal as such, conviction should not have been grounded on it. We thus heard the appeal on that ground on 24th February, 2026 in which the appellant was represented by Mr. Feran Lello Kweka assisted by Mr. Maligisa Sakila, both learned advocates. On the respondent's side, a team of State Attorneys led by Ms. Rehema Mbuya learned Senior State 2

Attorney assisted by Ms. Nuru Chiwaio, learned Senior State Attorney and Brenda Elisha Mayalla, learned State Attorney, appeared to represent it. Both Mr. Sakila who submitted on behalf of the appellant and Ms. Mbuga who was a lead counsel for the respondent were at one that, the plea of the appellant was equivocal because the facts constituting the offence read out to the appellant and which he subsequently admitted, did not disclose the offence of rape as it appears in the charge. What they unanimously argued is that, in fact, the facts presented by the prosecution, technically, was a re-statement of the particulars of offence appearing in the charge of rape. However, the counsel for the parties parted ways on the way forward. It is this; whereas Mr. Sakila was in favour of the release of the appellant because he has been behind the bars for almost seven years, Ms. Mbuya, on the other hand, feels a retrial would suit the interest of justice. Therefore, we were urged by the counsel for the parties to nullify the proceedings and the resultant conviction and sentence so as to pave way for each of the counsel prayed reliefs. We will come to this later. Essentially, we agree with the counsel for parties that a concise statement of facts narrated to the appellant by the prosecution soon after a plea of guilty was entered by the trial court, was essentially a

restatement of the particulars of the offence stated in the charge of rape. For ease of reference, let the record of appeal be self-speaking. It is particularized as hereunder: "PP: Since the dccused has pleaded GUIL TY to the charge I pray to proceed with PH FACTS ARE CONDUCTED AS PER S.192 OF THE CPA R.E2002:

• That personal particulars o f the accused as per filed charge sheet.
• That the accused is stand charged with the offence o f rape contrary to section 130 (1) (2) (e) and 131 (1) o f the Penal Code, Chapter 16 R.E 2002.
• That on the date o f 30.10.2018 at 09:30am at Isungang'holo area at Sengerema District in Mwanza Region the accused one Peter Masingija did have carnal knowledge with one Maria Peter a girl o f 14 years old.
• That after the accused known carnally such Maria Peter he got arrested and taken at police station and he was interrogated, as such , he confessed the offence o f rape which he stand charged with. PP: I pray to tender the confession statement o f accused as exhibit. Court: Asked the accused as to whether the accused confessed or not whether he has any objection. 4

Accused Reply: I confess and I have no objection. Accused: sgd PP: sgd M. 0. Ndyekobera , RM 31.10.2018 Court: Admitted the accused's confession statement as exhibit PI. M. O. Ndyekobera ; RM 31.10.2018 The above stated facts were the basis of the appellant's conviction. The question is whether those facts disclosed the offence of rape in the manner appearing in the statement of the offence. As argued by the counsel, they do not. What is contained appears to be a restatement of the particulars of offence. We are saying so because our reading of those facts between the line did not reveal if, for example penetration, being a fundamental ingredient of the offence of rape exists. It cannot be manifested through the phrase "did have carnal knowledge with one... "In essence, this is what precisely, among others, forms the contents of the particulars of the offence. Other important facts which we think went missing in the concise statement of facts stated to the appellant is, to expound in a clearer way the place where the offence was committed. We understand that in the particulars of the offence, it alleged that, the offence was committed at

Isung'angholo Village. It was expected therefore for the facts to elaborate the point where exactly the appellant met with the victim in the commission of that offence. For example, facts would have stated: was the rape committed in house or in the bush and the like. It is not also clear if the matter was reported to police and which police station. It is equally not stated if any Police Station issued a PF3 to the victim and if at all she was referred for clinical examination and to which hospital. These are a few examples which, in their absence, it is obvious that essential ingredients of the offence of rape remained undisclosed. As we stated in Michael Adrian Chaki v. Republic (Criminal Appeal No. 399 of 2019) [2021] TZCA 454 (9 September 2021; TanzLII), there cannot be a valid conviction on an unequivocal plea where facts adduced after the recording of a plea of guilty do not disclose or establish all elements of the offence charged. On that account, both courts below improperly found that the appellant's plea was an unequivocal. We now revert to what we have reserved on the way forward. As we stated above, Mr. Sakila was in favour of the release of the appellant from custody. The reason he advanced was that the appellant has been behind the bars for almost seven years. This, in our view, cannot be the justification for the release. We will demonstrate in due course along with other ground. 6

Ms. Mbuya was of a contrary view. Hers was that the matter be nullified and remitted back to the trial court for a fresh plea taking. When probed by the Court on the deficiencies in the facts, particularly on non disclosure of the ingredients of the offence and if a fresh plea will not officiate the filling in of the factual gaps, Ms. Mbuya argued that, the facts are contained in the investigation dockets. She thus added that, their duty will be sort of uplifting the contents of the statement of witnesses in the investigation docket in preparation of the facts. In that note, she did not therefore comprehend if that exercise will lead to the filling of the factual gaps stated and admitted by the appellant. On our part, we think criminal justice and fair hearing also requires transparency and disclosures. If at all the statements of witnesses in the investigation docket contain those omitted facts as alleged by the learned Senior State Attorney, we do not see the rationale for failing to incorporate them in the statement of facts presented to the appellant following his plea of guilty to the charge. What we see in the proposition of the learned Senior State Attorney is an opportunity which the prosecution would have utilized at the stage of preparation and presentation of the facts to the appellant before he was called upon to admit or not. Doing so at this stage will be affording an opportunity to the prosecution to fill in factual gaps in the prosecution case. This, as held in Fatehali Manji v. Republic [1966] 7

EACA 343, is impermissible. For the reasons stated, we decline the invitation by the learned Senior State Attorney to have the case remitted to the District Court of Sengerema for plea taking. The end of this is for us to nullify the proceedings, the resultant conviction and sentence and order release of the appellant from custody, unless he is otherwise held for other lawful reasons. DATED at MWANZA this 3rd day of March, 2026. The Judgment delivered this 4th day of March, 2026 in the presence of the Appellant in person, Ms. Jainess Kihwelo, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the original. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL