Elia Humphrey Kimaro vs Republic (Criminal Appeal No. 586 of 2023) [2026] TZCA 193 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA ( CORAM: KOROSSO. 3.A.. MASHAKA. 3.A. And NGWEMBE. 3.A.1 CRIMINAL APPEAL NO. 586 OF 2023 ELIA HUMPHREY KIMARO................................................APPELLANT VERSUS THE REPUBLIC .......................................................... RESPONDENT (Appeal from the decision of the High Court of Tanzania at Arusha) ( Philip, 3.) dated 2n dday of June, 2023 in Criminal Anneal No. 123 of 2022 JUDGMENT OF THE COURT 24th February & 03rd March 2026 NGWEMBE. JA.: This is a second appeal by ELIA HUMPHREY KIMARO, the appellant, who was, before the District Court of Longido charged with unnatural offence contrary to section 154 (l)(a) and (2) of the Penal Code Cap 16, R.E. 2019 (the Penal Code). It was alleged that on 24^ October, 2021 at Oltepes Village within Longido District in Arusha Region, the appellant had carnal knowledge of AB (whose actual name is hidden to preserve his integrity) a boy of eleven years old against the order of nature. l

When the charge was read over and explained to him, he pleaded- - as follows: "It is true that I had carnal knowledge o f TJ against the order of the nature. "Also, when facts constituting the offence were read to him, he replied that: "I admit the truth of the facts". Finally, the trial court found the appellant had unequivocally pleaded guilty and proceeded to convict him. Prior to the pronouncement of sentence, the appellant made his mitigation thus: "Ipray the court to be lenient to me because I do not like the abusive actions like the one that's why in perlluminally admitted that I have committed such offence. Also, I got the experience o f doing the sexual intercourse with my own wife hence made me to find myselfdoing the same to her own children". Despite his mitigation, the trial court pronounced a statutory sentence of life imprisonment. The appellant was aggrieved against his conviction and sentence; hence he unsuccessfully lodged his appeal to the High Court challenging his plea that it was an equivocal plea of guilty. He maintained that his plea of guilty was equivocal and it was wrongly entered. The learned High Court Judge sought guidance from the case of Michael Adrian Chaki v. Republic (Criminal Appeal 399 of 2019) [2021] TZCA 454 (9 September 2021) where the Court articulated six conditions cumulatively constitutes unequivocal plea of guilty as follows: first, the appellant must be arraigned on a proper charge. That

is to say, the offence section and the particulars thereof must be properly framed and must explicitly disclose the offence known to law; second, the court must satisfy itself without any doubt and must be clear in its mind that an accused fully comprehends what he is actually faced with, otherwise injustice may result; third, when the accused is called upon to plead to the charge, the charge is stated and fully explained to him before he is asked to state whether he admits or denies each and every particular ingredient of the offence. This is in terms of section 228 (1) of the Criminal Procedure Act; fourth, the facts adduced after recording a plead of guilty should disclose and establish all elements of the offence charged; fifth, the accused must be asked to plea and must actually plead guilty to each and every ingredient of the offence charged and the same must be properly recorded and must be clear; and six, before a conviction on a plea of guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements of the offence charged. The first appellate court was satisfied that all six conditions were complied with by the trial court and the plea of the appellant was unequivocal. Consequently, it dismissed the appeal. Undaunted and still determined to defend his innocence and that his plea was equivocal, he appealed to the Court with the following grounds:

1. That the trial court erred in law and facts in not finding that plea of guilty entered by the appellant contravened mandatory requirement o f section 228 (l)(b) o f the CPA in that: a) The appellant was not understood to all constitutions o f offence charged, b) The appellant was not pleaded to the allegation fact at all.
2. That, the first appellate court erred in law and in facts for failing to observe the evidence of PW1 and PW2 which were extracted in contravention o fsection 127 (2) o f TEA.
3. That, the trial court erred in law and fact for failure to engage the court interpreter who could help the appellant to understood the nature o f the offence charged as required by section 32 (l)(d) of the MCA as the said admission was not signed by the Court interpreter and the accused (now the appellant). At the hearing, the appellant was present in person, unrepresented. He adopted the grounds of complaint and statement of arguments lodged in Court on 19t h February, 2026. He thus implored the 4

Court to consider them and allow the appeal and order a fresh plea or set him at liberty. The respondent Republic had the services of Ms. Neema Mbwana, learned Senior State Attorney who teamed up with Ms. Marietha Maguta, learned State Attorney. It is Ms. Marietha Maguta who addressed us at the hearing of the appeal. The original stance of the respondent was to oppose the appeal and implore the Court to dismiss it because the appellant's plea was unequivocal. In substantiating the respondent's stance, she referred the Court to section 360 (1) now section 381 (1) of the Criminal Procedure Act Cap 20 R.E. 2019 (CPA), that conviction on plea of guilty is not appealable save only on sentence. The learned State Attorney relied on the decision of Michael Adrian Chaki v. Republic (supra). However, after engagement and revisiting the record of appeal on the appellant's plea of guilty and the contents of his mitigation she changed her stance that the whole recording of plea of the appellant indicates that, the plea was equivocal. She thus, urged the Court to allow the appeal, nullify the whole proceedings of the trial and first appellate courts and order a fresh plea before the trial court. 5

The appellant had nothing to rejoin-besides reiterating his earlier- prayer and appreciated the concession made by the respondent Republic that a fresh plea is required, otherwise, the Court may set him at liberty. After a careful scrutiny of the record before us, the points of grievance elaborated in the statement of arguments together with the submission by the learned State Attorney, we are satisfied that the contentious issue for our determination is whether the plea of guilty by the appellant was unequivocal. Before the High Court and to us, the appellant is persistent that his plea was equivocal. Despite the stance demonstrated by the respondent Republic that the plea of the appellant was unequivocal though that stance changed later on, yet we need to determine the substance of a proper plea of guilty. It is settled in our jurisdiction that, plea taking of an accused person is guided by law. Section 228 (1) (2) of the CPA (now is section 245), provides statutory guideline on how to record a plea of an accused person who indicates to enter plea of guilty. For clarity the provision is reproduced here under: 24S.-(1) "The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth o f the charge. 6

(2) Where the accused person admits the truth o f the charge, his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary." (Emphasis added) The excerpt provision above provides mandatory requirement to record the plea of the accused as nearly as possible in the words he uses in his plea. We pay homage to the decisions of the predecessor Courts of East African Court of Appeal in the cases of Hando s/o Akunaay v. Rex [1951] 18 E.A.C.A. 307, and Adan v. Republic [1973] E.A. 445 where the Court derived five fundamental guidelines on how to record a plea of guilty of an accused:

1. The charge and aii the ingredients o f the offence should be explained to the accused in his language or in a language he understands;
2. The accused's own words should be recorded and if they are an admission, a plea of guilty should be recorded;
3. The prosecution should then immediately state the facts and the accused should be 7

given an opportunity to dispute or explain the facts or to add any relevant facts; 4. If the accused does not agree with the fact or raises any question of his guilt, his reply must be recorded and change o fplea entered; and 5. I f there is no change of piea, a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded." (Emphasis added) The above guidance has been applied by our Courts in many decisions when an accused person has shown willingness to plead guilty to the charge preferred against him. In respect to this appeal when the appellant was arraigned in Court for the first time, the trial court recorded as follows: "Court: the charge read over and explained to the accused person who is asked to plead thereto. Accused's plea: It is true that I carnal knowledge ofXA against the order of nature. Court: Unequivocal piea o f guilty entered by accused person". 8

Then followed with facts of the case which also were read like in a preliminary hearing. After the facts were readby the prosecution, the appellant stated "I admit the truth of the facts". In mitigation, the appellant uttered as we alluded earlier. The Court was faced with similar circumstances in Safari Deemay v. Republic (Criminal Appeal No. 269 of 2011) [2012] TZCA 426 (12 September 2012), after careful consideration of the grounds of appeal, it allowed the appeal and observed as follows: "Great care must be exercised, especially where an accused is faced with a grave offence like the one at hand which attracted life imprisonment. We are also of the settled view that It would be more ideal for an appellant who has pleaded guilty to say more than just "it is true". A trial court should ask an accused to elaborate, in his own words as to what he is saying "it is true"" In the instant appeal, the record is silent on the language used to explain the nature, contents and ingredients of the offence to the appellant prior to his plea. The section cited above requires for the trial court to elaborate the offence in a language understood by the accused and shall record as nearly as possible in the words he uses to plead guilty. In the case of Adan v. Republic (supra), the Court was 9

particular that the charge and all the ingredients of the offence should be explained to the accused in his language or in a language he understands. The mere fact that the charge was read over and explained to the accused without disclosing the language used which is known to the accused person is not enough. Also, it is not shown if the ingredients of the unnatural offence were elaborated to the accused and whether he admitted all the ingredients. More so, the facts which constitute the offence should be explicitly elaborative to enable the accused understand the nature of the offence, time and place of the crime and the victim involved therein. In the case of Adan v. Republic (supra), the Court insisted that the prosecution should immediately state the facts in a plain and understandable language to the accused and he should be given an opportunity to dispute or add any relevant fact. Equally important for the trial court is to record his admission in a language close to the words of the accused. Those requirements are not seen in the record of this case. The Court is always concerned that an accused person should not be convicted on his own plea unless it was certain that he really understood the charge and had no defence to it. The rationale of such concern is born out of the danger of convicting the accused person on 10

an equivocal plea which is obvious when-the accused is unrepresented- by an advocate or is of limited education and does not speak the language of the court which is Kiswahili or English and if he does not understand any of the two languages, there must be an interpreter to assist him and the court. In this appeal we are concerned also on the mitigation raised by the appellant that; "I pray the court to be lenient to me because I do not like the abusive actions like the one that's why in periluminally admitted that I have committed such offence. Also, I got the experience of doing the sexual intercourse with my own wife hence made me to find myseif doing the same to her own children". Its contents do not indicate to have unequivocally pleaded guilty. In totality and considering the nature of the offence, and the above shortfalls, we are in agreement with the learned State Attorney that the plea of the appellant was equivocal. On the way forward, the learned State Attorney implored the Court to allow the appeal, nullify the whole proceedings of the trial and first appellate courts, and order a fresh plea taking. The appellant's prayer to set him at liberty is not visible in the circumstances of this case. 11

All said and done, we are of the settled mind that the appellant's plea in the trial court was not unequivocal. For this reason, we allow the appeal. We quash and set aside all the proceedings, conviction and sentence in the trial and first appellate courts and order that the matter be remitted to the trial court for de novo trial starting from the stage of taking the plea. Since the appellant has been incarcerated for about five years now, the respective trial court should give priority on this case. We order accordingly. DATED at ARUSHA this 02n dday of March, 2026. Judgment delivered this 03r dday of March, 2026 in the presence of the Appellant in person, Ms. Neema Mbwana, learned Senior State Attorney for the Respondent/Republic and Mr. Musa Amiry, Court Clerk; is hereby certified as a true copy of the original. W. B. KOROSSO JUSTICE OF APPEAL L. L. MASHAKA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL