Yeremia Chidaka vs Republic (Criminal Appeal No. 405 of 2023) [2026] TZCA 223 (3 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT ARUSHA (CORAM: MWANPAMBO, J.A.. MWAMPASHI. J.A. And MLACHA. J.A/l CRIMINAL APPEAL NO. 405 OF 2023 YEREMIA CHIDAKA ............................................................... APPELLANT VERSUS THE REPUBLIC.................................................................... RESPONDENT (Appeal from the Judgment of the High Court of Tanzania Manyara Sub-Registry at Babati) (BarthyJL) dated the 20th March & 4th May, 2023 in Criminal Appeal No. 13 of 2023 JUDGMENT OF THE COURT 24th February & 3rd March, 2026 MWANPAMBO. 3.A.: The District Court of Kiteto at Kibaya convicted the appellant Yeremia Chidaka allegedly on his own plea of guilty to the charge on the offence of incest by male contrary to section 158 (1) (a) of the Penal Code. From that conviction, a sentence of 30 years imprisonment followed. His first appeal to overturn the conviction before the High Court at Babati could not bear fruit. That court dismissed it hence the instant appeal before the Court. i According to the particulars of the offence, the appellant was alleged to have had carnal knowledge of his daughter aged 16 years in the month of August 2021 at a place called Mbeli Dongo Village in Kiteto District, Manyara Region. When the charge was read to him on 7 September, 2022, the appellant is recorded to have replied: "Ni kweli kabisa nimekuwa nikifanya mapenzi na mwanangu Ha ni shetani kanipitia. Naomba nisamehewe nina mke wangu nyumbani" Freely translated, the appellant meant to say : "/£ is true that I have been having sexuai intercourse with my daughter but it is because the devil overwheimed me . I ask for forgiveness I have a wife at home " From that answer, the court entered a plea of guilty and invited the prosecution to narrate facts of the case. To each of the facts read to him by the prosecutor, the appellant is recorded to have replied, it is true. Such facts included the appellant having sexual intercourse with her daughter on unknown date in August 2022 at different times resulting into her pregnancy. In support, the prosecutor tendered a cautioned statement admitted as exhibit PEI in which the appellant is recorded to have had sexual intercourse with his daughter in early April 2022. Similarly, the prosecution tendered a PF3 (exhibit PE2) to prove 2 that as a result of the sexual intercourse, the appellant impregnated his daughter. Satisfied that the facts supported the plea of guilty, the trial court convicted the appellant on his own plea of guilty and sentenced him as alluded to earlier on. On appeal to the High Court, the appellant challenged the conviction contending that it was wrongly entered on a plea which was equivocal. That notwithstanding, the first appellate court took the view that the plea was unequivocal warranting conviction as rightly found by the trial court. It dismissed the appeal. Before us in this appeal, the appellant faults the decision of the first appellate court on several grounds supported by written arguments. The appellant appeared in person at the hearing of the appeal unrepresented. He invited the Court to allow the appeal on the basis of the grounds of appeal supported by the written arguments but, as it shall became apparent shortly, the determination of the appeal turns on the issue whether the appellant's plea was unequivocal warranting conviction as found by the two courts below. Ms. Mary Lucas, learned Principal State Attorney who appeared to represent the respondent Republic, readily supported the appeal on the first ground in the supplementary memorandum of appeal faulting the first appellate court. Counsel was emphatic that, the appellant was 3 wrongly convicted on a plea of guilty which did not meet the threshold of an unequivocal and unambiguous plea. She pointed out several aspects in the facts read in support of the prosecution case, remarkably, variance between the charge and the facts in relation to the time the offence was allegedly committed showing that it was in August 2022 in contrast with the contents of the caution statement showing that it was in early April, 2022. According to her, that rendered the charge unsupported and thus the plea became ambiguous from which no conviction could have been entered. The Court was referred to its decision in Charles Sambala @ Baraka v. Republic [2024] TZCA 1183 for the proposition that, variance between the particulars of the offence in the charge and the facts read in support renders the plea ambiguous. Similarly, counsel criticized the appellant's reply to each of the facts, that is, it is true, as unsatisfactory rendering the plea unfinished and thus fatal to the conviction. Before she wound up her submission, at the Court's prompting, counsel conceded that the plea in answer to the charge was in the first place ambiguous and so the court wrongly entered a plea of guilty before calling upon the prosecution to read the facts. In the premises, Ms. Lucas invited the Court to quash the conviction and set aside the sentence and remit the record to the trial court directing it to proceed with the case on a plea of not guilty. Having examined the record and considered the submissions made before us by the learned Principal State Attorney in the light of the relevant law, we cannot agree more with her. The law on this branch of the law is settled represented by a thick wall of authorities some of which were placed before us by Ms. Lucas. For our purpose, a discussion on the plea itself reproduced earlier on will be sufficient. In doing so, we propose to do no more than focus our discussion by reference to our previous decision in Ally Shabani @ Swalehe v. Republic [2021] TZCA 406. What happened in that case is that the appellant had been convicted of statutory rape on his own plea of guilty. In mitigation before the court passed sentence, the appellant is recorded to have said that he was overwhelmed by the devil by reason of drunkenness when he committed the offence and had already sobered up praying for leniency as he was living with his grandmother. That notwithstanding, the trial court convicted him as charged. His appeal to the High Court challenging conviction on own plea of guilty was unsuccessful as the court was not prepared to agree with him that what he said in mitigation was tantamount to withdrawing his plea. On the contrary, the court reasoned that the tests for an unequivocal 5 plea of guilty stated in Lawrent Mpinga v. Republic [1983] T.L.R 166 were met. On a further appeal, the Court revisited authorities on the matter in particular, in Rajabu Ramadhani v. Republic [1980] T.L.R 50 quoting Kamundi v. Republic [1973] E.A 540; a decision of the defunct Court of Appeal for East Africa. Similarly, the Court referred to its decision in Director of Public Prosecutions v. Salum Madito [2020] TZCA 311 in which conviction on the accused's own plea of guilty was quashed on account of what the appellant stated in mitigation to the sentence which rendered it ambiguous. Significantly, in Kamundi v. Republic, the defunct Court underscored the point as follows: "It is certainly true that the facts as narrated by the pubiic prosecutor and admitted by the appellant without qualification did, prima facie, and all things being equal constitute the offence charged and justified entering a conviction against the appellant at the stage . But what the appellant said in mitigation clearly changed the situation. His statement in mitigation was a dear indication that he had not committed the offence but merely and innocently lent assistance to the real culprits who had claimed the cow to be their property. In those circumstances, what should the learned trial district magistrate have done? In my view, the open course for the learned magistrate to have taken at that stage would have been to take the statement o f the appellant in mitigation as a recantation of his earlier admission, 6 and then record a plea of "not guilty” to the charge. Thereafter the case would have proceeded to a full trial in the usual way..." Subjecting the above to the instant appeal, it will be clear that the appellant's plea turned out to be ambiguous the moment he stated that he was overwhelmed by the devil and asked for forgiveness regardless of the admission to the commission of the offence. Had the first appellate court addressed its mind to the above decisions it could not have upheld conviction on the appellant's allegedly own plea of guilty. Conversely, it could have held that plea as imperfect, unfinished and ambiguous from which the trial court was bound to enter a plea of not guilty and continue with the trial of the case in accordance with the law. Consequently, the process that followed reading the facts on such a plea was an exercise in futility let alone the shortcomings pointed out by Ms. Lucas. In the upshot, we have no hesitation in allowing the appeal in the first ground. The order of the High Court dismissing the appellant's appeal is set aside and substituted with an order allowing the appeal with the net effect that, the appellant's plea was one of not guilty. Having so done, we quash the conviction and set aside the sentence meted against the appellant. Going forward, we direct that the record be 7 remitted to the trial court for it to proceed with the case according to law before another magistrate with competent jurisdiction. In the meantime, the appellant shall remain in custody as remand prisoner awaiting his trial before the District Court unless admitted on bail. Order accordingly. DATED at ARUSHA this 2n d day of March, 2026. L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 3r d day of March, 2026 in the presence of the Appellant in person, Ms. Neema Mbwana learned Senior State Attorney for the Respondent/Republic and Ms. Anna Utou, Court clerk, is hereby certified as a true copy of the original. L. J. S. MWANDAMBO JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL R. W. CHAUNGU DEPUTY REGISTRAR COURT OF APPEAL