Kabanza Lung'uda vs Republic (Criminal Appeal No. 480 of 2023) [2026] TZCA 209 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT SHINYANGA (CQBAM; LILA, J.A., MAIGE, J.A. And MANSOOR, J J U CRIMINAL APPEAL NO. 480 OF 2023 KABANZA LUNG'UDA.............................................................APPELLANT VERSUS THE REPUBLIC...................................................................RESPONDENT (Appeal from the Judgment of the High Court of Tanzania at Shinyanga) (Kulita, J.) dated the 24th day of August, 2022 in Criminal Appeal No. 77 of 2021 JUDGMENT OF THE COURT 27th February & 2ndMarch, 2026 MANSOOR. J.A.: The appeal arises from the conviction and sentence of 30 years imprisonment imposed on the appellant for the offence of rape contrary to sections 130(1), (2)(e) and 131(1) of the Penal Code [Cap. 16 R.E 2019]. It was alleged by the prosecution that, on 20th May 2021, at Ichongo Village within Shinyanga District in Shinyanga Region, the appellant, Kabanza Lung'uda, who was 73 years old at the time of the incident, had carnal knowledge of his granddaughter, who, at the time i of the occurrence, was ten (10) years old. When the charge was read over and fully explained to him in Kiswahili language, he pleaded guilty. Then, the facts of the case were read over to him again in Kiswahili language, he agreed that all facts read over and explained to him were true, he then signed the proceedings. He was convicted for the offence charged on his own plea of guilty, and before he was sentenced, as his mitigation, he blamed the devil "shaitwan"fox his mistakes. The trial court sentenced him to thirty years imprisonment, he was also ordered to pay compensation to the victim. His first appeal before the High Court was unsuccessful, hence this is the second appeal. In his memorandum of appeal, he raised six grounds of appeal but for the reasons which soon hereunder will become apparent, we shall not reproduce them. At the hearing, the appellant appeared unrepresented while the respondent Republic was represented by Mr. Jukael Reuben Jairo, learned Senior State Attorney and Ms. Gloria Richard Ndondi, the learned State Attorney. At the hearing the appellant submitted in Kiswahili language saying "mheshimiwajajimiminaomba sababuzangu zipokelewe', he simply prayed to adopt his grounds of appeal. In response, Mr. Jairo did not oppose the appeal, arguing that, the procedure for taking a plea of guilty was not strictly followed by the trial court. He argued further that, the trial magistrate ought to have read and explained each fact of the case separately, and after each and every fact, the answer of the appellant ought to have been recorded in the words used by him. He submitted further that, it was an error on the part of the trial court to read all the facts at once and to record the answer of the appellant in a cumulative manner, that, all facts are true and correct. Mr. Jairo also submitted that, it was also wrong to tender the exhibits when reading and explaining the facts to the accused. He thus, admitted that, the appellant has the right to complain as it is true that, he did not understand what transpired in court and did not understand as to which facts he was pleading to be true and correct. To buttress his arguments, he referred to the case of Nestory Nambamoja vs Director of Public Prosecutions (Criminal Appeal No. 505 of 2019) [2024] TZCA 182 (15 March 2024). As to what should be the way forward, Mr. Jairo argued that, the trial was founded on a wrong charge, as the appellant ought to have been charged for the offence of incest by male contrary to section 158 3 of the Penal Code, instead of the offence of rape, as the facts indicated that, he had carnal knowledge of his granddaughter. He urged us to find the charge defective, henceforth allow the appeal, and eventually acquit the appellant on the offence charged. We have heard the counsel's submissions and have carefully read the record, we also agree with the submissions of Mr. Jairo that, the trial court didnot comply to the procedure of recording a plea of guilty as stipulated under section 245 of the Criminal Procedure Act, Cap 20, R:E 2023"CPA"(formerly section 228 (2) of the CPA, R:E 2019) which in essence requires that, when the accused person admits the truth of the charge, his admission must be recorded as nearly as possible in the words used by him. This section reads: S. 245 (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 of the charge. (2) Where the accused person admits the truth of 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 4 against him, unless there appears to be sufficient cause to the contrary. We agree as submitted by Mr. Jairo that, the appellant did not comprehend the facts read over to him as the trial magistrate did not explain the nature of the offence the appellant was charged with and the consequences of a plea of guilty, and the severity of the sentence. As held in the case of Okwudili Nnaman Agu vs Republic (Criminal Appeal No. 822 of 2023) [2025] TZCA 1315, before convicting on a plea of guilty, the court must explain the charge and its ingredients to the accused, require him to admit or deny each particular, read over facts that disclose all elements of the offence, and ensure that any exhibits relied upon are placed before the accused for his response. The trial court's approach of reading all facts at once and recording a single admission violated these requirements, rendering the plea equivocal. Similarly, in Hussein Rashid Jumanne vs Republic (Criminal Appeal No. 55 of 2020) [2023] TZCA 17641, the Court held that where a plea admits facts inconsistent with the ingredients of the offence or is recorded ambiguously, it cannot sustain a conviction. The trial magistrate was supposed to be cognizant of the fact that, the appellant being unrepresented, did not comprehend the nature of the offence charged and the consequences of a plea of guilty. The trial court ought to have interrogated the appellant to satisfy itself, if he knew and understood Kiswahili language before taking his plea in kiswahili and before reading the facts in Kiswahili language, and ought to have recorded his answer to the interrogation as nearly as possible in the words he used. We thus agree that, the procedure of recording a plea of guilty was violated as it is doubtful whether the charges was read over to the appellant in a language he did fully understand, making the plea equivocal. When the accused is unrepresented, like in the present case, it is the duty of the court to take all the precautions and necessary measures to ensure that, the accused understand the nature of the charge, the consequences of the plea of guilty, the penalty that he will face and the language used, and whether the appellant understood the charges he faced, as the danger of a conviction on an equivocal plea is grievous especially when the accused is unrepresented, and has difficulties in understanding the language used by the court. Both, the court and the prosecution failed to safeguard the right of fair trial to the appellant, occasioning a grave miscarriage of justice. From the record, we noted that, the trial court did not bother to ask the 6 appellant whether he comprehended the charge he was facing. The record does not show whether the appellant was informed of the consequences of pleading guilty to the charge of rape and the sentences he was going to face. We agree with Mr. Jairo's submissions that, the appellant did not comprehend the nature of the offence he was charged with and the consequence of a plea of guilty; principally, the statutory mandatory minimum jail sentences attached to the offences. We therefore hold that; the plea was equivocal. Consequently, we quash the conviction and sentence passed by the trial court, and confirmed by the High Court. As what would be the way forward, and as stated in the case of Fatehali Manji vs Republic [1966] EA 343 in which the then East African Court of Appeal stated as follows: " In general a retrial will be ordered only when the original trial was illegal or defective; it will not be ordered when the conviction is set aside because of insufficiency of evidence or for the purpose of enabling the prosecution to fill up gaps in its evidence at the first trial; even where a conviction is vitiated by a mistake of the trial court for which the prosecution is not to blame, it does not necessarily follow that a retrial should be ordered; each case must depend on its own facts and circumstances and an order for a retrial should only be made where the interests o fjustice require it." Generally, a retrial will only be ordered where the interest of justice so requires, and only where no prejudice will be occasioned to the accused. That, a retrial would only be ordered if the charge founding the trial was proper and that, based on the charge and the available evidence, a conviction might result. In the present matter, and as submitted by Mr. Jairo, the charge which laid the foundation of the trial was defective as it was not supported by evidence. The appellant ought to have been charged under section 158 of the Penal Code, for the offence of incest since, the appellant who was alleged to have committed the offence is the grandfather to the victim. In our view, since the founding charge was defective and so could not support the conviction of the appellant, a retrial cannot be ordered on a defective charge. The interests of justice would not so require and ordering a retiral would prejudice the appellant as the prosecution will be given a chance to fill in the gaps. In any case, whether an order for retrial should be made ultimately depends on the particular facts and circumstances of each case. We emphasized this position in Venance Shija vs Republic (Criminal Appeal 140 of 2017) [2020] TZCA 1912 (17 December 2020), in which we held that: 'We are settled that as the charge which was laid at the door o f the appellant was incurably defective and could not commence a lawful charge, the apparent defects cannot be cured under the provisions of section 388 o f the CPA " In line with this principle, as observed in Issa s/o Charles vs Republic (Criminal Appeal No. 234 of 2016) [2018] TZCA 76, where a charge cites incorrect or non-existent provisions and is incurably defective under section 388 of the CPA, no retrial should be ordered, as it would allow the prosecution to remedy foundational gaps at the expense of the accused. Likewise, in Shedrack Loshoc @ Lota vs Republic (Criminal Appeal No. 28 of 2016) [2017] TZCA 313, the Court refused a retrial on a defective charge where the evidence was insufficient to support conviction, leading to the appellant's unconditional release. As held in Fatehali Manji (supra), in the instant case, ordering a retrial would prejudice the appellant and serve no purpose, given the incurable defect in the charge. Consequently, in the circumstances of this case, it will not be in the interest of justice to order a retrial. We shall however order that, the appellant KABANZA LUNG'UDA be immediately released from prison, unless held for any other lawful cause. DATED at SHINYANGA this 2n d day of March, 2026. S. A. LILA JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL The Judgment delivered this 2n d day of March, 2026 in the presence of the Appellant appeared in person by virtual Court, and Mr. Christopher Msuya, learned Senior State Attorney for the respondent/Republic and Mr. Leopord Mabugo, Court Clerk; is hereby certified as a true copy of the original. ’ . ■ D. R r & i o DEPUTY REGISTRAR COURT OF APPEAL