Murishid Abubakari Itiso vs Republic (Criminal Appeal No. 665 of 2024) [2026] TZCA 172 (2 March 2026)

IN THE COURT OF APPEAL OF TANZANIA AT DODOMA fCORAM: GALEBA. J.A., MASOUP, J.A, And FELESHL J,A.) CRIMINAL APPEAL NO. 665 OF 2024 MURISHID ABUBAKARIITISO .................................................... APPELLANT VERSUS THE REPUBLIC................................... ............................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Dodoma) (Lonaopa, J.) dated the 28th day of February, 2024 in DC Criminal Appeal No. 50 of 2023 JUDGMENT OF THE COURT 12*1 1February & 2nd March, 2026 GALEBA, J.A.: Murishidi Abubakari Itiso, the appellant in this appeal was charged with unnatural offence contrary to section 154 (1) (a) of the Penal Code. He was charged before the District Court of Chemba at Chemba (the trial court) in Criminal Case No. 21 of 2023. Based on his alleged plea which is challenged in this appeal, he was convicted of the offence and was accordingly sentenced to life imprisonment. His first appeal to the High Court at Dodoma (the first appellate court), was dismissed for want of merit. l According to the trial court's record, particularly at pages 16 to 19, on 17th April, 2023, when the appellant appeared in court for the first time to answer the charge, after it was read over and explained to him, he pleaded: "It is true (ni kweli). Ni kwefi nilimlawiti Mustafa " The facts were then read over to him and in the process of doing so, a PF3 containing the findings of the medical practitioner following clinical tests administered on the victim, a cautioned statement and the extrajudicial statement of the appellant were tendered. At the closure of reading the facts, the trial court made a finding of guilty and convicted the appellant forthwith. The court also sentenced the appellant to life imprisonment in the same session. The major issue in this appeal is that, the trial court made the above orders including sentencing the appellant to life imprisonment, without asking him to admit or comment on the facts after the prosecution had read the same to him. As such, that omission to require the appellant to comment on the facts, is the substance of this appeal. The appeal was based on 8 grounds of appeal, and except for the 6th ground, which was challenging the lawfulness of appellant's custodial sentence because he was alleged to be below 18 years of age, all the remaining 7 grounds of appeal were challenging the decision of the first 2 appellate court for having treated the appellant's plea before the trial court, as perfect, complete and unequivocal, to the extent of basing upon it a conviction. At the hearing of this appeal, the appellant appeared in person without legal representation, whereas the respondent Republic had the services of Ms. Aziza Mhina, learned Senior State Attorney, assisted by Ms. Mwajuma Mkonyi and Mr. Abdulkheri Sadiki, both learned State Attorneys. The appellant informed us that, he would wish the respondent's side first to respond to his grounds of appeal, so that if any need would arise, he would rejoin. It was Ms. Mkonyi who responded to the appellant's appeal. In so doing the learned counsel submitted that failure to require a suspect who pleads guilty to the charge, to confirm the correctness of the facts read over to him is a serious omission vitiating a conviction. To support her proposition, the learned State Attorney referred us to two decisions of this Court, namely, the case of Abdallah Issa v. R [2024] TZCA 502 and Spirian Sikunyingi Mihenda v. R [2024] TZCA 1201. Because of the omission, the learned State Attorney moved the Court to nullify the appellant's conviction and to set aside his sentence. She also prayed that the proceedings in the first appellate court also be nullified and the judgement be quashed. 3 Up to the above point, Ms. Mkonyi was in full agreement with the appellant's position, however as to what should be the fate of the appellant, that is where she proposed a different way forward. Whereas the appellant was praying that after we make the above orders, we should also order his immediate release from prison, Ms. Mkonyi held the view that, as the appellant did not take any lawful plea, the proper consequential order to make, was to direct that the appellant be properly arraigned before the same court in the same criminal case to answer his charge. As for the order we should make in respect of the appellant pending his retrial, the learned State Attorney prayed that, an order be made for him to remain in prison custody. On his part, the appellant did not have anything to say in response to the learned State Attorney's submissions. After a thorough and careful consideration of Ms. Mkonyi's arguments, we are in agreement with her. It is a settled position of the law in this jurisdiction that upon a suspect's plea of guilty to the charge in terms of section 245 (1) and (2) of the Criminal Procedure Act (the CPA), he should also be made to confirm the correctness or otherwise of the facts of the case facing him. 4 In the case of Hussein Rashid Jumanne v. R [2023] TZCA 17641, this Court listed down 7 procedural steps to be followed by a magistrate, if such a judicial officer is to convict the charged person on a plea of guilty. Those procedural steps are as follows: "1. When a person is charged, the charge and the particulars should be read out to him , so far as possible in his own language, but if that is not possible, then in a language which he can speak and understand; 2. The magistrate should then explain to the accused all the ingredients o f the offence charged; 3. If the accused then admits ail those essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty; 4. The magistrate should next ask the prosecutor to state the facts of the alleged offence and, when the statement is complete, should give the accused an opportunity to dispute or explain the facts; 5. If the accused does not agree with the statement of facts or asserts additional facts which, if true, might raise a question as to his guilt, the magistrate should record a change ofplea to "not guilty1 ' and proceed to hold a trial; 6. If the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to sentence; 5 7. The statement of facts and the accused’ s reply must, of course , be recorded." This Court added that, the said steps must be cumulatively complied with in order to secure a plea which is perfect, complete and unambiguous, and the position has been followed in many decisions including the case of Spirian Sikunyingi Mihenda (supra). In brief therefore, where an accused pleads guilty only to the charge and not to the facts detailing the manner in which he is alleged to have committed the offence and its ingredients, such a plea is not only bad in law, but the same is imperfect and ambiguous. And such is the plea upon which the appellant in this appeal was convicted. In view of the above, as the appellant's plea was unlawful, his conviction is hereby nullified and his sentence of life imprisonment set aside. The proceedings of the first appellate court are also nullified and its decision quashed. In terms of the way forward, we order that the original record of the District Court of Chemba in Criminal Case No. 21 of 2023 be remitted to that court with immediate dispatch, in order for that court to issue a removal order of the appellant from custody for him to stand trial before that court, according to law. 6 This appeal succeeds to the above extent, and in the meantime, the appellant shall remain in prison custody as a remandee pending his expedited trial. DATED at DODOMA, the 2n d day of March, 2026. Z. N. GALEBA JUSTICE OF APPEAL B. M. MASOUD JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment delivered virtually, this 2n dday of March, 2026, in the presence of the Appellant in person, Mr. Abdulkheri Sidiki, learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki, Court Clerk, is hereby certified as a true copy of the original. D. P. KINYWAFU DEPUTY REGISTRAR COURT OF APPEAL 7