Bashir Julius & Another vs Republic (Criminal Appeal No. 263 of 2024) [2026] TZCA 166 (27 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MBEYA f COR AM: KEREFU, J.A., KAIRO. J.A. And NANGELA, CRIMINAL APPEAL NO. 263 OF 2024 BASHIR JU LIU S.................................................................. I st APPELLANT SELEMAN JACKSON ........................................................... 2 nd APPELLANT VERSUS THE REPUBLIC..................................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Mbeya) (Karavemaha J.) dated the 15thday of May, 2023 in Criminal Appeal No. 122 of 2022 JUDGMENT OF THE COURT 19th & 27th February, 2026 NANGELA, J.A. The appellants, BASHIR JULIUS and SELEMAN JACKSON, (the first and second appellants, respectively), were arraigned before the District Court of Chunya at Chunya facing two counts. The first count was on unnatural offence contrary to section 154 (1) (a) of the Penal Code, Cap. 16 of the Revised Laws of Tanzania (the Penal Code). It was alleged that, on or about 14th September, 2021, at Bitimanyanga Village, Chunya District, in Mbeya Region, the two appellants, acting jointly, had carnal knowledge of "PW1", a 20-year-old man, against the order of nature. 1 The second count charged the appellants with causing grievous harm contrary to section 225 of the Penal Code. It was alleged that, on the same date and at the same place, they willfully and unlawfully caused grievous harm to PW1. According to the record of appeal, the first appellant and PW1 were employed by Said, a tobacco farmer, on his farm while the second appellant was working on a neighboring farm. All three resided in the camp at Bitimanyanga, Lupatingatinga area of Chunya District, and were therefore acquainted. On 13th September, 2021, Said, a tobacco farm owner, travelled to Singida. While he was away, the first appellant and PW1 stole one of Said's chickens, which they agreed to sell for TZS 5,000.00 at Bitimanyanga Center. PW1 sold the chicken to one Nyamwinga for TZS 4,000.00 and gave the money to the first appellant. Displeased with the reduced amount, the first appellant attempted to flog PW1 with a stick, prompting him to run to the second appellant's camp. That evening, the second appellant left the camp due to lack of food, locking PW1 inside while he slept. Around 01:00 hours, the second appellant returned with the first appellant. The first appellant carried a stick, while the second appellant had a machete (Panga) and a torch. They ordered PW1 to stand and undress, fetched water, and instructed him to wash his anus and apply oil. Thereafter, they forced him to bend forward, and each took turns sodomizing him. According to PW1, while the first appellant was committing the act, the second appellant assaulted him on the head with the machete, instructing him to "cry like a woman." The second appellant later sodomized PW1 as well, repeating the act three times. It was PW l's testimony that, after they had molested him, the appellants tied him with a rope and took him to a ten-cell leader of the area, one Pasua, alleging that PW1 had stolen Said's chicken and sold it. Since it was already at the deep of the night, and seeing that the victim had been injured, and intending to unveil the truth, the ten-cell leader urged them to turn up in the next morning. However, PW1 disclosed to the ten-cell leader that the appellants had sodomized him. When the first appellant turned up in the morning, the ten-cell leader communicated with Said, the employer of PW1 and the first appellant, who advised that the appellants be arrested. The appellants were thus apprehended, and both were taken to Lupatingatinga Police Station on the same day, 15th September, 2021. 3 At the Police Station, PW1 narrated his ordeal to E.8818 D/Sgt. Vincent (PW2), the OCS of Lupatingatinga Police Station. He was issued with a PF3 and referred to Chunya District Hospital, where Dr. Flora Nefia Lota (PW3) attended him. PW3 observed wounds on the victim's head and feet, measuring approximately 7 cm in length and Vi cm in depth on the head, and 3 cm in length and V 2 cm in depth on the leg. PW3 further noted that, PW l's anus had been penetrated with a blunt object. After providing psychological counselling, PW3 completed the PF3, which was admitted into evidence as exhibit PI. The appellants, who were by that time in police custody for interrogation, were questioned by PW2. He informed the second appellant of his rights and recorded his cautioned statement, admitted into evidence as exhibit P2. In that statement, he confessed to committing the unnatural offence and implicated his co-appellant. He stated that, it was him who initiated the act and, that, the second appellant participated thereafter. On 20th September, 2021, the appellants were arraigned in court. The first appellant denied the allegations, whereas the second appellant pleaded guilty to both counts and admitted the brief facts read over to him. The trial magistrate immediately convicted the second appellant based on his plea of guilty and sentenced him to life imprisonment for the first count and five years' imprisonment for the second count, to run concurrently. The first appellant's trial proceeded to a full hearing. After hearing the prosecution evidence, the trial court found that, he had a case to answer and called upon him to enter his defence. He testified as DW1, denying all charges but admitting presence at the scene. On cross- examination, he acknowledged entering the victim's room on the material night and being taken to Lupatingatinga Police Station, where he confessed to the offence, but maintained that, it was the second appellant who sodomized the victim. Having considered all evidence, the trial court found the prosecution had proved its case to the required standard, convicted the first appellant, and sentenced him to life imprisonment for the first count. Dissatisfied, both appellants appealed to the High Court, but their appeal was dismissed. Undaunted, the appellants have approached this Court with two memoranda. The first, filed on 19th April, 2024, raised two grounds of appeal, the second of which consisted of three parts, (a) to (c). On 10th February, 2026, they lodged a supplementary memorandum containing four additional grounds of appeal. For convenience, all grounds may be grouped into four main categories: 1. That, the first appellate court failed to properly evaluate the appellant's petition o f appealthus ending up dismissing the same. 2. That, the charge was grossly defective as the offence was and the particulars thereof were at variance. 3. That, the first appellate court erred in law when it upheld the trial court's conviction o f the second appellant based on unadmitted and unknown PF3 and cautioned statement. 4. That, the first appellate court erred in law when it upheld the conviction and sentence o f the second appellant based on equivocal plea. At the hearing of this appeal, the appellants appeared in person. Ms. Mwajabu Tengeneza, Principal State Attorney, assisted by Ms. Ellen Masululi and Ms. Veronica Mtafya, both Senior State Attorneys, appeared for the respondent. When invited to address the Court, the appellants adopted their grounds of appeal and allowed the respondent to respond, reserving the right to reply if necessary. In response, Ms. Mtafya addressed the Court on behalf of the respondent, opposing the appeal and contending that, all grounds lacked merit. Regarding the first ground, she submitted that, contrary to the 6 appellants' claim that the first appellate court failed to consider their grounds of appeal, pages 89 to 106 of the record of appeal demonstrate that, their concerns were addressed. She invited the Court to examine the record, noting that these pages clearly show the ground of appeal lack merit. Upon examination, starting from page 87 of the record of appeal, the first appellate court listed all grounds raised by the appellants in their petition. Pages 89 to 106 of the same record contain a detailed analysis and disposal of each ground, either separately or conjointly. Accordingly, it cannot be said that the court failed in its duty. The dismissal of the appellants' appeal does not indicate a failure to consider their grounds. As stated in Kelvin s/o Kelvin Nyondo v. Republic [2024] TZCA 1255 (11 December 2024, TANZLII), an appeal devoid of merit may be dismissed outright. We are satisfied that the first ground of appeal lacks merit and dismiss it. Regarding the second ground, Ms. Mtafya submitted that, it also lacks merit. She explained that, section 154 (1) (a) of the Penal Code clearly prohibits the offence of unnatural acts. The charge the appellants were faced with, she argued, contained two counts, each supported by particulars setting out the elements of the offences. Concluding that there 7 was no variance, and PWl's testimony aligned with the particulars, she invited the Court to dismiss the second ground. Essentially, a charge is fatally defective if the description of the offence is not supported by particulars that disclose its essential ingredients. Such defects mislead the accused and render any resulting conviction invalid. For example, charging robbery with violence but omitting references to violence, threat, or weapon, or charging under one statutory provision while describing conduct under another, renders the charge incurably defective and liable to be quashed. Considering the ramifications that may flow from a defective charge, the Court, in Isidori Patrice v. Republic [2007] TZCA 2 (30 October 2007-TANZLII), emphasized the need for a charge sheet to disclose not only the statement of the offence but also its correlating particulars. For clarity, the Court observed that: "It is a mandatory statutory requirement that every charge in a subordinate court shall contain not only a statement o f the specific offence with which the accused is charged but such particulars as may be necessary for giving reasonable information as to the nature o f the offence charged. See section 132 o f the Act It is now trite law that the particulars o f the charge shall disclose the essential elements or ingredients o f the offence. This requirement hinges on the basic rules o f criminal law and evidence to the effect that the prosecution has to prove that the accused committed the actus reus o f the offence charged with the necessary mens rea" In the instant appeal, having examined the charge sheet on page 1 of the record of appeal, we are settled that its framing, including the statement of offences and the particulars of each count, shows no defect as alleged by the appellants. As Ms. Mtafya correctly observed, the evidence on the record supports this view. Accordingly, the second ground of appeal is misconceived and is dismissed. Regarding the third ground of appeal, the appellants contend that, the first appellate court upheld the second appellant's conviction based on unadmitted and unknown PF3 and cautioned statement. Ms. Mtafya submitted that this ground is also misconceived and liable to outright dismissal. We concur. The record shows that, following the second appellant's plea of guilty, the prosecution read and explained the facts of the case, which were admitted by the second appellant, and then tendered two exhibits: (i) a cautioned statement of the second appellant, and (ii) PF3. As observed on page 13 of the record of appeal, when the trial court asked the second appellant whether he objected to the admissibility of the said exhibits, he raised no objection. They were, therefore, collectively admitted as exhibit PI, and their contents were read aloud in court in the presence of the second appellant. In light of these proceedings, the third ground of appeal lacks merit and is accordingly dismissed. Finally, we address the fourth ground of appeal, in which the main complaint is that the second appellant's plea of guilty was equivocal. This ground incorporates arguments raised by the appellants in their supplementary memorandum. In her submission, Ms. Mtafya maintained that the second appellant's plea was unequivocal, referring the Court to pages 3 to 4 and 6 to 12 of the record of appeal, which, she contended, demonstrate the unequivocal nature of the plea. Essentially, an appellant who is said to have entered a plea of guilty must, in the first instance, have clearly understood the charge and admitted all its essential ingredients, as well as the facts constituting the offence. See Salehe Mohamed v. R [1971] H.C.D. No. 76, citing Kato v. R [1971] E.A. 542. It is now settled in our jurisdiction that, for a plea of guilty to be considered unequivocal for purposes of conviction, it must satisfy the test laid down by the Court in Michael Adrian Chaki v. 10 Republic [2021] TZCA 454 (9 September 2021). In that decision, the Court reiterated the criteria that must be satisfied before a plea of guilty can properly found a conviction. In particular, it stated as follows: "... there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met: - 1. 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; 2. The court must satisfy itself without any doubt and must be dear in its mind, that an accused fully comprehends what he is actually faced with , otherwise injustice may result. 3. 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 o f the offence. This is in terms o f section 228(1) of the CPA. 4. The facts adduced after recording a plea of guilty should disclose and establish all the elements o f the offence charged. li 5. The accused must be asked to plead and must actually plead guilty to each and every ingredient o f the offence charged and the same must be properly recorded and must be dear (see Akbarali Damji vs R. 2 TLR137 cited by the Court in Thuway Akoonay vs Republic [1987] T.L.R. 92); 6. Before a conviction on a piea o f guilty is entered, the court must satisfy itself without any doubt that the facts adduced disclose or establish all the elements o f the offence charged". The above set of criteria, has been emphasized by the Court in numerous other decisions. They include, Luanda s/o Moris v. Republic [2016] TZCA 648 (20 June 2016 (TANZLII), affirming the High Court decision in Laurent Mpinga v. Republic [1983] TLR 166), Karlos Punda v. Republic, Criminal Appeal No. 153 of 2005 (unreported), Chacha Makonge @ Mwansi v. Republic [2024] TZCA 587 (18 July 2024-TANZLII), and Richard s/o Lionga @ Simageni v. Republic [2021] TZCA 671 (11 November 2021- TANZLII), among others. In the instant appeal, pages 3 to 4 of the record of appeal indicate that, the charge was read over and explained to the appellants in Kiswahili, the language they are conversant with. At page 4 of the same record, when the second appellant was called upon to respond to the 12 allegations read over and explained to him, this was his reply in respect of the first count of unnatural offence: "2n dAccused Plea : Ni kwe/i nilimwingilia Baraka kinyume na maumbile" (freely translating to: "It is true that I had carnal knowledge o f Baraka against the order o f nature . " 2n d Count: "2n dAccused Plea : Ni kweii nilimpiga Baraka na kupelekea kuwa na majeraha". (Freely translating to: "It is true that I assaulted Baraka and thereby caused him grievous harm". Based on the above, the question that follows, is whether the second appellant's plea was unequivocal. Upon our assessment of the responses made by the second appellant, it would be contrary to the record to suggest that he did not properly understand the charge. In any event, the record of appeal (pages 5 to 7) shows that, the prosecution narrated the facts constituting the two counts. Those facts were read to the accused and, in accordance with the prescribed procedure, he was invited to confirm their accuracy and to state whether he admitted them. The same record further indicates (pages 7 to 12) that, the second appellant admitted each of the facts as 13 narrated. At page 12, the trial court expressly asked him whether all the facts read out by the prosecution were true and correct and whether he admitted them in their entirety. His response was as follows: "2 n d Accused: Ni kweli alichoeleza mwendesha mashtaka. NiHfanya hayo mambo. Nilimwingilia mlalamikaji kinyume na maumbile, na nilimkata na panga.". (Freely translating to: It is true as stated by the prosecutor. I committed those acts. I had carnai knowledge o f the complainant against the order o f nature, and I cut him/her with a panga (machete). In Richard s/o Lionga @ Simageni v. Republic (supra), the Court identified two requirements for an unequivocal plea of guilty: first, the accused must plead guilty to the charge as framed (criteria 1, 2, 3, and 5 outlined in Michael Adrian Chaki v. Republic (supra)); and second, he must also admit the facts constituting the offence charged (criteria 4 and 6). In the present appeal, we are satisfied, as earlier stated, that the second appellant met the first requirement by demonstrating a clear understanding of the charge in accordance with criteria 1, 2, 3, and 5 as outlined in Michael Adrian Chaki v. Republic (supra). His response to the facts as narrated to him further indicates an unequivocal admission of 14 the facts constituting the offence, thereby fulfilling criteria 4 and 6 set out in Michael Adrian Chaki v. Republic (supra). In the premises, we are firmly of the view that the fourth ground of appeal lacks merit and is hereby dismissed. As all the grounds of appeal raised by the appellants lack merit, the appeal is dismissed in its entirety. DATED at MBEYA this 26th day of February, 2026. R. J. KEREFU JUSTICE OF APPEAL L. G. KAIRO JUSTICE OF APPEAL D. J. NANGELA JUSTICE OF APPEAL Judgement delivered this 27th day of February, 2026 in the presence of the Appellants in person, Mr. Augustino Magessa, learned State Attorney for the respondent/Republic and Mr. Soud Omary, Court Clerk; is hereby certified as true copy of the original. 15