Deus Magili & Another vs Republic (Criminal Appeal No. 239 of 2024) [2026] TZCA 121 (25 February 2026)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: LEVIRA. J.A., MDEMU, J.A. And ISSA, J.A.^ CRIMINAL APPEAL NO. 239 OF 2024 DEUS MAGILI............................................................................. 1 st APPELLANT MEDRICK LUSOLANYA .............................................................. 2 nd APPELLANT VERSUS THE REPUBLIC............................................................................RESPONDENT (Appeal from decision of the High Court of Tanzania at Mwanza) (Musokwa, J.) dated the 17th day of November, 2023 in Criminal Appeal No. 67 of 2023 JUDGMENT OF THE COURT 12th & 25th February, 2026 LEVIRA, J.A,: The appellants and four others who are not parties to this appeal, were jointly charged with and convicted on their own plea of guilty of the offence of armed robbery by Sengerema District Court at Sengerema and each was sentenced to thirty (30) years imprisonment. However, being aggrieved by the conviction and sentences, the appellants unsuccessfully appealed to the i

High Court mainly on a ground that, their plea was equivocal. Undauntedly, the appellants have approached the Court fronting the same complaint that their plea was equivocal and thus the High Court erred in sustaining their convictions and sentences. As introduced above, the appellants were charged with armed robbery where the prosecution alleged that, on 29th March, 2023 at about 03:20 hours at Buzilasoga Village within Sengerema District in Mwanza Region, the appellants and their co-accused did steal one TV make Sunder 17 inches valued at TZS. 150,000.00, two phones make tecno valued at TZS. 70.000.00, one sola battery valued at TZS. 15,000.00 and cash money TZS. 5.000.00, all total valued at TZS. 275,000.00 the properties of one Halima Daudi and immediately before and after such stealing, did use a panga to threaten her in order to obtain and retain the said properties. On 30th March, 2023 they were arrested and taken to Sengerema Police Station. They were interrogated and cautioned statements were recorded, certificate of seizure was filled. On being arraigned before the District Court of Sengerema, the charge of armed robbery was read over and explained to them. Each of them pleaded guilty to the charge. Upon the prosecution narrating the facts of the case, each of them entered a plea of guilty. As a result, as alluded to above, 2

the trial court convicted them on their own plea of guilty and sentenced each to thirty (30) years imprisonment. We wish to note at the outset that, the appellants presented before us a memorandum of appeal comprising of eight (8) grounds and four grounds of appeal in their supplementary memorandum of appeal which was presented to us on a hearing date. Nonetheless, all the grounds of appeal focus on challenging their plea. At the hearing of the appeal, the appellants appeared in person, unpresented whereas the respondent Republic had the services of Ms. Jaines Kihwelo, learned Senior State Attorney assisted by Mr. Ibrahim Salim, learned State Attorney. The appellants adopted their grounds of appeal as part of their oral submission before the Court and reserved their right to make a rejoinder. Addressing the Court in respect of the appellants' plea, Ms. Kihwelo referred us to page 43 of the record of appeal and argued that, the appellants pleaded guilty but they did not indicate what they stole. She added that, when the facts were read, the appellants were invited to respond to them. Again, their response was that the facts are true and correct with no more as it can be observed on page 45 of the record of appeal.

Thereafter, the prosecution prayed to add certificate of seizure and cautioned statements of the appellants as exhibits, but those exhibits were not read after admission. According to Ms. Kihwelo, the appellants' plea was equivocal and she urged us to find so, allow the appeal, nullify proceedings of the courts bellow, quash convictions and set aside appellants7sentences. She prayed further that, the appellants be sent back to the trial court for a fresh plea taking and proceed from there. She supported her prayer with the Order of the Court in Jack Mahembega v. Republic [2023] TZCA 17821 (10 November 2023). In reply, the first appellant prayed for the Court to set him free because he did not commit the offence with which he was charged. On his part, the second appellant claimed that, he was convicted because he does not know how to read and write. Therefore, he, as well, urged us to set him free. We have carefully considered the parties' submissions and perused the record of appeal. The issue calling for our determination is whether the appellants' plea was unequivocal as decided by the High Court. It is settled principle that, there cannot be an unequivocal plea of guilty unless, the accused is arraigned on a proper charge, the facts disclose all the elements

of the offence, the accused fully comprehends what he is faced with and pleads guilty to each ingredient of the offence. In the present case, the appellants were arraigned facing a charge of armed robbery. The statement of offence cited proper provision of the law and the particulars of offence disclosed the elements of the offence they were charged with. However, when the facts were read out and the appellants were given opportunity to respond, they only said "The facts o f the case are true and correct ." As it can be seen, they did not admit that they stole one TV, two cell phones, solar battery, one flash and cash money with total value of TZS. 275,000.00 the property of Halima Daudi and that, before and after stealing they used panga to threaten her in order to obtain and retain the said properties. In the circumstances, it cannot be said with certainty that they pleaded guilty to the charge. It is equally not clear that the appellants fully comprehended what was facing them because their answers do not suggest so. On page 43 of the record of appeal, when the charge was read over to them each of them responded: "It is true, I did steal and use panga to threaten her. "Looking at this response, it is apparent on face of it that, the

appellants did not state what they stole and from whom. Likewise, when the facts of the case were read, it is not clear which facts were true and correct. Besides, we note that the prosecution prayed to tender exhibits; to wit, certificate of seizure and appellants' cautioned statements to form part of evidence after the appellants had already asked to respond to the facts of the case. The said exhibits were admitted and marked "exhibit PI collectively. Thereafter, the trial magistrate found the appellants guilty on their own plea of guilty. Nonetheless, since those exhibits were admitted after the appellants' response to the initial facts, they were therefore not part of the facts pleaded. Hence, could not corroborate the purportedly admitted facts. For the reasons stated above, we are unable to agree with the High Court Judge that the appellants' plea was unequivocal. We find that the said plea did not meet the verge of unequivocal plea of guilty. Therefore, it was unsafe to ground conviction on such a plea. The appeal is therefore meritorious. Consequently, we allow the appeal, nullify the proceedings of the lower courts, quash convictions and set aside the appellants' sentences. We remit the case file to the trial court for it to take the appellants' plea 6

afresh. In the meantime, the appellants shall remain in custody pending that process. DATED at MWANZA this 24th day of February, 2026. M. C. LEVIRA JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL A. A. ISSA JUSTICE OF APPEAL The Judgment delivered this 25th day of February, 2026 in the presence of the Appellants in person, Mr. Morice Mtoi, learned Senior State Attorney, Ms. Brenda Mayalla, learned State Attorney for the Respondent/Republic and Ms. Gloria Masige, Court Clerk; is hereby certified as a true copy of the Original A. S. CFfUGULU DEPUTY REGISTRAR COURT OF APPEAL 7