William David Mwangwego vs Republic (Criminal Appeal No. 40 of 2024) [2025] TZCA 1145 (17 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT PAR ES SALAAM fCORAM: LEVIRA. J.A., MGONYA, 3.A. And MDEMU, 3.A.) CRIMINAL APPEAL NO. 40 OF 2024 WILLIAM DAVID MWANGWEGO...............................................APPELLANT VERSUS THE REPUBLIC...................................................................RESPONDENT (Appeal from the decision of the High Court of Tanzania, at Dar es Salaam) (Luvanda, J.^ dated the 6th day of September, 2023 in Criminal Appeal No. 66 of 2023 JUDGMENT OF THE COURT 29th September, & 17th October, 2025. LEVIRA, 3.A.: In the District Court of Kinondoni at Kinondoni, the appellant, William David Mwangwego was charged with two counts; to wit, incest by male contrary to section 158 (1) of the Penal Code, Cap 16 RE 2019 and impregnating a school girl contrary to section 60A (3) of the Education Act, Cap 353 RE 2002. According to the record of appeal, he pleaded guilty to both offences and upon conviction, was sentenced to serve a term of 20 years in prison in respect of the first count and 40 years imprisonment on the second count. The sentences were ordered to run consecutively. Aggrieved, the appellant appealed to the High Court against both the conviction and sentence. However, his appeal against conviction was dismissed on account that his plea of guilty was unequivocal and thus, had no room to appeal against conviction. As a result, the appeal was partly allowed in respect of the sentences. Having considered the law, the purpose of sentence and appellants mitigation, the learned High Court Judge reduced the 40 years sentence in respect of the first count to 30 years and sustained the sentence of 20 years in respect of the second count. He, as well, vacated the order that the sentences had to run consecutively. In lieu thereof, he ordered the sentences to run concurrently. Undoubtedly, the appellant has approached the Court armed with six grounds of appeal as per the memorandum of appeal challenging both the conviction and the sentence. Among other complaints, in the second ground of appeal, the appellant claimed that his plea was equivocal. This decision focuses on that claim. It is worth noting that, as per the record of appeal, initially, the appellant pleaded not guilty to the charged offences. His plea of guilty was entered after commencement of the trial in which two prosecution witnesses had already testified. The appellant intimated to the trial court the intention to change his plea of not guilty and was afforded an opportunity to do so. He was reminded the charges and responded in the affirmative in respect of both counts. Thereafter, the facts of the case were read over to him and his response was in the following effect: "AH facts narratedby the State Attorney are correct" Later, the State Attorney prayed and the trial court granted leave for her to tender PF3 in relation to the victim and the appellant's cautioned statement which were admitted as exhibits PI collectively. At the hearing of the appeal, the appellant appeared in person, unrepresented whereas, the respondent Republic had the services of Ms. Mary John Lindu, learned Senior State Attorney assisted by Mr. Titles Aron, learned State Attorney. The appellant adopted his grounds of appeal and written submissions to form part of his oral account before the Court and reserved his right to make a rejoinder after the respondent's reply to the appeal. In his written submissions, the appellant acknowledged the settled position of the law that, in case of unequivocal plea of guilty, no appeal lies against conviction. However, he argued that his plea of guilty was equivocal following failure of the trial magistrate to follow proper procedure in taking it. He elaborated that, exhibit PI collectively (the PF3 in relation to the victim and his cautioned statement) was admitted after entering his plea of guilty. As a result, they were not made part of the facts which were read over to him and upon which he entered his plea. In other words, he complained that the allegedly admitted fact were not accompanied with any proof that the victim was pregnant and that the appellant confessed to have committed the charged offences. In the circumstances, he firmly submitted that his plea was equivocal. Therefore, he urged the Court to treat it so and set him free. Initially, while responding to the second ground of appeal, Ms. Lindu strongly resisted the appellant's arguments and maintained that his plea was unequivocal. Nonetheless, having thoroughly perused the record of appeal and upon reflection, she changed her position and supported the appeal on account that the appellant's plea was equivocal. She referred us to page 22 of the record of appeal with a view to showing the procedural irregularity committed by the trial magistrate. She highlighted that after the facts of the case were read out, the trial court recorded a general statement that "a!/ facts narrated by the State Attorney are correctr . Immediately thereafter, the appellant and the State Attorney signed; then the State Attorney prayed to tender the victim's PF3 and the cautioned statement of the appellant which were admitted as exhibit PI collectively. She went on to submit that, the trial court did not convict the appellant as per the requirement of the law under section 245 (1) of the Criminal Procedure Act, Cap 20 (the CPA); instead, she fixed a judgment date and later convicted the appellant. Following those irregularities, Ms. Lindu urged us to allow the appeal, nullify the proceedings of both the High Court and trial court and remit the case file back to the trial court for plea taking. We have careful considered submissions by the parties, the grounds appeal particularly, the second ground and the entire record of appeal. The issue calling for our determination is whether the appellant's plea was unequivocal. The answer to this issue is not farfetched. The parties to this appeal are at one that the appellant's plea was equivocal, save for the way forward. While the appellant urged us to set him free, Ms. Lindu prayed for remittance of the case file to the trial court for a fresh plea taking. The question as to whether we set the appellant free or give an order for retaking his plea will be answered in the end after assessing the appellant's plea. It is common knowledge that plea taking is a process governed by law. Section 245 (1) & (2) of the CPA provides as follows: "245 (1) The substance o f the charge shall be stated to the accusedperson by the court, and he shall be asked whether he admits or denies the truth o f the charge. (2) Where the accusedperson admits the truth o f 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 against him, unless there appears to be sufficient cause to the contrary." Being guided by the above provision, we find it important to reproduce part of what transpired before the trial court when the appellant was called upon to plead on 13/10/2022. At page 21 of the record of appeal, when the case was called on for hearing, the appellant prayed to be reminded the charge against him. The trial court granted the prayer, the charge was read over and explained to him as per the extract below: "State Attorney: For hearing, I do not have witnesses today. Accused: I pray to be reminded o f the charge against me. Court: The charge is read over and explained to the accused who pleads hereto: Accused: On 1st count: It is true I committed the offence o f sexual intercourse with my daughter. Court: Entered plea o fguilty. On 2Tdcount: It is true I impregnated the said student Court: Enteredplea o fguilty. State Attorney: I pray to narrate the facts o f the case. 6 Court: Prayer granted facts be narrated under section 192 o f CPA Cap. 20 R.E 2022. Facts: 1st para: He is called William Daudi Mwangwego, 37, Ubungo Makoka, Driver, Christian, Mnyakyusa. Admits 2 P d para: He is the biological father o f Catherine Mwangwego a girl aged 16 years old. Admits 3rd para; That the said Catherine Mwangwego is a student at Makamba Secondary School. Admits 4 ? hpara: That between June 2019 to 9/9/2022 you had been raping one Catherine Mwangwego your biological daughter was promise(s) that you were to become rich. Admits. 5t h para: That the said Catherine Mwangwego is pregnant, where it is said that you are responsible o f the pregnancy. Admits &hpara: That you were arrested in relation to the said allegation where you were taken to Kimara Police Station where on interrogation you admitted. Admits Accused: AH facts narrated by the State Attorney are correct Signatures Accused: Sgd State Attorney: Sgd State Attorney: We have two exhibits which is his PF3 and his cautioned statement. I pray to tender them as exhibits in court. Accused: No objection. Court: The PF3 in relation to the victim and the cautioned statement o f the accused are hereby admitted and marked Exhibit "PI "collectively. HON. RWEIKIZA - SRM 13/10/2022" It can be observed from the above excerpt that, the record does not show that the appellant admitted to each fact which was narrated by the prosecution. Instead, the trial Magistrate just inserted the word 1 admits' and at the end, the appellant gave a general statement, to wit; "Aff facts narrated by the State Attorney are correct" Later, the exhibits were admitted. We wish to state that, what transpired during plea taking was contrary to the requirements of the law. Subsection (2) of section 245 of the CPA requires the admission of an accused person to be recorded as nearly as possible in his words, which is not the case herein. Besides, the trial magistrate admitted exhibits after the appellant and State Attorney signed to signify endorsement of the facts which were read out. We note at page 91 of the record of appeal that, the High Court Judge took a view that the procedure adopted by the respondent in tendering exhibits could not affect the appellant's piea, but in our considered view, those exhibits ought to have been tendered before the appellant endorsement to the facts of the case because they complement what was stated in the said facts and, indeed, established the ingredients of the offences which he was charged with. That aside, the appellant was not convicted and sentenced immediately as per the requirement of the law. After recording his plea, the trial Magistrate adjourned and fixed a judgment date which again, was a strange procedure and there was no sufficient cause stated in adopting such procedure. Looking at the prevailing circumstances in this case, it cannot be said that the appellant pleaded to all the elements of the offences he was charged with to justify treatment of his plea as an unequivocal plea of guilty. We therefore agree with both parties that the appellants plea was equivocal and we find no reason to deal with other grounds of appeal as hinted earlier. We therefore allow the appeal, quash proceedings and the purported appellant's plea together with conviction, and set aside the sentences meted out on the appellant. Reverting to the way forward, as intimated that parties parted ways, while the appellant prayed to be set free, the learned State Attorney urged us to remit the case file to the trial court for a fresh plea taking. In the interest of justice, having considered circumstances of this case, we are of the option that this case is not an exception to what happened in William Bundala vs. Republic, Criminal Appeal No. 428 of 2023 [2025] TZCA 472 (27 May 2025); where when we encountered a similar situation, we ordered the appellant's plea to be treated as a plea of not guilty and the trial court to proceed from there to the conclusion of the trial. Therefore, we nullify the proceedings of the High Court, quash conviction, and set aside the appellant's sentences. We as well nullify the proceedings of the trial court which came after the purported plea of guilty and quash its judgment. We direct the case file to be remitted back to the trial court for it to consider the appellant's plea as a plea of not guilty and proceed with the trial. In the meantime, the appellant shall remain in custody pending trial. DATED at DAR ES SALAAM this 16thday of October, 2025. M. C. LEVIRA JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL G. 1 MDEMU JUSTICE OF APPEAL Judgment delivered this 17th day of October, 2025 in presence of Appellant in person via virtual court from Ukonga Central Prison and Mr. Titus Aron, learned State Attorney for the Respondent and Mr. Magesa Fabiane Mgeta, Court Clerk; is hereby certified as a true copy of the original. W. A. HAMZA DEPUTY REGISTRAR COURT OF APPEAL