Njiko Lumala & Others vs Republic (Criminal Appeal No. 501 of 2022) [2025] TZCA 1052 (9 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT TABORA (CORAM: GALEBA, J.A.. MGEYEKWA, J.A.. And MLACHA, J.A.) CRIMINAL APPEAL NO. 501 OF 2022 NJIKO LUMALA ............................................................... JILALA MASASILA........................................................... MADOSE MASENGWA...................................................... .. 1 st APPELLANT . 2 nd APPELLANT .. 3 rd APPELLANT VERSUS THE REPUBLIC.............................................................. .... RESPONDENT (Appeal from the decision of the High Court of Tanzania) at Tabora) fKhamis, J.l dated the 29th day of August, 2022 in DC Criminal Aooeal No. 61 of 2021 JUDGMENT OF THE COURT 29th September & 9th October, 2025 MGEYEKWA, J.A. In the Resident Magistrates' Court of Tabora at Tabora, the appellants, Njiko Lumala, Jilala Masasila, Madose Masengwa (1st, 2n d and 3rd appellants respectively) together with other persons (Paskali Juma @ Malashi, Ntemi Mbojie, Sawaka Lutonja, Ndila Jackson, and Saimon Charles) on the first count, were charged with armed robbery contrary to section 287A of the Penal Code Cap. 16 (the Penal Code). However, other than the appellants, the other persons are not parties to the present appeal, having been discharged following a dismissal of a charge against

them for want of prosecution. On the 2n d count, the second and third appellants were charged with the offence of gang rape contrary to section 131A of the Penal Code. The prosecution on the first count alleged that on 23rd November, 2020 at night hours at Songambele area within Kaliua District in Tabora Region the appellants did steal cash money TZS. 500,000.00 and one bed sheet valued TZS. 150,000.00, the property of Kulikoni Ruben, and that immediately during and after such stealing used a bush knife and clubs to threaten in order to obtain and return the stole properties. It was alleged further in the second count that, on the same date and place, the second and third appellants did have carnal knowledge of Sijali Kulikoni, a girl of 14 years old. When the first count of the charge was read to the appellants, they pleaded guilty. Consequently, the trial court entered a plea of guilty in respect thereof. In relation to the second count, the record reflects that the third appellant pleaded not guilty, whereas the second appellant entered a plea of guilty. The proceedings further indicate that the facts constituting the substance of the offence were read over and explained to the appellants, and that the trial court recorded as having admitted the same to be true. Subsequent to the recorded plea, the prosecution prayed to tender the 2

appellants' cautioned statements as exhibits which prayer was granted, and the trial court admitted the cautioned statements into evidence without first affording the appellants the right to state whether they had any objection to their admissibility. Thereafter, relying on what it considered to be an unequivocal plea of guilty by the appellants and the facts as read over and explained to them, the trial court proceeded to convict the appellants as charged on the first count, and accordingly sentenced each of them to thirty (30) years' imprisonment. For the second count, the trial court convicted the second appellant and imposed upon him a sentence of life imprisonment. Dissatisfied, the appellants lodged an appeal to the High Court of Tanzania sitting at Tabora, challenging both conviction and sentence. Their appeal was, however, dismissed in its entirety. Still undaunted, the appellants are before the Court challenging the High Court's findings, conviction and sentence. In their separate memoranda lodged on 25th April, 2023 and a joint supplementary memorandum of appeal filed on 26th September, 2025, the appellants have raised a total of thirteen (13) grounds. However, for the reasons which will be apparent shortly, we deem it not appropriate to reproduce them herein.

At the hearing of the appeal, the appellants appeared in person, unrepresented, while Messrs. Merito Ukongoji, Nurudini Mmary, and Ms. Aziza Mfinanga, all learned State Attorneys represented the respondent Republic. However, in arguing against the appeal, it was Mr. Mmary who took charge. When the appellants were given the floor to amplify their grounds of appeal, they preferred to let the learned State Attorney to respond first and rejoin later if need would arise. On taking the floor, Mr. Mmary was candid in conceding to the appeal. He sought leave to raise legal issues pertaining to the charge sheet. He contended that the charge on the first count which was laid against the appellants, was incurably defective and that the pleas entered by the appellants were equivocal. Elaborating, the learned State Attorney submitted that, though the appellants were charged with the offence of armed robbery, the particulars of the offence did not indicate to whom the threat or violence was directed, which was a necessary element under section 287A of the Penal Code. To fortify his argument, Mr. Mmary cited the case of Noah Paulo Gonde and Ramadhani Hassan v. DPP, Criminal Appeal No. 456 of 2017, where the Court underscored that failure to disclose the victim of the alleged threat or violence in an armed robbery charge, renders the charge fatally defective. Mr. Mmary submitted that the charge ought to be amended but that was not done. On account of

such shortcomings, he submitted that the appelants were tried on the charge which was incurably defective. In relation to the second count, which involved the offence of gang rape, Mr. Mmary submitted that the facts read in support of the charge fell short of disclosing the essential ingredients of gang rape. In particular, he emphasized that penetration was not mentioned, which is a core component of the offence of any rape. To support this contention, Mr. Mmary cited the cases of Evaristo Silvester v. Republic, Criminal Appeal No. 470 of 2022 [2025] TZCA 789 (TanzLII), and Richard Lionga @ Simageni v. Republic, Criminal Appeal No. 14 of 2020 [2021] TZCA 671 (TanzLII), where it was held that a plea can only be deemed unequivocal if the facts clearly establish all the elements of the offence charged. The learned State Attorney went on to submit that where the facts fail in that respect, as in the present case, the plea is to be treated as equivocal, and a conviction entered thereon cannot stand. As to the way forward, the learned State Attorney contended that in cases where a plea is equivocal, the proper course would be to order a retrial. However, in the present case, he was firm that a retrial would not serve the interests of justice, given that the charge sheet was incurably defective. He further cautioned that to order a retrial would allow the prosecution to fill in evidential gaps, and was indicative of the lack of

prosecutorial interest in pursuing the matter further. In conclusion, he urged the Court to allow the appeal, quash the convictions, set aside the sentences, and release the appellants. In their rejoinder, the appellants welcomed the learned State Attorney's concession and urged this Court to heed the call and set them at liberty. Having carefully considered the uncontested submissions made by both sides, we are persuaded by the learned State Attorney's position with respect to the issue that the charge in the first count is defective for failure to indicate to whom the threat was directed, we wish to affirm that one of the crucial ingredients of the offence of armed robbery in terms of section 287A of the Penal Code is the use by the assailants, in this case the appellants, of the threat or violence to the person against whom the offence is committed. In the case of Kashima Mnadi v. Republic, Criminal Appeal No. 78 of 2011 (unreported), the Court was confronted with a situation where the charge did not indicate the person to whom the threat was directed and it held that: "Having carefully read the charge reproduced supra and the cited section , we are of the settled view that the charge is incurably defective. It is incurably defective because the essential ingredient of the offence of robbery is missing.

Strictly speaking, for a charge of any kind of robbery to be proper, it must contain or indicate actual personal violence or threat to a person targeted to be robbed. So, the particulars of the offence of robbery must not only contain the violence or threat but also the person on whom the actual violence or threat was directed. This requirement is provided under section 132 of the Criminal Procedure Act, Cap. 20 so as to enable the accused person know the nature of the offence he is going to face ." [Emphasis added] See also Juma Maganga v. Republic, Criminal Appeal No. 427 of 2016 (unreported). The importance of including in the particulars of the offence of armed robbery, the person to whom the threat or violence was directed is to enable the accused who stands charged to understand the nature of the case he is facing. In the instant case, it is evident that the particulars of the offence in the first count of armed robbery did not disclose such an aspect. Thus, it is difficult to figure out as to how the appellants could have understood that there was a threat or violence directed to the victim. Such an omission rendered the charge sheet incurably defective, and no lawful conviction could be grounded upon it even where the accused would have pleaded guilty.

On the second count, the record reveals further irregularities. Although the charge for gang rape was allegledy read over to the respective appellants, the second appellant is recorded as having pleaded guilty to rape, not gang rape. This alone creates ambiguity in the plea. Moreover, as correctly submitted by Mr. Mmary the facts read out by the prosecution did not disclose penetration, nor did they demonstrate joint participation by two or more persons, which are essential ingredients of gang rape under section 131A of the Penal Code. Worse still, the trial court did not ask the second appellant whether he admitted the truth of the facts as read out, nor did it record any such response. Instead, it proceeded to enter a plea of guilty, yet they were ultimately convicted. Thus, we agree with Mr. Mmary that such procedural irregularities vitiated the plea-taking process entirely. The Court in the case of Richard Lionga @ Simageni (supra), held that where the essential ingredients of an offence are not audibly and adequately disclosed in the facts, any purported plea of guilty is equivocal, and any conviction based on such pleas cannot stand. Thus, we are satisfied that the first count was fatally defective, and the appellants' pleas entered thereon were equivocal. As to the way forward, we would consider ordering a retrial. However, in view of the defectiveness in the charge

sheet and the prosecution's lack of interest in pursuing the matter, we are constrained to decline that course. In the event, we allow the appeal, quash the convictions and set aside the sentences meted out to the appellants. We further order their immediate release from prison unless otherwise lawfully held. It is so ordered. DATED at TABORA this 8th day of October, 2025. Z. N. GALEBA JUSTICE OF APPEAL L. Z. MGEYEKWA JUSTICE OF APPEAL L. M. MLACHA JUSTICE OF APPEAL The Judgment delivered this 9th day of October, 2025 in the presence of appellants in person unrepresented, Mr. Nurudini Mmary, Learned State Attorney for the Respondent/Republic and Mr. Oscar Msaki,