Alfan Iddy @ Masenza vs Republic (Criminal Appeal No. 320 of 2023) [2025] TZCA 1027 (7 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MUSOMA (CORAM: KEREFU, J.A.. MWAMPASHI. J.A. And AGATHO, J.A.l CRIMINAL APPEAL NO. 320 OF 2023 ALFAN IDDY @MASENZA ........................................................ APPELLANT VERSUS THE REPUBLIC ........................................................... RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Musoma) fKomba, 3 .1 dated the 10th day of November, 2022 in Criminal Sessions Case No. 122 of 2021 JUDGMENT OF THE COURT 1 st & 7th October, 2025 MWAMPASHI, J.A.: The High Court of Tanzania at Musoma (the trial court), convicted the appellant herein, Alfan s/o Iddy @ Masenza, of the offence of murder contrary to sections 196 and 197 of the Penal Code, on his own plea of guilty. Having been convicted, the appellant was sentenced to suffer the mandatory deatir penalty by hanging. Aggrieved, he has preferred the instant appeal. The prosecution case against the appellant according to the information and its particulars, was to the effect that, on 14.12.2020, at Nyasirori Village within the District of Butiama in Mara Region, the appellant murdered one Masenzo s/o Webiro (the deceased). As we have intimated above, after the information had been read and explained to him, the appellant pleaded guilty to the charge.

For the better appreciation of what transpired when the information was read, facts stated and on how the appellant pleaded, we find it desirable to hereunder reproduce the relevant trial court's proceedings as they appear from page 2 to 5 of the record of appeal, as follows; "Court Information of murder is read to the accused person who pieads as foiiows: Accused: Aifan s/o Iddy: It is true I murdered the deceased 1 Court: Entered as a piea ofguilty o f the offence o f murder. Sgd: M. L Komba Judge 10 . 11.2022 Mr. Byamungu: Because the accused pieads guilty, we pray your court to enter plea o f guilty and the facts to be read. Court: Facts to [be] read. FACTS "Accused is called Aifan Iddy Masenza, a farmer and he is a resident at Nyesibu Butiama, Mara region . The deceased is Wasenza Webilo who was a student at Nguguguma Primary School when he passed away, he was ten years. The deceased and accused are relatives ; On 13.12,2021, the accused went to his house and found sardines (dagaa) some food was eaten

by the dog; the food was under the supervision of the accused who was ieft at home. The accused was not satisfied by that action and he planned to punish the deceased. With Hi intention on 14.12.2021 he work (sic) the deceased and ordered him to go and cut some ieaves in bushes within the village. Deceased went to the bush while the accused was following him. When the accused reached the deceased while he was cutting some leaves, he strangled him and the deceased raised an alarm for help. One Joseph Hezron who was around the area grazing cows heard an alarm and recognized the deceased voice who was Masenza Wegiio. Joseph ran to the area where the alarm was coming from. When he arrived at the bush where the alarm was heard, he found the accused strangling the deceased, when the accused saw Joseph he stopped that action and [ran] away. Joseph Hezron raised an alarm and the crowd came whom they arrested the accused. By that time Masenza Webiio [had] already died. Villagers informed the Police station over (sic) the [incident], then police went to the scene o f crime and arrested the accused and sent him to Butiama Police Station. The body of deceased was examined and found that cause of death was strangulation. The accused was taken to police where he [gave] his statement and admitted that he killed the accused (sic) for his failure to keep

sardines in good custody action which aiiow dog to eat that sardines and leave the famiiy without food. He (the accused) confessed the same before the justice ofpeace. The accused was charged for murder, contrary to section 196 and 197 o f Cap 16 R.E. 2022. Today Aifan Iddy Masenza is here before this court to answer the charge, That is aii. Sgd: M. L. Komba Judge 10 . 11.2022 Court: Accused is caiied upon to indicate which matters he admits and he replies; Accused: It is true, I did kill, I accept everything. Sgd: M L. Komba Judge 10.11.2022 FINDINGS The facts which the accused person has admitted without qualification constitutes the offence of murder. I accordingly find the accused person guilty of an offenceof murder and hereby convict him on the offence of murder contrary to section 196 and 197 o f Pena Code. Sgd: M. L. Komba Judge 10 . 11 . 2022 ". At the hearing of appeal, whereas, the appellant had the services of Mr. Cosmas Tuthuru, learned advocate, the respondent Republic was

represented by Mses. Shose Naiman and Wampumbulya Shani, both learned Senior State Attorneys. In support of the appeal, the appellant had earlier on 25.07.2023, filed a memorandum of appeal comprised of seven grounds of complaints. However, at the hearing of appeal, the memorandum of appeal was abandoned by Mr. Tuthuru who proceeded to argue the appeal on the basis of a supplementary memorandum of appeal he had filed on 10.06.2025 in which comprised a single ground of appeal to wit:

1. That, the trial Judge erred in law to convict and sentence the appellant on the offence charged while the plea o f guilty by the appellant before the court was an ambiguous or equivocalplea . It was submitted by Mr. Tuthuru that, the appellant's reply to the facts of the case stated by the prosecution by stating that; "It is true, I did kill, I accept everything", as reflected at page 5 of the record of appeal, did not amount to an unequivocal peal of guilty. He insisted that the appellant was not asked to respond and admit or deny to each and every material ingredient of the offence of murder. To concretize his position that the appellant's purported plea of guilty was equivocal, Mr. Tuthuru referred us to our previous decisions in Jelada Chuma v. Republic [2019] TZCA 755 and Noel Paulo @ Kizungo v. Republic [2024] TZCA 194. He also relied on the decision of the defunct East African Court of Appeal in Adan v. Republic [1973] 1 E.A. 445, and prayed for the appeal to be allowed by

the Court nullifying the trial court's proceedings, quashing the resultant conviction, setting aside the sentence imposed on the appellant and ordering a fresh plea taking and trial. Ms. Shani, learned Senior State Attorney, addressed us on behalf of the respondent Republic. Having expressed the respondent's stance that, the appeal was being opposed, Ms. Shani contended that, the appellant, in his clear reply, admitted to have committed the offence charged. She argued that, by stating that "It Is true; I did kill, I accept everything" the appellant unequivocally pleaded guilty to the offence. Relying on the decision of the Court in Paskali Kamara v. Republic [2022] TZCA 631, she urged the Court to dismiss the appeal for being baseless. In his brief rejoinder, Mr. Tuthuru argued that the appellant was not asked to plead to all and every ingredient of the offence of murder which were not even clearly explained in the facts of the case as stated by the prosecution. He reiterated his prayer for the appeal to be allowed and for an order for a fresh plea taking and trial. Our starting point in determining the sole issue on whether the appellant's plea of guilty was unequivocal or not, should be section 228 of the Criminal Procedure Act, Cap. 20 of the Revised Laws (the CPA) under which it is provided that: 6

"228 (1) The substance of the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth o f the charge. (2) I f the accused person 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 himf unless there appears to be sufficient cause to the contrary". As for the manner or proper procedure to be adopted by courts in cases where a plea of guilty is likely to be entered, five steps as stated in Adan v. Republic (supra), have to be followed:

1. The charge and all the essentialingredients o f the offence should be explained to the accused in his language or in a language he understands.
2. The accused's own words should be recorded and if they are an admissionf a plea of guilty should be recorded.
3. The prosecution should then immediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts.
4. I f the accused does not agree the facts or raises any question o f his guilty, his reply mustbe recorded and change ofpiea entered. 5 ; I f there is no change of piea, a conviction should be recorded and a statement of the facts relevant to sentence together with the accused's reply should be recorded.

It is also a settled position of the law that, in any case where a conviction is likely to be entered on a plea of guilty, all the ingredients of the offence charged should be clearly explained in the facts stated and the accused should clearly admit to each and every ingredient of the offence charged. This requirement was emphasized in the case of R. v- Yonasani Egalu & Others (1942)9 EACA 65, thus: "In any case in which a conviction is likely to proceed on a plea of guilty, it is desirable not only that every constituent o f the charge should be explained to the accused but that he should be required to admit or deny every constituent In the instant appeal, after the facts of the case had been stated by the prosecution, as we have demonstrated above, the appellant in his own words, is recorded to have replied that "It is true, I did kill, I accept everything Although the appellant appears to have admitted the facts stated in a blanket form, the crucial issue is whether the facts which were purportedly so admitted in that form, constituted all the ingredients of the offence of murder with which the appellant was charged? It is common ground that, one of the essential ingredients of the offence of murder is malice aforethought. That being the case, the facts stated bythe prosecution in the instant case were required tocontain in clear terms the fact that, the appellant killed the deceased withmalice

aforethought. The appellant needed to be informed through the facts stated that, he had formed an intention to kill the deceased. Further, he ought to have been asked if he was not disputing that fact. Looking at the facts of the case as stated by the prosecution in the instant case, besides the fact that it was not clearly stated in the facts that the killing of the deceased was with malice aforethought, the facts stated and which the appellant purported to admit, included the fact that the accused's plan was to punish the deceased. If the appellant's intention was merely to punish the deceased and not to kill him as stated in the facts, how can it be said that the facts stated and purportedly admitted by the appellant contained an ingredient of malice aforethought? It should be emphasized that murder being a capital offence which attracts death penalty, the appellant's plea admitting the offence, ought to have been clear in respect of whether he killed the deceased with malice afterthought. It is for the above reasons that we find that the appellant's purported plea of guilty was not unequivocal as the facts the appellant purportedly admitted including the fact that the appellant's intention was just to discipline the deceased, could not have warranted conviction of murder. It is also doubtful to us that, in the absence of an indication on the record showing that, though the appellant had legal representation, the trial court took trouble to explain and let the appellant understand the

nature and implication of the offence of murder which the plea of guilty was to be made. It is our considered view that, had the trial court noted that, the facts of the case stated did not clearly contain all the essential ingredients of the offence of murder and had it considered the gravity of the offence and the resultant sentence, it would have hesitated to record the appellant's plea as a plea of guilty. In the case of Adan v. Republic (supra), it was stated that courts should always be cautious not to convict an accused person on his own plea of guilty unless it is certain that the accused person really understands the charge and has no defence to it. It was further warned that the danger of a conviction on an equivocal plea is greater where the accused person in unrepresented, if is of limited education and does not speak the language of the court. If we may add, the danger of a conviction on an equivocal plea of guilty is even greater where the offence charged is murder or any capital offence which attract death penalty. All said and done, we are in complete agreement with Mr. Tuthuru that, as we have intimated above, the appellant's plea was equivocal. We thus, allow the appeal by nullifying the trial court's proceedings of 10.11.2022, quashing the resultant conviction of the appellant and setting aside the sentence imposed on him. We equally direct for the case to be

remitted to the High Court for a fresh plea taking and for a re-trial in accordance with the law, should the appellant plea not guilty. DATED at MUSOMA this 6th day of October, 2025. R. J. KEREFU JUSTICE OF APPEAL A. M. MWAMPASHI JUSTICE OF APPEAL U. J. AGATHO JUSTICE OF APPEAL The Judgment delivered this 7t h day of October, 2025 2025 in the presence of the Appellant in person and Ms. Joyce Godfrey Matimbwi, learned State Attorney for the Respondent/Republic, Shabani Kinyai, Court Clerk; is hereby certified as a true copy of the original. C. M. MAGESA DEPUTY REGISTRAR COURT OF APPEAL li