Mineki Ethod @ Mahenge vs Republic (Criminal Appeal No. 22 of 2022) [2025] TZCA 1025 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA ATIRINGA rCORAM: MWANDAMBO J.A.. MAIGE, 3.A. And MANSOOR. J.A.^ CRIMINAL APPEAL NO. 22 OF 2022 MINEKI ETHOD @ MAHENGE ................ .......................... . APPELLANT VERSUS THE REPUBLIC ...... . .... . .... . ........ . ..................... . ......... . .....RESPONDENT (Appeal from the Decision of the High Court of Tanzania at Iringa) (Mlvambina. 3.) dated the 13th day of December, 2021 in Criminal Appeal No. 38 of 2021 JUDGMENT OF THE COURT 3rd & 6th October, 2025 MAIGE, 3.A.: At the District Court of Makete, the appellant was charged with unnatural offence contrary to section 154(1) (a) and (c) of the Penal Code. The factual assertion constituting the offence as per the charge was that, sometime between October 2020 and March, 2021, at the Ilevelo village within Makete District in Njombe Region, the appellant had carnal knowledge of a girl aged 14 years (the victim) against the order of nature. When the charge was read over and explained to him, and, upon being required to enter a plea thereto, the appellant pleaded that "It is

true that I committed the offence." Subsequent to the plea, facts of the case were read out and explained to the appellant who admitted them to be true and correct. The prosecution then tendered the appellant's cautioned statement and the PF3 which were admitted in evidence and marked as exhibits PI and P2, respectively. On being satisfied that the appellant had entered an unequivocal plea of guilty, the trial court convicted him with the offence and sentenced him to thirty years' imprisonment. In addition, the appellant was ordered to pay compensation to the victim to the tune of TZS 1,000,000.00 upon completion of his sentence and six strokes of cane, three to be administered upon entry in the prison and three upon completion of his sentence. Being aggrieved, the appellant appealed to the High Court faulting the trial court for: convicting him based on a cautioned statement which was procured involuntarily; convicting him based on evidence in the PF3 without the doctor who filled it being called for cross examination; and placing reliance on documentary exhibits which were admitted without the appellant being afforded an opportunity to remark on whether they should be admitted or not. Basing on the provision of section 360(1) of the Criminal Procedure Act which bars an appeal against conviction on a

plea of guilty, the first appellate court dismissed the appeal. Once again aggrieved, the appellant has appealed to the Court faulting the High Court for not holding that the appellant's plea at the trial court was equivocal. When the appeal was placed before us for hearing, the appellant appeared in person, unrepresented; whereas Ms. Pienzia Nichombe, learned Principal State Attorney, appeared for the respondent Republic. In address of the appeal, the appellant adopted the grounds of appeal and urged us to allow the appeal. On her part, Ms. Nichombe supported the appeal contending that the plea of guilty entered by the appellant was not unequivocal and could thus, not justify conviction of the appellant. She assigned three reasons. First, while the charge and the facts alleged unnatural offence, the confessional statement in exhibit Pi was in relation to an offence of rape. This, she submitted, creates uncertainty whether the plea entered into was in respect of the offence of rape or unnatural offence. Second, both exhibits PI and P2 were admitted without the appellant being afforded an opportunity to remark on their admissibility. Such an omission, it was submitted, denied the appellant a right to be heard. Third, none of the exhibits were read over and explained to the appellant after being cleared for admission. Citing the case of Michael Adrian Chaki v. R (Criminal

Appeal No. 339 of 2019) [2021] TZCA 454, TANZLII, the learned Principal State Attorney urged us to quash the conviction and set aside the sentence thereof. While aware that ordinarily the way forward would have been to remit the record for retrial, for the reason of the apparent defect in the charge which, in her contention is the foundation of the case, she urged us not to. She clarified that, while the appellant was charged under section 154 (1) (a) and (c) of the Penal Code which pertains to an offence committed where a person permits to be penetrated against the order of nature, the particulars of the offence suggest that the offence was committed by the appellant having carnal knowledge of a 14 years' old girl against the order of nature. In view of the foregoing, we think, the issue which we have to address is whether the plea which the appellant entered at the trial court was an unequivocal. The starting point should be the provision of section 360(1) of the Criminal Procedure Act which, as correctly observed by the High Court, bars appeal against conviction based on a plea of guilty. Be it noted, the prohibition of an appeal against a conviction on a plea of guilty is based on a presupposition that, such plea would be clear and unambiguous enough as to enable the accused to fully comprehend the nature and the effect of the accusation he is actually facing. This is in

line with the right to be heard which is duly protected under the Constitution. In that regard, therefore, and we said in among others, the case of Charles Samwel Mbisa v. R. (Criminal Appeal No. 355 of 2018 [2021] TZCA 151, TANZLII, a plea worthy justifying unappealable conviction is that which is unequivocal. Otherwise, an appeal would lie against such conviction if what the appellate court is required to determine is whether the plea leading to conviction was within the legal parameters as aforesaid. Therefore, in Ignas Sangu v, R (Criminal Appeal No. 358 of 2022) [2025] TZCA 324, TANZLII we stated, with reference to what was said in Lawrence Mpinga v. R [1980] TLR 166 that, an appeal against such conviction can lie where taking into consideration the admitted facts by the accused 'his plea was Imperfect, ambiguous or unfinished and\ for that reason > the tower court erred in law in treating it as a plea o f guilty.' As a matter of common sense and indeed it is the law, in order for the plea to be perfect and complete, the admitted facts must encapsulate all the essential elements of the offence. See for instance, Recho Abdala & Others v. R (Criminal Appeal No. 493 of 2021) [ 2024] TZCA 1064, TANZLII. To that end, the prosecution must, as we said in Richard Lionga @ Simageni v. R [2021] TZCA 671, TANZLII, ’’ detail the

substance o f the evidence and where applicable tender documentary and any other exhibits" , In the instant case, the prosecution detailed the substance of the evidence and tendered the relevant exhibits and, as appears from the record, the trial court placed reliance on the facts read over and explained to the appellant and the exhibits tendered in sustaining the conviction. In its own words, the trial court stated: "The facts which are narrated by the prosecution to the accused p erson as well as the exhibits admitted, together they do form ingredients of the offence charged. As a result, I am strongly convinced that accused person is found guilty o f the offence charged and hence I accordingly convict him as charged basing on his own admission ." Apparently, and as the learned Principal State Attorney correctly submitted, while the charge asserts unnatural offence and the facts so speak, the substance of the evidence and more particularly the cautioned statement indicates that the appellant admitted committing an offence of rape. With that, therefore, it cannot be said with certainty if the appellant was in full appreciation of the nature and effect of the case he was facing when he was entering the plea. In our opinion, therefore, the plea on the 6

basis of which the appellant was convicted was not unequivocal. The appeal, is therefore with merit. As correctly submitted by Ms. Nichombe, the proper way forward if everything remained constant would be, upon quashing the conviction and setting aside the sentence, to remit the record to the trial court for the appellant to stand trial to the charge on a plea of not guilty. With the charge on the record, however, an order for retrial will not be appropriate. The reason being that, while the particulars of the charge suggest that the appellant is facing an unnatural offence against a girl of 14 years which should have been preferred under section 154(1) (a) and (2)) of the Penal Code, the appellant has been charged under section 154 (1) (a) together with item (c) of the Penal Code under which an offence is committed when an accused "permits a male person to have carnal knowledge o f him or her against the order of nature." In effect therefore, a trial will not possibly be conducted, assuming the record is remitted to the trial court therefor, unless the charge is amended to eliminate the defects. This by itself will present the prosecution with an advantage to utilize the order as an opportunity to mount a better case against the appellant which is contrary to the principle governing retrial as propounded in the famous case of FatehaI Manji v. R [1966] IEA 343.

Therefore, in Recho Abdallah & Others v. R (supra), the Court while dealing with an issue like this remarked as follows: W e are in this view guided by the principle that for the court to order a retrial, it should ensure that the prosecution is not going to utilize the order as an opportunity to mount a better case against an accused person by filling in the gaps in order to achieve a conviction. See for instance, FatehaI Manji v. Republic [1966] I EA 343; D.P.P. V, Owden Kasanja and Others [2011] TZCA 50 (18 November 2011); and John Julius Martin and Another v. Republic [2022] TZCA 789 (8 December2022). Although the principle relates to considerations for making an order for a retrial or otherwisef we think it is as well applicable in the circumstances of the instant case. We are of the above view because the charge that was laid against the appellant might be amended by the prosecution to address the omissions found therein in the event trial of the appellants is ordered. [Emphasis is ours] In view of the foregoing and in the final result, we allow the appeal. As a result, we nullify the proceedings and judgments of the trial court and the High Court, quash the conviction and set aside the sentences

imposed against the appellant. We further order his immediate release from prison forthwith unless he is otherwise held for other lawful reason(s). DATED at IRINGA this 6th day of October, 2025. L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL Judgment delivered this 6th day of October, 2025 in the presence of Appellant in person - unrepresented, Ms. Rehema Ndege, learned State Attorney for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original. 9