Renick Mligo vs Republic (Criminal Appeal No. 88 of 2022) [2025] TZCA 1026 (6 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MWANDAMBO. J.A., MAIGE, J.A. And MANSOOR, J.A/l CRIMINAL APPEAL NO. 88 OF 2022 RENICK MLIGO ....... ..... ....... APPELLANT VERSUS THE REPUBLIC ............... ........... ........ ....... ........ RESPONDENT (Appeal from the Decision of the Resident Magistrate's Court of Njombe at Njombe) fL.M. Chamshama, PRM- Extended Jurisdiction^ dated the Ist day of March, 2022 in Extended Criminal Sessions Case No. 35 of 2021 JUDGMENT QF THE COURT 29th September & 6th October, 2025 MWANDAMBO, J.A.: Before the Resident Magistrate's Court for Njombe (L. M. Chamshama, PRM-extended jurisdiction) the appellant, a young girl aged 11 years, stood charged on an information of murder of a girl of two years. The particulars of the information alleged that, on 26 July 2019 at Maheve Village within the district and region of Njombe, the appellant killed the deceased to which she pleaded guilty. Upon the plea of guilty, the trial

court convicted the appellant followed by a sentence detaining her during the pleasure of the President in pursuance of section 26 (2) of the Penal Code. Dissatisfied, the appellant has appealed to this Court against both conviction and sentence. The facts on which the appellant was arraigned and convicted had it that, the appellant was an orphan staying with the deceased's mother as her guardian at the material time. For some obscure reason, on 26 July 2019, the appellant took the deceased to a pine forest where she hung her causing her death. It turned out later through her confession that, she did so out of revenge against her guardian who had allegedly bitten her a few days previously. The matter was reported to the police and, the following day, the appellant led the police to the scene of crime where the deceased's body was found and retrieved and later taken to the hospital for examination. At the police, the appellant was interrogated and she confessed killing the deceased. Subsequently, she repeated the confession before the justice of peace. Eventually, the appellant stood charged with murder to which she pleaded guilty and convicted thereon followed by a sentence as mentioned above. Initially, the appellant had predicated her appeal on six grounds followed by a supplementary memorandum comprising two grounds. At

the hearing of the appeal, Mr. Moses Ambindwile, learned advocate assigned to represent the appellant obtained leave to substitute the previously lodged memoranda with a supplementary memorandum of appeal upon prior discussion with the appellant in terms of rule 73 (1) of the Tanzania Court of Appeal Rules, 2009 ("the Rules"). Hence, the appellant's appeal is on two grounds faulting the trial court for; one, grounding the conviction on an equivocal plea of guilty and, two, passing a sentence in violation of section 26 (2),(3),(4) and (5) of the Penal Code, Addressing the Court, Mr. Ambindwile sought to impress upon us to sustain the complaint in the 1st ground relying on our previous decision in Amani Onesmo@ Rume [2023] TZCA 17677 to argue that the appellant's plea was, but ambiguous which should not have grounded the impugned conviction. According to the learned advocate, the circumstances of the case did not warrant conviction as, despite the fact that the appellant admitted the facts read to her after entering her plea, it is not clear if she understood the nature of the offence. Believing that the Court's decision in Amani Onesmo@ Rume was on all fours with the facts in the instant appeal, counsel implored the Court to sustain this ground and quash conviction and make appropriate order for the trial of the case on a plea of not guilty. 3

Not surprisingly, Ms, Xaveria Makombe, learned Senior State Attorney who represented the respondent Republic urged the Court to dismiss this ground for being misconceived. She argued that, contrary to the submission by Mr. Ambindwile, the appellant's plea was unequivocal following her admission of the facts read by the prosecution in support of the offence. Counsel reinforced her submission with the Court's decision in Ignas Sangu v. Republic [2025] TZCA 324 for the proposition that, the appellant's response: it is true to the charge read to her, constituted an unequivocal plea of guilty. Ms. Makombe distinguished the Court's decision in Amani Onesrno relied upon by the appellant's learned advocate for being cited out of context. She reasoned that, the Court in that decision found the appellant's plea as equivocal because, instead of making his plea to the charge, the appellant justified his act which made it ambiguous unlike here where the appellant responded to the charge by saying, "/£ is trud' which constituted a clear and perfect plea. Apparently, Mr. Ambindwile had no further submission in rebuttal. We shall begin our discussion on the issue in the 1st ground with section 228(2) of the Criminal Procedure Act (the CPA) at the time of the trial before being designated as section 245 (1) and (2) by the 2023

revision of the laws which came into force on 1 July 2025. That section stipulates: 245.-(1) The substance o f the charge shall be stated to the accused person by the court, and he shall be asked whether he adm its or denies the truth o f the charge . (2) Where the accused person adm its the truth o f the charge, his admission shall be recorded as nearly as possible in the words he uses and the m agistrate sh all convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary. The rationale and the procedure guiding the courts in cases where an accused person pleads guilty to the charge has been long settled through case law in East Africa restated by the defunct East African Court of Appeal in Adan v. Republic [1973] E.A 445. An abridged version of the steps to be taken by the courts before convicting accused persons on own plea of guilty runs: "(i) The charge and a il the essential ingredients o f the offence should be explained to the accused in his language or in a language he understands;

(ii) the accused's own word should be recorded and, if they are an admission ; a plea o f guilty should be recorded; (Hi) the prosecution should then imm ediately state the facts and the accused should be given an opportunity to dispute or explain the facts or to add any relevant facts. (iv) if the accused does not agree the facts or raises any question o f his guilty his reply m ust be recorded and change o f piea entered; and (v) if there is no change o fplea a conviction should be recorded and a statem ent o f the facts relevant to sentence together with the accused's reply should be recorded." In Chacha Makonge® Mwansi v. Republic [2024] TZCA 587 referred to in Andendekisye Mwandambo v. Republic [2025] TZCA 762 cited to us by Ms, Makombe, the Court stated; "As opposed to a tria l which ensues upon an accused denying the charge, where at the conclusion o f the prosecution case and a case to answer being established and an accused is accorded a right to enter his defence and call witnesses, in plea o f guilty proceedings, a ll that the court does is, as explained above, to read the 6

charge to the accused person, record his plea , and if he adm its to the charge, record facts as narrated by the prosecution and record his response if he adm its the facts as presented and record his m itigation before proceeding to convict and sentence him. This is exactly what was done by the learned tria l magistrate " It is glaring from the record that, the above is what transpired before the trial court and indeed, the learned advocate for the appellant has not faulted the court on the procedure apart from his wild complaint that the plea made by the appellant was equivocal. Indeed, we are surprised by the counsel's suggestion that the appellant could not have understood the nature of the offence and the plea she made after the charge had been read to her. With respect, the complaint is neither here nor there as the record speaks louder to the contrary. In the first place, being a minor, the appellant was accompanied by a social welfare officer throughout the proceedings and represented by an advocate. Secondly, ahead of the hearing/the court had a notice of trial on information of murder served on the appellant and her advocate. Thirdly, after the clearance of the preliminary procedural aspects including confirmation of the assessors sitting with the trial magistrate, the information was read over and explained to the appellant in Kiswahili

language inviting her to make a plea thereto to which, the appellant replied: "N iKw eli (It is true)". There can be no dispute that, by replying; n i kweli, the appellant who was not only accompanied by a social welfare officer but also represented by an advocate, understood that she was pleading guilty of causing the unlawful death of Dafrosia D/o Mwageni@ Leila D/o Mwageni on 26 July 2019 at a place called Mahere village within the District and Region of Njombe. Fourthly, in compliance with the established procedure referred to above, the trial court had the facts in support of the information read out to her by the prosecuting attorney. The record reveals that, the appellant admitted to such facts as well as the contents of the exhibits tendered by the prosecution as true and correct. Such exhibits included a caution statement (exhibit P3) and extra judicial statement (exhibit P4) in which, the appellant confessed to have hanged the deceased by a mosquito net to death in a pine tree field causing her death. Following the admission, the trial court convicted the appellant on her own plea of guilty now challenged in this appeal. Moreover, before passing the sentence, the appellant's advocate addressed the court in mitigation fully supported by the social welfare officer.

With respect, since the above is what the trial court did in the instant appeal, Mr, Am bindwile's submission is, but misconceived the more so when he relies on Amani Onesmo's case in which the accused's plea was found to be ambiguous for introducing facts equivocating it. Consequently, we find no merit in the 1st ground and dismiss it. Next for our consideration is the 2n d ground in which the appellant faults the trial court allegedly for imposing a sentence contrary to section 26 (2), (3), (4) and (5) of the Penal Code rendering it unlawful. Without any authority to back up his argument and in what way the sentence was unlawful, Mr. Ambindwile forcefully argued that, in passing the sentence, the trial court did so in contravention of section 26 (2) and (3) of the Penal Code. Ms. Makombe on her part urged us to dismiss this complaint for being baseless and we respectfully agree with her. For ease of reference, section 26 (3) and (3) of the Penal Code stipulates: (2) The sentence o f death shall not be pronounced on or recorded against any person who a t the time o f the commission o f the offence was under eighteen years o f age, but in lieu o f the sentence o f death, the court shall sentence that person to be detained during the President's pleasure, and if so sentenced, he shall be liable to be detained in such place and under such 9

conditions as the M inister fo r the time being responsible fo r legal affair may direct, and w hilst so detained, shall be deemed to be in legal custody. (3) When a person has been sentenced to be detained during the President's pleasure under subsection (2), the presiding judge shall forward to the M inister for the time being responsible for legal affairs a copy o f the notes o f evidence taken a t the trial, with a report in writing signed by him containing such recommendation or observation on the case as he may think fit to m ake." Apparently, quite the opposite of what the learned advocate urged before us, section 26 (2) of the Penal Code has been a subject of the Court's determination in various decisions notably, Daimon s/o Malekela Manganya v. Republic [ 2010] TZCA 8. In that decision, a 16 years old boy had been sentenced to death upon conviction of murder. On appeal, the Court found the sentence illegal and set it aside substituting it with a sentence detaining the appellant during the President's pleasure mandated by section 26 (2) of the Penal Code. See also: Masha Mtalikidonga & others v. Republic [1980] TZCA 14 and Walii Abdallah Kibutwa & others v. Republic [2011] TZCA 258. 10

As submitted by Ms. Makombe, the trial court's role under section 26 (2) of the Penal Code is to pass the appropriate sentence and no more. Contrary to Mr. Ambindwile, the rest in that subsection and the subsequent ones involve enforcement of the sentence which cannot be a basis for any complaint. In the upshot, the 2n d ground is dismissed for lacking in merit. In the event, we find no merit in the appeal and dismiss it. DATED at IRINGA this 4th 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