Laurent Julius Mbugi vs Republic (Criminal Appeal No. 23 of 2022) [2025] TZCA 1013 (3 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MWANDAMBO. J.A, MAIGE 3.A. And MANSOOR, J.A^ CRIMINAL APPEAL NO. 23 OF 2022 LAURENT JULIUS MBUGI..,.. ........ . .......... .. ............ . ......... . ........ APPELLANT VERSUS THE REPUBLIC.... .............. . ......... . ......... . ................... . .......... RESPONDENT (Appeal from the Judgement of the High Court of Tanzania at Iringa) fMatoaolo, 3.1 dated the 16t h 1day of December, 2021 in Criminal Appeal NO. 28 of 2021 JUDGMENT OF THE COURT 30th September & 3rd October, 2025 MANSOOR. J.A.: The appellant, Laurent Julius Mbugi, was convicted by the District Court of Iringa upon his own plea of guilty for the offence of rape c/s 130 (1) & (2) (e) and 131 (1) of the Penal Code, Cap 16 and the offence of defilement of idiot or imbecile c/s 137 of the Penal Code. He was sentenced to serve 30 years imprisonment for the offence of rape and 14 years imprisonment for the offence of defiling the idiot or imbecile.

His appeal to the High Court, Iringa, was partly successful, as the High Court found that his plea for the second count of defiling an imbecile was equivocal as the facts of the case read over to the appellant during trial did not disclose the ingredients of the second count of defilement of imbecile. Therefore, the High Court acquitted the appellant on the second count but confirmed the conviction and sentence on the first count of rape as it found that his plea of guilty on this count was unequivocal. Still dissatisfied, the appellant filed the second appeal before this Court raising six grounds of appeal. For the reason that would become apparent in the course of this judgement, we shall not reproduce the grounds so stated in the memorandum of appeal. At the hearing, the appellant appeared unrepresented and had simply adopted all the six grounds of appeal without any further explanation or elaboration, while the respondent/Republic was represented by Ms. Pienzia Nichombe, learned Principal State Attorney, Ms. Winifrida Mpiwa Ernest, and Mr. Alfred Maige, both learned State Attorneys. In her brief submissions, Ms. Ernest supported the sixth ground of appeal that the prosecution failed to prove the charge of rape beyond

reasonable doubt. She stated that the charge which lays the foundation of the criminal trial was defective. She submitted further that the appellant was charged for the offence of rape under section 130 (1) and (2) (e) of the Penal Code, however, this section is preferred when charging for the offence of raping a girl below 18 years. In the case at hand, the girl involved was stated to be 18 years old and it was not proper to charge the appellant Under a section of raping a minor and also without stating clearly all the ingredients of the offence. The worst part is that the particulars of the offence did not cure the problem as they did not disclose the vita! element of rape of a girl of 18 years old, which is consent. Ms. Ernest stated that an essential ingredient of consent was not disclosed in the particulars of the charge rendering it utterly defective. Ms. Ernest submitted further that the plea of guilty by the appellant recorded under the first count of rape was not unequivocal as the charge which laid the foundation of the offence was defective and did not correctly Inform the appellant the offence he was facing. She submitted that, had the appellant known that making love with a girl or a woman of 18 years old without her consent was an offence, he would not have pleaded guilty. To buttress her argument, Ms. Ernest referred

to the case of Joseph Mashimba @ Dogo J vs Republic (Criminal Appeal No. 172 of 2021) [2024] TZCA 785 (21 August 2024), in which we emphasised that the charge is the foundation of criminal proceedings upon which a criminal case is built, and it should be free from errors. Ms. Ernest also made reference to the case of Michael Adrian Chaki vs Republic, [Criminal Appeal No 339 of 2019] 2021 TZCA 454 (9 September 2021), in which we stated that the charge being the foundation of the criminal trial must be correct and must contain all ingredients of the offence. In the case of Michael Adrian Chaki, the Court had reiterated standards and tests for a plea of guilty to be regarded as an unequivocal plea of guilty, and one of the tests stated in that case is that the appellant must be arraigned on a proper charge, that is to say, the offence, section and the particulars thereof must be properly framed and must explicitly disclose the offence known to the law, and that the court must be satisfied that the accused fully comprehends the charge he is facing, otherwise there will be a miscarriage of justice. In the end, the learned State Attorney implored us to allow the sixth ground of appeal, quash the conviction and sentence passed by

the courts below, and set free the appellant. The appellant on his part did not have anything to add but prayed for his acquittal. Having carefully considered the submissions from the learned State Attorney, Ms. Ernest, and upon thorough examination of the record, it is evident that the appellant was charged with raping an 18- year-old girl under section 130 (1) and (2) (e) of the Penal Code. In response to the charge, the appellant stated, "It fs true that I had sexual intercourse with Fatum a/'The trial magistrate subsequently convicted him on his. plea of guilty and sentenced him to 30 years imprisonment for the offence of rape. However, as submitted by Ms. Ernest, the charge was defective because it cited section 130 (I) and (2) (e), which applies to offences of rape involving victims under 18 years old. In this case, the victim was 18 years old, rendering the charge being defective. Furthermore, the particulars of the charge failed to include the essential element of consent, a critical ingredient for the offence of rape involving a victim aged 18 or older, as required under section 130 (1) and (2) (a to d). The particulars stated as follows: ”PARTICULARS OF OFFENCE - LAURENT S/O JULIUS MBUGI, on the 22nd day o f April, 2020 at Lupalama "B" Village (Kalenga) within the Rural

D istrict and Region o f Iringa, had sexuai intercourse with one FATUMA D /0 MOHAMED TOYO, a g irl o f Eighteen (18) years o ld /' This omission of consent, or any indication of force, threat, or lack of capacity, rendered the charge defective. Consequently, the appellant's plea of guilty cannot be considered unequivocal, as it was based on a flawed charge that did not fully disclose the nature of the offence. As also established in Michael Adrian Chaki vs Republic [Criminal Appeal No. 339 of 2019] [2021] TZCA 454 (9 September 2021), a valid plea of guilty requires a properly framed charge that explicitly includes all ingredients of the offence and ensures the accused fully comprehends the charge faced. An offence under section 130 (1) and (2) (e) is for rape committed on girls under the age of eighteen (18) years, therefore, the prosecution is required to prove the following ingredients: a. That there was penetration of the complainant's genital. b. That the accused was the perpetrator and c. The victim must be below eighteen years old. An element of consent in the charge under section 130 (1) and (2) (e) of the Penal Code is immaterial. However, when the charge of rape

involves a girl or a woman of eighteen years or above, the charge is premised under Section 130 (1) and (2) (a to d), and an element of consent must be explicitly given in the particulars of the charge. As submitted by the learned State Attorney, the charge was defective and the particulars of the charge did not disclose the essential ingredient of the offence, therefore a plea of guilty on a defective charge cannot be said to be unequivocal. A person pleading guilty of having sexual intercourse with a girl of eighteen years old in itself is not an offence and a plea thereto cannot be unequivocal as it is not stated in the particulars of the charge whether the girl had consented to the sexual act or had resisted or that the consent was obtained by force, threat or when the girl was of unsound mind. As stated in the Michael Adrian Chaki, a plea of guilty on a defective charge is not an unequivocal plea of guilty. We stated thus: .... there cannot be an unequivocal plea on which a valid conviction may be founded unless these conditions are conjunctively met; "

1. The appellant m ust be arraigned on a proper charge. That is to say the offence section and the particulars thereof m ust be properly fram ed and m ust explicitly disclose the offence known to law;

2. The be dear in its mind, that an accused fu lly comprehends what he is actually faced with ; otherwise injustice may result.

3. When the accused is called upon to plead to the chargef the charge is stated and fu lly explained to him before he is asked to state whether he adm its or denies each and every particular ingredient o f the offence. This is in term s o f section 228(1) o f the CPA.

4. The facts adduced after recording a plea o f guilty should disclose and establish a ll the elem ents o f the offence charged

5. The accused m ust be asked to plead and m ust actually plead guilty to each and every ingredient o f the offence charged and the same m ust be properly recorded and m ust be dear (see Akbaraii Dam ji vs R. 2 TLR 137 cited by the Court In Thuway Akoonay vs Republic [1987] T LR . 92);

6. Before a conviction on a plea o f g u ilty is entered, the court m ust satisfy Itself without any doubt that the facts adduced disclose or establish alt the elem ents o f the offence charged. In the present appeal, all the above ingredients were not met. The appellant was not arraigned on a proper charge as the charge was 8

clearly defective for citing the wrong provision of the law. Secondly, the particulars of the offence were lacking the crucial ingredient as they did not disclose the ingredient of consent, and thirdly, the trial court did not satisfy itself as to whether the appellant fully comprehended the charge he was facing. The essence of the plea of guilty in a criminal trial is that the accused, on arraignment, admits his guilt freely, voluntarily, and with full knowledge of the consequences and meaning of his act, and with a clear understanding of the precise nature of the crime charged in the charge or information, such that it is paramount for the charge to be precise, clear, contain all the essential ingredients of the offence and be free from errors as such a plea of guilty, when formally entered on arraignment, is sufficient to sustain a conviction of any offence charged, without the introduction of further evidence, the accused having himself supplied the necessary proof. In view of the foregoing, we find that a plea of guilty entered on a defective charge is not unequivocal plea and this suffices to vitiate his conviction. Learned State Attorney Ms. Ernest, correctly conceded as much in her submissions.

Having found as we have above, we are satisfied that the appeal is merited and it is hereby allowed. The appellant's conviction is consequently quashed and sentence set aside. The next question that we must now consider is whether to acquit the appellant or order a retrial. In considering whether to order a retrial, we are guided by the principles that a retrial should only be ordered if the original trial was a nullity or resulted in a miscarriage of justice and that ordering one will not occasion injustice to the appellant. The Court, in Hamdu Abdalla Abdalla vs DPP (Civil Appeal 235 of 2021) [2022] TZCA 374 (17 June 2022), confirmed that an order for retrial is discretionary but should only be made where the interests of justice demand it, taking into account the nature of the alleged defects, the gravity of the offence, and the likelihood of prejudice to the appellant. Considering the fact that there were also material discrepancies and variances between the charge, the particulars and facts of the case, and since the charge itself was defective, and the respondent/Republic did not take the earliest opportunity to amend the charge, the proceedings which continued on a wrong charge amounted to an unfair trial rendering the offence charged not proved beyond reasonable doubt. We also find that it would not serve the ends of justice to order a 10

retrial in this case. In the premises, we direct that the appellant be set at liberty forthwith unless otherwise lawfully held. DATED at IRINGA this 2n d 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 3rd day of October, 2025 in the presence of Appellant in person - unrepresented, Mr. Damas Sixtus, learned State Attorneys for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the original.