George Kipalalye @ Mawazo vs Republic (Criminal Appeal No. 25 of 2022) [2025] TZCA 1009 (2 October 2025)

IN THE COURT OF APPEAL OF TANZANIA AT I RING A (CORAM: MWANPAMBO 3.A.. MAIGE, 3.A. And MANSOOR. 3.A/1 CRIMINAL APPEAL NO. 25 OF 2022 GEORGE KIPALALYE @ MAWAZO ......... . ........... APPELLANT VERSUS THE REPUBLIC ............ . ..... . .............. . ........ . .......... . ............. RESPONDENT (Appeal from the Decision qf the High Court of Tanzania at Iringa) (Mlvambina, 3.1 dated the 29th day of November, 2021 in Criminal Appeal No. 36 of 2020 JUDGMENT OF THE COURT 30th September & 2n d October, 2025 MAIGE, J.A.: In his trial at the District Magistrate Court of Makete (the trial court) the appellant was held culpable of the offence of rape and sentenced to thirty years' imprisonment. Against that decision, the appellant unsuccessfully appealed to the High Court of Tanzania at Iringa (the High Court) and in dissatisfaction, he has further appealed to the Court. As per the charge sheet, the offence under discussion is alleged to have been committed against a girl of eleven years at Kihanga village within the District and Region of Njombe on 14th March, 2019. It was 1

allegedly in the bush where the victim (PW1) and her uncle Yustin were herding cattle. While there, the appellant appeared and asked the victim to follow him to collect some flying termites. Suddenly, the appellant covered the victim's face, removed her skirt and inserted his penis into her vagina. Sooner than later, the victim's uncle appeared and as a result, the appellant ran away. On returning home, PW1 disclosed the ordeal to her mother (PW2) who eventually reported the incident to the police and took the victim to hospital where she was examined by doctor Farhan Salum (PW3) with the outcome that she had been raped. PW3 filled in PF3 which was admitted into evidence and marked as exhibit PI. Despite the appellant's testimony in defence, the trial court found that the case against him had been proved beyond reasonable doubt. It therefore, convicted him with the offence and sentenced him as afore stated. The High Court as the first appellate court confirmed the conviction and sentence. He was aggrieved which is why he had opted for this appeal. In the memorandum of appeal, he has raised three grounds. In the nature of the decision we are going to render, however, it may not be relevant to recite the said grounds. At the hearing, the appellant appeared in person without representation whereas Ms. Pienzia Nichombe, learned Principal State Attorney, appeared for the respondent Republic.

From the outset and having had a quick glance over the record, we requested the parties to address us whether the trial was preceded by plea taking as mandatorily required by the law, Ms, Nichombe had it that as per the record, the appellant was not called upon to plead. That, she submitted, was a fatal omission with the effect of vitiating the judgments and proceedings of both the courts below. She, therefore, urged us to invoke our revisional power and nullify the said judgments and proceedings after which we remit the record to the trial court for retrial. Being a layman, the appellant had nothing to say than praying that he be set free. Having carefully considered the submission by the learned Principal State Attorney and upon scrutiny of the record, it appears clear to us that when the appellant was produced to the trial court for the first time on 5th April, 2019, the presiding magistrate (H.B. Mwangi, RM) aside from reading out the charge, he did not, seemingly for lack of jurisdiction, request the appellant to enter a plea thereto. The record speaks that, after dealing with the issue of bail, the said magistrate placed the matter for mention on 1.7th April, 2019. On the said date, the parties appeared before M.N. Ntandu, RM and from there, there had been several adjournments pending completion of the investigation process until on 30th July, 2019 when a preliminary hearing was conducted. Afterwards,

the record shows, a trial was conducted at the end of which the appellant was convicted and sentenced as aforestated. In conclusion, therefore, the appellant was tried, convicted and sentenced without his plea to the charge being taken. This was in contravention of section 228(1) of the Criminal Procedure Act [now section 246(1)] which provides that: "228-(l) The substance of the charge shall be stated to the accusedperson by the court, and he shall be asked whether he admits or denies the truth of the charge. " The requirement under the above provision, we said in Evance Chole v. R (Criminal Appeal No. 457 of 2022) [2025] T2CA 376, TANZLII is mandatory in the absence of which the arraignment of an accused person remains incomplete. It follows, therefore, and we held in Rlziki Jumanne v. R (Criminal Appeal No. 370 of 2019) [2021] TZCA 302, TANZLII and Evance Chole v. R (supra) that, non-compliance with that requirement is an incurable irregularity which vitiates the whole trial. As the trial in the incident case was conducted without the appellant's plea to the charge being entered into, the entire proceedings before the trial court and the judgment thereof are, in our opinion, a nullity. Equally so, for the judgment and proceedings of the High Court. Pursuant to section 4(2) of the Appellate Jurisdiction Act, therefore, we

nullify the proceedings of the two courts below and the judgments thereof. We further quash the appellant's conviction and set aside his sentence. Having considered the circumstances of the case in the totality, we remit the record to the trial court for retrial before another magistrate according to law. DATED at IRINGA this 1st day of October, 2025. Judgment delivered this 2n d day of October, 2025 in the presence of Appellant in person - unrepresented, Ms. Sophia Manjoti Amani, Mr. Damas Sixtus, both learned State Attorneys for the Respondent/Republic and Leopard Mabugo, Court Clerk is hereby certified as a true copy of the L. J. S. MWANDAMBO JUSTICE OF APPEAL I. J. MAIGE JUSTICE OF APPEAL L. A. MANSOOR JUSTICE OF APPEAL original. 5