Masumbuko Mathias vs Republic (Criminal Appeal No. 692 of 2023) [2025] TZCA 878 (27 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCORAM: WAMBALI. J.A.. MGONYA. J.A, AND FELESHI. J.A^i CRIMINAL APPEAL NO. 692 OF 2023 MASUMBUKO MATHIAS...................................................................APPELLANT VERSUS THE REPUBLIC ................................. .................................... RESPONDENT (Appeal from the decision of the Court of Resident Magistrate of Geita exercising Extended Jurisdiction at Geita) (Tenqwa- SRM, Ext. 3ur.) dated the 19th Day of May, 2023 in R.M. Criminal Appeal No. 28 of 2023 JUDGMENT OF THE COURT 23rd July & 27th August, 2025 FELESHI. J.A.: This appeal emanates from the impugned unequivocal plea of guilty entered on 24.8.2018 by Masumbuko Mathias, the appellant, before the District Court of Chato (the trial court) in Criminal Case No. 266 of 2018. That was in respect of the charge of prohibition to impregnate a primary pupil contrary to section 60A (3) of the Education Act No. 2 of the Laws of 2016. The appellant was alleged to have in diverse dates and time between April to August 2018 at daytime at i

Nyantimba Village within Chato District in Geita Region unlawfully impregnated one S. d/o I. (her real name withheld) knowingly that she was a Pupil at Nyantimba Primary School. At the end of the plea-taking proceedings, the appellant was convicted and sentenced to thirty years imprisonment. Toappreciate what transpired before the trial court, we reproduce the charge and the trial court record of proceedings dated 24.8.2018 to speak for itself as detailed below: '!STATEM EN T O F THE O FFENCE: P ro h ib itio n to im p re g n a te a p rim a ry P u p il c/s 60A (3) o f Education A ct No.2 o f the Laws o f 2016. PA R T IC U LA R S O F THE O FFEN CE: That M asum buko s /o M a th ia s is charged that in adversely (sic) date and tim e b etw een A p ril to A u g u st 2 0 1 8 a t d aytim e a t Nyantim ba Village w ithin Chato D istrict in Geita Region ; did unlaw fully im pregnate S. d/o I. know ingly that sh e is a P u p il a t Nyantimba Prim ary School." [Emphasis added.] "Charge read over and explained to the accused person who is asked to plea thereto. A c c d ’s p le a : I t is tru e , I im p re g n a te d th e s a id p u p il.

£77? Accused entered plea o f guilty. Sgd Y.C. Myombo RM 24/08/2018 S um m ary o f evidence. That in between A p ril and August on 2018 in the afternoon a t Nyatimba village in Chato D istrict, the accused im pregnated the school g irl by the name o f S. d/o I. who is school g irl a t Nyantim ba prim ary school: The accused was arrested by the police on 18/08/2018 and when interrogated he adm itted having com m itted such offence. And today when brought before this court he has pleaded guilty. A ccd : I h ave h e a rd th e fa c ts c o rre c tly a n d I a cco rd in g ly a d m it th e sam e: - sgd... PP: Your honour, I have the exhibits as hereunder. The cautioned statem ent o f the accused. PF3 o f the victim and Attendance register. Accd: I h ave n o o b je ctio n y o u r h o n o u r a s to m y ca u tio n e d sta te m e n t as I know it and I made it. I h ave n o o b je ctio n w ith th is P F 3 to be tendered as an exh ibit C e rtific a te o f 3

a tte n d a n ce I have no a n y o b je ctio n to th e sam e to be tendered as an exhibit CT: The said d ocu m en ts.... a d m itte d a s e x h ib its a n d m arked a s Exh, P I, P 2 a n d P 3 re sp e ctiv e ly .... CT: The accused person has pleaded g u ilty to the charge , and also h a s a d m itte d a ii th e fa c ts re a d to him , and also has adm itted his cautioned statem ent (exh P I) made a t the police station, but also he had no objection for the said cautioned statem ent, the PF3 o f the victim and the certificate copy o f the attendance register to be tendered as exhibits in this case. This court having considered the fact that the accused is an aduit (20 yrsj w ith fu tty u n d e rsta n d in g m eans u n d e rsta n d in g w h at h e p le a d e d fo r and therefore this court takes this plea unequivocal one, hence this court finds him g u ilty and accordingly convicts him as he is charged. Sgd C. Y . Myombo RM 24/08/2018"[Erw \m s added.] Upon conviction and while oblivious that an appeal could not be 4

lodged against a conviction based on a plea of guilty, the appellant preferred Criminal Appeal No. 62 of 2022 in the High Court against both the conviction and sentence which was later transferred to the Court of Resident Magistrate of Geita exercising extended jurisdiction (first appellate court) where it was registered as RM. Criminal Appeal No. 28 of 2023 and assigned to Tengwa, Senior Resident Magistrate (SRM) with Extended Jurisdiction. Basically, the appeal against the trial court's decision was predicated on two grounds of appeal to wit, one, that, it erred to convict and sentence on equivocal plea of guilty; and two, that, it erred to act on exhibits PI, P2 and P3 whose contents were not made known to the appellant. Regarding the first ground of appeal, Tengwa (SRM-Ext. Jur.) found the appellant's plea was unequivocal because he clearly understood and admitted the ingredients of the charged offence. Concerning the second ground, he held it was true that the contents of the exhibits were not read out by the prosecution. However, as the appellant had adamantly admitted the facts and was not detracted from assisting the prosecution to prove its case, he found his admission to the correctness of the facts amounted to his plea of guilty. Consequently, the first appellate court dismissed the appellant's appeal for want of merit.

Still dissatisfied, the appellant filed this appeal on nine grounds of appeal through the substantive and supplementary memoranda of appeal. However, the nine grounds of appeal essentially revolve around two core complaints: One, that his plea was not unequivocal; and two, that the sentence meted out on him was too harsh. As it is the plea to the charge relied on arraigning the appellant before the trial court, which is challenged, we deem it appropriate to first resolve the issue whether the appellants plea was unequivocal. For this reason, we see no need to neither reproduce all grounds of appeal nor further revisit the first appellate court's proceedings. Before us at the hearing, the appellant appeared in person, unrepresented, whereas Mr. Robert Magige, learned Senior State Attorney assisted by Mr. Mussa Mlawa, learned State Attorney, appeared for the Respondent, Republic. The appellant brief address to the Court was limited to beseeching it to consider his grounds of appeal, allow it and order for his release from custody because he did not plead guilty to the charge. On his part, Mr. Magige supported the appeal. He submitted that the alleged appellant's plea of guilty was contrary to the requirements of

the law. He contended that: one, the offence mounted against the appellant as cited in the statement of the offence was not known to law; two, the particulars of the offence were not clear on the period and gender of the victim; three, no facts were adduced in respect of the charged offence; and four, the contents of the exhibits tendered and admitted were not made known to the appellant. To that effect, he referred us to our decision in Michael Adrian Chaki v. Republic (Criminal Appeal 399 of 2019) [2021] TZCA 454 (9 September 2021, TANZLII). Therefore, bearing in mind the above shortfalls and decision of the Court, Mr. Magige urged the Court to invoke its revisional power under section 4 (2) of the Appellate Jurisdiction Act, Chapter 141 (the AJA) to nullify the proceedings, quash the conviction and set aside the sentence. In the end, considering the circumstances obtained to the case, he urged the Court to order for the appellant's release from custody. In rejoinder, the appellant reiterated his prayer that the grounds of appeal be considered and he be released from custody. We have considered the parties' submissions above and the record of appeal. We will consider them in the light of the relevant law.

It is common knowledge that where the accused is convicted and sentenced on his own plea of guilty consequent to the plea-taking proceedings as alluded earlier, as a rule, no appeal is allowed to lie against the conviction but for sentence only. This is per section 360 (1) of the Criminal Procedure Act, Chapter 20 (the CPA) providing that: "360 (1) No appeal sh all be allow ed in the case o f any accused person who has pleaded g u ilty and has been convicted on such piea by a subordinate court except as to the extent or leg ality o f the sentence ." However, the above law applies only if the record explicitly shows that a preferred charge was competent and had corresponding facts which were pleaded as such and approved by the accused. It is for that reason that the Court has held deficiencies obtaining in plea taking proceedings as grounds of nullification of such proceedings for want of competent pleas. For instance, in Lawrence Mpinga v. Republic (1980) T.LR. 166 a decision of the High Court approved by the Court in Kalos Punda v. The Republic/ Criminal Appeal No. 153 of 2005 (unreported), had provided the following guidance: "An accused person who had been convicted by court o f an offence on his own plea o f guilty, m ay 8

appeal against the conviction to a higher court on the follow ing grounds:

1. That taking into consideration the adm itted facts h is p ie a w as im p e rfe ct, am biguous or unfinished and, fo r that reason, the low er court erred in law in treating it as a plea o f guilty;
2. That he pleaded g u ilty as a result o f a m ista k e o r m isap p reh en sio n ;
3. T hat th e ch arg e la id a t h is d o o r d isclo se d an o ffe n ce n o t know n to la w ; and that upon the adm itted facts, he could not have been convicted o f the offence charged." [Emphasis added.] It is worth noting that the position of the law above requires trial courts to eliminate all elements capable of vitiating a plea of guilty before convicting and sentencing the accused based on that plea. Our decisions in Khalid Athuman v. The Republic, Criminal Appeal No. 103 of 2005 (unreported), Ally Sanyiwa v. Republic (Criminal Appeal 527 of 2017) [2021] T7CA 431 (27 August 2021, TANZLII) and Daniel Kasoro v. The Republic, Criminal Appeal No. 40 of 2023 (unreported), among others, supports this position. 9

In the instant appeal, our starting point is to look at the competence of the charge that was laid at the appellant's door for his plea against it. Looking at the charge as reproduced above, we have found the offence mentioned in that charge, despite being improperly cited in terms of sections 12 (1) and 20 (1) (b) and (c) of the Interpretation of the Laws Act, Chapter 1, was not known to law and contravened sections 132 and 135 (a) (ii) of the CPA, The words "prohibition" and "p u p il" found in the marginal notes of section 60A (3) of the Education Act, No. 25 of 1978, Chapter 353 which was introduced by Part VI of Act No. 2 of 2016, were not only misplaced in the charge but their vagueness and misleading nature in both the statement and particulars of the offence, inevitably compromised the appellant's ability to enter unequivocal plea of guilty. As gleaned from the charge above, the statement of the offence read out reads: " Prohibition to im pregnate a Prim ary P u p il..." The proper offence under section 60A (3) is named "im pregnating a prim ary school or secondary school g irl." The section reads in extenso that: "60A-(3) Any p e rso n w ho im p re g n a te s a p rim a ry sc h o o l o r se co n d a ry sc h o o l g ir l com m its an offence and shall, on conviction• , be

liable to im prisonm ent fo r a term o f th irty years." [Emphasis added] As the section reads, the offence thereunder is committed when any person impregnates a girl schooling either in a primary or secondary school. The statement and particulars of the offence accompanied by clear facts should thus, in terms of the above-mentioned provisions of the law, state clearly that a girl who is a pupil or student at a certain primary or secondary school was impregnated by the accused. Reverting to the charge, in addition to the flaws caused by the two words discussed earlier, we have found the assertion In adversely date and tim e between A p rii to August 2018 a t daytim e..." \n the particulars of the offence is vague. And, the word "daytim e" therein completely negates the preceding phrase, making it unclear and meaningless. Such an assertion could not have elicited any unequivocal plea of guilty. Besides, we have further noted that, contrary to the prescribed procedure that where the accused admits all essential elements of the offence it is the trial Magistrate or Judge who is duty bound to record what he has said, in his own words as nearly as possible, the plea-taking proceedings above shows as if it was the appellant who recorded his plea of guilty. 11

It is also noteworthy that, during the plea-taking proceedings the facts of the case were not read over to the appellant at all. We say this because, despite the appellant acknowledgment of the facts, and admitting that they were correct, the same were nonexistent. We could not equate "the summary of evidence" above, with the facts which were supposed to be read out to the appellant as propounded in Bahati Pa story @ Gwanchele & Peter John v. Republic (Criminal Appeal No. 133 of 2015) [2016] TZCA 554 (26 May 2016, TANZLII) that: "... after entering the accused's plea , th e m a g istra te sh o u ld n e x t a sk th e p ro se cu to r to sta te th e fa c ts o f th e a lle g e d o ffe n ce and, when the statem ent is com plete, should give the accused an opportunity to dispute or explain the facts or to add any relevant fa cts" [Emphasis added.] To us, a failure to comply with the lucid position of the law propounded above was fatal. That in effect, it rendered the said summary of the evidence together with the alleged unopposed exhibits unfounded and redundant. Nonetheless, we need also to point out here that, we are very much abreast of the stance that particulars of the offence and facts 12

adduced through evidence are able to cure the deficiencies in the charge. For further guidance, see Jamali Ally @ Salum v. Republic (Criminal Appeal No. 52 of 2017) [2019] TZCA 32 (28 February 2019, TANZLII) and George Claud Kasanda v. DPP (Criminal Appeal 376 of 2017) [2020] TZCA 76 (27 March 2020, TANZLII). However, that occurs when the defect in the charge particularly in the statement of the offence is curable under section 388 of the CPA by having particulars and facts sufficiently providing the accused the basic information enabling him to stand a fair trial by entering his unfettered plea or prepare his defence. Finally, before we determine the fate of the appellant's plea, we find it important to emphasize that effective charge and plea management is a very crucial aspect of fair trial. It must thus be professionally conducted by legal practitioners handling criminal cases. The law requires them to solely rely on evidence and accused's responses, without introducing extraneous material. This is what is dictated by sections 228 (1), (2) and (3); and 275 (1), 279 and 282 (1) and (2) of the CPA. Relevant to the matter at hand, section 228 (1) and (2) of the CPA provides: 13

"228 (1)- The substance o f the charge shal,( be s ta te d to th e accu sed p e rso n by th e co u rt, and he shaif be asked whether he a d m its o r d e n ie s the truth o f th e ch arye. (2) I f the a ccu se d p e rso n a d m its the truth o f th e ch arg e, h is a d m issio n s h a if b e re co rd e d as nearly as possible In the words he u ses and th e m a g istra te sh all convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary. "[Emphasis added.] It is in view of the section of law above, this Court in litany of its decisions has sufficiently dealt with the procedure governing accused's plea taking, conviction and sentence resulting from unequivocal plea of guilty, or holding trial upon entered pleas of not guilty. Emphasis should thus be attached on: one, competence of the charge; two, the free will by the accused to assert his plea; three, reading out to the accused an unambiguous facts supporting the charge by the prosecution for his affirmation or denial; and four, anything that should not leave any doubt unsettled. For better appreciation of the Court's stand, also see- Bahati Pa story @ Gwanchele & Peter John v. Republic (supra), Sokoine Mtahali @ Chimongwa v. Republic (supra), Hussein Rashid Jumanne v. Republic (Criminal Appeal No. 55 of 2020) [2023] 14

TZCA 17641 (22 September 2023, TANZLII) and Michael Adrian Chaki v. Republic (supra). In Bahati Pa story @ Gwanchele & Peter John v. Republic (supra) for example, we referred the decision of the erstwhile Court of Appeal for East Africa in Adan v. Republic [1973] 1EA 445 which has been cited with approval in many decisions of the Court. Particularly, it was stated that: "When a person is charged, the charge and the particulars should be re a d o u t to him , so far as possible in h is ow n ian gu age, but if that is not possible, then in a language which h e can sp e a k a n d u n d erstan d. The m a g istra te sh o u ld th en e x p la in to th e accu se d p e rso n a ll th e e s s e n tia l in g re d ie n ts o f th e o ffe n ce charged. I f th e a ccu se d th en a d m its a ll those essential elem ents, th e m a g istra te sh o u ld re co rd w h a t th e a ccu se d h a s sa id , as nearly as possible in h is ow n w ords, and th en fo rm a lly e n te r a p le a o f g u ilty . The m agistrate should next ask th e p ro se cu to r to s ta te th e fa c ts o f th e a lle g e d o ffe n ce and, w hen th e sta te m e n t is com plete, sh o u ld g iv e th e accu se d an o p p o rtu n ity to d isp u te o r e x p la in th e fa c ts o r to a d d a n y re le v a n t fa cts. I f the accused does not agree with the 15

statem ent o f facts or asserts additional facts whichf if true , m ight raise a question as to his guilt, th e m a g istra te sh o u ld re co rd a change o f p le a to M n o t g u ilty " and p ro ce e d to h o ld a tria l. I f the accused d oes n o t d e n y the a lle g e d fa c ts in any m aterial respect, the m a g istra te sh o u ld re co rd a co n v ictio n and proceed to hear any further facts relevant to sentence . The sta te m e n t o f fa c ts a n d th e a ccu se d 's re p ly m ust, o f co u rse, be re c o rd e d . " [Emphasis added] From the foregoing discussion, we respectfully decline the trial and first appellate courts' findings that the appellant's plea is unequivocal. In the circumstance, due to the pointed shortcomings, we are satisfied that the appellant was called to plead to the offence not known to law and proceeded to enter incomplete and ambiguous plea. In this regard, we are inclined to agree with Mr. Magige that the appellant's plea was equivocal. In the event, we allow the appeal on the first ground, and thus we do not see the need to consider the other ground of appeal in respect of the severity of the sentence. We hereby invoke section 4 (2) of the ADA, to revise and nullify the proceedings, quash the conviction and set aside the sentence meted out to the appellant. Consequently, considering the 16

circumstances obtained to the proceedings of this case, we do not find it proper to remit the case for plea taking afresh. In the result, we order the immediate release of the appellant from custody unless lawfully held. DATED at DODOMA this 25th day of August 2025. F. L. K. WAMBALI JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment is delivered this 27th day of August, 2025 in the presence of the Appellant in person unrepresented and Ms. Luciana Shabani, Senior State Attorney for the Respondent/Republic, both through Virtual Court, is hereby certified as a true copy of the original. i / - S J J A. L. KALEGEYA y£// DEPUTY REGISTRAR ^ COURT OF APPEAL 17