Deus Magili and Others vs Republic (Criminal Appeal No. 890 of 2023) [2025] TZCA 825 (7 August 2025)

IN THE COURT OF APPEAL OF TANZANIA AT MWANZA fCQRAM: WAMBALI, J.A., MGONYA, J.A. AND FELESHI. J.A:) CRIMINAL APPEAL NO. 890 OF 2023 DEUS MAGILI ...................... MEDRICK LUSOLANYA.......... SALUM JEMES .......... . ........... LAZAROJEMES ............ . ABEL SAMWEL ..................... JUMAJOHN.......................... ...2 nd APPELLANT THE REPUBLIC ..................... VERSUS (Appeal from the Decision of the High Court of Tanzania at Mwanza) dated the 22n d Day of September, 2023 in €ons._CrjrninaLApp_eals No. 54, 62 and 99 of 2023 JUDGMENT OF THE COURT 24th July, 817th August, 2025 MGONYA, J.A.: The appellants were arraigned before the District Court of Sengerema at Sengerema on the charge of armed robbery contrary to section 287A of the Penal Code. It was alleged that on 30th March, 2023 at about 02:00 hrs at Buzilasoga Village within Sengerema District in Mwanza Region, the appellants did steal from Boniphace Bugota, one TV

make Aboda 17 Inch valued at TZS. 160,00. 00, one phone make Itel valued TZS. 25,000. 00 and cash money TZS. 100,000. 00 all total valued at TZS. 285,000. 00. It was alleged further that, immediately before and after such stealing, the appellants used a panga to threaten him in order to obtain and retain the stolen properties. When the charge was read over and explained to the appellants, they all pleaded guilty to the offence. Consequently, upon admission of the facts adduced by the prosecution, they were convicted and sentenced to the statutory term of thirty years imprisonment. Aggrieved by convictions and sentences, the appellants preferred an appeal to the High Court contending that, they were convicted and sentenced on equivocal plea of guilty. The first appellate court found their appeal barren of fruits, hence dismissed it. Still dissatisfied, the appellants filed this second appeal by filing two memoranda of appeal. The original memorandum of appeal comprises of six grounds of appeal, followed by other six grounds filed in the supplementary memorandum of appeal. It is apparent that, though the appellants lodged several grounds of appeal, the crucial ground was whether their pleas were equivocal.

At the hearing of the appeal, the appellants appeared in person, unrepresented whereas, the respondent Republic was represented by Messrs. Peter Hole, Adam Murusuli and Mahembega Mtiro, all learned State Attorneys. When called upon to argue their grounds of appeal, the appellants beseeched us to receive and consider all grounds in the original and supplementary memorandum, and set them at liberty. Being lay persons, they had nothing to add rather they left the floor to the respondent Republic to respond on their grounds of appeal. In reply, Mr. Murusuli initially contested the appeal. However, he later supported it after he noted several anomalies in the charge, particulars and facts of the case. The learned State Attorney submitted that, the appellants appended signatures to their pleas which was not proper. He further contended that, the particulars to the charge sheet were in variance to the facts. He argued that, in the event, the appellants pleaded guilty to the facts which were not in the charge sheet which implies that, they did not plea to the offence charged. To fortify his submission, the case of Michael Adrian Chaki v. Republic, (Criminal Appeal No. 399 of 2019) [2021] TZCA 454 (9 September 2021, TanzLII) was referred.

On the way forward, the learned State Attorney stated that, since the plea was equivocal, he prayed the Court to invoke section 4(2) of the Appellate Jurisdiction Act (the A]A) to nullify the lower courts' proceedings, quash the convictions and set aside the sentences meted to the appellants. He further prayed the matter be remitted to the trial court and start afresh. In their rejoinder, all the appellants reiterated their prayers. Having heard the parties' submissions, the main issue for our determination is whether the appellants' plea was unequivocal. It is a settled principle of the law as provided under section 360(1) of the Criminal Procedure Act, Cap. 20 (the CPA) that, a conviction obtained out of unequivocal plea of guilty is not appealable save for the sentence only. This position of the law has been adumbrated by the Court in its various decisions including Paschal Daud @ Mbiti v. Republic (Criminal Appeal No. 272 of 2022) [2025] TZCA 143 (28 February 2025, TanzLII), Chacha Ghati @ Magige v. Republic (Criminal Appeal No. 129 of 2022) [2025] TZCA 32 (20 February 2025, TanzLII) and Juma s/o Selemani @ Paul v. Republic (Criminal Appeal No. 394 of 2016) [2019] TZCA 482 (6 December 2019, TanzLII).

However, the appellate court may entertain an appeal against conviction founded on a plea of guilty, when it is on the face of record that: One, the plea was imperfect, ambiguous or unfinished and for that reason, the lower court erred in law in treating it is a plea of guilty; two, the appellant pleaded guilty as a result of a mistake or misapprehension; and three, the charge levelled against the appellant disclosed an offence not known to law, and that upon the admitted facts, he could not have been convicted of the offence charged. See-Lawrence Mpinga v. Republic (1983) T.L.R. 166 and Amani Kamugisha v. Republic (Criminal Appeal No. 637 of 2021) [2025] TZCA 35 (20 February 2025, TanzLII). In the appeal at hand, the charge preferred by the respondent Republic contains the following particulars of the offence: "That, SALUMU S/O JEMES, ABEL S/O SAMWEL, JUMA S/O JOHN, DEUS S/O MAGIU, LAZARO S/O JEMES and MEDRICK S/O LUSOLANYA are jointly and together charged on the day of 3CP1March 2023 at about 02:00 hrs at BUZILASOGA VILLAGE within Sengerema District in Mwanza Region did steal one TVmakeABODA17Inch valuedat Tshs. 160,000/= 01 phone make Itel valued Tshs. 25,000/= and cash money Tsh. 100,000/= all total t

valued at Tshs. 285,000/= the property of one BONIPHACE s/o BUGOTA and immediately before and aftersuch stealing did use a panga to threaten him in order to obtain and retain the said properties." As indicated earlier, when the charge was read over to the appellants, they all pleaded guilty, where it is on record that, each of the appellants pleaded to the following effect: "It is true, I did steal and use panga to threaten her". Having entered the above plea, the appellants were made to append their signatures. It is not known if by asking the appellants to sign, the trial Magistrate intended to stop them from turning hostile against their pleas. However, appending signature by an accused after pleading guilty, is not provided by the law. It is also on record of appeal that, following the plea of guilty recorded by the trial Magistrate, the respondent Republic prayed to read over the facts constituting the offence which reads as follows: "Accused name and address as per charge sheet. That they are charged with 1 st count of Armed robbery c/s 287A of Penal Code Cap. 16. 29/03/2023 around at night at Buzilasoga village all the accused persons did steal 1 TV 17 inch

makeSUNDA Tshs. 150,000=, 2 Cellphones make TECNO worth 70,000/=, Solar Battery valued Tshs. 35,000/=, 1 flash valued 15,000/=, cash money 5000/=, Total 275,000/=, property of Hallma Daudi. And before and after the stealing they usedpanga to retain the said properties. On 30/03/2023 all accused were arrested and taken to Sengerema Police Station, where they were all interrogated and confessed. Certificate of seizure was filed and all accused signed. On 6/4/2023 all accusedpleaded guilty to the charge". It is crystal clear that, the aim of reading over the facts of the case is to assert the basic information elaborating the particulars of the offence contained in the charge sheet. Therefore, it is not expected that, the facts of the case should have different information or narration from what is contained in a charge sheet. In the appeal at hand, it is apparent that, there are material discrepancies between the particulars of the offence and the facts which were read over to the appellants on 6/04/2023. For example, while in the charge sheet, the offence is shown to have been committed on 30/3/2023, in the facts of the case it is shown that, the offence was committed on 29/03/2023. It is also on record that, while the particulars of the offence indicates that, the appellants did steal one TV make ABODA

17 Inch valued at Tshs. 160,000/=, one phone make Itel vaued at Tshs. 25,000/= and Cash money Tshs. 100,000/=. Total valued Tshs. 285,000/= the property of Boniphace s/o Bugota, the facts of the case read that the appellants did steal 1 TV 17 Inch make SUNDA, valued at Tshs. 150,000/=, 2 cell phones make TECHNO worth 70,000/=, solar battery valued Tshs. 35,000/=, 1 flash valued Tshs. 15,000/=, Cash money Tshs. 5000/=, Total valued Tshs. 275,000/= the property of Halima Daudi. The discrepancies obtaining in the court record are material and vitiates the appellants' alleged unequivocal plea. With the noted anomalies, we are not in agreement with the first appellate court that, the pleas entered by the appellants were unequivocal. From the patent discrepancies spotted in the charge sheet and the facts of the case, we cannot hold with certainty that the appellants' plea was perfect and free from ambiguity. Consequently, we hold that, the appellants' plea was equivocal, henceforth, we allow the appeal on one major ground and find no need to deal with the remaining grounds of appeal. On the way forward, as was prayed by Mr. Murusuli, we nullify the trial and first appellate courts' proceedings, quash the appellants' convictions and set aside their sentences. In the end, considering the

circumstances of the case, we remit the fiie in Criminal Case No. 67 of 2023 to the trial court for retrial before another Magistrate. In the meantime, the appellants shall remain in custody awaiting their trial. DATED at MWANZA this 6th day of August, 2025. F. L. K. WAMBAU JUSTICE OF APPEAL L. E. MGONYA JUSTICE OF APPEAL E. M. FELESHI JUSTICE OF APPEAL Judgment is delivered this 7th day of August, 2025 in the presence of the Appellants in persons-unrepresented and Mr. Evance Kaiza, learned State Attorney for the Respondent/ Republic, respectively, is hereby certified as a true copy of the original.