Hussein Abas @ Mkuvasa vs Republic (Criminal Appeal No. 10 of 2022) [2024] TZCA 1196 (4 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA ( CORAM: MKUYE, J.A., MGEVEKWA, J.A, And NGWEMBE. J.A/) CRIMINAL APPEAL NO. 10 OF 2022 HUSSEIN ABAS @ M KUVASA ....... ., ................... . ...................... APPELLANT VERSUS THE REPUBLIC . ................... . ....... . ........................... . ......... . RESPONDENT (Appeal from the decision of the High Court of Tanzania at Iringa) fMatoaoIo. 3.1 dated the 3rd day of November, 2021 in RM. Criminal Appeal No. 75 of 2020 JUDGMENT OF THE COURT 28th November & 4lh December, 2024 MGEYEKWA, J.A: This is a second appeal. The appellant, Hussein Abas @ Mkuvasa was charged and convicted on his own plea of guilty by the District Court of Mufindi, at Mafinga for the offence of rape contrary to section 130 (1), 2 (e) and 131 (1) of the Penal Code (the Penal Code). It was alleged that, on 6th April, 2020 at Mkombwe area in Mafinga Township within Mufindi District in Iringa Region, the appellant did have carnal knowledge of a girl aged 9 years. The girl shall be referred to as the

'victim' in order to conceal her identity. When the charge was read over, the appellant pleaded guilty and admitted all the facts adduced by the prosecution side. On the strength of the plea of guilty by the appellant and admission to the facts of the case read over to him, the Resident Magistrate convicted him as charged and sentenced him to serve life imprisonment. The appellant unsuccessfully challenged the conviction and sentence meted out to him in the High Court of Tanzania at Iringa. Still undaunted, the appellant has come to the Court in a second and final appeal premising his grievance on five (5) grounds. However, for the reasons which will be apparent shortly, we deem not appropriate to reproduce them herein. At the hearing of the appeal, the appellant entered appearance unpresented, He out rightly urged the Court to consider his grounds of appeal and let the respondent Republic submit in response, while reserving his right to rejoin afterwards, should that need arise. The respondent Republic was represented by Ms. Radhia Njovu, the learned Senior State Attorney who declared her stand that she supported the appeal. In her view, the first ground is sufficient to resolve the appeal, without the need to address the other grounds.

The appellant's complaint on this ground is to the effect that:

1. That the honourable Judge o f the High Court erred in law to dism iss the appellant's appeal without considering that the plea o f g u ilty was equivocal due to the tria l court's failure to show the agreed facts and not disputed facts in order to make clear justification and the term "ni kw eii nakubali" it doesn't mean that a il facts were agreed thereof. Ms. Radhia Njovu began by stating that, in terms of section 360 (1) of the Criminal Procedure Act (the CPA), no appeal lies against a conviction grounded on a plea of guilty except under certain circumstances, such as illegality of a sentence and if the appellant's plea was improper or ambiguous. Fortifying her submission, she referred us to our earlier decision in Hussein Rashid Jumanne v. Republic, Criminal Appeal No. 55 of 2020 [2023] TZCA, 17641 (22 September, 2023 TanzLII), where the appeal was allowed after the appellant’s plea was held imperfect and ambiguous. Ms. Radhia referred us to page 3 of the record of appeal and submitted that after the charge was read over and explained to the appellant, the appellant replied, "N i kw eii nakubali." According to Ms. Radhia, the incomplete plea meant that the plea by the appellant was ambiguous, and it is not certain as to what the appellant pleaded guilty. She reinforced her submission; by referring us to the ease of

Hussein Rashid Jumanne v. Republic (supra), where this Court emphasized the importance of following the seven steps before recording a plea of guilty as unequivocal, short of that the plea is rendered equivocal. The learned Senior State Attorney continued to submit that, the facts of the case were read out but the prosecution did not explain the ingredients of the charged offence of rape which resulted in conviction and sentence. Ms. Radhia further submitted that the prosecution was required to present facts covering all the elements of rape, including the age of both the victim and the perpetrator, to ensure that the appellant fully understood the case he was facing. It was Ms. Radhia's further submission that, the prosecution was required to state the facts encompassing all ingredients of rape namely the age of the victim and the perpetrator of the sexual act in order to enable the appellant to understand the case which he was facing. Upon being probed by this Court on whether the order of retrial would be appropriate, the learned Senior State Attorney had nothing substantial to guide the Court than leaving for the Court to decide. In conclusion, Ms. Radhia implored us to allow the appeal quash the proceedings of the lower courts and order the plea to be taken

afresh according to the law. In his rejoinder, the appellant welcomed the concession by the respondent Republic to his appeal and urged us to consider his grounds of appeal and set him free. Having considered the complaint and the submissions of the parties, our determination concerns the propriety or otherwise of the appellant's conviction. When the charge was presented before the appellant, he pleaded: "It is true, I agree" A thing which moved the trial court to invite the prosecution to read out the facts of the case. When the appellant was asked by the trial Resident Magistrate, if he was admitting the facts which substantiated the charges read over to him, the appellant responded: "All the facts are true, I admit them." On the strength of the plea of guilty by the appellant on the charge and the facts of the case read over to him, the Resident Magistrate convicted the appellant as charged and sentenced him to the statutory sentences as hinted above. We are mindful to the general rule that, as the law stands now, it does not permit any appeal on one's own plea of guilty, except as to the extent or legality of the sentence. This is the gist and import of the

provisions of section 360 (1) of the CPA. For clarity, we reproduce the section as follows: "360 (1) No appeal shall be allow ed In the case o f any accused person who has pleaded g u ilty and has been convicted on such plea by a subordinate court except as to the extent or legality o f the sentence" However, as rightly submitted by Ms. Radhia, we are keenly aware that notwithstanding a conviction resulting from a plea of guilty, under certain circumstances an appeal arising thereof, may be entertained by an appellate court for both conviction and sentence. These would include situations where the plea was imperfect, ambiguous, or unfinished, where the appellant pleaded guilty due to a mistake or misunderstanding; where the charge against the appellant did not disclose an offense recognized by law; or where, based on the admitted facts, the appellant could not legally have been convicted of the charged offense. This position was well elaborated by the Court in a plethora of authorities to that effect. See amongst others, Josephat James v. Republic, Criminal Appeal 316 of 2010 [2012] TZCA 159 (1 October 2012 TanzLII and Frank Mlyuka v. Republic, Criminal Appeal 404 of 2018 [2020] TZCA 1738 (20 August 2020 TanzLII).

We now turn to consider the appellant's complaint in relation to the recorded plea of guilty. The complaint is in twofold, that the appellant's plea was equivocal; and that the facts of the case do not disclose the ingredients of the offence of rape. We begin with the charge which was placed before the appellant. In the view of the facts borne out from the proceedings as shown above, it is clear that the expression "it is true, I agree” was imperfect, unfinished and ambiguous. In other words, it was hardly sufficient to have conclusively assured the trial court of an admission of the truth of the charge in terms of the requirement of section 228 (2) of the GPA. As rightly submitted by Ms. Radhia, it is doubtful whether that expression by itself, without any further elaboration by the appellant constituted a cogent admission of the truth of the charge. In John Samwel @ Kabaka & Another v. Republic, Criminal Appeal No. 58 of 2005 (unreported), such imperfectness, ambiguity, or misapprehension and unfinished pleas of the accused person were held to be equivocal and could not ground a lawful conviction. We emphasized the same in the case of Safari Deemay v. Republic, Criminal Appeal No. 269 of 2011 (unreported), whereby in quashing and setting aside all the proceedings, conviction and sentence, the

Court warned itself: "... we are also o f the settled view that it would be m ore ideal for an appellant who has pleaded g u ilty to say more than just, "it is true". A tria l court should ask an accused to elaborate, in his own words as to what he is saying "is true". Second, as rightly submitted by the learned Senior State Attorney, the facts which were read out to the appellant suffers the same fate of imperfection. Gleaning from the record of appeal (page 3), it is clear that, the facts of the case did not disclose essential ingredients of the offence of rape. We say this because, the appellant was charged under section 130 (1), 2 (e) of the Penal Code, which defines the offense of statutory rape. In this regard, age is crucial ingredient of the offense. Given this deficiency, we are compelled to reproduce the facts admitted by the appellant to determine whether the essential elements of the offense were correctly acknowledged. Let the record speak for itself: "... That the accused and victim are living in the same house a t Mkombwe Street in Mafinga. On 6/4/2020 around22:00 hrs accused went to the victim 's room where he (the accused) found the

victim sleeping naked (w ithout clothes) he then took o ff his trouser and inserted his m ale organ into the victim 's vagina (canalknow ledge) after he finished, he (accused) threatened the victim not to te ll any person as he w ill k ill her. The m atter was reported to the police, where the cautioned statem ent was taken in the presence o f the accused's m other and he adm itted to com m itting such offence. The victim was taken to the hospital fo r m edical check-up. That is a ll . " It is ostensibly seen from the above-quoted facts which were admitted by the appellant that the victim's age at the time of the sexua! act was a missing component. See Hussein Rashid Jumanne v. Republic (supra) where this Court reemphasized a need for the accused to have admitted facts that are constituent of all ingredients of the charged offence. Given the imperfect and ambiguous plea of guilty, we agree with Ms.- Radhia and have no doubt that, the plea was equivocal. On the way forward, the learned Senior State Attorney urged us to find that, the proper course of action is for the Court to quash the proceedings of the lower courts, and return the case file with an order for the trial court to retake a fresh plea in accordance with the law.

However, we find that this is not a suitable case for remitting to the trial court, as the facts of the case do not establish the essential ingredients of the offense charged. Therefore, we believe that ordering a retrial would serve no purpose; it would simply allow the prosecution to fill in gaps in its case, which goes against the spirit of justice. Consequently, we allow the appeal, quash the conviction, and set aside the sentence imposed on the appellant. We hereby order his immediate release from prison unless otherwise lawfully held. DATED at IRINGA this 4th day of December, 2024. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL The Judgment delivered this 4th day of December, 2024 in presence of the Appellant in person and Mr. Saimon Nashon, learned State Attorney for the respondent/Republic, is hereby certified as a