Charles Sambala @ baraka vs Republic (Criminal Appeal No. 514 of 2021) [2024] TZCA 1183 (3 December 2024)

IN THE COURT OF APPEAL OF TANZANIA AT IRINGA (CORAM: MKUYE. J.A., MGEYEKWA, 3.A. And NGWEMBE. 3.A.) CRIMINAL APPEAL NO. 514 OF 2021 CHARLES SAMBALA @ BARAKA . ........................... ., ........ .......... . APPELLANT VERSUS THE REPUBLIC . ................................ . .......... . .......... . ....... . RESPONDENT (Appeal from the decision of the High Court o f Tanzania at Iringa) fMlvambina, 3 ^ dated the 30th day of July, 2021 in RM. Criminal Appeal No. 25 of 2021 JUDGMENT OF THE COURT 29th November, & 3rd December, 2024 MKUYE, J.A.: The appellant, Charles Sambaia @ Baraka, was charged and convicted on his own piea of guilty by the District Court of Mufindi at Mafinga on the offence of armed robbery contrary to section 287A of the Penal Code Cap 16 R.E. 2019 [now R.E. 2022]. Upon the conviction he was sentenced to thirty years imprisonment. Dissatisfied by the decision of the trial court, he unsuccessfully appealed to the High Court as his appeal was dismissed. Still undaunted, he has preferred this appeal to this Court.

The charge levied against him read as follows: "STA TEM EN T O F O FFEN CE ARMED ROBBERY contrary to section 287A o f the Pena / Code [Cap 16 R E . 2019] as am ended by A ct No. 3 o f W ritten Laws (M iscellaneous Amendment) o f 2011. PA R T IC U LA R S O F O FFEN CE Charles s/o Sambala @ Baraka, on 2 $ h day o f August'r 2020 a t Makalala village within M ufindi D istrict in Iringa Region without bonafide claim o f righ t d id steal a m otorcycle to wit; Bajaj with Registration No. M C 224 AAS make TVS KING worth a t Tshs. 7,000,000/= (say seven m illion shillings only) the property o f one Jairos s/o Mwambuchi and im m ediately before stealing did use machete by cutting one Jairos s/o Mwambuchi on his neck, who was driving the sa id Bajaj in order to obtain i t " When the charge was read over to the appellant, he readily pleaded guilty and when the facts constituting the offence were read out to him, he equally admitted that they were correct and confessed to the offence (ni kweli, nakiri kosa). As a result, he was convicted on his own plea of guilty as alluded to earlier on. The appellant lodged both substantive memorandum of appeal consisting of five grounds of appeal and a supplementary memorandum

of appeal, which was presented to the Court on the date of hearing, consisting six grounds and thus, making a total of eleven grounds of appeal, which for a reason to be apparent shortly, we do not intend to reproduce them except for ground no. 1 of the supplementary memorandum of appeal as we consider it to be sufficient to dispose of the whole matter without necessarily dealing with the other grounds. The said ground is to the effect that:

1. That, there was a variance between the charge sheet and the facts o f the case in term s o f the date when the event occurred since the charge sheet shows the event occurred on 26/8/2020 whereas the facts o f the case show that the incident happened on 28/8/2020 and hence, the appellant's plea was equivocal: When the appeal was called on for hearing, the appellant appeared in person without any representation whereas the respondent Republic had the services of Mr. Yahaya Misango, learned Senior State Attorney. Upon being availed an opportunity to expound his grounds of appeal, the appellant sought the indulgence of the Court to adopt them and opted to let the learned Senior State Attorney respond first with a view to re-joining later, if need would arise.

When the learned Senior State Attorney was given the floor, he declared his stance that he supported the appeal. He then, intimated to the Court that after having examined all the grounds of appeal, he found that they revolved the issue of whether the plea of guilty entered by the appellant was unequivocal as per section 360 of the Criminal Procedure Act, Cap 20 R.E. 2022 (the CPA). He predicted his argument on the variance between the charge sheet and the facts constituting the offence as raised in the remaining ground of appeal contending that, the date indicated in the charge sheet was different from the date mentioned in the facts of the case. He contended that, while in the charge sheet the offence is alleged to have been committed on 26/8/2020, in the facts of the case the date is on 28/8/2020. Mr. Misango elaborated further that, on 18/1/2021, when the charge was read over to the appellant, he pleaded "Ni kw eli, ninakiri kosaf' meaning "It Is true, I adm it the offence". The learned Senior State Attorney, did not have any qualms with the plea entered by appellant but he had a problem with the facts which were read out to the appellant as they showed that the offence was committed on 28/8/2020 at around 17:00 hrs at Mafinga bus stand which was a different date from that mentioned in the charge sheet which is 26/8/2020.

Apart from that, he argued that, there was another anomaly as the particulars of the offence in the charge shows that the offence was committed at Makaiala village within Mufindi District in Iringa Region, hut in the facts of the case shows that on 28/8/2020 at around 17:00 hrs at Mafinga bus stand, the appellant entered into a contract with Jairos s/o Mwambuchi who was a bajaj rider with Registration Number MC 224 AAS to send him (accused) to Mkalalal street. He was of the view that, due to the variance between the charge and facts of the case on the date of the commission of the offence and the place where the offence was committed, it means that the plea by the appellant was ambiguous and that it was wrong even for the first appellate court to uphold the conviction and sentence. He said, it is not certain as to what the appellant pleaded guilty. To fortify his argument, Mr. Misango referred us to the case of Lawrence Mpinga v. Republic, (1983) T.L.R 166 page 168, where the Court listed the circumstances where the plea of guilty may by challenged and for purposes of this judgment, he referred us to the first and second conditions as follows:

1. That, even taking into consideration the adm itted facts, his plea was im perfect, am biguous or unfinished and, fo r that reason the low er court erred in law in treating it as a piea o f guilty.

2. That, he pleaded g u ilty as a result o f m istake o r misapprehension.

3. N/A

4. N /A" The learned Senior State Attorney went on submitting that, since the plea of the appellant was equivocal the whole proceedings and decisions of the two courts below were a nullity. As a way forward, he urged the Court to nullify the proceedings and decisions of the two courts below and set aside the resultant sentences. He was of a view that this was not a fit case for remitting it to the trial court due to the facts which do not tally with the charge sheet as the prosecution will get an opportunity to fill in gaps which is not a spirit of justice. He thus, urged the Court to allow the appeal, quash the conviction, set aside the sentence and release the appellant from custody. On his part, the appellant welcomed the concession by the respondent to his appeal and implored the court to allow it and set him free. Having summarized the submissions from either side, we think we are now in a position to deliberate on this appeal. The issue for this Courts' determination is whether the appeal is meritorious.

Mindful of the fact that the appellant was convicted on his own plea of guilty, our starting point would be to revisit section 360 (1) of the CPA which states as follows: "360 (1) N o p e rso n sh all be allow ed in the case o f any accused w ho h a s p le a d e d g u ilty and has been convicted on such plea by a subordinate court e x ce p t to th e e x te n t or legality o f the sentences ." [Emphasis added] It is important to emphasis that according to the above cited provision, a person who has been convicted on his own plea of guilty, can only appeal against the extent or legality of the sentence. He cannot appeal against the conviction. However, that notwithstanding, in the case of Lawrence Mpinga (supra) that was cited by Mr, Misango, which was cited with approval by this Court in the case of Kalos Punda v. Republic, Criminal Appeal No. 153 of 2005 (unreported) the Court expounded, as an exception, the circumstances under which an appeal can lie against the conviction among them as were listed hereinabove being one, when taking into consideration of the admitted facts, the accused plea was imperfect, ambiguous or unfinished; or two, where the accused pleaded guilty as a result of mistaken or miscomprehension of facts - See also: Josephat 7

James v. Republic, Criminal Appeal No. 316 of 2010 [2012] TZCA 159 (1 October 2012). Thus, in the case of Michael Adrian Chaki v. Republic, Criminal Appeal No. 399 of 2019 [2021] TZCA 454, it was emphasized that before the court enters a plea of guilty or acts on it to convict the accused person, it must be satisfied that the accused's plea is perfect, unambiguous and complete. In the said case it was stated that: " When the accused is called upon to plea to the charge, 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 in term s o f section 228 ( 1 ) / ' Having examined the record of appeal we have observed it is crystal clear that when the charge was read over to the appellant, he pleaded guilty "ni kweiif nakubaii" and the court entered a plea of guilty. Also, when the facts constituting the offence were read over to him, he agreed that they were correct. However, our scrutiny of the charge and facts constituting the offence show that they are at variance as was rightly complained by the appellant and conceded by Mr. Misango, This is because, the charge which was read over to the appellant to which he pleaded guilty showed that the office was committed on 26/8/2020 at a

place known as Makalala Village within Mufindi District and the Region of Iringa. However, the facts constituting the offence which were read over to the appellant mentioned 28/8/2020 as the date when the offence was committed and the place where the offence was committed is at Mafinga Bus Stand after the appellant had hired a bajaj to take him to Mkalalal street. In fact, the facts are not clear as to how and when the alleged offence was committed because what is gathered from the facts is that the appellant hired the bajaj and no more. It is obvious that the facts are at variance with the particulars of the offence in the charge sheet. As it is, it is difficult to appreciate what the appellant pleaded guilty as the charge and the facts thereof were ambiguous (See Lawrence Mpinga's case (supra)) in which an appeal can be preferred against the conviction and sentence meted against the appellant. In this regard, we are of a settled view that, under the circumstances, it cannot be said that the appellant's plea was unequivocal instead it was equivocal and, therefore, we answer the issue raised in the affirmative. As to the way forward, we agree with the learned Senior State Attorney's view that this is not a fit case for remitting it to the trial court for retrial due to the facts of the case do not tally with the charge sheet. Otherwise, the prosecution will use that opportunity to fill in gaps which

is not a spirit of justice as was propounded in the case of Fatehali Manji v. Republic [1966] 1 EA 343. In the final event, we find that the appeal's meritorious and allow it. We then quash the conviction, set aside the sentence meted out against the appeal and order for his immediate release from custody unless otherwise held for some other lawful reason(s). DATED at IRINGA this 2n d day of December, 2024. The Judgment delivered this 3rd day of December, 2024 in presence of the Appellant in person and Mr. Amani Kyando, learned State Attorney for the respondent/Republic, is hereby certified as a true copy of the original. R. K. MKUYE JUSTICE OF APPEAL A. Z. MGEYEKWA JUSTICE OF APPEAL P. J. NGWEMBE JUSTICE OF APPEAL