Mayunga Samike vs Republic (Criminal Appeal No. 543 of 2021) [2024] TZCA 1069 (7 November 2024)

IN THE COURT OF APPEAL OF TANZANIA AT SUMBAWANGA rCORAM: KEREFU, J.A.. KIHWELO.J.A And MDEMU, J,A.^ CRIMINAL APPEAL NO. 543 OF 2021 MAYUNGA SAMIKE... ............. .. ..... . .... .............................. ..... ....APPELLANT VERSUS THE REPUBLIC.. ......... ,....... . ................... . ........ . ............. ........RESPONDENT (Appeal from the judgment of the High Court of Tanzania, at Sumbawanga) ( Sambo. 3 / 1 dated the 22n d day of January, 2015 in PC. Criminal Appeal No. 14 of 2014 JUDGMENT OF THE COURT 30th October & 7th November, 2024 MDEMU. 3.A.: The appellant was convicted by the District Court of Mpanda for the offence of rape on his own plea of guilty, According to the charge, the appellant was arraigned for two counts, to wit: rape contrary to section 130 (1) (2) (e) and 131 of the Penal Code, Cap. 1 6 -. As per the particulars of the offence, in this first count, the appellant was charged with the rape of a thirteen (13) years old girl on 12th February, 2011 at Kasekese area within Mpanda District. It was at 11.00 hours. An hour before, at the same

date and place, the appellant stood with the accusations of unnatural offence allegedly to be committed to a nine (9) years old girl. This was the second count which faced the appellant. It is in the record of appeal that, on 18th February, 2011, the appellant appeared before the trial District Court of Mpanda for plea taking. The two counts were eventually read to him. He pleaded guilty to the first count of rape and not guilty to the second count of unnatural offence, A plea of guilty and not guilty to the first and the second counts respectively was accordingly entered. The appellant thereafter admitted to the facts stated to him regarding the first count of rape and was accordingly convicted and sentenced to a prison term of thirty (30) years plus three strokes of the cane. The appellant's first appeal to the High Court was without success. The learned High Court Judge rated the plea an unequivocal one, thus found nothing to fault the trial court's findings on conviction and sentence. He, in the end, dismissed the appeal for want of merits. It is this finding which again aggrieved the appellant, thus sought mercy of this Court by lodging a memorandum of appeal comprising of six grounds of complaint. We read closely all the grounds of appeal and found that, as the appellant

was convicted on his own plea of guilty, we thought two aspects would suffice to resolve the appellant's complaint. One, whether there was plea at all to the count of rape and two, if the first issue is in the affirmative, whether the appellant's plea of guilty was an unequivocal one. For that reason, we find it unnecessary to reproduce the grounds of complaint contained in the memorandum of appeal filed by the appellant on 28th February, 2022. Before us on 3Gth October, 2024, at the hearing of the appeal, the appellant appeared in person unrepresented to prosecute his appeal. The respondent/Republic, on that day, had the services of Mr. Deusdedit Rwegira, learned Senior State Attorney who readily supported the appeal. At the start, the appellant opted to hear first from the submission by the learned Senior State Attorney and would rejoin in the end when a need to do so arises. Mr. Rwegira then commenced his submission by stating from the onset that, the appellant's plea of guilty was an equivocal one. The first assigned reason is at page 3 of the record of appeal where Mr. Rwegira said that, there was no plea taken at all because the trial court simply

entered a plea of guilty and there is no indication that the appellant pleaded to the charge. The other reason he assigned by making reference to page 4 of the record of appeal was that, the ingredients of the offence of rape was not stated to the appellant. He added that, the facts stated to the appellant before he was called upon to plead was simply a restatement of the particulars of the offence in the charge. The learned Senior State Attorney therefore argued that the facts stated at page 5 of the record of appeal are not clear. He thus urged us to quash the conviction and the sentence meted out to the appellant. On the way forward, Mr. Rwegira hesitated to urge for retrial because it would not be in the interest of justice as the appellant has already served thirteen (13) years in prison. He has thus served a substantial part of his sentence from the day of his incarceration on 18t f 1 February, 2011. Mr. Rwegira finally urged us to release the appellant forthwith. Upon hearing the respondent's stance regarding his fate, the appellant had nothing in substance to add. He only prayed to be released from custody.

Having heard from the parties, we now revert to resolve the issues we had earlier on raised. We begin with the first issue, that is, whether there was plea at all to the count of rape in the eyes of the law. Before we stretch ourselves that much far, section 228 (1) and (2) of the Criminal Procedure Act, Cap. 20 (CPA) which governs plea taking in subordinate courts provides that: "228.- (1) The substance o f the charge shall be stated to the accused person by the court, and he shall be asked whether he admits or denies the truth o f the charge. (2) Where the accused person admits the truth o f the chargef his admission shall be recorded as nearly as possible in the words he uses and the magistrate shall convict him and pass sentence upon or make an order against him, unless there appears to be sufficient cause to the contrary." In our understanding, the above quoted section prescribes the stages in plea taking by subordinate courts. The case of Khalid Athuman v. Republic (Criminal Appeal No.103 of 2005) [2005] TZCA 84 (26 January, 2005, TanzLII) elaborated what is envisaged in the law aboveregarding those stages in plea taking. It is in this way:

" When the person is charged, the charge and the particulars should be read out to him so far as possible in his own language, but if that is not possible , then in a language that he can speak and understand. The Magistrate should then explain to the accused person all the essential ingredients o f the offence charged. I f the accused admits all those elements, the Magistrate should record what the accused has said as nearly as possible in his own words and then formally enter a plea o f guilty. The Magistrate should next ask the prosecutor to state the facts o f the alleged offence, and when the statement is complete, should give the accused an opportunity to dispute or explain the facts or add any rele vant facts. I f the accused does not agree with the statement o f facts or assert additional facts which, if true, might raise a question as to his guilty and proceed to hold trial. I f the accused does not deny the alleged facts in any material respect, the Magistrate should record conviction and proceed to hear any facts relevant to the sentence. The statement o f facts and the accused reply must o f course, be recorded." [Emphasis supplied]

In response to the issue we raised, and given the above stated legal position on plea taking, we wish to narrow the discussion on one aspect, that is, if the plea was in the appellant's own words. Let us first see what happened at the trial court on the day when the appellant appeared for piea taking. The record of appeal at page 3 reads that: "Court: charge sheet read over and explained to the accused person who was kindly asked to plead thereto. Accused: piea o f guilty to 1st count and plea o f not guilty to the 2n d count. Court: Accused person entered a piea o f guilty to 1st count and a plea o f hot guilty to 2n d count" We really find it hard to interpret such phraseology as recorded by the learned trial Magistrate to constitute a meaningful plea in the appellant's own words. We are saying so because, the words piea o f guilty to 1st count and piea o f not guilty to the 2n d count, do not, in our view indicate if; one; the appellant pleaded in his own words and two, the trial court recorded those words as stated by the appellant when he was called upon to enter his plea. The mandatory requirement to have a plea taken in the exact words of the accused is stated in many decisions of this Court

such as Khalid Athuman v. Republic (supra) and Clement Pancras v. Republic (Criminal Appeal No. 321 of 2013) [2014] TZCA 201 (30 October 2014; TanzLII), just a few to mention. In the latter, the Court dealt with that issue in extenso. In that case, the appellant was convicted for the offence of manslaughter on a plea of guilty, made by his advocate. It was held thereafter that: "/Vo piea known in Jaw was recorded in this case. The plea ought to have been recorded in terms o f section 282 o f the CPA. With respect\ the words "Accused - pleads guilty" did not constitute a plea. These words did not come from the appellant The actual words spoken by the appellant ought to have been recorded \ This was not dond’ [Emphasis supplied] Guided by the above legal principles, we are of the view that, the words piea o f guilty to 1st count and piea o f not guilty to the 2 ] d count are not words of the appellant and do not constitute a plea in legal terms. The words in their plain meaning were not, so to speak/ spoken by the appellant. It was not safe therefore for both the trial and first appellate court to assign such a plea the qualities of a plea of guilty in the true sense.

Next for our consideration is what should be the way forward. Mr. Rwegira, in the interest of justice, urged us to release the appellant as he has already served almost thirteen (13) years which to him, the amount of sentence served is a substantial one. He was therefore not in favour of a retrial. In Joseph Mahona @ Joseph Mboje @Magembe Mboje v. Republic (Criminal Appeal No. 541 of 2015) [2016] TZCA 219 (29 April 2016; TanzLII) where the Court found that the plea of guilty of the appellant was not proper, it observed at page 13 .through 14 of the judgment that: " What remains is what should be done. Ordinarily, where no proper plea has been taken, the usual course would be to remit the case We to the trial court for it to take a fresh plea and proceed with the trial in the ordinary way. Similarly, where there is no conviction, the trial court case file would also be remitted to the trial court for it to compose, in the case o f a full trial, a judgment in accordance with the law, and in the case o f plea o f guilty, like the present one, for the trial court to enter a con viction according to law. But the question in each case is whether, it is in the interest o f justice to do so? In deciding so, each case has to be

decided on its own peculiar facts . " [Emphasis supplied] In Joseph Mahona's case (supra), the appellant was released. Among the consideration, guided by the interest of justice, was the (12) years custodial sentence already served by the appellant. The latter was serving a thirty (30) years prison term for the offence of armed robbery. In the appeal before us, the appellant is serving a thirty (30) years custodial sentence for the offence of rape. He started serving that sentence on 18th February, 2011. As correctly argued by Mr. Rwegira, it is almost thirteen (13) years now since the appellant started serving his sentence. His appeal to the High Court took almost four years as it was dismissed on 22n d January, 2015. He had previously appealed to this Court in Criminal Appeal No. 98 of 2015. His appeal was struck out on 2n d October, 2017 for being incompetent. He is now before us battling his rights. In the Court of Appeal alone, the appellant has the aggregate of nine (9) years, including the period he spent in this Court prosecuting his appeal which, as said, was struck out for being incompetent. Given the above state of affairs, we are in all fours with the learned Senior State Attorney that it would not be in the interest of justice to have

the appellant's plea taken "de novo" as a remedy to the plea anomalies we stated above. For that matter, in the interest of justice, we are constrained to quash conviction and set aside the sentence meted out to the appellant with direction that, the appellant be released from custody unless there are lawful causes for his continued incarceration. DATED at SUMBAWANGA this 7th November, 2024 The Judgment delivered this 7th day of November, 2024 in the presence of the appellant appeared in person and Mr. John Mwesiga Kabengula, learned Senior State Attorney for the Republic/respondent; is hereby certified as a true copy of the original. R. J. KEREFU JUSTICE OF APPEAL P. F. KIHWELO JUSTICE OF APPEAL G. J. MDEMU JUSTICE OF APPEAL F, DEPUTY REGISTRAR COURT OF APPEAL