Mwajuma Kibwana Omary vs Republic (CRIMINAL APPEAL NO. 20733 OF 2025) [2025] TZHC 8515 (19 December 2025)

IN THE HIGH COURT OF TANZANIA (TANGA SUB REGISTRY) AT TANGA CRIMINAL APPEAL NO. 20733 OF 2025 (Originating from Criminal Case No. 17667 o f2025 of the District Court of Kiiindi at Kiiindi.) MWAJUMA KIBWANA OMARY............................................APPELLANT VERSUS THE REPUBLIC..............................................................RESPONDENT JUDGMENT 18/12/2025 & 19/12/2025 NDESAMBURO, J.: The Appellant Mwajuma Kibwana Omary was arraigned before the District Court of Kiiindi, charged with one count of Trafficking of Narcotic Drugs Contrary to Section 15A (1) & (2)(c) of the Drugs Control and Enforcement Act [CAP 95, R.E. 2019] as amended by Section 19 of the Written Laws (Miscellaneous Amendment) (No. 5) Act, 2021. The charge arose from incidents alleged to have occurred on 28 April 2025 at Jitengeni hamlet in Kiiindi District, where the l

Appellant was found trafficking in narcotic drugs, to wit, 1.89 kilograms of cannabis sativa, commonly known as Bhang. When the charge was first read over to her on 21s t July 2025, the Appellant entered a plea of not guilty. Accordingly, the preliminary hearing was conducted, and the case was scheduled for hearing on 29thJuly 2025. When the case was called for hearing on 29th July 2025, the charge was reminded to the Appellant, who responded that: "It is true I was found in possession of said narcotic drugs to wit 1.89 kiiograms o f cannabis sativa known as bhangi on material date 2&h day o fApril, 2025 in my house". Following this response, the charge was reread to the Appellant, and she again pleaded in the same manner. The learned trial Magistrate accordingly entered a plea of guilty. Thereafter, the learned State Attorney narrated the facts of the case. Upon being called upon to -respond to the narrated facts, the Appellant stated, as recorded: 2

"Such facts are true and correct as on the material date I was found In possession o f bhang! In my house." The learned State Attorney then proceeded to tender five documentary exhibits and three physical exhibits, all of which were admitted by the court. Subsequently, the trial court convicted the Appellant on her own plea of guilty and sentenced her to thirty (30) years' imprisonment. Dissatisfied with both conviction and sentence, the Appellant has preferred the present appeal on the following one ground: 1 . The trial court Magistrate erred in law and fact to convict and sentence the Appellant based on an equivocal plea of guilty. With the above ground, the Appellant prays for this court to allow the appeal, quash and set aside the conviction and sentence. At the hearing of the appeal, the Appellant appeared in person and was unrepresented, while Ms Farida Kaswella, learned 3

State Attorney, represented the Respondent/Republic. The appeal proceeded by way of written submissions. In her submission, the Appellant adopted the ground of appeal and submitted as follows: that the conviction cannot stand because it was founded on an equivocal plea o f guilty. The Appellant submitted that on 21s t July 2025, she pleaded not guilty and was prepared to proceed with the Preliminary Hearing. She averred that after being remanded on the charge, she was advised by a police officer to admit the offence to secure her release. Acting on this alleged inducement, she changed her plea on 29th July 2025. She contended that this change of plea was neither voluntary nor unequivocal. The Appellant further argued that the charge itself was ambiguous. Although it is alleged that she trafficked 1.89 kilograms of cannabis sativa at Jitengeni Hamlet, Songe Village, the charge sheet did not specify the number, colour, or type of bags, nor their individual contents. She highlighted that during the Preliminary Hearing, she expressly disputed the allegation 4

that she possessed a red fabric bag containing 30 pellets of cannabis sativa. Yet, on 29th July 2025, the plea was recorded as admitting possession of both the red and blue bags that had previously been denied. To support her argument, the Appellant relied on the principles governing the proper taking of a plea as laid down in Adan v Republic [1973] EA 445. In that case, the Court of Appeal for East Africa held that: the charge and all essential ingredients of the offence must be explained to the accused in a language the accused understands; the accused's own words must be recorded, and if they amount to an admission, a plea of guilty may be entered; the prosecution must immediately state the facts, and the accused must be given the opportunity to dispute, explain, or add to those facts; if the accused disputes the facts or raises any question as to guilt, the court must record the response and enter a plea of not guilty; and only where the accused fully accepts the facts may the court convict and proceed to sentence. 5

She also cited Peter Kombe v DPP, Criminal Appeal No. 12 of 2016 [2018] TZCA 506, where the Court of Appeal reaffirmed the Adan principles and emphasised that any qualification, doubt, or dispute raised by an accused person regarding the prosecution facts renders a plea equivocal and incapable of sustaining a conviction. The Appellant contended that her case falls squarely within paragraph (iv) of the Adan case guidelines because her earlier denial of possession of the alleged narcotic substances, together with the alleged inducement by a police officer, demonstrated clear doubt and inconsistency, which should have compelled the trial court to enter a plea of not guilty. She argued that the trial court failed to comply with these binding procedural safeguards and therefore improperly convicted her on an equivocal plea. In conclusion, the Appellant submitted that, given the defective manner in which the plea was taken, coupled with the ambiguity of the charge and the evidence of inducement, the appeal is meritorious. She accordingly prayed that this Court find 6

the plea equivocal and allow the appeal as sought in the petition of appeal. In reply, Ms Kaswella opposed the appeal. She maintained that the conviction and sentence were proper and argued that this court should dismiss the appeal. It was her submission that the sole ground of appeal, alleging that the conviction was based on an equivocal plea of guilty, is misconceived and legally untenable. In terms of section 381 of the Criminal Procedure Act [CAP. 20 R.E. 2023], an appeal does not lie against a conviction founded on a plea of guilty, except as to the extent or legality of the sentence. Consequently,, the Appellant is barred in law from challenging the conviction itself. Without prejudice to the foregoing, Ms Kaswella contended that the plea of guilty was, in any event, unequivocal. Relying on the doctrine of authenticity of court records, as affirmed in Andendekisye Mwandambo v Republic, Criminal Appeal No. 469 of 2022 [2025] TZCA (Mbeya), the Respondent submitted that the appellate court must accept the trial record as accurately

reflecting what transpired during the proceedings. In that case, the Court of Appeal reaffirmed that court records are presumed to be correct and reliable. Further guidance is drawn from Chacha Makonge @ Mwansi v R, Criminal Appeal No. 501 of 2020 (unreported), as cited with approval in Andendekisye Mwandambo v Republic, (supra), where the Court explained that in plea of guilty proceedings the court is required to read the charge to the accused, record the plea, narrate the facts, obtain the accused's response to those facts, and thereafter proceed to conviction and sentence if the facts are admitted. She added that the record of proceedings shows that the charge was read and explained to the Appellant in Kiswahili, a language she understood, and she admitted the offence. Owing to the gravity of the charge, the trial court exercised caution by warning the Appellant, explaining the nature of the offence and its prescribed sentence, and ordering the charge to be reread. Upon the second reading, the Appellant once more admitted being found in possession of 1.89 kilograms of cannabis sativa on the 8

material date. This repeated admission demonstrates the clarity and voluntariness of the plea. The prosecution subsequently read the material facts, which disclosed all the essential ingredients of the offence, including the recovery of cannabis sativa from the Appellant's house. The Appellant expressly admitted the truth and correctness of those facts. Documentary and physical exhibits were tendered and admitted without objection, and their contents were read over to the Appellant. Thereafter, she mitigated and prayed for leniency before the sentence was passed. The Respondent further relies on Joel Mwangambako v Republic, Criminal Appeal No. 516 of 2017 [2020] TZCA 1880, where the Court of Appeal held that where an accused person unreservedly admits the facts supporting the charge, the resulting plea of guilty is unequivocal and properly sustains a conviction. The Respondent also submitted that the trial magistrate fully complied with section 228(1) and (2) of the Criminal Procedure 9

Act and the principles enunciated in Peter Kombe vs DPP, Criminal Appeal No. 12 of 2016 [2018] TZCA 506. In conclusion, the Respondent maintained that the Appellant was fully aware of the charge, the facts, and the legal consequences of her plea. The plea was clear, complete, and unequivocal, and the trial court acted in strict compliance with the law. The ground of appeal, therefore, lacks merit, and the Respondent prayed that the appeal be dismissed in its entirety and that the conviction and sentence be affirmed. The Appellant filed a rejoinder, reiterated her submission in chief. After carefully considering the submissions of both parties and the record of appeal, the central issue for determination is whether the Appellant's plea was unequivocal. 10

I am fully cognizant of the general principle under section 381(1) of Cap. 20, which bars appeals from convictions based on a plea of guilty. The section provides the following: "An appeal shall not be allowed in the case o f any accused person who has pleaded guilty and has been convicted on such plea by a subordinate court, except as to the extent or legality of the sentence" The above statutory provision reflects the long-standing position in criminal jurisprudence that a voluntary and unequivocal plea of guilty constitutes an admission ,of all the material facts constituting the offence and ordinarily leaves no room-for an appeal against the conviction. However, this principle is not absolute. As emphasised in Laurent Mpinga v Republic [1983] TLR 166 and subsequent decisions, a conviction on a plea of .guilty, can only be sustained, where the- plea is clear, unambiguous, and recorded in strict compliance, with the law. In the present appeal, the record shows that the Appellant 5 •> V' ( was charged with the offence of Trafficking of Narcotic Drugs Contrary to Section 15A (1) & (2)(c) of the CAP 95, as amended l i

by Section 19 of the Written Laws (Miscellaneous Amendment) (No. 5) Act, 2021. After she had pleaded guilty to the offence charged, the prosecution proceeded to narrate the facts of the case as follows:

1. The accused person is MWAJUMA KIBWANA OMARY, 53 years, Nguu, Muslim, Peasant, and resident of Songe Village, within KHindi District in Tanga Region . 2 . The accused named above is charged with the offence of TRAFFICKING OF NARCOTIC DRUGS; Contrary to Section 15A (1) & (2)(c) o f the Drugs Control and Enforcement Act [CAP 95, R.E 2019] as amended by Section 19 o f the Written Laws (Miscellaneous Amendment) (No. 5) Act, 2021 .
2. On 28th April o f 2025 at about 19:00hrs oneA/INSP MWASWENGU and other fellow Police Officers arrived at the house o f the accused named above in order to conduct search therein after they received information that accused person is selling narcotic drugs to wit cannabis sativa, commonly known as bhangi. 4 During search the accused person was found with one red bag containing dry leaves of cannabis, one blue fabric 12

bag containing one hundred ninety-two (192) roiis of cannabis sativa and one red fabric bag contained thirty (30) pellets o f cannabis sativa, commonly known as bhangi 5. After the search a Certificate o f Seizure was filled and signed by the Police, Independent witness and the accused\ 6. Thereafter the accused was arrested and taken to Songe Police Station for interrogation . 7. During interrogation, the accused confessed to have been found with the said bhangi. 8. On 29th April 2025 the accused person was granted police bailpending investigation o f the case: 9. After completion o f investigation, the accused was brought before this Court and charged accordingly Thereafter, the Appellant was invited to respond to the narrated facts, and the record shows that she admitted the same to be true and correct, stating that on the material date she was found in possession of bhangi in her house, whereupon she appended her signature. Subsequently, the prosecution tendered eight (8) exhibits, including the Government Chemist's report, one 13

sulphate bag containing dried narcotic drugs, one blue bag containing rolls of Cannabis sativa, and one red bag containing thirty (30) pellets of Cannabis sativa (bhangi), all of which were admitted without objection. Against that factual background, the issue for determination is whether the Appellant's admission of the narrated facts could lawfully sustain a conviction. I hesitate to hold that the Appellants admission of the narrated facts was sufficient to sustain a conviction for the offence charged. In Kato v R [1971] E.A. 542, the then East African Court of Appeal emphatically held that a conviction founded on a plea of guilty can only be properly entered where the accused person unequivocally admits all the essentia! ingredients constituting the offence charged. A mere general admission of the facts, without a clear and complete acknowledgement of each constituent element of the offence, is insufficient in law to ground a conviction. 14

In the present case, although the Appellant admitted being in possession of bhangi upon responding to the narrated facts and signing thereto, the proof that the substance allegedly found in her possession was cannabis sativa did not form part of the facts she admitted. The record of appeal clearly shows that the exhibits relevant to the charge, including the Government Chemist's report, were tendered only after the Appellant had already responded and admitted to the narrated facts. Consequently, at the time of admitting the facts, the Appellant had not been confronted with all the essential elements constituting the offence charged. I am mindful of the settled principle that where an accused person pleads guilty, the tendering of exhibits is, as a general rule, not mandatory for purposes of proving the offence. However, that principle admits of exceptions, particularly in offences whose proof depends on the subject matter's technical nature. One such offence is trafficking in narcotic drugs, where proof of the nature of the substance allegedly trafficked is a 15

crucial and indispensable element that cannot be presumed or inferred merely from the accused person's admission. The centrality of the Government Chemist's report in narcotic offences was underscored by the Court of Appeal in Adam Abdallah Ramadhani v Republic (Criminal Appeal No. 372 of 2020) [2024] TZCA 193, where the Court held that a conviction based on a plea of guilty for trafficking in narcotic drugs must be supported by evidence establishing that the substance in question is indeed a narcotic drug, and that a mere admission by an accused person, in the absence of a Government Analyst's report on the nature of the substance, is insufficient to sustain a conviction. The Court held as follows: "A conviction on a piea of guilty for trafficking narcotic drugs must be supported by evidence that the substance in question is indeed a narcotic drug. Mere admission by the accused without a government analyst’ s report on the substance’ s nature is insufficient to sustain a conviction ." In the instant case, the Government Chemist's report, which established that the substance allegedly found in the Appellant's 16

possession was indeed a narcotic drug, was tendered only after the Appellant had admitted the narrated facts, which was procedurally too late. On the proper timing for tendering such exhibits, the Court of Appeal, in Joseph Njiku v Republic (Criminal Appeal No. 220 of 2022) [2024] TZCA 1285 (13 December 2024), emphatically held that expert reports forming an essential element of the offence must be tendered at the time of narrating the facts of the case, stating that: "Such report has to be tendered in court at the time of narrating the facts o f the case" This procedural sequence clearly demonstrates that, at the time the Appellant admitted the narrated facts, those facts did not disclose all the essential ingredients of the offence with which she was charged. Although the Appellant did not object to the tendering of the exhibits, such non-objection did not amount to an admission of the essential ingredients constituting the offence charged. It merely signified compliance with the procedural step of tendering exhibits, which the trial court was obliged to observe. 17

Consequently, notwithstanding the Appellant's plea of guilty, the facts as admitted were incapable of grounding a lawful conviction. The plea was not predicated upon a full, clear, and unequivocal admission of all the constituent elements of the offence of trafficking as charged. It therefore fell short of the legal threshold required to sustain a valid conviction. For the foregoing reasons, I am satisfied that the plea entered was not unequivocal and, as such, was incapable of supporting a lawful conviction. The ground of appeal, therefore, succeeds and is sufficient to dispose of the entire appeal. Accordingly, the appeal is hereby allowed. The conviction is quashed, and the sentence imposed upon the Appellant is set aside. The matter is remitted to the trial court for a de novo trial, commencing from the stage of taking the plea, before a magistrate other than the one who conducted the previous proceedings. In the event that the Appellant is convicted upon retrial, the period already spent in custody shall be duly taken into 18

account when imposing sentence. In the meantime, the Appellant shall remain in custody as a remandee pending a trial de novo. It is so ordered. DATED at TANGA this 19th day of December 2025 Court: The Judgment is delivered on this 19th day of December 2025, in the presence of the Appellant and Ms Jesca Thomas, learned State Attorney for the Respondent. Right of Appeal Explained. H. P . NDESAMBURO \y\ 2 JUDGE 19