IN THE HIGH COURT OF TANZANIA

(DAR ES SALAAM DISTRICT REGISTRY)

AT DAR ES SALAAM

CRIMINAL APPEAL NO. 179 OF 2021

(Appeal from the Decision of the District Court of Mafia at Mafia in

Criminal Case No. 34 of2021)

ATHUMAN BAKARI MEJA © BODDE.............................. APPELLANT

VERSUS

REPUBLIC.....................................................................RESPONDENT

JUDGMENT

29^ September & 03rd October, 2022

BWEGOGE, J.

The Appellant herein namely, Athuman Bakari Meja was convicted on his

own plea of guilty to the counts of house breaking c/s 294 (1) (a) and

stealing c/s 258 and 265 respectively of the Penal Code (Cap. 16 R.E.

2022). He was sentenced to serve a concurrent imprisonment sentence

of five (5) years for the 1st count and twelve (12) months for the 2nd count

respectively. The appellant was not amused by the conviction and

sentence imposed against him. The same has preferred an appeal in this

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court on five (5) grounds of which upon review of this court all boil down

to one specific ground that the plea upon which he was convicted, was

equivocal.

At the hearing in this court, the appellant had appeared in person and

fended for himself whereas the respondent Republic was represented by

Mr. Emmanuel Maleko, Senior State Attorney. The appellant had informed

this court that he had previously filed his written submission and he had

nothing to add thereto. This court has gone through the written

submission filed by the appellant in his attempt to substantiate his appeal.

In substance, the appellant had conceded to have been convicted in his

own plea of guilty. However, he contends that his plea was equivocal and

there was a procedural error which invalidates both his conviction and

sentence.

The reasons given by the appellant to validate his assertion that his plea

was equivocal are as follows: That the appellant had pleaded not guilty to

the charges when he was arraigned in court in the first instance.

Thereafter the case was adjourned several times before it was set for a

preliminary hearing. And before the prosecutor had proceeded with the

preliminary hearing, he had prayed to read the charge and, informed the

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trial magistrate that the appellant had pleaded guilty on the like charges

before another trial magistrate. This statement, in the opinion of the

appellant, implied that the prosecutor had predicted his plea of guilty

before he was arraigned in court.

Further, the appellant argued that the facts of the case were not read

over to him after the trial court entered the purported plea of guilty as

per the law of this land. And in validating the assertion that the trial court

had committed a procedural error, the appellant charged that the trial

court had failed to ask the appellant why he had pleaded guilty and

admitted the incriminating fact and, likewise, failed to inform him the

consequences of his plea of guilty.

On the above premises, the appellant reiterated his stance that his

purported plea of guilty was equivocal and, or ambiguous to warrant his

conviction and invited this court to intervene. In the totality of his

submission, the appellant had prayed this court to find his appeal

meritorious, quash the conviction entered by the trial court and set aside

the sentence imposed against him.

On the other hand, Mr. Maleko in replying to the written submission filed

by the appellant had at first instance informed this court that he supports

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the conviction and sentence entered by the trial court against the

appellant. Further, Mr. Maleko had clarified his position mainly on two

premises. First, that the appellant had pleaded guilty to the charge when

the charge was read to him before the preliminary hearing was conducted.

That the record of the trial court of 16th July, 2021 speak volumes that

the appellant having pleaded guilty he had given an explanation admitting

to have stolen the mobile phone make Samsung after he had broken into

the complainants house. And, the appellant had likewise admitted facts

constituting offence which were read and explained to him by the trial

magistrate. More so, Mr. Maleko had addressed this court that the law

guiding this court in resolving the issue on whether the plea entered by

the appellant is equivocal or otherwise is the provision under section 228

of the Criminal Procedure Act (Cap. 20 R.E. 2022).

In tandem with the above, Mr Maleko contended that it is apparent on the

record of the trial court that during mitigation, the appellant had given

reasons why he had stolen the mobile phone to the effect that his mother

was bedridden and in need of money to meet medical expenses. That this

explanation, further ascertains the fact that the appellants plea was

unequivocal.

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Second, the attorney had bolstered his position by stating that the

provision of section 360 (1) of the Criminal Procedure Act (supra), bars

appeal emanating from the conviction based on pleas of guilty. That the

appellant herein is precluded by law to appeal from his own plea of guilty.

And, in closing his submission, the attorney discredited the appellant's

contention that he was induced to plead guilty as the record of the trial

court doesn't indicate the slightest inference of the alleged fact.

When the appellant was invited to respond to the submission made by

the counsel for respondent Republic, he stated that it was the trial

magistrate who had induced him to plead guilty on a promise that he

would let him walk scot-free from custody, that is why he had pleaded

guilty to the charge.

This is all about the submission by the appellant herein and the counsel

for the respondent Republic. And, upon scrutiny of the grounds of appeal

advanced by the appellant, this court is of the considered opinion that the

main issue to be resolved is whether the impugned plea of guilty was

unequivocal.

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Primarily, this court is on all fours with the counsel for the respondent

Republic in respect of the fact that the criminal law of this land bars appeal

from the conviction based on the plea of guilty.

The provision of s. 360(1) of the Criminal Procedure Act, aptly provides

as hereunder:

"360. No appeal on plea ofguilty

(1.) No appeal shall be allowed in the case of 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."

However, this court differs with the counsel for the respondent Republic

in respect that the law revisited above is the general rule with the

exception under certain circumstances as it was laid down in the case of

Laurence Mpinga vs. The Republic (1993) TLR 166 whereas it was

held:

"No appeal shall be allowed in any case of an accused person

convicted on his own plea of guilty, except against sentence or an
order for the payment of compensation.
If the appellant had in fact and in law pleaded guilty to the charge
of robbery, then he could not be heard in the District Court to
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 complain against his conviction. Isay in fact and in law because, as
I apprehend the law, an accused person who has been convicted
by any court ofan offence '’on his own plea ofguilty" may in certain
circumstances appeal against the conviction to a higher court. Such
an accused person may challenge the conviction on any of the
following grounds:

1. that, even taking into consideration the admitted facts, his

plea was imperfect, ambiguous or unfinished and, for that
reason, the lower court erred in law in treating it as a plea of
guilty;
2. that he pleaded guilty as a result of mistake or
misapprehension;
3. that the charge laid at his door disclosed no offence known
to law and,
4. that upon the admitted facts he could not in law have been
convicted of the offence charged."

See also similar view of the Apex Court in the case of Safari Deemay
vs. Republic, Criminal appeal No 269 of 2011 (unreported).

In expounding the principle in Laurence Mpinga(supra) and related

cases, the Apex court in Richard Lionga ©Simageni vs. Republic,

Criminal Appeal No. 14 of 2020 [2021] TZCA 671 had this to say:

"For a plea of guilty to be unequivocal and therefore valid, it must

pass the best that this Court set in the case of Michael Adrian

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Chakivs. R. Cr. Appeal No. 339 of2017 (unreported). In that case,

the Court stated:

"...there cannot be an unequivocal plea on

which a valid conviction may be founded
unless these conditions are conjunctively
met: -

1. The Appellant must be arraigned on a

proper charge. That is to say, the
offence section and the particulars
thereof must be property framed and
must explicitly disclose the offence
known to law;

2. The Court must satisfy itself without any

doubt and must be clear in its mind, that
an accused fully comprehends what he
is actually faced with, otherwise injustice
may result.

3. When the accused is called upon to

plead to the charge, the charge is stated
and fully explained to him before he is
asked to state whether he admits or
denies each and every particular
ingredient ofthe offence. This is in terms

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 of section 228(1) of the Criminal
Procedure Act.
4. The facts adduced after recording a plea
ofguilty should disclose and establish all
the elements of the offence charged.
5. The accused must be asked to plead and
must actually plead guilty to each and
every ingredient of the offence charged
and the same must be properly recorded
and must be dear (see Akbarali Damji vs
R. 2 TLR 137 cited by the Court in
Thuway Akoonay vs Republic [1987]
TLR. 92);
6. Before a conviction on a plea ofguilty is
entered, the court must satisfy itself
without any doubt that the facts
adduced disclose or establish all the
elements of the offence charged"
[Emphasis added].

Further, the court held:

”A careful scrutiny of the above criteria shows that an

unequivocal plea of guilty is constituted of two crucial
stages of pleading. That is, first, the accused must plead
guilty to the charge as indicated at criteria! 1, 2, 3 and 5
and, secondly, he must plead guilty to the facts
constituting the offence charged as per criteria 4 and 6.

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 ............. Where an accused pleads guilty to the charge,
before conviction, the law is that, the prosecution is duty
bound and it must audibly and understandably narrate
facts establishing the offence as alleged in the statement
and particulars of offence. That is, the prosecution must
explain clearly and adequately the circumstances in which
and how the offence was committed in specific and
intelligible terms. "

The above extracts are the apposite restatement of the law pertain to

conviction based on accused plea of guilty. Having explored the law, this

court finds it fit to revisit the proceeding of the trial court bearing the

appellant impugned plea of guilty. The particular charges placed at the

door of the accused person on the relevant date were as thus:

Count:

Offence Section and Law: House breaking c/s 294(1) (a) of the

Pena! Code Cap. 16 of the Laws R.E. 2019.

Particulars of Offence: That ATHUMANI S/O BAKARI META

©BODE in the month of October 2020 at Utende area, Kiegani

Village, within Mafia District in Coast Region, did break and enter

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 into a dwelling house of one HASSANIS/0 HAMADI with intent to

commit an offence therein termed stealing.

2Fd count:

Offence Section and Law: Stealing c/s 258 and265of the Pena!

Code Cap. 16 of the Laws R.E. 2019.

Particulars of Offence: That ATHUMANI S/0 BAKARI MEJA

@BODE in the month of October 2020 at Utende area, Kiegani

Village, within Mafia District in Coast Region, did steal one smart

phone make Samsung valued Tshs. 150,000/= property of one

HASSANI S/0 HAMADI. "

And the relevant proceedings were as follows:

"Date: 16/07/2021

Coram: Hon. H. M. Maroa, RM

For Pros: Insp. Warioba

Accused: Present

CC: Hadija

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Prosecution:

For preliminary hearing, I am ready to proceed......................... I pray

to remind the accused his charge.

Court: Prayer granted...,

Sgd: H. M. Maroa

RM

16/07/2021

Charge read over to the accused person who plead as thus:

1st Count: It is true your honour that I did break the house of one

Hassan S/o Hamad with intent to commit offence therein.

Court: Entered a plea ofguilt (EPG).

Sgd:

H. M. Maroa

RM

16/07/2021

2Pd Count: It is true that I did steal one smartphone make Samsung

from the house of one Hassan s/o Hamad.

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Court: Entered a plea ofguilty (EPG).

Sgd: H. M. Maroa

RM

16/07/2021

Prosecution: Facts are ready, J am ready to proceed.

Sgd: H. M. Maroa

RM

16/07/2021

FACTS OF THE CASE

That the accused person is Athuman s/o Bakari Meja 26, Ngoni,
Muslim, Bus Conductor, A resident of Utende.

That in October2020 the accused was at Utende area.

That while at Utende, the accused had broken and entered into the
house of Hassan Hamad purposely to commit an offence therein.

That the accused in October, 2020 did steal the mobile phone make
Samsung valued Tshs.150,000/= the property of Hassan Hamad.

That on 25/05/2021 at about 08:00 hrs, while at Utende, in his

residence, he was found with one mobile phone make Samsung the
property of Hassan Hamad.

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 That on 25/05/2021, the accused was taken to the police station for
Interrogation.

That on 28/05/2021 the accused was arraigned before the District

Court and denied the charge but today on 16/07/2021 the accused
pleaded guilty to all two charged counts.....

Court: Are the above facts, correct?

Accused: Your honour, the above-narrated facts are very correct that

in October, 20201 did break into the house of one Hassan s/o Hamad
and managed to steal one mobile phone make Samsung and on
25/05/2021 I was arrested and found in possession of the stolen
property (Samsung mobile phone), I cannot deny, it is true your
honour and today I admitted and pleaded guilty, I cannot deny.........."

Further, in convicting the appellant, the record of the trial court entails

the following:

"Court: The accused person Athuman s/o Bakari Meja is

hereby convicted with both two charged counts of the house

breaking c/s 294 (1) (a) and stealing c/s 258 and 265 of the

Pena! Code (Cap. 16 R.E. 2019) on his own plea ofguilty in all

two charged counts as well as his own admission of the

presented facts............that in October, 2020 at Utende area

he had broken into the house of one Hassan Hamad and

managed to steal one mobile phone make Samsung and on

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 25/05/2021 he was arrested and found in possession ofstolen

item ..........prosecution side proved all the ingredients of the

offences clearly."

This court, basing on the glaring record of the trial court, is of the

considered opinion that the appellants plea of guilty at the trial court

passes the test enunciated by the Apex court in Michael Adrian Chaki

(supra) and restated in Richard Lionga Simageni (supra) aforecited. It

is obvious that the appellants plea of guilty to the charges met the

conditions on item no. 1,2,3 and 5 set forth. The charge levelled at the

appellant was proper, the offence, section and particulars properly framed

and explicitly disclosed the offence known to law; the charge was fully

explained to the appellant before he was asked to plea, and the appellant

fully comprehended the charges facing him whereas he had not only

admitted the charges but also given the incriminating particulars of his

actions at the first instance when he was called to plea.

Likewise, the appellants admission to the facts adduced which disclosed

and established all the offences charged, and the record of the trial court

indicates that the trial magistrate had satisfied himself that, without

doubts, the appellants admission to adduced facts disclosed and

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established all elements of the offence as per conditions on items no. 4

and 6 in the aforecited cases. In the same vein, the appellant's mitigation

to the effect that he had opted to steal to meet her mother's medical

needs bolster the fact that the appellant was alive to what was transpiring

in court.

This court, basing on the above observation, purchases wholesale the

submission made by Mr, Maleko, the Senior State Attorney for the

respondent Republic that, the plea made by the appellant at the trial court

was nothing but unequivocal. It is apparent that the appellant herein was

disillusioned by the draconic custodial sentence he was condemned to

suffer and, or advice from the shrewd inmate.

And, this court refuses to purchase the allegation made by the appellant

before this court that he was induced by the trial magistrate to plead guilty

on the promise that he would be set at liberty thereafter. This court finds

no ground to believe that the trial magistrate would venture into the

alleged enterprise. The fact that the appellant had averred in one of his

grounds of appeal that he was induced by the prosecution to plead guilty

before he changed his version and made the same allegation against the

triai magistrate reveals that he is liberal with lies.

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In the same vein, this court is of the considered opinion that the trial court

had no legal obligation to inquire why the appellant pleaded guilty to the

charges, neither obliged to inform him the consequences of his plea as he

had lamented in this court. As aforesaid, the trial magistrate was legally

obliged to satisfy himself that audibly and understandably the narrated facts

established the offences as alleged in the statement and particulars of

offence and clear and adequate explanation of the circumstances in which

and how the offence was committed in specific and intelligible terms was

made to the appellant by the prosecution. This court is of the opinion that

the trial court had discharged that obligation.

The above observations notwithstanding, this court finds indebted to

canvass the last aspect of this appeal pertaining to the validity of the

custodial sentence imposed by the trial court. The appellant had refrained

to submit specifically on this aspect though his pleading indicates he was

aggrieved by both conviction and sentence. The appellant was

condemned to suffer a custodial sentence of five (5) years on the 1st

count.

It is an applicable principle in criminal law that "wherever a first offender

is concerned, emphasis should always be on the reformative aspect of

punishment unless the offence is one of such serious nature that an

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exemplary punishment is required." See Hattan vs Republic 1969 HCD

No. 234 and Masanja Charles vs. The Republic Criminal Appeal No.

219 of 2011 (unreported) Cited in Yeremia Jonas Tehani vs. Republic,

Criminal appeal No. 100 of 2017[2020] TZCA 65

Likewise, the fact that the accused has pleaded guilty to the charge, is

taken to be a factor which a judicial officer presiding over a case should

take into consideration when assessing a sentence. The reason is not far

to see as it is a clear expression of remorse for alleged criminal wrong.

See in this respect, Xavier Sequeira vs. Republic Criminal Case No. 4

of 1993, HC DSM (unreported).

It is a glaring fact that the appellant had pleaded guilty on his own volition;

there was no previous criminal record of the appellant given by the

prosecution, and the trial magistrate didn't opine that the offence is one

of such serious nature that an exemplary punishment was required. Thus,

taking into consideration of the circumstances of this case, the trial court

ought to have exercised leniency. This court finds inclined to borrow a

leaf in Lawrance Mpinga (supra) that this is such a case "where justice

ought to have been tempered with mercy"

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This court is of the considered opinion that the custodial sentence

imposed on the appellant in respect of the first count should be reduced.

The imprisonment term of three (3) years would meet justice of this case.

Hopefully, at the end of the custodial sentence, the appellant would have

learned a lesson that crime does not pay.

Having so said, this court finds that the appeal herein against conviction

based on the appellant's own plea of guilty is devoid of merit. Otherwise,

this court finds that the sentence of five years imposed against the

appellant in the first count is excessive in the circumstances of this case.

Thus, the appellant's jail sentence is hereby reduced to three years.

Appeal partly allowed.

Order accordingly.

DATED at DAR ES SALAAM this 03rd of October, 2022.

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The judgment has been delivered this 03rd October, 2022 in the presence

of Ms. Fidesta Uiso, State Attorney for the respondent Republic and the

appellant who is present in person and unrepresented.

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