IN THE HIGH COURT OF TANZANIA

IN HE DISTRICT REGISTRY

AT MWANZA

HC. CRIMINAL APPEAL NO. 14 OF 2020 ( Original Cr. Case No. 224 of 2019 of the District Court of Bukombe District at Bukombe)

RUBEN MICHAEL APPELLANT VERSUS

THE REPUBLIC RESPONDENT

JUDGMENT

2.3. & 4.3.2020

U. E. Madeha, )

At Bukombe District Court in Geita region, the appellant, namely,

Ruben Michael was arraigned for rape offence, contrary to section130 (1)

(2) ( e) of the Penal Code Cap 16 (R.E 2002). The victim was a child aged

three years; I henceforth refer to her by the prefix letters XX. The

appellant was sentenced to his own plea of guilty. The allegations against

the appellants is that; On 10.8.2019 the appellant raped XX in Lyabahila

village. XX was examined at the Uyovu medical Centre and found to have

been raped. The appellant was interrogated and confessed the alleged

offence. On a plea of guilty, he was sentenced to serve life in prison. The

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appellant was dissatisfied with the sentence and conviction imposed by the

trial Court, the appellant lodged the present appeal.

In view of the grounds of appeal raised, the issue here is whether the

preliminary hearing was wrongly conducted. Ms. Sophia Mgasa the Learned

State Attorney observed that the appellant pleaded guilty to the offence of

rape. According to his plea of guilty, there were no irregularities. He

apologized indicating that the offence of rape was committed by the

appellant, cited section 288 of the Criminal Procedure Act Cap 20 (R. E.

2002). The plea of guilty was conducted well to ground the conviction of

the appellant. The appellant stated that it is a cooked case.

Iam with the view that the plea of guilty entered by the appellant

which was not in terms of the law. Here the appellant is contesting the

plea of guilty that he entered in the trial court. In the case of Lawrence

Mpinga Versus Republic (1980) TLR 166 Samata J, it was held that;

"An accused person who had been convicted by any court of an

offence on a plea of guilty, may appeal against conviction to the

High Court on the following grounds."

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1. That's taking into consideration the admitted facts his pleas were in perfect

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 of misapprehension.

3. That the charge laid at his door disclosed an offence not known to law and

4. That upon the admitted facts, he could not in law have been convicted of the

offence charged.

This concerning the issue raised made me go through the case

record, and see whether that the preliminary hearing was wrongly

conducted. It is clear from the record that the parties to the case did not

sign on the memorandum of the agreed facts. As such, the appellant did

not sign on the admitted facts. The trial magistrate also failed to cause the

appellant to sign the facts agreed by the parties. In this case there was a

procedural irregularity in conducting the plea of guilty.

Consequently, the procedure of a plea of guilty was not conducted well.

In the case of bahati masebu versus republic (court of appeal of

Tanzania) Mwanza Criminal. Appeal. No. 135 of 1991 (Unreported) it was

emphasized that;

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y •

"We have had a look at the Rules Published under G.N No. 192/88

especially Rule 4 and 6. We desire to make four brief observations

about the rules. Firstly, there can hardly be any doubt that they are

couched in mandatory terms. Secondly, we consider that in that

context "the facts of the case" include the materials contained in

documents like extra Judicial statements, autopsy reports and sketch

plans. Thirdly, it is thus essential that the materials in such

documents also be read and explained to the accused. And lastly, it

is the accused and not his advocate, who should be asked to state

the facts which he admits. We wish to point out to the Judges and

Magistrates below that there may be cases in which such non-

compliance may result into quashing convictions on appeal'.

Therefore, the process of listening to the person who pleaded guilty

was incomplete, and the appellant did not put his signature on what he

agreed to, so I feel that for the justice to be done this case to be marked

as de-novo, with the change of a trial magistrate.

In the end result, I accede of invoking the revisional powers under

section 373 of the Criminal Procedures Act, Cap. 20 (R. E. 2002).

In fine, the entire proceedings are nullified with an order for a new trial to

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be presided by another magistrate. Trial de-novo, in the meantime, the

appellant should remain in custody. Order accordingly.

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