IN THE COURT OF APPEAL OF TANZANIA

AT MWANZA

(CORAM: MBAROUK, J. Au MASSATI, J. A., And ORIYO, J. A.)

CRIMINAL APPEAL NO. 350 OF 2013

lUMA SAMWEL APPELLANT

VERSUS
THE REPUBLIC RESPONDENT

(Appeal from the Decision of the High Court of Tanzania, at Mwanza.) ,

\
;

(Mwangesi, J.)

Dated the Ogth day of October, 2013

in
Criminal Appeal No. 33 of 2008

.................

JUDGMENT OF THE COURT

9th & 13th March, 2015

MASSATI, J.A.:

The appellant was charged with and convicted of the offence of rape

on his own plea of guilty by the District Court of Bunda. He was convicted.

The trial court sentenced him to 15 years of imprisonment. His appeal to

the High Court (Mwangesi, J.) was unsuccessful in that the appeal against

conviction was found to be incompetent in terms of section 360 (1) of the

Criminal Procedure Act (the CPA). His sentence was enhanced from 15 to

30 years imprisonment, the minimum sentence which the offence of rape

1
attracts. He has now knocked the doors of this Court to assail both

conviction and sentence awarded to him by the lower courts.

The appellant, who appeared in person, filed a memorandum of

appeal containing three grounds of appeal, namely:-

1. That, the trial and the first appel/ate court erred in law and facts by

relying on the appel/ants plea of guilt which resulted from the \,

synopsis of facts narrated by the prosecutor.

2. That, the trial and first appel/ate court had grossly erred in law and

facts to rely on equivocal plea.

3. That, the appel/ants pleas was imperfect, ambiguous or unfinished

and for that reason the lower courts erred

He also filed a written argument in support of the appeal under Rule 74 (1)

of the Tanzania Court of Appeal Rules, 2009 (the Rules). At the hearing of

the appeal, the appellant adopted those grounds and submission, before

he allowed the respondent to start, reserving his right to reply.

In her submission, Ms. Martha Mwadenya, learned State Attorney,

resisted the appeal on the grounds that the conviction having proceeded

2
from his own plea of guilty was not appealable in terms of section 360 (1)

of the CPA, and that the sentence imposed was the minimum set by the

law.

When asked by the Court whether the charge read to the appellant

was sufficient to justify the plea of guilty, the learned counsel while

admitting the defects in both the statement and the particulars of the \,
offence, responded by saying that the defects were curable under section

388 of the CPA. She was convinced that since the particulars were set out

in full in the facts read to him, to which again he admitted to be true. She

relied on CONSTANTINE DEUS @ NDINJAI VS THE REPUBLIC,

Criminal Appeal No. 54 OF 2010 (unreported). The first question we have

to decide is whether in the circumstances of this case, this Court should

interfere with the appellant's conviction?

As shown above, the appellant was charged with the offence of rape.

What did the charge look like? We reproduce the copy of the charge sheet

below:-

CHARGE SHEET

Name and Tribe or Nationality of the Person (s) Charged.

Name: Juma s/o Samwel.

3
Tribe: Jaluo.

Age: 25 years.

Iccep: Peasant.

Address: Mugango VillageMusoma.

Sliltement of Offence: Rape cis 130 (1) and 131 (1) of the Penal Code

Cap. 16 Vol. 1 of the laws, as amended by Sexual Offences (Special) ,

\
,
Provision Act No. 4 of 1998.
\
.\1

Particulars of Offence: That Juma cis Samwel stand charged on 4h day

of April, 2007 at about 09.00 hours at Butakare Village within Bunda

District in Mara Region, did Rape one MWAJUMA% RIZIKL

Station: Bunda Police.

Date: 24/04/2007

That is the charge to which the appellant "pleaded guilty."

We agree that under normal circumstances, there cannot be any

appeal against a conviction resulting from a plea of guilty under section

360 (1) of the CPA. However, there are situations in which convictions

may be challenged on appeal on any of the following points:-

4
 1) That even taking into consideration the admitted facts, his plea was

imperfect or unfinished, and for that reason the lower court erred in

law in treating it as 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 in law;

and ,
\
4) That upon the admitted facts he could not in law have been

convicted of the offence charged."

(See LAURENT MPINGA VS REPUBLIC (1983) TLR 166 (HC)

The next question is, did the charge laid before the appellant disclose

any offence known in law? As is clear from the charge sheet, the

statement of offence refers to "Rape" cIs 130 (1) and 131 (1) of the Penal

Code; whereas the particulars alleged that the appellant "Raped" one

MW AJUMA DID RIZIKI.

Section 130 (1) of the Penal Code provides.

"130 (1) It is an offence for a male person to rape

a girl or a woman. "

5
 In our view, this provision only provides a general definition of the

offence of "rape". But to pin down a person with rape, the statement must

specify which of paragraphs (a) to (e) of section 130 (2) he has committed.

It is not known in this case, which of the provisions of section 130 (2) (a)

to (e) the appellant was charged with. Since the statement referred only

to section 130 (1) it was vague and ambiguous in so far as that provision \1
refers to a girl or a woman.

The facts narrated in the trial court indicate that, it was intended to

charge the appellant under section 130 (2) (a). However, the particulars of

the offence did not disclose an essential ingredient in that offence - lack of ..
;.

consent. Ms. Mwadenya, has submitted that this was curable under

section 388 of the CPA. For that she referred to us to the decision of
I.
DAMIAN RUHELE VS R, Criminal Appeal No. 501 of 2007 (unreported). .~

With respect that is not correct. In that case the appellant did not plead

gUilty. There was a full trial. So, if there were any defects in the

particulars of the offence, the appellant had an opportunity to cross

examine the victim PW1. This is distinguishable from the present case.

The present case is on all fours with KHATIBU KHANGA VS R, Criminal

6
Appeal No. 290 of 2008 (unreported) where a similar situation arose. It

was held:-

''If the charge did not disclose this ingredient in the

particulars it was manifestly wrong, and could not

be cured under section 388 of the Criminal ,

\
Procedure Act. "

In MUSSA MWAIKUNDA VS R (2006) TLR 387, the appellant was

also convicted of an offence of attempted rape, but its particulars lacked an

essential ingredient. It was held there that the charge sheet did not

disclose an offence known to law. This flaw could have been avoided if the

prosecution and the court had explained every ingredient of the offence to

the appellant before his plea was taken (See KIBURE PETER VS R,

Criminal Appeal No. 20 of 2010 (unreported).

So, for the above reasons, we disagree with the learned State

Attorney that the defects in the charge sheet were curable. The defects,

were incurable; and resulted in wrongfully taking the appellant's plea as

that of guilty. As a consequence he was not given a fair trial. We

7
therefore, allow the appeal. We quash the proceedings and subsequent

conviction and set aside the sentence. We would have ordered a retrial

given the seriousness of the offence. But on reflection, we have decided to

leave it to the Director of Public Prosecutions to decide whether or not to

reinstitute the proceedings against the appellant.

Order accordingly.

DATED at MWANZA this u" day of March, 2015.

M.S. MBAROUK
JUSTICE OF APPEAL

S. A. MASSATI
JUSTICE OF APPEAL

K. K. ORIYO
JUSTICE OF APPEAL

I certify that this is a true copy of the original.

~
P. v6AMPIKYA
SENIOR DEPUTY REGISTRAR
COURT OF APPEAL