THE UNITED REPUBLIC OF TANZANIA
JUDICIARY
IN THE HIGH COURT OF TANZANIA
(DISTRICT REGISTRY OF MOROGORO)
AT MOROGORO
CRIMINAL APPEAL NO. 56 OF 2022
(Originating from Chminai Case No. 231 of2022 in the District Court ofKiiosa)
OMARY NZOBALAKILA .....APPELLANT
VERSUS
THE REPUBLIC ..RESPONDENT
JUDGEMENT
Hearing date on: 28/09/2022
Judgement date on: 29/09/2022
NGWEMBE,J;
The appellant found in jail for plea of guilty of an offence found on
Cyber Bullying contrary to section 23 (1)(2) of the Cyber Bullying Act 14
R.E. 2015. The appellant after being arrested, he was arraigned in court
and charged accordingly. When the appellant was called to plead, he
pleaded Itistrud'
Out of that plea, the appellant was convicted and sentenced to serve
three (3) years imprisonment or pay fine of TZS. 5 million and his mobile
phone was admitted in court marked exhibit PI which same was ordered to
be kept in safe custody by the court.
After finding himself in jail, he immediately preferred this appeal
clothed with four (4) grounds. I need not to reproduce them herein for
reasons to be disclosed later on.
On the hearing of this appeal, unfortunate the appellant did not
procure legal services of an advocate, so he had very limited contributions
on his grounds of appeal. Rather bitterly complained with difficult Kiswahili
language, that he never committed anything wrong to whoever. He
expressed that, he is a citizen and resident of Burundi employed as a driver
responsible to ferry oil from Dar es Salaam Port to Burundi.
On the fateful date, he was with another person travelling from Dar
es Salaam to Burundi via Morogoro. When were at Kilosa District along the
main road alas they were stopped by a Traffick Police and all their
documentations were taken together with his mobile phone. After three
days in police custody, he was arraigned in court, charged, convicted and
sentenced in jail. That they demanded him to pay TZS. 5 million, but he
had only one million shillings. Rested by a prayer to be released, so that he
can proceed with his duties.
In turn, the adversarial side was represented by learned State
Attorney Ms. Jamilah Mziray who supported the appeal on a different
ground from the grounds of appellant. Argued that the plea of guilty was
equivocal contrary to the requirement of law. Therefore, in law is as good
as no plea at all. Thus, whole proceedings of the trial court, conviction and
sentence are null and void as if they never existed. Consequently, she ^1^
prayed this court be pleased to order trial de novo. '
In determining this appeal, I need to be guided by the applicable law
as per the charge sheet. The offence faced the appellant is found under
section 23(1)(2) of the Act. For clarity the section is quoted herein: -
Section 23.(1) "A person shall not initiate or send any electronic
communication using a computer system to another person with
intent to coerce, intimidate, harass or cause emotional distress.
(2)A person who contravenes subsection (1) commits an offence
and is liable on conviction to a fine of not less than five million
shiliings or to imprisonment for a term of not less than three
years or to both''
Above all, it is certain and well developed in our jurisdiction that plea
taking of an accused is guided by law. Apart from the statutory guidelines
also there are numerous precedents decided by the courts of record in our
jurisdiction. Section 228 (1)(2) of the Criminal Procedure Act, provide
general principles of plea taking which must be complied with. In fact, plea
taking is fundamental and so elementary to every criminal trial. Failure to
record properly the accused plea, amounts to nullification of the whole
proceedings.
With serious note, when the accused pleads guilty the consequence
is immense. The whole trial ends therein and his conviction is none
appealable as per section 360 of Criminal Procedure Act(CPA).
Despite the statutory requirements provided for in section 228 (1)(2)
of CPA, yet this court and the Court of Appeal from time immemorial gave
breath to those sections by interpreting them properly. For instance in the
case of Handa s/o Akunay Vs. R [1951] 18 E.A.C.A, 307, followed by
the case of Adan Vs. R [1973] E.A. 445, the Court provided five
fundamental guidelines on how to record plea of guilty of the accused:
1. The charge and all the Ingredients of the offence should be
explained to the accused In his language or in a language he
understands;
2. The accused's own words should be recorded and if they are
an admission, a plea ofguilty should be recorded;
3. The prosecution should then immediately state the facts and
the accused should be given an opportunity to dispute or
explain the facts or to add any relevant facts;
4. If the accused does not agree with the fact or raises any
question of his guilt, his reply must be recorded and change of
plea entered;
5. If there is no change of plea, a conviction should be recorded
and a statement ofthe facts relevant to sentence together with
the accused's reply should be recorded.
These guiding rules are concerned with the court's recording plea of
the accused person who has shown willingness to plead guilty on the
charge preferred against him. Therefore, failure to follow them religiously
may turn into improper plea taking, thus nullifies the whole proceedings.
In the contrary, when the plea is recorded in a manner unknown to
the law, certainly the superior court either on appeal or revision will nullify
it. There are good number of cases which have provided some improper
pleadings, like in the cases of Laurence Mpinga Vs. R, [1983] T.L.R.
166 and Josephat James Vs. R, Criminal Appeal No. 316 of 2010,
(CAT, Arusha Registry). In the latter case of Josephat James Vs. R,
the Court of Appeal indicated several circumstances where appeal may
nullify the conviction and sentence meted by the trial court founded on
plea of guilty. Those are where: -
(i) The plea was imperfect, ambiguous or unfinished and, for
that reason, the iower court erred in iaw in treating it as a
piea ofguiity;
(ii) An appeiiant pleaded guiity as a result of a mistake or
misapprehension;
(Hi) The charge levelled against the appeiiant disclosed no
offence known to iaw, and
(iv) Upon the admitted facts, the appeiiant couid not in iaw have
been convicted of the offence charged. (See Laurence
Mpinga v. Republic,(1983) T.L.R. 166(HC) cited with
approval in Ramadhani Haima's case (Cr. Appeal No.
213 of2009,(CAT).
As seen above when any one of the above is observed, may justify
the court to entertain an appeal based on a plea of guilty, but in the
absence of any of the above factors and or any other relevant legal or
factual issue, the plea of guilty is considered correct capable of convicting
the accused on his voluntary plea of guilty.
Equally important is to note that the above circumstances, developed
by our courts, have reminded me on the reasoning of Lord Duffus P, siting
in the Court of Appeal for East Africa, in the case of David K. Gatihi Vs.
R, Criminal Appeal No. 118 of 1972 where he held: -
'The courts are concerned not to convict an accused person on
his own piea unless it is certain that the accused understands
the charge and intended to plead guilty and that he has no
defence to the charge''
The above quotation Insisted on the settled principle of law that, plea
of guilty must be made in a proper charge comprising a known offence in
law.
Having considered all relevant ingredients of pleadings to the charge
sheet, the question remains, how do those principles apply in this appeal?
The appellant was charged under section 23 (1) (2) of the Act, which
provide sentence of not less than three years and if fine not less than five
million shillings or both. The question is, whether the appellant properly
pleaded guilty to the offence stood charged in court? This question was
answered by the learned State Attorney that in fact, there was no plea of
guilty known by law. The plea of "it is trud' did not mean anything known
in law.
The learned counsel submitted on the available remedy that is to
order retrial. Such prayer is proper under normal circumstances; however,
I find difficulty in so ordering due to the prevailing circumstances of the
whole matter. First, the appellant did not know properly the national
language (Kiswahili), this fact is featured in the fact that he is a foreigner,
a Burundian national, thus not conversant with neither Kiswahili nor
English, therefore calling for an interpreter from Kiswahili to Kirundi and
vice versa was mandafaris, but the trial court failed to heed to it; second
on the eventful date he was on transit driving a transit motor vehicle from
Tanzania to Burundi, thus not knowing exactly the legal requirements of
our country. Considering all those facts, I find difficulty to decide otherwise
than to warn the accused from committing any offence of similar nature in
this country. Otherwise, I proceed to order an immediate release from
prison, unless lawfully held. Further, order an immediate return of his
mobile phone and all his properties unless otherwise held lawfully.
1 accordingly Order.
Dated at Morogoro in chambers this 29/9/2022.
P. J. NGWEMBE
JUDGE
29/09/2022
Court; Judgement delivered at Morogoro in Chambers on this 29^^ day of
September, 2022 in the presence of Ms. Mziray State attorney for the
Republic/respondent and in the presence of the appellant.
Right to appeal to^be-Gj^^^rf^ppeal explained.
v\HT 0/
O
P. J. NGWEMBE
C
JUDGE
or •Z.\
LL-i
29/09/2022
