20111206 TZHC Dodoma

.f } . :' - I t .u I J' l • • ..,_ . ~.i' IN THE HIGH COURT OF TANZANIA AT DODOMA (EXTENDED JURISDICTION) PRM. CRIMINAL APPEAL NO. 14 OF 2011 (DC) CRIMINAL APPEAL NO. 58 OF 2011 ORIGINAL CRIMINAL CASE NO. 44 OF 2007 OF THE DISTRICT COURT OF DODOMA DISTRICT AT DODOMA VENANCE KALULI •.••••.••..••..••••••••.••.•••••.••••••. APPELLANT (Original Prosecutor) .Versus THE REPUBLIC ...................................... ~.RESPONDENT (Original Prosecutor) 2/9/2011 & 6/12/2011 JUDGMENT BEFORE: R.I. RUTTA- PRM. EXT. J. On 22/2/2010 at the District Court of Dodoma the appellant one VENANCE KALULI was found guilty on five counts, namely: - Causing death through careless driving c/s,41, 21(l)(a) and .· ·- .63(2) (b) of the Road Traffic Act. No. 30 1973 as amended by the Road Traffic amendment Act. No. 16 of 1996. _, 1 f -~·.--.\---. _:.- l .\ v\·~- ,./ ...... ,,.-- .... ,· Reckless driving c/s _42(l)(a) 27(1) (a) and 63(2)(b) of the Road Traffic Act No. 30 1973 as amended by The Road Traffic amendment Act No. 16 of 1996. Failing to stop at the scene of the accident c/s 57(1) and 63(2) of the Road Traffic Act. No. 30 of 1973 amended by the Road Traffic amendment Act. No. 16 of 1996. - Failing to report the accident c/s 57(2)(b) and 63(2)(a) of the Road Traffic Act No. 30 of 1973 as amended by the Road Traffic amendment Act No. 16-of 1996. Driving a motor vehicle without valid driving licence c/s 52 (a) and 63(2)(e) of the Road Traffic Act (supra). After the finding the appellant was convicted· and the. court (A.P. Kilimi, RM) announced the sentence of three years imprisonment on each count and the sentence to run consecutively. When the sentence was passed the accused /appellant was at large. · The sentence was to start to run after the apprehension of the appellant. 2 The record is not· clear to state when the appellant was caught and sent to jail. While in jail the appellant lodged the instant appeal which bears one ground. It reads that the trial magistrate erred in law and facts when sentenced the appellant to suffer three years in jail on each count. He prayed the sentence to be changed and to run concurrently. The respondent was represented by Mr. Kyando learned State Attorney. _He supported the conviction and the sentence. Mr. Kyando argued that the court with its wisdom passed the sentence and ordered to run consecutively. That was the exercise of the discreti·on of the court. He submitted that what the appellant should do is to show that has . r~formed and then seek for leniency of the court. He said that the court arrived at that decision because the appellant jumped bail and was not seen. The appellant argued that the investigator called and told· him that the matter will be settled at police station. 3 I / i I I - The record reads that the trial proceeded in the absence of the accused pursuant to section 226(1) of the Criminal Procedure ·Act 1985 Cap. 20 RE. 2002. The trial court when passin·g the sentence said that the sentence will start to run upon the apprehension of the appellant. I said that the record is silent as to when the accused was caught. The provisions of section 226(2) of Cap. 20, reads and I quote:- "if the court convicts the accused person in his absence, it may set aside the conviction, upon being satisfied that his absence was from causes over which he had no control and that he had a probable defence on · the merit." What is_ in the heart of this provision is t~at after the apprehension of the appellant he had to be produced before the court and the court had to give the chance to the appellant to explain why he jumped bail. After -·· • • a . that the trial court·· could have ruled out i whether to set aside the . conviction or not. 4 i I . .'• / In the instant case that proc~dure was not followed in other words : the appellant was not accorded the right to be heard. -I was prepared to order the matter to be tried de nova, but I have find mys~lf with no clear record to know the period which has been served by the appellant. That being the case and for the interest of justice the appellant should be released from prison if not held on another justifiable cause. Appellant be released forthwith. ( R.I. RUTTA) , ~ PRM. EXT. JURISDICTION 2/12/2011 Judgment delivered in the presence of Ms. Magessa State Attorney for the Republic and the accused present in person. .. . ( E.B. LUVAl,'4DA) · A:,"'v-u w /AG. DISTRI~"f REG-~ST~R. ... . - .. • . .- . ✓ 6/12/2011 . . 5