JONAS BAHATI

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA BUKOBA SUB-REGISTRY

AT BUKOBA PC CRIMINAL APPEAL NO. 28106 OF 2024 (Arising from Criminal Appeal No. 14 of2023 District Court of Karagwe; Originating from Criminal Case No. 89 of2023 Nyabiyonza Primary Court) JONAS BAHATI.................................................................... APPELLANT

VERSUS JOASEN DANIS..................................................................... 1st RESPONDENT FRENK PHILIMON ............................................................... 2nd RESPONDENT KOKU BENEDICT................................................................ 3rd RESPONDENT

JUDGMENT 7th and 25th March, 2025 BANZL J.: This is the second appeal against the findings of Karagwe District Court which upheld the decision of Nyabiyonza Primary Court for dismissing Criminal Case No. 89 of 2023 for non-appearance of the complainant pursuant to section 26 of the Primary Courts Criminal Procedure Code (the PCCPC). A brief background reveals that, before the trial court, the respondents were charged with the offence of assault causing actual bodily harm contrary to section 241 of the Penal Code [Cap. 16 R.E. 2022]. The charge was instituted before the trial court on 16/08/2023 and the trial magistrate issued Page 1 of 7 summons to the accused persons/respondents. On 23/08/2023, the complainant and all accused persons appeared whereby, the accused persons denied the charge against them and they were bailed out after fulfilling the conditions set by the court. On the same date, the trial magistrate fixed the date of hearing to be 06/09/2023. However, on that date, the complainant did not appear and there was no information of his absence. Following his non-appearance, the trial court dismissed the charge for want of prosecution and acquitted the accused persons. Dissatisfied with the dismissal order, the complainant/appellant appealed to Karagwe District Court where his appeal was dismissed for want of merit. Still aggrieved, he came to this Court armed with four grounds of appeal thus: 1. THAT, the learned District Magistrate misdirected himself for failure to restore the Criminal Case No. 89/2023 contrary to the reasons stated in the first appellate court hence wrong decision.

2. THAT, the learned District Magistrate grossly erred in law and in facts for failure to consider that the appellant's absence was due to reasons to which the complainant had no control to appear in the court oflaw at the time of hearing since the appellant was seriously sick on 05/09/2023 to 06/09/2023 at Neema Dispensary for further treatment caused by the respondents on Page 2 of 7 15/08/2023 as per PF3 as well as medical reports attached in the Court record's hence wrong decision.

3. THAT, the /earned District Magistrate grossly erred in law and in facts for failure to make an order for the criminal case to start afresh in the same court of Nyabiyonza Primary Court while knowing that the respondents assaulted the appellant on 15.08.2023 which caused the appellant to become sick and get further treatment hence, wrong decision.

4. THAT, the learned District Magistrate grossly erred in law and in facts for failure to scrutinize the watertight evidence adduced by the appellant in the first appellate court of which the learned magistrate intentionally failed to grant the appellant's right to be heard in the Criminal Case No. 89/2023 contrary to the Constitutional right hence wrong decision. At the hearing, the appellant as well as the first and third respondents appeared in person, unrepresented. However, second respondent failed to appear despite being served through Mwananchi Newspaper dated 9th October, 2024 and thus, the appeal was heard ex-parte against him. In his submission, the appellant faulted the decision of Karagwe District Court contending that, he failed to appear before the trial court because he was sick due to the assault caused by the respondents. He further claimed that, he was admitted from 5th to 6th September, 2023 and Page 3 of 7 he was attended by his wife therefore, he had no another person to send to court. It was also his contention that, he produced medical documents but the magistrate failed to consider them. He therefore prayed for the appeal to be allowed by restoring Criminal Case No. 89 of 2023 so that it can be heard afresh. In his reply, the first respondent submitted that, the district court had no jurisdiction to restore the case because it was not the trial court. He

added that, the raised grounds were not in the record of the trial court. On her part, the third respondent who made her submission through Mr. Comely Buberwa, the interpreter of Nyambo language to Kiswahili and vice versa, briefly stated that, the district court had no jurisdiction to restore the case of the primary court as it had no case file of the primary court. In his brief rejoinder, the appellant reiterated his prayer of restoration of case before the trial court. Having heard the submissions from both parties and having perused the courts' records, the issue for determination is whether the appeal has merit. Section 26 of the PCCPC provides that: "Where a complainant fails to appear at the time and place appointed for the hearing of any charge, the court may Page 4 of 7 dismiss the charge and acquit the accused person, unless it shall think it proper to adjourn the hearing to some other day. "(Emphasis supplied). From the wording of the cited provisions above, it is clear that where the complainant fails to appear, the primary court has discretion to dismiss the charge and acquit the accused. It is not provided how many times should the complainant absent himself before the case is dismissed. In that regard, even where the complainant fails to appear once, the court may dismiss the charge and acquit the accused. Nonetheless, scrutinizing the wording of the provisions,

it is not mandatory to dismiss the charge where the complainant fails to appear, the court is given discretion to adjourn the case to the other day as it may think proper. In the case at hand, the record of the trial court reveals that, the appellant failed to appear only once and the learned trial magistrate dismissed the case. In upholding the decision of the trial court, the learned appellate magistrate stated that: "... where the court cherishes and embracing timelyjustice delivery, section 26 (supra) was properly invoked." According to the learned magistrate of the first appellate court, dismissing the charge for non-appearance on one occasion, was termed as timely justice delivery forgetting that, even justice hurried is justice buried. Page 5 of 7 Although the provisions of the law give discretion to court to dismiss the charge whenever the complainant fails to appear, such discretion should be exercised judiciously depending on circumstances of each case. In my considered view, dismissing the charge whenever the complainant fails to appear, cannot be termed as justice delivery. If the complainant had never failed to attend, but fails to appear once, the court has to adjourn the case to another date to afford the complainant with another chance before deciding otherwise. Where the complainant fails to appear more than once, that is when it can be concluded that, the

complainant has infringed his right to be heard and the court may reasonably dismiss the charge. Apart from that, it is also my considered view that, before dismissing the case for non- appearance, there should be reasonable grounds showing that, non- appearance was wilfully or negligently. In that regard, non-appearance for a single day as it happened in this case, cannot justify that, the complainant has wilfully or negligently neglected to appear to court considering that, the complainant had not defaulted the appearance from the time when the charge was instituted. That being said, I find that Criminal Case No. 89 of 2023 was unjustly dismissed. Consequently, I allow the appeal by quashing the judgment of the District Court of Karagwe dated 8th November, 2023. Equally, dismissal Page 6 of 7 and acquittal orders of the trial court dated 6th September, 2023 are hereby set aside. The case file is remitted to the trial court for expeditious continuation of trial before another magistrate. I. K. BANZI

JUDGE 25/03/2025 Delivered this 25th March, 2025 in the presence of appellant, the first and third respondent, Hon. Audax V. Kaizilege, Judge's Law Assistant and Ms. Grenica Protase, RMA and in the absence of the second respondent. Right of appeal duly explained. I. K. BANZI

JUDGE 25/03/2025 Page 7 of 7