image0017

IN THE HIGH COURT OF THE UNITED REPUBLIC OF TANZANIA MOROGORO SUB REGISTRY AT MOROGORO CRIMINAL REVISION NO. 31806 OF 2024 (Originating from the order ofthe District Court ofMorogoro dated 12P^ June 2024 in Criminal Case No. 138 of2023) REPUBLIC APPLICANT VERSUS KINAWIRA ILUKU@ MADIRISHA RESPONDENT RULING 26/11/2024& 05/12/2024 KINYAKA J.: In the present revision, the appellant is challenging an order issued by the District Court of Morogoro, hereinafter the "trial court" dated 12^^ June 2024. The trial court dismissed the charges and discharged the respondent exercising its power under section 225(5) of the Criminal Procedure Act, Cap 20 R.E 2022, hereinafter the "CPA" in Criminal Case No. 138 of 2023. According to the records availed to this Court, the respondent was in the aforementioned case, charged with the offence of Causing Grievous Harm contrary to section 225 of the Penal Code Cap. 16 R.E. 2022. The particulars of the offence was that; on 28^^ day of August 2023 at Mbojoe Area within 1 Morogoro District in Morogoro Region,the respondent caused grievous harm to one Omary Hassan @ MIendi by hitting him on the head using a wooden club. The respondent pleaded not guilty to the offence. On 27^^ September 2023 the record unveil that the respondent was granted bail by the trial court. After various adjournments, the hearing of the prosecution case commenced on 2"^ November 2023 where the prosecution paraded two witnesses(PWl and PW2). Later, on 20^^ November 2023 another prosecution witness(PW3) testified for the applicant. At the closure of PW3's testimony, the case was thereafter adjourned to 5^^ December 2023 for continuation of the prosecution hearing. On 5^^ December 2023, Mr. Josberth Kitaie, the learned state attorney informed the trial court that the respondent was absent without any cause. He thus prayed for the court to issue summons to show cause as well as the arrest warrant against the respondent, the prayer which was granted by the trial court. The matter was thereafter adjourned a number of times for various reasons until on 26^^ March 2024 when the same was tabled before the presiding magistrate. It is on record that the respondent was on that day not yet apprehended. On that reason, the prosecution prayed and was granted an order to proceed with hearing of the matter in the absence of the respondent where the testimony of PW4 was taken and recorded by the triai court. On 30"^ May 2024, the applicant through Ms. Elida Mtisi, learned state attorney closed her case. The matter was then adjourned to the 4*'^ June 2024 in which it was further adjourned to 26"" June 2024 for hearing. However, for reasons which were not apparent, the records reveal that the matter was placed for necessary orders before the presiding magistrate on 12"^ June 2024. The orders of the trial court as gleaned from the handwritten proceedings is as reflected below: "Court: Summons to show cause for surety was issued but Republic relaxed to react on that, thatshow they do not want to execute court order. Itherefore discharge the accused under u/s 225(1) ofCPA Order Accused is discharged" As alluded above, the applicant was dissatisfied with the foregoing order. She channeled her grievances to this court vide her letter dated 11"' July 2024 addressed to the Honourable Judge In charge. In response, the instant revision proceedings were preferred suo motto in order for this Court to ascertain the propriety and legality of the impugned order of the trial court. The nature of the present revision made it impracticable to find the respondent. According to the record of the trial court, the appellant jumped bail and has not been found to date. The revision being preferred by this Court suomoto, it proceeded to hear the same in absence of the respondent. Expounding on behalf of the Republic, Mr. Shabani Kabelwa prefaced his submissions by narrating to the Court what transpired in the trial court from 13^^ February 2024 when the matter was called for mention before another Senior Resident Magistrate, as the presiding trial Magistrate was absent, up to 12^^ June 2024 when the criminal case was dismissed under section 225(5) of the CPA. Apart from the foregoing complaint subject of this revision, the learned state attorney notified the court of other anomalies in the proceedings which were not featured in the letter dated July 2024 to wit; that the proceedings of the trial court dated 4^^ March 2024 which ordered expert hearing of the suit were missing in the case file; and that the coram of the proceedings dated 5^^ December 2023 were changed as it was recorded at first that the respondent was absent but iater on, the same was struck out to indicate that he was present, thus the proceedings from that date to 12^^ June 2024 were in his view, are doubtfui. The iearned state counsel prayed for an order that the dismissal order dated 12^^ June 2024 was invalid; an order nullifying the proceedings from 5^^ December 2023 onwards and retain those before 5^^ December 2024 and order for hearing of the criminai case to proceed before another Honourable Magistrate. I have considered the submissions from the iearned state attorney and scanned the records of trial court in order to satisfy myself if there is anything wrong with the impugned order warranting the Court's exercise of its revisional powers in the present matter. As intimated earlier, the order subject of the present revision was made under section 225 (5) of the CPA. The provision reads as follows: " Where no certificate is fiied under the provisions ofsubsection (4), the court shaii proceed to hear the case or, where the prosecution is unabie to proceed with the hearing discharge the accused in the court save that any discharge under this section shaii not operate as a bar to a subsequent charge being brought against the accused for the same offence," It is clear that the above provision empowers the trial court to discharge the accused person if the prosecution is unable to proceed with the hearing. On its whole, section 225 empowers the trial court to control its proceedings by avoiding unnecessary adjournments. See the case of Robinson Mwanjisi and 3 Others v. Republic, Criminal Appeal No. 154 of 1994 [2001] TZCA 28(13 July 2001), where on page 9 of its decision the Court of Appeal held: "... We agree with the learnedjudge. The two subsections mean that an adjournment should not be granted to the prosecution after the eiapse ofan aggregate ofsixty days in the absence of the requisite certificate, but the court should press on with the hearing. Ifthe prosecution is unabie to proceed with the hearing, e.g. for investigations being incomplete or witnesses being unavaliable, the court should discharge the accused... The purpose ofsection 225generallyandsubsections(4)and (5) in particular is to expedite trials but not to dear accused persons from criminal iiabiiity,,..^ [Emphasis added] From the above observations, it is piain that the Honourable trial Magistrate wrongly invoked the provision. As disclosed earlier on above, the reasons given by the trial magistrate for the complained discharge of the respondent was the prosecution's failure to execute the orders of the court to act upon the summons to show cause, as well as the arrest warrant that was issued by the trial court against him. It is apparent that the Honourable trial magistrate's reasons for discharging the respondent does not fall within the ambit of section 225(5) of the CPA. Nonetheless, nothing in the trial court proceedings indicates that the prosecution was unable to proceed with hearing of the matter. It should be recalled that the prosecution had previously prayed and was granted an order to proceed with the matter against the respondent on 26^^ March 2024. The handwritten proceedings in respect of the order are as reflected below: ''SA- The matter is for hearing. A/WandSSC wasissued u/s 226 ofthe CPA. We pray to proceed in absence ofthe accused. Court Prayer granted. The matter to proceed u/s 226 ofthe CPA " With such state of affairs, it was inappropriate for the trial court to punish the prosecution for the alleged inexecution of the court's orders. It is a common knowledge that by praying to proceed with the hearing of the criminal case in the absence of the accused person, the prosecution was informing the court that the efforts to procure the accused person's attendance to the trial court proved futile. More so, by issuing an order allowing the matter to proceed without the accused person, the trial court was satisfied that nothing more could have been done to have the accused person's attendance before the trial court. It was required of the trial court to proceed with the hearing in absence of the accused person under section 226(1) of the CPA. In the circumstance where the criminal case proceeded ex parte, upon the prayer to close the prosecution case, the trial court was enjoined to close the prosecution case and proceed to set a date for delivery of its judgment. Unfortunately, the trial magistrate skipped the said procedure, as the proceedings are silent to that effect. To the contrary, as rightly observed by Mr. Kabelwa the records indicate that upon the prosecution's prayer to close her case, the trial magistrate adjourned the case for hearing without granting an order for closure of the prosecution case. I am of the settled position that the trial court's discharge of the accused person was wrong in the circumstances of the matter before it. On that basis, I am constrained to accept Mr. Kabeiwa's prayer for the trial court's order to be declared invalid as I hereby do. As such, I quash and set aside the trial court's order dated 12'^'' June 2024 that discharged the respondent. Mr. Kabeiwa complained that the court's coram was struck off to indicate that the accused was present while he was absent. I find the claim unsubstantiated. My reading of the impugned coram reveal that it was the prosecution who were indicated to have been absent and later on, the same was struck off to indicate that they were present before the trial court. That being the position, I deciine to heed to the learned state attorney's prayer that proceedings dated December 2023 were doubtful and thus liable to be nullified from that date afterwards. I have also considered the complaint by the learned state attorney that the proceedings dated 4"^ March 2024 are missing in the case file and that in the court's coram dated 5"^ December 2023, there were changes made to the coram of the court indicating that the accused was present while It was earlier indicated that he was absent. He therefore prayed for nullification of the trial court's proceedings from 5*^ December 2023 onwards. I am unable to subscribe to the proposition by Mr. Kabelwa for the reason that his claims are not supported with what I found in the trial courts records. I have found that contrary to Mr. Kabelwa's contention that it was on 4^^ March 2024 when the prosecution prayed and was granted an order to proceed with the hearing in the absence of the respondent, the records indicate that the order was prayed for and granted by the trial court on the 26^^ March 2024. The court's sanctity of record should always be upheld. Further, my thorough scan of the records in relation to Mr. Kabelwa's assertions reveal that the proceedings dated 4^^ March 2024 are nowhere to be found in the case file. Although I do not find any prejudice on part of the respondent for the absence, such proceedings date 4^^ March 2024, it is crucial that the record of the court must include all affairs that transpired before it. It means that if the case was scheduled on 4^^ March 2024, the proceedings should indicate what transpired on 4^^ March 2024. I partly agree with Mr. Kabelwa but to the extent that the missing proceedings dated 4^^ March 2024 should not be left unattended but rectified. 10 Based on the above observations, I nullify the proceedings of the trial court after 13''" February 2024 including those dated 30'^ the May 2024 and set aside the orders emanating from the proceedings dated 30''" May 2023 and 4'^ June 2024. I order the case file be remitted to the trial court for continuation of the trial from 13'''' February 2024. As I have not found any reason or basis for the matter to be heard by a different magistrate, I order that the conduct of the matter be taken by the same magistrate. It is so ordered. Right of appeal fully explained. DATED at MOROGORO this 5"^ day of December 2024. Of H. A. KINYAKA JUDGE 05/12/2024 •*0 11