19920727 TZHC Dar es Salaam

IN THE HIGH COURT OF T.i'JiZANIA k1'_J)i1.R ES SJJi;i.AM

APPELLATE JURISDICTION HIGH COURT CRIMH~~'..L l,.PPEli.L NO! ii OF 1992 ORIGINAL CRIMINL.L CLSE NO. 702 OF 1991 O,F THE DISTRICT COURT OF IL~iLlt DISTRICT AT KISUTV BEFORE:- MlJi;J."IBYii., ESQ., DISTRICT lYii~GISTIV~TE SALIM s. LILA ••••••••••••••••••••• ·11.PPELLANT (ORG. ACCUSED) versus THE REPUBLIC •••••••••••••••••••• RESPONDENT (ORG. PROSECUTOR) JUD GM EN Te KYANDO, J:- This is an appeal against conviction by SALIM S, LILA who was tried and convicted in absentia under S.226 (1) of the Criminal Procedure Act for the offence of ; threatening to kill .9ontr1,:, S.89 (2) of the Penal ffode. One of his coraplaints 1 the main complaint infact, iri the appeal is that the court below erred in trying him in absentia because, he argues,· it was 1-:nown to that cour'i 0 that he was bei YJ,:: ~, ~·c: :. :_..11-:,.. · • Hvw and then for a men'tal '< illness. The record of the case is in fact replete with hints or information about the appellant's such hospilisatio~t S.226 of the Criminal Procedure Act provides:- 11226-(1) If at the time or place to which the hearing or further hearing shall be adjourned, the accused person shall not appear before the court which shall have made the ordGr 6f adjournment, it shall be lawful for such Court to proceed with the hearing or further hearing as if the accused were present, and if the complainant shall not appe~r, the court may dismiss the

charge and acquit the accused with or wit~v~~ J~~~p n r ~ne court shall think fit. . ...• I 2 111111111111111' - 2 - , Then S,226(2) provides that if the court convicts the accused person in his absence, as happened in the present case; "it □ ay sat aside such conviction; upon ~eing satis£ied that his absence was from causes over which he had no control, and that he had a probable defence on the raerit". So withi:.1-· the court which convicted the appellant there is a remedy for the complaints he now makes to this Court. I have perused the records of the case and I do not see anywhere that he ever availed himself of that remedy. Instead, as stated, he appeals to this court. I am of the view that he must exhaust first ~he remedies in the court ~elow as ly law provided before coming to this courtG In other words, he ought to have applied first, under s. 226 (2) of 1he Criminal Procedure Act, to set aside his conviction; if the trial court refused to grant the application, it is then that it ~.,::::: le::, 1...' -::::::.i--~ ··proper for him to come • to this 6ourt, I am of the view now, and for the above reasons, that the appeal made ·to this court by the appellant cannot be entertained. It is dismissed. /I: (Lt;0vr{}u L,.A.1"1.& K{ando ,Tunge . . DAR ES SJ,.LJ,1;1,1 27.7.')2 For· the Republic-lVliss Makwaia - State Attorney For the appellant - absents (served) Court: Judgment delivered • .