Nyalali, C.J., Makame and Ramadhani, JJ.A.: The appellant Charles Samson was charged and convicted in the High Court at Mwanza for the offence of murder c/s 196 of the Penal Code and was sentenced to suffer death F by hanging. He was aggrieved by the conviction and sentence hence this appeal to this court. Before us he was represented by Mr. Rugarabamu, learned advocate, who filed a memorandum of appeal containing two grounds of G appeal. Mr. Malamsha, learned State Attorney appeared for the respondent/ Republic.
From the proceedings in this court and the court below the following matters are not in dispute between the parties. During the night of Saturday 3rd October, 1987 the dwelling house of one Charles Tinga in Magu Town, Magu H District, was invaded by a group of bandits, who broke into his room, shot him dead and demanded and were given money amounting to shs. 106,000/= by the wife of the deceased, that is Elizabeth Magushi, (PW.1). Thereafter the bandits went away. PW.1 raised an alarm in response to which a group of people, including the police, came to the I scene. It is common ground that there was bright moonlight at the material time. Subsequently the appellant was arrested the following day in the evening. It is common ground also that on the
NYALALI CJ, MAKAME JJA and RAMADHANI JJA
7th day of October 1987 the appellant was identified by PW. 1 and her son, that is Japhet Tinga (PW.2) at an A identification parade mounted by the police.
It is apparent from the proceedings both in this court and the court below that the following matters of fact are in dispute between the parties. It is the prosecution case that the appellant was one of the bandits and was in fact the B person who shot dead the deceased. On the other hand the defence case consists of a general denial and an alibi to the effect that at the material time the appellant was at home playing cards with his family and a neighbour until he went to sleep at about 11.30 p.m.
In his memorandum of appeal the appellant raises one important point which, if sustainable, makes it unnecessary C for us to consider his other grounds of appeal. The ground reads as follows:
The learned trial judge failed to address the assessors and direct himself on the appellant's defence of an alibi and D under circumstances erroneously convicted the appellant.
It is apparent from the brief summing up and the judgment of the learned trial judge that no reference is made to the appellant defence of alibi. Mr. Malamsha concedes as much. He however submits that the failure to direct the E assessors on this defence of alibi and the omission by the trial judge to consider this defence in his judgment, is not fatal to the trial because, the appellant, on his part failed to comply with the provisions of section 194 subsections (4), (5) and (6) of the Criminal Procedure Act 1985. These provisions require an accused person seeking to rely on F an alibi, to disclose it before he is called upon to defend himself. With due respect to Mr. Malamsha, we are unable to agree with his submission. The provisions of subsections (4), (5) and (6) of section 194 state as follows:
(4) Where an accused person intends to rely upon an alibi in his defence, he shall give to the court and the prosecution G notice of his intention to rely on such defence before the hearing of the case.
(5) Where an accused person does not give notice of his intention to rely on the defence of alibi before the hearing of the H case, he shall furnish the prosecution with the particulars of alibi at any time before the case for prosecution is closed.
(6) If the accused raises the defence of alibi without having first furnished the particulars of the alibi to the court or the I prosecution in pursuant to this section, the court at its own discretion, may accord no weight of any kind to the defence.
A It is obvious, on a proper construction of the provisions of this section, that the court is not exempt from the requirement to take into account the defence of an alibi, where such defence has not been disclosed by an accused person before the prosecution closes its case. What this section means is that where such disclosure is not made, B the court, though talking cognizance of such defence, "May in its discretion, accord no weight of any kind to the defence".
In the present case the court appears to have taken no cognizance whatsoever of the alibi, both in the summing up C to the assessors and in the judgment. There was thus a mistrial and a consequential miscarriage of justice. We are bound therefore to allow the appeal by declaring the trial a nullity, quashing the proceedings and directing that a new trial of the appellant be undertaken either before the same or another judge.
D Appeal allowed.
E
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