A Kisanga and Omar, JJ.A. and Mapigano, Ag. J.A.: The three appellants were jointly charged in the Resident Magistrate's Court in one information containing four counts, two counts being for obtaining money by false pretences and the other two for conspiracy to defraud. The trial Court convicted one of them on the counts B of obtaining money by false pretences only, and acquitted all of them on the conspiracy charges. The Director of Public Prosecutions appealed against the acquittals, and the convicted person cross-appealed against his conviction for obtaining money by false pretences. The cross-appeal was allowed in full while the appeal was allowed only in C part by the High Court thus resulting in each of the present appellants being sentenced to a substantive term of 5 years' imprisonment. On the day of the judgment by the High Court i.e. 30.4.90 only the appellant Re v Father John Kiwere was present and although the High Court directed a warrant of arrest to issue against the remaining D two persons, the said persons have not been arrested to date, it being claimed that they have absconded to Kenya. Curiously enough, however, all of them after their conviction were able to instruct Mr J.J. Mwale, advocate, who gave on their behalf a joint notice of appeal, and who continues to act for the appellant William Rajabu Mallya, E while subsequent to the said notice of appeal the appellant Louis Augustino Mbuya also was able to instruct Mr D'Souza, advocate, who is representing him now.
F We have to state that this kind of behaviour and attitude on the part of the appellants Mallya and Mbuya is most unsatisfactory, and must be deprecated. There can be no doubt that they knew the precise terms of the judgment of the High Court. Yet they chose only to appeal against that judgment but deliberately ignored that term of it which required them to serve the sentence. It amounted to a flagrant disregard of the court order which tended to G bring the system of the administration of justice into ridicule. This is totally unacceptable. Members of the society must develop a culture of respect for lawful orders. While it is right and proper that people should be aware of their rights under the law, and that every effort should be made to help them realize those rights, it must be H emphasized that people also have a duty to discharge their obligation under the law. By deliberately avoiding to serve the sentence which was lawfully passed on them, the two appellants were in breach of a society's basic norm; and that must not be allowed to continue.
I Now, when the appeal was called on for hearing, our attention was called to a letter written by the police stating that they were
KISANGA AND OMAR JJA AND MAPIGANO AG JA
still trying to reach the two appellants in Kenya, and for this purpose the police asked for a fresh warrant of arrest A to issue and a copy of the judgment in the case. In the light of this request we decided to adjourn the appeals of the two appellants, pending the outcome of this further attempt by the police, and proceeded to hear that of the Re v Father John Kiwere who was present. B
This appellant who was unrepresented argued the appeal in person in the course of which he raised the issue of lack of jurisdiction on the part of the trial court and relied for this on the provisions of Section 6 (1)(c) of the Magistrates' Court Act 1984. That provision reads: C
6.- (1) Subject to the provisions of Section 7, a Magistrate's Court shall be duly constituted when held by a single magistrate, being -
(a)-
(b)- D
(c) in the case of a Court of Resident Magistrate, a Resident Magistrate.
(Section 7 is not relevant to the facts of the present case). A perusal of the record shows that the case was filed in E the Resident Magistrate's Court of Arusha and when the accused were brought before the court for the first time the court was duly presided over by a Resident Magistrate. Subsequently, however, the court was presided over by a Principal District Magistrate who tried and eventually disposed of the case. There can have been no F inadvertence on the part of the Principal District Magistrate because both the Court case file and the charge sheet were clearly titled "IN THE RESIDENT MAGISTRATE'S COURT AT ARUSHA". The appellant in effect contended that the Court was not duly constituted because the Principal District Magistrate sat in the wrong Court, G in violation of the provisions of Section 6 (1) quoted above.
Mr. Kimomogoro of the Principal State Attorney's Chambers Arusha resisted the appeal. He referred us to a decision of the High Court in the case of Lucas Mwita and Two Others MZA Cr. App. NO. 30 of 1977 where a District Magistrate had presided over in the Resident Magistrate's Court and the proceedings were declared a H nullity. However the learned Counsel submitted that the proceedings in the present case were saved under the provisions of Section 387 and 388 (1) of the Criminal Procedure Act. We propose not to set out the provisions of I those sections and to examine them
KISANGA AND OMAR JJA AND MAPIGANO AG JA
A in detail, not out of disrespect to the learned counsel but because we are satisfied that they are completely irrelevant to the issue at hand.
Again learned counsel took the view and argued at length that the error was not fatal because the trial magistrate B had substantive jurisdiction to try the offences, and that the wrong titling or citing of the court did not really matter. With due respect, we do not agree. To uphold that view would render meaningless the provisions of S. 6 (1)(c) above cited. In our view the correct meaning to be attached to that provision is that if a case is designated for a C particular court, then it should be heard only by a member of that court notwithstanding that a member of some other court has substantive jurisdiction over the offence and could hear it. Perhaps an analogy from civil cases might serve better to illustrate the point. Under Section 76 of the Law of Marriages Act the High Court, a court of D resident magistrate, a district court and a primary court each has concurrent jurisdiction over matrimonial proceedings. But it can hardly be maintained, for instance, that resident magistrate may properly try a divorce suit which was filed in the High Court.
E For the reasons as expressed above, we agree with the appellant that because the Principal District Magistrate presided over the Court of Resident Magistrate when he was trying this case, the court was not duly constituted within the meaning of Section 8 (1) (c) of the Magistrates' Court Act. The proceedings were, therefore, a nullity F and they are accordingly set aside. As this affects equally the trial of the remaining appellants, our earlier order of adjourning their appeals to a later date is necessarily overtaken by the event and is accordingly vacated.
G The question, what next, has exercised our minds quite considerably. The appellant Re v Father John Kiwere has been very co-operative from the very inception of these proceedings. Indeed while the offences were committed partly in Tanzania and partly in Kenya, it is he who initiated the investigations, and he has since co-operated with the Police at every stage. He deserves credit for that.
H On the other hand so far he has served only about one year out of the 5 years' prison sentence meted out to him. He was charged jointly with the remaining two appellants who have been so unco-operative and who are still at large. Again the offences which the appellants were jointly charged with and convicted of involved defrauding a I Bishop and Convent Sisters in Kenya a total of Kenyan Shillings 426,285/=, a substantial sum which remains unrecovered. We consider that a practical way out of this rather complex situation
is to leave the matter entirely with the Director of Public Prosecutions to decide whether or not to institute the A charges afresh, having regard to the circumstances alluded to. In the meantime the appellant is set free. It is ordered accordingly.
Order accordingly. B
C
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