Sekule, J: The appellant Warioba s/o Machage and Nyamhanda Machage were jointly charged in the District D Court of Musoma District at Musoma in Criminal Case No. 322 of 1990 with the offence of robbery with violence.
The appellant was the 1st accused on the change while Nyamhanga Machage was the 2nd accused at the trial.
E It was alleged in the particulars of the offence that on the 1st of November, 1986 at Sirori Simba village in Musoma District, Mara Region they jointly and together stole 21 heads of cattle, valued at Shs. 336,000/= the property of one Samwel s/o Waganda and that immediately before the said theft, they used guns to threaten one. Deogratias Kingi in order to obtain and retain the said heads of cattle. It would appear before the start of the trial, F the 2nd accused at the trial, absconded but the trial against him seems to have continued. And they were both subsequently found guilty as charged and the appellant was convicted accordingly. Conviction was not entered G against his co-accused. And the matter was forwarded to this Court for sentencing.
The brief background of the case is that at about 19 hrs. on the 1st of November 1986, six bandits armed with bows and arrows, pangas iron bars and guns invaded the home of PW1 Samwel Waganda. And went into the H cow shed and drove out 21 heads of cattle. They did that after threatening Deogratias Kingi - PW2, PW1's herdsman. They also took PW2 with him. They abandoned him much later in the course of their journey in a forest. He was in bad shape as he claims to have been severely beaten. He was rescued by the search party. I PW2 claims to have identified the appellant and the other accused at the trial in the group of the bandits.
Thereafter PW1 reported the matter to a Baraza la Jadi and it is
alleged the appellant and the other person were called before the Baraza and admitted to have participated in the A robbery and theft. They were then ordered to compensate the complainant - PW2 and 20 heads of cattle were later seized from them. However these heads of cattle were later returned to the appellant and his colleague according to PW2 the direction of the village Chairman. B
PW1 then later instituted Civil Case No. 83 of 1989 in the Kiagata Primary Court in respect of this matter. It would appear the case did not make any headway, and as a result he ultimately reported this incident to the police and on the 12th of June 1990, a criminal case which is the subject matter of this case was instituted in Court. C
The appellant denied at the trial as he does in his petition of appeal to have been partly to the commission of this offence.
The Republic was represented by Mr. Mapunda learned State Attorney. I have had opportunity to peruse and consider the evidence on record and Counsels' submission and I am inclined to agree with Mapunda learned State D Attorney that the crucial issue for determination in this case, was the question of identification of the appellant as having been a party to the commission of the offence.
The trial court was satisfied with the evidence of identification of the appellant. E
I have on my part carefully revisited this evidence, and I must say with respect, it was in my view far from being satisfactory. And it could not in my opinion be safely relied upon to found conviction.
The sequence of events with regard to how the matter was handled by PW1, eloquently speak in my view that the F alleged identification of the appellant and his colleague was found doubtful even to the people who wanted such evidence to be relied and acted upon.
The incident happened in 1986, and it took the complaint PW1, four years to report it to the Police and institution G of the criminal proceedings that are the subject matter of this appeal.
If PW2 had made that kind of positive and certain identification of the appellant in the group of bandits as he claimed in his testimony, he should have mentioned him and his colleague at the first opportunity, thus facilitating H their immediate arrest. But this never happened. And according to the evidence on record, after the incident, nothing happened until on the 26th of June 1987 when the appellant was first taken to a "Baraza la Jadi" where he denied the accusation. I
If the identification of the appellant, had been positive and certain
A could PW1 had dilly dallied in taking steps that would have led to the immediate arrest of the appellant and would he have taken that long to report and to seek the assistance of the Police in this matter.
I do not think so, particularly considering the fact that the bandit made away with all his stock.
B And the fact that he did not take the requisite and timely action leading to the immediate arrest of the bandits who are alleged to have been identified, is an indication in my view that the purported identification was uncertain, and unreliable.
C I am thus satisfied in my mind and as already observed the identification of the appellant as having been one of the perpetrators of this crime was unreliable and it would be most unsafe to uphold the conviction entered on that type of evidence. I thus agree with Mapunda learned State Attorney that the conviction in this case cannot be sustained.
D The appeal therefore succeeds and it is hereby allowed. The appellant is to be released forthwith unless otherwise lawfully held. The appellant's co-accused was convicted in his absence. I have noticed from the record of the trial Court that it dealt with this accused in accordance with provisions of section 226 of the Criminal E Procedure Act 1985.
I have however on a close scrutiny of the record of the trial Court noticed that this accused never made even a single appearance in Court from the start of the trial or from the time the charge was instituted in Court. He did not F therefore have even a single opportunity to plead to the charge that was leveled against him jointly with the appellant. It is only the appellant who pleaded to the change.
The Public Prosecutor is recorded to have made the following submission to the Court:
G P. Prosecutor:The case is for hearing. I tender a new charge sheet to join the present accused with another who is not in Court. New charge sheet read over and explained to the accused whopleads:
Accused:It is not true.
H UNPGN.
P. Prosecutor:Second accused is at large and all efforts to trace him have proved futile to date. I pray to proceed under I section 226 of the CPA as I have witnesses who have come from far. I pray for leave to prosecute the case.
Court:Prayer granted. A
And the joint trial started. Perhaps it may be convenient to set here the relevant parts of the provisions of section 226(1) of the Criminal Procedure Act:
226(1) If at the time or place to which the hearing or further hearing shall be adjourned, the accused person shall not B appear before the Court which shall have made the order of adjournment, it shall be lawful for such Court to proceed with the hearing or further hearing as if the accused were present.... C
I have considered this matter, and with respect, I am inclined to the view that this was wrong invocation of the provisions of section 226 of the Criminal Procedure Act, 1985. D
To my mind, those provisions can only be invoked in a situation whereby an accused person has had opportunity or occasion to appear in Court after arraignment and had the charge read to him and his plea taken and thereafter a hearing date set for his case. And then if he thereafter absconds and he does not appear in Court at the set E hearing day, the provisions of section 226 of the said Criminal Procedure Act, 1985 could be invoked.
This is the logical meaning, one could give to the words the hearing appearing in the first line in the provisions of section 226(1) before the words further hearing as even in the ordinary discharge of Court business in criminal F cases, as case is not set for hearing before an accused person has had occasion to appear in Court after arrest. To interprete these provisions as the trial Court did in this case, would mean to open the possibility of trying in absentia people who are not even aware of the charges leveled against them, or/and people who are not of the G jurisdiction of courts of this country and have never been made aware of the charges confronting them as they have never been arraigned and have never made even a single appearance in Court. I am inclined to the view that this was not the intention of the provisions of section 226 of the Criminal Procedure Act. H
To my mind and as far as I can recollect, trials in absentia outside the scope of the provisions of section 226 of the Criminal Procedure Court are not permitted. As already said, since the appellant's co-accused had not made even a single appearance in Court and pleaded I
A to the charge, the provisions of section 226(1) in this case should not have been invoked.
And as efforts to track him down had proved futile and since the Public Prosecution wanted to proceed with the case, the proper cause that was open to him was to withdraw the charge against this particular accused and let the B case against the appellant alone to continue.
The trial against Nyamhanga Machage was therefore in my view illegal. It was null and void. As his case was C otherwise linked to the case of the appellant in this appeal and in the light of what I have observed with regard to the case of the appellant, I decline to make an order for retrial in respect of this fugitive accused and leave it to the prosecution to decide which course to take in the event he is subsequently arrested. As no formal conviction was D entered against this accused I will end here, otherwise using the powers of revision of this Court I would for the reasons set out above, have quashed such conviction.
The appeal of the appellant is allowed and the conviction is hereby quashed.
E The appellant is to be released forthwith unless otherwise lawfully held.
Appeal allowed.
F
________________
