Mnzavas, JA, delivered the following considered judgment of the court:
C This is an appeal from the decision of the High Court (Mapigano J), in High Court Criminal Appeal No 89 of 1993 in which the learned judge rejected the appeal summarily. Arguing against the order of the High Court Dr Lamwai, learned Counsel for the appellant, submitted that the case was heard by D two different magistrates in the Court of first instance but that before the second magistrate continued with the hearing of the case the appellant was not informed of his right to resummon the witnesses or any of them so that their evidence might be re-heard before the other magistrate if he E (appellant) so wished. In support of his argument the learned defence Counsel referred to the Court the provisions of s 214 (2)(a) of the Criminal Procedure Act.
Our perusal of the record shows that the appellant was charged with and convicted of cattle theft c/ss 265 and 268 of the Penal Code before the district Court and sentenced to five years imprisonment.
F Hearing of the case started on 28 August 1992 before one, P Nnally, District Magistrate, and two witnesses (PW1 and PW2) gave evidence before him. Thereafter the prosecutor applied for adjournment to enable him to summon one, Juma, another prosecution witness. The magistrate G adjourned the case for hearing on 17 September 1992. Apparently the case did not come up for hearing on 17 September 1992 - instead it came up for hearing on 15 October 1992; and before a different magistrate one, E H Malekela, Senior District Magistrate. Hearing was again adjourned on the request of the prosecutor who told the Court - `the witness has not turned up'. Hearing was H adjourned to 29 October 1992. On that day Mr Malekela, SDM, heard the evidence of Juma Athumai, (PW3). A month or so later, 26 November 1992, a fourth prosecution witness, D/Sgt. Kassim, gave evidence before Mr Malekela and the prosecution closed its case.
I On the same day the appellant gave his evidence in defence and closed his defence.
The record is silent as to why Mr Nnally, District Magistrate, could not continue hearing the case to its A finality. Nor does the record show that the appellant was informed of his right under s 214(2)(a) of the Criminal Procedure Act.
Section 214(1) of the CPA allows another magistrate to take over and continue with proceedings started by a different magistrate who for any reason is unable to complete the proceedings provided B that before doing so the provisions of s 214(2)(a) are complied with:
The provisions under s 214(2)(a) are loud and clear. They say:
`214 (2) `Whenever the provision of sub-section (1) applies - C
(a) in any trial the accused may, when the such other magistrate commences his proceedings, demand that the witnesses or any of them be re-summoned and re-heard and shall be informed of such right by the other D magistrate when he commences his proceeds' - (The emphasis is supplied).
That being the language in s 214(2)(a) it was mandatory on the part of the learned second magistrate, Mr Malekela, Senior District Magistrate, to inform the appellant of his right to demand that the witnesses who testified before the first magistrate be summoned and testify before him if he E (appellant) so wished. This, Mr Malekela, Senior District Magistrate, did not do.
With respect to Dr Lamwai, learned defence Counsel, we agree with his argument that had the learned judge been aware of the non-compliance by the second magistrate of the mandatory F provisions under s 214(2)(a) of the CPA he would not have summarily rejected the appeal. The order of the High Court is apparently not supported by the Republic.
In the event the appeal is upheld, the record is remitted to the High Court and it is directed that the G appeal be heard on its merit.