Maina, J.: This is an appeal by Bakari Mselemu against conviction for cattle theft and the sentence of five years imprisonment. D
The prosecution evidence was briefly as follows: On 28.12.1979 a cow was stolen from the complainant, P.W.I Lenyika Kiseri at Sindeni village in Handeni district. About one week later, on 5.1.1980, PW3 Rashidi Suberi met the appellant who said he E had a cow which he wanted to sell. But since Rashidi knew that complainant's cow had been stolen he passed on the information to PW2 Idi Saidi who also informed the complainant. A trap was arranged. On the day the appellant had agreed to meet Rashidi, the complainant who was not known to the appellant turned up and Rashid pretended to buy the cow. The appellant told them that the cow was his property. He F was arrested on the spot and he was sent to the Chairman PW4 Ramadhani, to whom the appellant alleged he had bought the cow for a friend. There was also evidence that the appellant had, on 5.1.80, sent the cow to PW5 Mohamed for safe keeping and that on 6.1.80 when the appellant was trying to sell the cow to PW3 Rashid, the said Mohamed (PW5) was also present. G
At the close of the prosecution case, the appellant was released on bail. He did not appear on the date fixed because as the record shows, his surety reported that the appellant was sick and admitted in hospital. On two subsequent occasions when the case was called for hearing the appellant was absent, and reported sick. On 17.3.1980 H the appellant's brother one Mohamed Mselemu informed the Court that the appellant was still sick and admitted at Kwamkono Mission Hospital. The record does not show whether the appellant's surety was present. On the subsequent occasion when the case was called for hearing both the appellant and his sureties were present and on 15.4.1980 I the prosecutor told the court that he was informed that the appellant was sleeping in the
forests. It is on this basis that the court ordered for the appellant's arrest and finally the A court proceeded to pronounce judgment and sentence on the basis that the appellant had absconded.
It is obvious from the record that the appellant was not given an opportunity to defend himself. Although the Magistrate did not specify under what section of the law he decided to proceed with the case in the absence of the appellant it seems he had in mind B section 202A of the Criminal Procedure Code which states:
Where in any case to which section 202 does not apply, an accused person being tried by a subordinate Court fails to appear on the date fixed for the continuation of the hearing after the C close of the prosecution case or on the date fixed for the passing of sentence, the Court may, if it is satisfied that the accused's attendance cannot be secured without undue delay or expense, proceed to dispose of the case in accordance with the provisions of section 210 as if D the accused, being present had failed to make a statement or adduce any evidence...
In my opinion, a trial Court can only proceed to dispose of the case in the absence of the accused under section 202A of the Criminal Procedure Code where the accused is E absent for no known reason or where his whereabouts are unknown. The appellant in this case was reported sick and admitted in hospital. The surety reported this to the Court and the appellant's brother made the same report. When the Court decided to F issue a warrant of arrest, the appellant and his surety were absent. It is not known whether the surety had been informed of the date the case was to be called for hearing. I think the possibility that the appellant and his surety were unaware of the date the appellant was required in Court cannot be ruled out because when that date was fixed they were not in Court. G
The prosecutor's statement to the Court that the appellant was sleeping in the forests was not based on any evidence. The warrant of arrest issued was not returned to the Court with the necessary endorsement by the officer who was required to execute it. I have not seen a copy of that warrant in the original file. It is therefore difficult to believe H that the appellant who was sick and admitted in hospital had left hospital and disappeared in the forests. It was therefore, in my opinion wrong on the part of the trial Magistrate to proceed with the case in the absence of the appellant, under the circumstances. There is absolutely no evidence that he had absconded or that he deliberately failed to appear in Court on the I
date he was required. The appellant was convicted without being given an opportunity A to defend himself.
The learned State Attorney conceded that the proceedings were a nullity and he did not support the conviction. With respect, and for the reasons which I have already given above, I agree with the learned State Attorney. The conviction is quashed and the B sentence is set aside.
I have considered whether I should order a retrial. The appellant was, according to the record of the District Court, committed to prison on 14th October 1980 when he started serving the sentence of five years imprisonment. He has already served two and a half years imprisonment. With the normal prison remission further imprisonment will cause C injustice to the appellant.
It is ordered that the appellant be released from custody forthwith unless he is otherwise lawfully held.
D Appeal allowed.