Mnzavas, J.K.: On 20/1/81 the convict Omari Kibwana stood surety for one, Ally Kisagase, H second accused in Kivukoni Criminal case no. 828/80, at shs. 60,000/= bail. He continued to produce the accused in court every time he was required to appear, but on 24/10/83 he failed to produce him before the court as required.
I He himself attended the court and on being asked by the presiding magistrate as to why Ally Kisagase, the second accused, was
A not in court he replied that the second accused was sick. There upon the learned Senior Resident Magistrate said:
"This accused has several times defaulted to attend--- Surety for second accused to forfeit his bail bond of shs. 60,000/= or six months imprisonment." B
The accused failed to pay shs. 60,000/= and was consequently sentenced to six months imprisonment.
Dissatisfied by the decision of the lower court Kibwana's relative has written to this Court complaining against the C imprisonment of Kibwana. On receipt of the letter the lower court's record was called for inspection and, the Court ordered that revision proceedings be opened. When the case came up for revision on 21/11/83 Mr. Chiza, learned state attorney, argued that it was wrong on the part of the trial Senior Resident Magistrate to send the accused to prison. It D was the learned counsel's submission that the surety should have been given an opportunity to produce the accused before deciding what punishment was to be imposed.
With respect I tend to agree with the argument by the Republic that in deciding to send the surety to prison for his failure E to produce the accused in Court the Senior Resident Magistrate acted rather hastily. The surety's argument for not producing the accused was that the accused was indisposed. It may have been (or may not have been) true that the accused was unable to attend the court because he was sick. We do not know for sure that the accused was sick but F prima facie the Court had the word of the surety that the accused was sick hence his inability to attend the Court. That being the position it would have been a more just decision if the learned trial magistrate had given the surety a day or two to produce the accused; this would have given the court time to investigate the surety's story. G
This Court had occasion to deal with a similar situation in Hudson s/o Salum v R. [1975] LRT No. 34 where Kisanga Judge (as he then was) said: (1) Where the accused fails to appear on an appointed date it is preferable not to forfeit the H bond of the surety too quickly, it is best to adjourn and allow the surety time to find the accused if he thinks he can get him.
In an earlier case Hamlyn, J. said inter alia in Koba s/o Joseph v R. [1968] HDC 96:
"--- It was most improper on the part of the lower court to have imprisoned the surety." I
A In the present case the surety had told the court that the second accused was, by reason of illness, unable to attend the court. As there was no reason to make the court think that the surety was lying it was clearly wrong on the part of the learned Senior Resident Magistrate to sentence the surety to a term of imprisonment. Even where it is proved that a B surety was responsible for the non-attendance of an accused, the accepted practice is that the surety's bond is forfeited or his property is sold to realize the value of the bond.
The peremptory sentence of six months imprisonment was clearly uncalled for and cannot be allowed to stand. In C exercising my powers of revision under s. 329 of the Criminal Procedure Code I hereby set aside the sentence of six months and I accordingly order that he be released from custody forthwith unless he is otherwise lawfully held.
Appeal allowed. D
E