Court name
High Court of Tanzania

Maheri Marugu vs Republic () [1984] TZHC 31 (10 August 1984);

Law report citations
1984 TLR 209 (TZHC)
Media neutral citation
[1984] TZHC 31

Katiti, J.: Maheri Marugu, who was before Mugumu District Court, charged as 2nd accused, was  A finally found guilty and convicted, in absentia, of cattle theft, and sentenced to seven years imprisonment. Arrested, days after he was sentenced, the same Maheri Marugu was escorted straight to prison. Failing to comprehend as to what this was all about, he has appealed bitterly  B complaining as to how he could be imprisoned without being accorded opportunity to defend himself, and to hear judgment against him being pronounced, and hence this appeal.
It may not be easy for anyone to appreciate the appellant's bitterness, unless circumstances  C pertaining to the trial are recapitulated.  This I shall hereafter do.  The appellant having been arraigned on 10/12/1981, the prosecution began adducing evidence on 27/4/1982.  On the 15/6/1982, the prosecution closed its case, and without the administration of Section 206 of the Criminal Procedure Code, and for reasons unrecorded, the case was adjourned to 10/7/1982 for defence, but  D mentioned on 30/6/192, although the appellant had been released on bail, as from 25/3/1982.  The record is unambiguous, that, although the appellant was supposed to defend himself on 10/7/1982, the case came up for mention on 30/6/1982,  when the case for ungiven reason was again adjourned  E for defence to 15/7/1982, and not on 10/7/1982, a date that had hitherto before been fixed for defence.  On 15/7/1982 the appellant was not present, but because the prosecutor had no case file, the case was adjourned again to 22/7/1982 for defence.
But again, for reasons that are on record not apparent, the record was never touched till 24/7/1982,  F when the appellant mysteriously found himself present, on his own initiative.  The record is again silent as to why, but it was again adjourned to 20/9/1982, and subsequently to 7/10/1982 and 25/10/1982 respectively for defence.  Unfortunately, when the appellant failed to appear on  G 25/10/1982, the case was adjourned to 2/11/1982 for Judgment, which was in fact delivered on 4/11/1982, without the appellant making his defence, and in absentia of the appellant.
The appellant has appealed. In this case, two aspects remarkably activate my reaction. The first  H aspect, is the number of adjournments, to whose unexplained monotony, the appellant finally succumbed, and failed to appear. Apart from the thirteen adjournments that preceded the trial, the appellant also suffered further martyrdom at the instance of eight more adjournments. From the record, even where and when the appellant was present, the trial magistrate, did for no recorded  I reasons adjourn the case, and this he did many

  A times. I would like it inculcated, that while a trial magistrate has discretion to adjourn a case before ordering a hearing of the same - see section 201 of the Criminal Procedure Code Cap. 20, the application of such discretion must be done judicially, and not arbitrarily.  In this case the trial   B magistrate adjourned the case, so often and so arbitrarily, not bothering to give reasons why, and not caring to be considerate to the appellant, an approach which is very injudicious.  After all, an accused person, innocent till proved guilty, like any other citizen, to sustain life, may have his shamba to cultivate, his business to perform, his office to run, and when arbitrary and frequent   C adjournments, make the execution or performance of the above impossible, room is coincidentally created for such accused to default in appearance, and the court involved cannot escape blame.  It is in my opinion not irrelevant to point out, that such arbitrary and frequent adjournments generate   D disenchantment with the Court system on the part of accused, and further provokes boomerang effect to the Courts, by eroding the respect and confidence the public in general and the accused in particular, may have had in the said courts.  In this case, while the appellant may have technically defaulted in appearance, the trial magistrate cannot hold himself blameless.
  E As aforementioned, the conviction and sentencing of the appellant in absentia demands a Judicial touch by this court.  The record speaks and so does loudly, that, the appellant defaulted in appearance after the closure of the prosecution's case.  This being undoubtedly the case of course   F without prejudice to my reservations expressed above, the provisions of section 202 of the Criminal Procedure Code Cap. 20, are inapplicable, as, though the appellant was absent, the court could not proceed with further hearing, as such further hearing, could in the circumstances of this case only be possible, the prosecution having closed its case, if the appellant was present and   G elected to defend himself.  I am therefore, without the citation of authority under which the magistrate proceeded, left to presume, that, the magistrate must have applied the provisions of section 202 A of the Criminal Procedure Code Cap 20, to convict and sentence the appellant,   H notwithstanding his absence.
I am only naggingly worried by the persistent question, whether, if the trial magistrate had, the provisions of Section 202 A of the Criminal Procedure Code Cap 20 in mind, he properly applied the same.  It is perhaps not untimely to delve into how these provisions should apply, and finally see if   I they actually were so properly applied. The provisions of section 202 A of the Criminal Procedure Code

Cap 20, in so far as they are applicable to the circumstances of this case, are in effect saying that,  A where an accused person being tried by a subordinate Court, does not appear on a date for continuation of hearing, after the closure of the prosecution's case, the Court may, if it is satisfied that the accused's attendance, cannot be secured without undue delay or expense, proceed to  B dispose of the case, in accordance with the provisions of section 210 of the Criminal Procedure Code Cap 20, as if the accused being present, has failed or refused to defend himself.  As I see, these provisions introduce an element or point of departure, whereby an accused may in given circumstances be convicted in his absence.  That being the case, principles of natural Justice being  C in danger, it seems necessary that conditions precedent for the conviction of the accused under section 202 A of the Criminal Procedure Code in his absence must strictly be adhered to.  After giving the thorough and deserving consideration to the provisions of section 202 A of the Criminal  D Procedure Code Cap 20, it seems to me that two conditions precedent, must be present and co-existing, before a Subordinate trial Court, proceeds under section 202 A of the Criminal Procedure Code in the absence of the accused, to dispose of the case in accordance with the provisions of section 210 of the Criminal Procedure Code Cap 20 - they are in my view as follows: E
   (1)   The accused must have failed to appear on a date fixed for continuation of hearing after the closure of the prosecution's case; with notice of such hearing date and F
   (2)   The trial Court must also be satisfied that the accused cannot be secured without undue delay or expense.
Normally, while a trial Court may easily know that, the accused has not appeared on a date fixed for  G continuation of hearing, after the closure of the prosecution's case, the same Court has no way of satisfying itself, that the accused's attendance cannot be secured without undue delay or expense, unless the same trial Court takes Judicial steps, from which deduction or conclusion, that, the  H accused cannot be secured without undue delay or expense may reasonably be made.  Two twin approaches are normally made.  One, a warrant of arrest is normally issued, and the impossibility to execute the same, may provide ground for the trial Court to reasonably conclude that the accused may not be secured without undue delay or expense.  In addition to the issuing of warrant of arrest  I or in the alternative to

  A the same, the accused's surety, if any, in the course of showing cause why his cognisance should not be forfeited, may shed light on the where abouts of the accused person, so that the trial court is in a position to make a Judicial conclusion, that the accused cannot be secured without   B undue delay or expense.  In this regard the trial court must apply a Judicial approach to avoid the danger of lightly condemning the accused unheard a violation of principle of natural Justice.
In this case, the trial magistrate never directed himself on the above two conditions precedent.  The   C trial magistrate never issued any warrant of arrest, nor was the surety summoned at all.  Under such circumstances, it is not easy to tell, that, the trial Court put itself in a position to be satisfied that the accused could not be secured without undue delay or expense.  Under the circumstances above shown, and with the prudence that must accompany the application of the provisions of   D section 202 A of the Criminal Procedure Code Cap 20, I find it unsafe to uphold this conviction.  The same said conviction is hereby set aside, and it is ordered that the trial Court resume the trial where it had ended to convict him and proceed as provided by Section 206 of the Criminal Procedure Code   E Cap 20.  The appellant is hereby, to be released from prison, and may, if circumstances so warrant be released on bail, by trial Court, on such terms as it thinks adequate.
F Order accordingly.

G