Kyando, J.: The records of this case and another were called for by J.K. who then minuted: F
In each of these cases two questions may be considered by the court:
(1) Whether, bearing in mind the wording of s. 225 (4) of the Criminal Procedure Act, 1985, it was lawful for the G subordinate court to adjourn the case for an aggregate period exceeding sixty days.
(2) If the answer to the first question is either negative what order or orders ought to be made by the High Court in respect of the case? H
The records were called for, no doubt, under the provisions of s. 372 of the Criminal Procedure Act (CPA), 1985, and similar provisions in the Magistrates' Court Act, 1984, which empower the High Court to call for and examine I the record of any criminal
A proceedings before a subordinate court for the purpose of satisfying itself as to the correctness legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings in such subordinate court".
B S. 225(4) CPA referred to in JK's minute provides:
225-(4) Except for cases involving offences under sections 39, 40, 41, 43, 45, 48 (a) and 59 of the Penal Code or Offences involving fraud, conspiracy to defraud or forgery, it shall not be lawful for a court to adjourn a case, in respect of offences C specified in the First Schedule to this Act, under the provisions of subsection (1) of this section for an aggregate exceeding sixty days except under the following circumstances:
D (a) Where a certificate by a Regional Crimes Officer is filed in court stating the need and grounds for adjourning the case, the court may adjourn the case for a further period not exceeding an aggregate of sixty days in respect of offences E stated in he First Schedule to this Act.
(b) Wherever a certificate is filed in court by the State Attorney stating the need and grounds for seeking a further adjournment beyond the adjournment made under paragraph (a), the court shall adjourn the case for a further period F not exceeding in aggregate of sixty days.
(c)... of Public Prosecutions or a person authorized by him in that behalf stating the need for and grounds for a further G adjournment beyond the adjournment made under paragraph (b) the court shall not adjourn such case for a period H exceeding an aggregate of twenty four months since the date of the first adjournment given under paragraph (a)
(5) Where no certificate is filed under the provisions of sub-section (4) the court shall proceed to hear the case or discharge the accused in the court where the persecution is unable to proceed with the hearing save that any I discharge under this section shall not operate as a part to
subsequent charge being brought against the accused for the same offence. A
(b) Nothing in this section shall be construct as provising for the application of this section to any proceeding in a subordinate court in relation to any offence triable only by the High Court or triable under the Economic Organized time B Control Act, 1984.
The provisions of subsection (1) of s.225 referred to in subsection (4) relate to the lawfulness of adjournments generally, before/and during the hearing, of cases; the provisions give discretion to courts to adjourn hearing "to a C certain time and place to be appointed".
The offence in the present case is not expected by the provisions of s. 225(4) (supra), for the offence does not fall D under ss. 39, 40, 41, 43, 45, 48 (a) or 59 of the Penal Code. It falls instead under s. 296 (1) of the Penal Code. It is "warehouse breaking". It is also an offence specified under the First Schedule to the Criminal Procedure Act, 1985.
The proceedings of the case show that it was first mentioned before the Court below on 21/12/89. The last date of E the proceedings before the record was called for here is 11/4/91. There is nothing to indicate that any certificates as provided for in s. 225 (4)(a) - (c) (supra) were filed. Before me, Miss Munisi, learned State Attorney, submitted as follows: F
If we go strictly by the law, which is mandatory, it was improper for the case to go on for more than sixty days without complying with the provisions of s. 225(4). It was unlawful for the case to remain pending for so long, i.e. after sixty days. I G suggest that an order be made in terms of s. 225 (5) Criminal Procedure Act.
It is indeed the case that it was unlawful for the case to remain pending for the period from 21/12/89 to 11/4/91 (and it may still be pending up to now) without any certificates as the law requires being filed. And it is surprising H that the clear provisions in s. 225 (4) Criminal Procedure Act are not being followed by subordinate courts. This is because, to my knowledge, this is not the only case in which the provisions have not been being followed, there are several others, (see, for example, Ibrahim Hassan & Another v R I
A (HC) Criminal Appeals Nos. 92 & 307/90 (Tanga Registry)(unreported). The only reason for failure to follow the provisions may be their unfamiliarity to most magistrates - for they were not there in the now repealed Criminal Procedure Code. It may also be that magistrates do not feel that they (the provisions) are not an efficacious cure for B delays of cases, which I think the purpose for their enactment in view of the provision that a discharge under the section containing the provisions (s.225) "shall not operate as a bar to a subsequent charge being brought against the accused for the same offence". Of course this provision is unencouraging but we, as courts, are duty bound to apply C the law as we find it and or enacted by the legislature. We have no power at all to ignore it.
I am satisfied, as already indicated and as the Republic through Miss Munisi says, that it was unlawful for the case to D have remained pending for more than 60 days in the absence of certificates as already shown. If their certificates have not been filed to date, the subordinate court is directed by this order to immediately proceed hearing the case or, if the prosecution will be unable to proceed with the hearing, to discharge the accused - under s. 225 (5) of the E Criminal Procedure Act, 1985.