Robert Nderasio vs Republic (High Court Criminal Appeal No. 25 of 1972) [1973] TZHC 184 (14 April 1973)

APPELLATE JURISDICTION HIGH COURT CRIMII'AL APPEAL NO.. 25 OF 1972 ORIGINAL CRIMINkL CASE NO.575 OF 1971 OF THE DISTRICT COURT OF KIIMANJARO DISTRICT AT MOSHI Before E.D. Maokola-Maj,ogo,, Esq., liesident Magistrate. ROBERT NDERASIO •...... ....; ... APPELLANT (01ginal Accused) versus THE REPUBLIC .... .... RESPONDENT (Origina1rosecutor) — CHARGE: 10 counts of Servaht c/s 265 and 270 of the Penal Code, ' 3OA?L 73 JUDGI'TENT f. Bramble, J. This appeal care up for hearihg on th6 25th September, 1972 wrien it was dsc1oed' that the records were partly destroyed in a fire which took place at the Court house, Moshi. t was adourn'ed for the republic to find out whether necessary exhibits could be found. On the 8th December, 1972 Stäte'Att'orney informed the court that it was possible for the Republic to have a new trial and I allowed the appeal, quashed' the conviction and sentence and ordered, a. retriä.l. In the case of Haiderali Lakhoo Zavr V H.: (192) 19 E.A.C.A.' 244 where the record was lost before the hearing of an appeal before 'the High Court of Kenya a retrial was ordered and this decision was upheld by the Court of Appeal. Part of its judgment reads:- 4 The courts must in this matter try to hold the scales of justice evenly between the parties, and, whilst no wholly satisfactory solution can be expected for such an unsatisfactory state of affairs as this appeal discloses, we think that the course followed by the learned Judges in first appeal was in the balance fairest and most just, and is the only solution for a judicial determination on the merits of the csse. The apellant was convicted on ten counts of stealing by, Public Servant and fortyfive pages of the written eviden6e were missIng because they were apparently burnt. The exhibits in the cise are available. The appellant was convicted on the 15th September, 1971 and at the date of the determination of the appeal had served about one-third bfhis'senterce of 3 1 2 ycaIs imprisonment. Following the principle 'stated in the case cited above, I sllowed'the appeal and ordered a retriel. Should the eppellant be cdnvicted on the retrial consideration could be taken of the 'period he has served when sentence is passed so that, apart from the inconvenience of a delayed determination, no' injustice may be caused. Delivered in Court at Arusha the day of April, 1973. . • - • (C.. E. BR.AMBLE) • • • JUDGE