Juma Hassan vs Republic (Criminal Appeal No 108 of 1995) [1999] TZHC 103 (30 December 1999)
Judgment
I ...
IN THE I-ItGII COURT OF T/NZi\NIA
fl. T D,'.R i-]:;S S/i.L/..t\M
I.PPBLLli.T.JRISDICTI_ON
(Original (;riminal case Noo· 91 of 199.3 of the
District Court of Morogoro District at Morogoro)
BEFORE:
,JU.MA Hf-1.SS!ttl 0 o•oo 000 000'100 00 00 0() OC-00("0 0 0 OD Oil f;_PPJiLI.it.NT
Versus
THE RF.PUBLIC 00"0oococoooo900,oonoo<iooooogOo R. and 265 of the Penal
Code, respectivelyo
The record of the trial court reveals thc1.t imrrediately after the
close of the defence case, and very surprisingly
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the learned trial
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.. :· ...BFONDENT
JUDGMENT/RZI\SONS FOR ORDER
CHIPETA, J. :
On 15th of November, 1999, I quashed the entire proceedings of
the trial court and ordered the ap-pellJ.nt vs immediate release from
custo· J unless otherwise lawfully d0t,:1.inedc I raserved my reasons
for doing so
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and the same ar0 contained in this judgment o
The appellant
9
ju:na J·Ias1=:an
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was chart;cd with the offences of
burglary and stealing contrary to sections 29L
2 resident magistrate sinply 1?roccedcd to p11.ss sentences e.p.;tlin.st the appellant!° Th.;1re is no record that he wrote a judgment or delivered an oral one 9 as required by the provisions of sections 312 a11d 311 of the Criminal Procedure Act-:.,, It WJ.S not even recorded that the appellant had been convicted ar:d. of whctt offence 1 Th0 procedure adopted by the learned mag:i.strntc, thereforc 9 and \vith unfeigned respect, unl:noi;m to lawo A person cr:innot b2 sentenced for any offence of which he has not been duly convictedo In my view 5 the error committed by the learned magistrate is so fundr:tment,J. that it is incurableo In other words, it rendered the entire r,rocoed.ings a nullity o I c0nsidered the question whether I should order to retria.lo But after considering the guiding _principles on this point, as reiterated in view that in the circumstances of the instant ci'.:l.sc, the interests of justice heavily weighed against an order for retrial, particularly as the appellant had already ser,1ed almost the whole of the sentence of seven years imprisonment in.posed on him by the trial c0urtc It was for the foregoinc; rer,nons that I quashed the entire proceedj_ngs of the trial court ;:md ordered the jmmediate relca.se of the appellant from custndy unless otherwise lawfully detainecl.o .,, ,JUDGE
- 3 - 30/12/99: Coram: F .s.K. Mutungi, DR-HC For the Republic: (Miss Sahel S/A) For Appellant: Absent CC: Shomary COURT: Judgment re~.d this 30/12/99 in the presence of Miss Behel for the Republic and in the nbscnce of the Appellant. (Sgd):F.S.K. MUTUNGI DEPUTY R~GISTR/\R 30/12/1999