MOSES MAYUNGA v REPUBLIC 1993 TLR 115 (HC)

MOSES MAYUNGA v REPUBLIC 1993 TLR 115 (HC)

Court High Court of Tanzania - Moshi

Judge Munuo J

CRIMINAL APPEAL NO. 5 OF 1993 F

7 May, 1993 - MOSHI

Flynote

Criminal Practice and Procedure - Right of accused to defend himself - Accused

jumps bail and absconds after G close of prosecution case - Whether conviction and

sentence passed in his absence was proper - Sections 226(1) and (2) and 227(1) of the

Criminal Procedure Act 1985.

-Headnote

The appellant was charged with breaking into a building and stealing therefrom.

After the prosecution H closed its case, he jumped bail and absconded. The Trial

Court convicted and sentenced him in absentia. On appeal he complained of being

denied the right to defend himself and to call witnesses.

Held: Having jumped bail and absconded, the appellant is estopped from complaining

that conviction I and sentence were passed in his absence.

1993 TLR p116

Case Information

A Appeal dismissed.

No cases referred to.

[zJDz]Judgment

Munuo J: This is an appeal against the decision in Moshi District Court Criminal Case

No 595 of B 1989 wherein the accused Moses Mayunga was charged with breaking

into a building and stealing contrary to ss 296(1) and 265 of the Penal Code in that he

burgled the grinding machine house of the KCMC hospital therein stealing a mortar

valued at Shs 7,000/= the property of the said hospital.

C The complainant, PW2 Peter Paul stated that being the watchman on guard duty

with his co-watchman, PW4 Josephat Mkumbo, they routinely combed the KCMC

hospital premises only to find the padlock on the door of the grinding machine

missing. Upon PW2 opening the unpadlocked door to find out what was happening

therein, he encountered the accused Moses Mayunga hurrying D out carrying a

mortar he had stolen therein. The watchman then confronted and apprehended the

accused red-handed with the stolen mortar. A police officer PW1 Inspector Adam

Ndesamburo visited the scene of the crime and formally arrested the accused and the

recovered exhibit. The E accused was then charged with the present offence.

The accused jumped bail after the closure of the prosecution case so he remained at

large until judgment was pronounced in his absence. He was later traced, rearrested

and committed to prison to serve his sentence. Hence the present appeal.

F In his memorandum of appeal the appellant complained that he was unlawfully

convicted in absentia and denied his rights of defence and of calling defence

witnesses. The proceedings of the Trial Court speak for themselves. The prosecution

closed their case on 17 April 1990. The accused then opted to give a sworn defence

and to call one witness which he never did because he jumped G bail. He is

therefore estopped from complaining against the conviction and sentence passed in

his absence upon his own deliberate default to appear for his defence.

The Trial Court had powers to proceed under s 226(1) and (2) and, or, s 227(1) of the

Criminal H Procedure Act 9 of 1985. In that regard the trial cannot be faulted.

In view of the above, the appeal is devoid of merit. The sentence imposed on the

accused is the mandatory minimum provided under the Minimum Sentences Act

1972. The appeal is devoid of I merit. Accordingly the appeal is dismissed.

1993 TLR p117

A