REPUBLIC v MUHIDIN TWALIBU 1989 TLR 8 (HC)

 

REPUBLIC v MUHIDIN TWALIBU 1989 TLR 8 (HC)

Court High Court of Tanzania- Mtwara

Judge Maina J

9 February, 1989

Flynote

Criminal Practice and Procedure - Settlement out of court - Matters to be settled out

of H court - Whether burglary and stealing are matters capable of being settled out

of court - S.163 of Criminal Procedure Act.

-Headnote

The accused was charged in the District Court with burglary and stealing. He denied

I the charge, and after a few adjournments, the

1989 TLR p9

MAINA J

prosecutor informed the court that the accused was married to the complainant's A

daughter. The prosecutor requested that the matter be settled out of court. The trial

magistrate, purporting to act under s.163 of the Criminal Procedure Act, ordered that

the case be settled out of court. The case was admitted to revision. B

Held: (i) Before applying section 163 of the Criminal Procedure Act, the court has to

consider whether the offence is one of common assault or of personal or private

nature;

(ii) the offence of burglary and stealing is not one of common assault or of a

personal or private nature and therefore does not fall within the powers of the court

to C promote reconciliation.

Case Information

Case remitted for trial.

Sangawe, State Attorney, for the Republic. D

[zJDz]Judgment

Maina, J.: The accused, Muhidin Twalib, was charged in the District Court at Kilwa

with burglary and stealing. He denied the charge. After a few adjournments, the

prosecutor informed the court that the accused was married to the complainant's

daughter, and he requested that the matter be settled out of court. The District Court

E agreed and made an order that the case be settled out of court. This case was

admitted to revision because it appeared that the District Court acted without

jurisdiction.

The learned district magistrate made his order under section 163 of the Criminal F

Procedure Act which provides as follows:

In the case of proceeding for common assault or for any offence of personal or

private nature, the court may, if it is of the opinion that the public interest does not

demand the G infliction of the penalty, promote reconciliation, and encourage and

facilitate the settlement, in an amicable way, of the proceedings or on terms of

payment of compensation or other term approved by the court, and may thereupon

order the proceedings to be stayed. H

It seems to me that the court can promote reconciliation and encourage settlement in

a case of common assault or for an offence which is of personal or private nature. The

relationship between the accused and the complainant is not relevant. What the court

I has to consider, before applying section 163 of the Criminal Procedure

1989 TLR p10

Act, is whether the offence is one of common assault or of personal or private nature.

If A the answer is in the affirmative, then the court may proceed to promote

reconciliation and encourage settlement. In this case, the learned district magistrate

conceded that the offence was serious. It was of common assault. The charge was

burglary and stealing. B That is not an offence of personal or private nature. Burglary

is a serious offence and therefore it is not an offence in which the court could

promote reconciliation Section 163 of the Criminal Procedure Act was not applicable

in this case.

The order of the District Court that the case be settled out of court is set aside. C

It is ordered that the case be remitted to the District Court for trial before another

magistrate.

D Order accordingly.

1989 TLR p10

E