Josis Zakayo v. R. Crim. App. 70-M-71; 2/11/71; Kisanga, Ag. J.

 

Josis Zakayo v. R. Crim. App. 70-M-71; 2/11/71; Kisanga, Ag. J.

The appellant was convicted on a number of counts of stealing and forgery. The case was beard by two magistrates, the first of whom was transferred after hearing the evidence of all but one of the prosecution witnesses. The second magistrate exercising his discretion under the provisions of section 196(1) of the Criminal Procedure Code decided not to re-commence the trial. He did not take the plea of the appellant nor did he inform of his right to recall the witnesses who had given evidence before the first magistrate.

            Held (1)(After citing R. v. Rajabu Ramadhani 2 T.L.R. 49) “In the present case, however, the succeeding magistrate did not re-commence the trial, he merely continued it from where his predecessor had stopped, and I think that in such a situation he was under no obligation to take a plea of the accused.” (2) “The proviso to section 196(1) provides that “(a) in any trial the accused may, when the second magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and reheard and shall be informed of such right by the second magistrate when he commences his proceeding. The learned trial magistrate failed to inform the appellant of his right to have the witnesses resummoned and reheard. The case against him depended to a great extent on the credibility of witnesses so that the assessment of the evidence would best be done by the magistrate who had the opportunity of seeing and hearing both the appellant and the prosecution witnesses.” (Rembenisele Elisawo v. R. 1967 H.C.D. 75 followed). (3) The trial was declared a nullity and a fresh trial was ordered.