Daudi v. R. Crim. App. 726-M-70; 22/1/71; Kisanga Ag. J.
Appellant was convicted of stealing. In its revisionary jurisdiction, the High Court quashed the conviction and ordered a retrial. At the retrial no plea was taken, the magistrate simply noting that; “Accused reminded of the charge and plea”. In the course of the retrial, one witness who had given evidence in the original trial could not be traced. The magistrate decided to act under s. 35 of the Evidence act to peruse the evidence of that witness in the previous proceedings.
Held: (1) “The order of the re-trial meant that there should be a new trial in which the appellant should be charged and evidence to be led afresh. So that, in my view, the charge and plea in the previous trial could not be regarded as part of the proceedings of the new trial.” (2) “It therefore follows that the appellant’s arraignment was incomplete because his plea was not taken. In a number of cases this court has held that where no plea is taken from the prisoner, the trial is a nullity (see, for example, AKBER ALLI WALI MOHAMED DAMJI vs. REPUBLIC, 2 T. L. R., p. 137 and Misago Semumba vs. Republic, 1967, T. H. C. D., P. 35). Thus, in the present case, the trial was nullity because no plea was taken. (3) The course adopted by the learned magistrate would appear to be irregular for a number of reasons: first, the record of proceedings containing Mary’s evidence was not formally produced in court to form part of the evidence, and therefore the learned magistrate was not entitled to peruse Mary’s evidence because it was not properly before him. Furthermore, Mary’s evidence in the previous proceedings could not be admitted in evidence at the re-trial because no foundation was laid to justify its reception. Before acting on that section, evidence must be led as to no availability of the witness; a mere statement not on oath or affirmation is not sufficient. Again it is clear that the said section can only be invoked if the witness cannot be produced without an amount of delay which in the opinion of the court would be unreasonable. The learned magistrate made no finding that Mary’s attendance could not be procured without unreasonable amount of delay and indeed there was no evidence on which any such finding could be made.” (4) Trial nullity. Order for another retrial.
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