Jumanne s/o Mnugu and Another v. R. Crim. App. 231 and 232-A-70; 23/2/71; Brambe, J.

Jumanne s/o Mnugu and Another v. R. Crim. App. 231 and 232-A-70; 23/2/71; Brambe, J.

The appellants were convicted of robbery with violence contrary to sections 285 and 186 of the Penal Code. At their trial before the magistrate the appellants said that they had four witnesses to call. After one witness had been called the magistrate recorded as follows; “Witness cannot affirm; he is decidedly mentally unbalanced; he trembles. Accused persons to call their witnesses at their own expenses.” At the adjourned hearing the appellants stated that they had no witnesses and the court proceeded to judgment.

Held: (1) “I can find nothing [in Section 145 (1) of the Criminal Procedure code] to suggest that the court could refuse to summon a witness on any other ground than that he does not appear able to give material evidence in a case. It may be that in the case of a person who had sufficient means a court may order that he pay the costs of his witnesses but this cannot be a condition precedent to summoning them. There was enquiry into means or proof that the appellant could pay. The trial magistrate was influenced in his decision by the fact only that a witness seemed to be mentally unbalanced.” (2) “In Ahmedi Sumar v. R. (1964) E. A. 483 where the general principles regarding retrials were reviewed it was held that: ‘Each case must depend on the particular facts and circumstances of that case but an order for retrial should only be made where the interests of justice require it, and should not be ordered where it is likely to cause an injustice to an accused person.” In general, retrials are ordered only where the trial has been illegal or defective. In this case it was defective …… I cannot say that a retrial is likely to cause an injustice to the appellant.”(3) Appeal allowed and the appellant ordered to be tried de novo by another magistrate.