R. v. Sheraz Alidina, Crim. Traffic Rev. 67-DSM-72, 2/8/72.

 R. v. Sheraz Alidina, Crim. Traffic Rev. 67-DSM-72, 2/8/72.     

            MWAKASENDO, AG. J. – The accused in this case was charged before the District Court of Kilosa with five Counts relating to the mechanical defects of his motor vehicle registered No. TDH 586. He pleaded guilty to four of the Counts charged and not guilty to the remaining count, which need not concern us any further as it was subsequently withdrawn on the application of the public prosecutor. The learned Resident Magistrate duly convicted the accused in respect of each of the counts to which a plea of guilty hand been entered.

            However, on accused being called upon to say something in mitigation, he advanced a contention which indicated that his plea of guilty was made under a misapprehension. It is not clear from the record what the learned Resident Magistrate thought of this volte-face, but it would seem he wanted some time to consider the matter and therefore adjourned the case for ten days. While this court fully appreciates the need for the Magistrate wanting time to reflect over the unexpected development, I do not think that the problem that had cropped up was o such complexity and magnitude as to require ten full days for contemplation. It would seem to me that this lengthy adjournment was wholly unjustified in the circumstances of this case. Be that as it may, on the resumption of the case, accused changed his plea of guilty tone of no guilty in respect of each of the four counts. The learned Resident Magistrate rightly, in my opinion, accepted this change of plea, as he was bound to do under the law. The then adjourned the case to another date for hearing.

            Then comes the day fixed for the hearing of the case. Unfortunately the case did not come before the same Magistrate and it is doubtful whether I would be called upon to deal with this matter if the case instead of being sent to another Magistrate had come before the same Magistrate who had made the earlier orders. However, to turn to the problem referred to this Court, the district Court Magistrate is uncertain whether he should proceed to sentence the accused or go on with the trial of the case as the Resident Magistrate before him, had ordered.

            The law on this point appears now to be well settled. And although there are man cases decided on this point, I do not think it is necessary for the purpose of this order to refer to all these authorities. I will refer only to one case of this court: Hussein s/o Hassani, 1 T.L.R. 355. The accused in that case was charged before the Resident Magistrate’s Court with stealing two drums of petrol, the property of his employer contrary to sections 265 and 271 of the Penal Code. When he first appeared before the court he unequivocally pleaded guilty to the charge he was convicted on his plea and remanded in custody for sentence. When the hearing was resumed a different Resident Magistrate presided over the court. The appellant then stated that he did not steal the property and a plea of not guilty was entered. The case was tried and the accused was ultimately convicted. On appeal, Sinclair, J. held, on very good authority, that where an accused person has pleaded guilty to a charge and has been convicted on his plea, the court has jurisdiction to allow him, before sentence, to withdraw his plea and not guilty.  

            On the authority of this case therefore, it would seem to me abundantly clear that the course taken by the learned Resident Magistrate was perfectly correct and the trial of the case ought properly to have been proceeded with in the normal way. The record of this case will therefore be returned to the trial court with a direction to hear the case and determine it in accordance with the law.