Republic v Sempeto Vincent 1985 TLR 202 (HC)

REPUBLIC v SEMPETO VINCENT 1985 TLR 202 (HC)

Court High Court of Tanzania - Tanga

Judge Sisya J

April 21, 1982

CRIMINAL REVISION 8 OF 1981

Flynote

Criminal Practice and Procedure - Reconciliation - Power of the court to order reconciliation in lieu of penalty - Whether court may order reconciliation in respect of a felony - Criminal Procedure Code, s. 134.

-Headnote

The accused, aged 12, pleaded not guilty to a charge of doing grievous harm contrary to F s. 225 of the Penal Code. On the day fixed for hearing, the court, endeavouring to foster reconciliation under s.134 of the Criminal Procedure Code, ordered stay of the proceedings pending the outcome of the reconciliation. In the end, the court ordered G payment of sh.300/= as compensation by the accused's father. The High Court revised the proceedings. Held: (i) The offence of doing grievous harm contrary to s. 225 of the Penal Code is a H felony and therefore it is outside the scope of those offences in respect of which the court may promote reconciliation in lieu of a penalty; (ii) the court had no power to promote reconciliation in this case and therefore the trial court magistrate, his good intentions notwithstanding, acted in excess of I jurisdiction; 1985 TLR p202 Case Information Order accordingly. A No cases referred to. Editorial Note: The Penal Code (Amendment) Act, No. 14 of 1980, s.2 abolishes the distinction between felonies and misdemeanours 'in the Penal Code and any other written B law." It is provided that any reference to a felony or misdemeanour shall be construed as a reference to "an offence". However, this provision has some practical problems. The learned judge makes no reference to this provision in this case. It will also be noted for example that s.388 of the Penal Code provides for punishments of accessories after C the fact to felonies and s. 389 provides for punishments of accessories after the fact to misdemeanours. 

Many other examples can be given to illustrate that the distinction between felonies and misdemeanours is still of practical significance. D Judgment Sisya J.: On 16.2.81 the accused person, Sampeto s/o Vincent, a twelve year old school boy, appeared before the District Magistrate, Pangani, and pleaded not guilty to a single count charging him with doing grievous harm contrary to section 225 of the Penal Code. Hearing was then fixed on 4/3/81 "in a juvenile Court". E Hearing did not proceed as scheduled. Instead the learned District Magistrate made the following order and I quote from the record of proceedings: Order: The Court having explained to the parties the procedure of reconciliation u/s 134 of F C.P.C. The parents have undertaken to go back and try to be reconciled. So the trial is suspended pending the outcome of the conciliation. Case to be mentioned on 25/3/81 and accused's bail extended. On the date fixed for mention the complainant's father is recorded to have informed the G District Magistrate that he and the mother of the accused had failed to agree on the amount payable to him, apparently, as compensation. He wanted sh.300/= whereas she was prepared to pay only a third of that. Finally, the learned Magistrate made the H following order: Sh.300/= to be paid by the accused's father within a period of 3 months from now and should he fail to do so the amount shall be levied from him in the normal manner. 

Section 134 of the Criminal Procedure Code under which the learned District Magistrate A purported to act provides as follows: 134. In the case of proceedings for common assault or for any other offence of a personal or private nature not amounting to felony the Court may, if of the opinion that the public interest B does not demand the infliction of a penalty, promote reconciliation, and encourage and facilitate the settlement, in an amicable way, of the proceedings on terms of payment of compensation or other terms approved by the Court, and may thereupon order the proceedings to be stayed. C The offence of doing grievous harm contrary to section 225 of the Penal Code is a felony and therefore it is outside the scope of section 134 of the Criminal Procedure Code. Although, on my part, I have no doubt whatsoever as to the learned District D Magistrate's good intentions in his endeavour to foster reconciliation between the parties to this proceeding I, however, regret to say, which I must, that in doing what he did the learned District Magistrate acted in excess of jurisdiction. He simply had no power to promote reconciliation in this case where the offence allegedly committed is a felony. E The end result is that all his exercises towards reconciliation were a nullity ab initio and they are hereby so declared. The same are quashed and set aside. I take judicial notice of the fact that the District Magistrate concerned, Mushumbusi Esq., has since ceased to exercise jurisdiction in Pangani District by reason of transfer to F another District. In the event it is hereby directed that the record should now be sent back to Pangani with directions that the matter proceeds before any other Magistrate of competent jurisdiction according to law.

Order accordingly.

1985 TLR p204

A