ONYIUKE

Stanslaus v. R.(1971) HCD 153 

Crim. App. 886-D-70; 1/2/71; Onyiuke J.

The appellant was charged with obtaining money by false pretence c/ss 301 and 302 of the Penal Code and alternatively stealing by agent c/ss 273 (6) and 265 of the Penal Code. the prosecution called ten witnesses, four of whom gave evidence before one magistrate and the rest before another magistrate.  The second magistrate convicted the appellant but he did not inform the appellant of his right to demand that the previous witnesses or any of them be recalled according to s. 196(1) of the Criminal Procedure Code.

Held: 

(1) “In this case the learned second magistrate failed to inform the appellant of his right to demand that the previous witnesses or any of them be recalled a similar situation arose in the case of DAUDI RAPHAEL and MASAJA vs. REPUBLIC, High Court Mwanza, Criminal Appeal No. 77 of 1969 where BRAMBLE J. held that failure to inform the accused of his right was not a mere procedural irregularity but was a matter that went to the jurisdiction of the second magistrate to try the case. He held that compliance with the provisions of the proviso to section 196(1) was a prerequisite to the second magistrate’s assumption of jurisdiction and that non-compliance rendered the trial nullity.”

 (2) “Appeal allowed, conviction and sentence set aside; trial de novo before another magistrate.”