Kabiga s/o Iringa v. R., E.A.C.A. Crim. App. 91-DSM-72, 24/10/72.

 Kabiga s/o Iringa v. R., E.A.C.A. Crim. App. 91-DSM-72, 24/10/72.

            Appellant was charged with murder and was originally arraigned before Onyiuke, J. on 27^th July, 1970. The case was adjourned and accused was ordered to be detained at Isanga for observation after the defence had raised the issue of insanity. About fifteen months later appellant was arraigned afresh before Jonathan, Ag, J. and was found guilty of murder.

Held:   (1) It is irregular to have one High Court judge continue a case begun by another, but his irregularity did not in the present case lead to a failure of justice.

(2) A court has the power, under s. 168A, Criminal Procedure Code, to adjourn proceedings and order he accused detained in a mental hospital for examination at any time after the plea has been taken, even if there is not as yet in evidence any material raising the issue of insanity.

LAW, AG. P. – The appellant was convicted of murder by the High Court of Tanzania sitting at Mwanza (Jonathan, Ag. J.) and was duly sentenced to death. He has appealed against his conviction and sentence.

The appellant was originally arraigned before Onyiuke, J. on 27^th July, 1970. At the outset Mr. Rugarabamu, who appeared for the appellant, informed the court that he had reason to think the appellant was insane, and he asked that the appellant be sent to Isanga Institution for observation and trial adjourned. Mr. Samata, for the Republic,

Objected that the application was premature as section 168A of the Criminal Procedure Code only applied “during” a trial and as there was as yet no material on which the issue of insanity could be raised. We agree that an application for an adjournment should not be made until the trial starts, that is to say, when the plea has been take, but we do not agree that no such application can be made until there is material raising the issue of insanity. Indeed this is clear from the wording of subsection (1) of section 168A which gives a court power to adjourn the proceedings and order the accused to be detained in a mental hospital for examination “notwithstanding that no evidence has been adduced or given of such insanity.” However, the learned judge accepted Mr. Samat’s submission. Three witnesses gave evidence before Mr. Rugarabamu renewed his application, whereupon the judge adjourned the case to a date to be fixed and ordered that the accused be detained at Isanga for observation. For the removal of any doubts which may exist we would observe that the discretionary powers vested in a judge under section 168A can be exercised at any time after arraignment, even if no evidence has been called. For instance, the judge may decide to act on his own observation of the accused, or on information supplied by prosecution or defence advocates. Be that as it may, the next step in this case was more than 1 year and 3 months later, when the appellant was arraigned afresh before Jonathan. Ag. J., on 18th November, 1971. He pleaded not guilty, assessors were selected and the trial began ab initio. There was thus the extraordinary situation that the appellant was the accused in a part-heard criminal case before Onyiuke, J., charged with the murder of Dalali, and while that case was still pending, he was being tried on the same charge by a different judge. There is no provision in the Criminal Procedure Code for one judge to continue a case begun by another, although such a procedure is provided for in subordinate courts by section 196 of the criminal Procedure Code. Quite clearly, if Onyiuke, J. proceedings should have been terminated by nolle prosequi entered under section 81(1) of the Criminal Procedure Code, before starting a trial de novo before another judge on the same information. This irregular procedure has not however led to a failure of justice in the case and is in our view curable under section 346 of the Penal Code. [The court then reviewed the evidence and rejected the appeal]