Eliah s/o Mwafura v. R., Crim. App. 712-D-69, 7/11/69, Georges C. J.
The appellant was convicted of shop breaking and stealing c/ss 296 (1) and 265 of the Penal Code. the appellant was first charged in Cr. Case 134?69 together with Haruna Kasinlaya, who was P.W. 3 in this case and Aden Mwajana who was acquitted at the end of that trial. At the close of the case for the prosecution then the police applied for leave to withdraw the charge against the present appellant under s. 86 of the Criminal Procedure Code. The trial magistrate gave leave and the appellant was discharge. At that stage none of the witnesses for the prosecution had established any connection between the appellant and the stolen property.
Held: “Only in the most exceptional circumstances should the prosecution be allowed to withdraw a charge under s. 86 after they have produced against the defendant all the evidence available to them up to that time. If for some reason or other the evidence is inadequate, or some vital link which ought to be established has no in fact been established, the more appropriate course would be to grant a short adjournment in order to allow witnesses to be produced to establish any matter which needed to be established. Be that as it may, however, the prosecution was
well within its rights once leave had been granted to lay the present charge and to proceed with it.” Appeal allowed on other grounds.
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