185. Whenever a doubt arises as to the court by which any offence
should be inquired into or tried any court entertaining such doubt may
in its discretion report the circumstances to the High Court and the High
Court shall decide by which court the offence shall be inquired into or
tried. Any such decision of the High Court shall be final and conclusive
except that it shall be open to an accused person to show that no court in
186.-(1) The place in which any court is held for the purpose of inquiring
into or trying any offence shall unless the contrary is expressly provide
by an Act for the time being in force be deemed an open court to which
the public generally may have access so far as the same can conveniently
contain them save that the presiding judge or
magistrate may, if he considers it necessary or expedient-
(a) in interlocutory proceedings; or
(b) in circumstances where publicity would be prejudicial to the interest
of-
(i) justice, defence, public safety, public order or public morality;
or;
(ii) the welfare of persons under the age of eighteen years or the
protection of private lives of persons concerned in the procedings,
order at any stage of the inquiry into or trial of any particular cast
that persons generally or any particular person other than the
parties thereto or their legal representative shall not have access
to or be or remain in the room or building used by the court.
(2) Any court may for the purpose of inquiring into or trying any offence
may sit on Sunday or on a public holiday and no finding sentence or order
passed by a court of competent jurisdiction shall be reversed or altered
only by reason of the fact that the same was made or passed on a Sunday
or public holiday save that the court shall not sit on Sunday or a public
holiday unless in the opinion of the court the omission to do so would
cause an amount of delay, expense or inconvenience which in the circumstances
of the case would be unreasonable.
187. No child shall be permitted to be present in court during the trial
of any other person charged with an offence or during any proceedings
preliminary thereto except during such time as his presence is required
a witness or otherwise for the purposes of justice; and any child present
Trial where
place is
offence is
uncertain
Offence
Committed
on a journey
High Court
may decide
appropriate
court in
cases of
doubt
Court to be
open court
Exclusion of
children
from
court
proceedings
72 No. 9 criminal Procedure 1985
court when under this section he is not permitted to be so shall be ordered
to be removed save that this section shall not apply to messengers, law
officers, clerks and other persons required to attend at any court for the
purposes connected with their employment-
188. The court may prohibit the publication of names or identities of
parties or of witnesses for the furtherance of or otherwise in the interests
of the administration of justice.
(b) Transfer of cases
189. If upon the hearing of any complaint it appears that the cause
complaint arose out of the limits of the jurisdiction of the court before
which such complaint has been brought, the country may in its discretion direct
the case to be transferred to the court having jurisdiction where the cause
of complaint arose.
(2) If the accused person is in custody, and the court directing such
transfer thinks it expedient that such custody should be continued or if he
is not in custody, that he should be placed in such custody, the court shall
direct the offender to be taken by a police officer before the court having
jurisdiction where the cause of complaint arose and shall give a warrant
for that purpose to such officer, and shall deliver to him the complaint
and recognizances, if any, taken by such court to be delivered to the court
before whom the accused person is to be taken, and such complaint and
recognizances, if any, shall be treated to all intents and purposes as if they
had been taken by such last mentioned court.
(3) if the accused person is not continued or placed in custody as aforesaid,
the court shall inform him that if has directed the transfer of the case
as aforesaid, and thereupon the provisions of the preceding subsection respecting
the transmission and validity of the documents in the case shall
apply.
190. Any district magistrate,-
(a) may transfer any case of which he has taken cognizance for inquiry
or trial to any subordinate court empowered to enquire into or try
such case within the local limits of such magistrate'' jurisdiction;
and
(b) may, where the general convenience of the parties or witnesses
require it, transfer any case of which he has taken cognizance for
inquiry or trial to any subordinate court beyond the limit of his
jurisdiction which has power to inquire into or try such case.
191.-(l) Whenever it is made to appear to the High Court-
(a) that a fair and impartial inquiry or trial cannot be had in any court
subordinate thereto; or
(b) that some question of law of unusual difficulty is likely to arise; or
(c) that a view of the place in or near which an offénce has been cornmitted
may be required for the satisfactory inquiry into or trial of the
same;or
Power of
High Court
to Change
venue
Transfer
of cases
between
magistrates
The Transfer
of case
where
offence
committed
outside
jurisdiction
Court may
prohibit
publication
of name
etc. of
No. 9 Criminal Procedure 1985 73
(d) that an order under this section, will tend to the general convenience
of the parties or witnesses; or
(e) that such an order is expedient for the ends of justice or is required
by any provision of this Act;
(i) that any offence be inquired into or tried by any court not empowered
under the preceding. sections of this Part but in other
respect competent to inquire into or try such offence,
(ii) that any particular criminal case or class of cases be transferred
from court subordinate to its authority to any other court of equal
or superior jurisdiction,
(iii) that an accused person be committed for trial to itself.
(2) The High Court may act either on the report of the lower court or
the application of a party interested or on its own initiative.
(3) Every application for the exercise of the power conferred by this
section shall be made by motion, which shall , except where the applicant
is the Director of Public Prosecutions, be supported by an affidavit.
(4) Every accused person making any such application shall give to
the Director of Public Prosecutions notice in writing of the application,
together with a copy of the grounds on which it is made and no order
shall be made on the merits of the application unless at least twenty-four
hours have elapsed between the giving of such notice and the hearing
(5) Where an accused person makes arty such application the High
Court may direct him to execute a bond with or without sureties,
conditioned that he will, if convicted, pay the costs of the prosecutor.
(c) Accelerated Trial and Disposal of Cases
192.-(1) Notwithstanding the provisions of section 229, if an accused
person who is legally represented pleads not guilty, the court shall as soon d
as is convenient hold a preliminary hearing in open court in the presence
of the accused and his advocate and of the public prosecutor to consider
such matters as are not in dispute between the parties and which will
promote a fair and expeditious trial
(2) In ascertaining such matters that are not in dispute the court may
put questions to the parties as it thinks fit and the answers may be given
without oath or affirmation.
(3) At the conclusion of a preliminary hearing held under this section,
the court shall prepare a memorandum of the matters agreed and the
memorandum shall be read over and explained to the accused in a language
that he understands, signed by the accused and his advocate and by the
public prosecutor and then filed.
of the application.
it may order
74 No. 9 Criminal Procedure 1985
(4) Any fact or document admitted or agreed (whether such fact or
document is mentioned in the summary of evidence or not) in a memorandum
filed under this section shall be deemed to have been duly proved;
save that if, during the course of the trial, the court is of the opinion that
the interests of justice so demand, the court may direct that any fact or
document admitted or agreed in a memorandum filed under this section be
formally proved.
(5) Wherever possible, the accused person shall be tried immediately
after the preliminary hearing and if the case is to be adjourned due to the
absence of witnesses or any other cause, nothing in this section shall be
read as requiring the same judge or magistrate who held the preliminary
hearing under this section to preside at the trial.
(6) The Minister may, after consultation with the Chief Justice, by
order published in the Gazette,make rules for the better carrying out of the
purposes of this section and without prejudice to the generality of the
foregoing, such rules may provide for-
(a) delaying the summoning of witnesses until it is ascertained whether
they will be required to give evidence on the trial or not;
(b) the giving of notice to witnesses warning them that they may be
required to attend court to give evidence at the trial.
193.-(1) A person formally charged with a warrant offence which
is punishable only by a fine or by imprisonment not exceeding six months,
or by a combination of such sentences may in writing or through an
advocate plead guilty to the charge whether that person is summoned
or not, and the magistrate shall dispense with the personal attendance of
the accused unless such personal attendance is required for any other
reasons in which case he may direct the personal attendance of the accused.
(2) If a magistrate imposes a fine on an accused person whose personal
attendance has been dispense with under this section, and such fine
is not paid within the time proscribed for such payment the magistrate
may forthwith issue a summons calling upon such accused person to show
cause why he should not be committed to prison for such term as the
magistrate may then prescribe. If such accused person does not attend
upon the return of such summons the magistrate may forthwith issue a
warrant and commit such person to prison for such terms as the magistrate
may then fix.
(3) If, in any case m which under this section the attendance of an
accused person is dispensed with, previous convictions are alleged against
such person and are not admitted m writing or through such person's
advocate the magistrate may adjourn the proceedings and direct the
personal attendance of the accused, and if necessary, enforce such
attendance m a manner provided under this Act.
(4) Whenever the attendance of an accused has been so dispensed with
and his attendance is subsequently required, the cost of any adjournment
for the purpose shall be borne in any event by the accused.
Person
charged
with warrant
offence may
plead guilty
without court
appearance
No. 9 Criminal Procedure 1985 75
194.-(1) Where an accused person charged with a non-warrant offence
other than an offence punishable with death or life imprisonment intends
to plead guilty to the charge and desires to have his case disposed of at
once, he may give a written notice to that effect to the magistrate before
whom the case is to be heard, and it shall be lawful for the magistrate
to serve the person with a formal charge and a notice to appear, not less than
four clear days before the magistrate for the purpose of pleading to the
charge and final disposition of the case.
(2) If the accused m pursuance to a notice served upon him under
subsection (1) appears and pleads guilty to the charge the magistrate
shall deal with the case m like manner as a case where the accused pleads
guilty under section 229 save that if the case is such as can be tried only
in the High Court, or is of such an aggravated nature that the magistrate
holds that the question of punishment shall be disposed of by that court,
the magistrate shall remit the accused to that court for sentence, and
such remittal shall be a sufficient warrant to bring the accused, without
any further notice before the High Court for sentence, and the original
warrant of commitment of such period he still is liberated in due course of
law, shall remain force until he is brought before the High Court for
sentensing.
(3) If the accused when brought before the magistrate to plead does
not plead guilty to the charge or pleads guilty only to a part of the charge,
the magistrate shall not accept such restricted plea, and the plea shall be
deserted pro loco et tempore, and thereafter the procedure against the
accused shall be continued according to the other provisions of this Act.
(4) Where an accused person intends to rely upon an alidi in his defence,
he shall give to the court and the prosecution ontice of his intention to
rely on such defence before the hearing of the case
(5) Where an accused person does not give notice of his intention to
rely on the defence of alibi before the hearing of the case, he shall furnish
the prosecution with the particulars of the alibi at any time before the
case for the prosecution is closed.
(6) If the accused raises a defence of alibi without having first furnished
the particulars of the alibi to the court or to the prosecution pursuant to
this section, the court may m its discretion, accord no weight of any kin
to the defence.
C. Examination of Witness
(a) General Provisions
195. (1) Any court may, at any stage of a trial or other proceeding Power to
under this Act, summon any person as a witness, or examine any person summon
iann yat tpeenrdsaonnc ael,r tehaoduyg hex naomt isnuemdm; aonnde dth aes cao wurittn sehsasl,l o sru rmecmalol na nadn dre e-xexaammininee emwxaaittmenreiinsasel or
or recall and re-examine any such person if his evidence appears to it person
essential to the just decision of the case. present
(2) The prosecutor or the defendant or his advocate, shall have the
right to cross-examine any such person, and the court shall adjourn the
case for such purpose if it considers necessary
Procedure
where
accused
desires to
plead
guilty
to a
non-warrant
offence or
intends to
rely on defence
of an
alibi
76 No. 9 Criminal Procedure 1985
Evidence 196. Except as otherwise expressly provided, all evidence taken in any
to be taken trial under this Act shall be taken in the presence of the accused, save oinf pacrecsuesnecde where his personal attendance has been dispensed with.
197. Notwithstanding the provisions of section 196 evidence may be
taken in any trial under this Act in the absence of the accused if-
Evidence
may be
given in
absence (a) the examining justice considers that by reason of his disorderly
of accused conduct before him it is not practicable for the evidence to be given
in certain in his presence; or
cases
(b) he cannot be present for reasons of health but is represented by a
counsel and has consented to the evidence being given in his
absence,
and it shall be lawful for the court to continue with the trial and give
judgment in the absence of such accused.
Evidence 198.-(1) Every witness in a criminal cause or matter shall, subject to the
to be given provisions of any other written law to the contrary, be examined upon
on oath oath or affirmation in accordance with the provisions of the Oaths (Judicial
Acts 1966 Proceedings) and Statutory Declaration Act, 1966.
No. 59
(2) Where an accused person upon being examined elects to keep
silent the court shall have the right to draw an adverse inference against
hthiem a, cacnuds etdh eto c ogiuvret aenvidd ethnec ep-rosecution may comment on the failure by
199. (1) Whenever any person, appearing, either in obedience to a
summons or by virtue of a warrant , or being present in court and being
Refractory
witness
verbally required by the court to give evidence
(a) refuses to be sworn or affirmed; or
(b) having been sworn or affirmed, refuses to answer any question
put to him; or
(c) refuses or neglects to produce any document or thing which. he is
required to produce; or
(d) refuses to sign his depositions,
without in any case offering any sufficient excuse for such refusal, a neglect,
the court may adjourn the case for a period not exceeding eight days, and
may in the meantime commit such person to prison, unless he sooner
consents to do what is required of him.
(2) If such person, upon being brought before the court at or before
such adjourned hearing, again refuses to do what is required of him, the
court may, if it sees fit, again adjourn the case and commit him for the
like period, and so again from time to time until such person consents to
do what is so required of him.
200. Where the only witness to the facts of the case called by the defence
is the person charged, he shall be called as a witness after the close of the
evidence for the prosecution, but it shall be lawful for the court in its
discretion to adjourn the hearing of the case to a certain time and place
Procedure
where
accused
is only
witness to be then appointed and stated in the presence and hearing of the
person charged. called for
defence
No. 9 Criminal Procedure 1985 77
201. In cases where the right of reply under section 296 depends upon
the question whether evidence has been called for the defence the fact that
the person charged has been called as a witness shall not of itself confer on
the prosecution the right of reply save that the Attorney-General the
Deputy- Attorney-General and the Directors of Public Prosecution when
appearing as advocate for the prosecution shall in all cases have the right of
replay
(2) The court may presume that the signature to any such certificate is
genuine
(3) When any such certificate is used any trial, or proceeding under
this Act other than an inquiry, the court may if it thinks fit, summon and
examine the person who gave such certificate.
203.-(1) Any document, purporting to be a report under the hand of Report of
any government analyst, upon any matter thing duly submitted to him government
for examination or analysis and report in the course of any proceeding analyst
under this Act, may be used as evidence in any inquiry, trial or other
proceeding under this Act.
(2) The court may presume that the signature to any such document is
genuine and that the person signing it held the office which he professed
to hold at the time when he signed it.
(3) When any report is so used in any proceeding other than an inquiry
the court may, if it thinks fit, summon and examine the analyst as to the
subject matter of that report
(4) In this section ''government analyst" includes the Senior Pathologist,
the Pathologist and any person appointed by the minister responsible for
health to perform the duties of a government analyst under this section.
204.-(1) Any document under the hand of an officer appointed for that
purpose by order of the Director of Public Prosecutions, which purport
to be a report upon any fingerprint or any photographic representation
fingerprints submitted to him for examination or comparison shall be
or receivable in evidence in any inquiry trial other proceeding under this
Act and shall be evidence of all facts stated, that document.
(2) The court may presume that the signature to any such report is
genuine.
202.- (1) In any inquiry, trial or other proceeding under this Act a
certificate in the form in the Third Schedule to this Act, given under the
hand of an officer appointed by order of the Attorney-General for the
purpose, who shall have prepared a photographic print or a photographic
enlargement from exposed firm together with any photographic prints,
photo-graphic enlargements and any other annexures referred to therein,
and shall be evidence of all facts stated in the certificate.
Certificate
regarding
preparation
of photograph
points etc.
receivable
in evidence
Report of
finger
print
expert
Right of
reply
78 No. 9 Criminal Procedure 1985
(3) When any such report is received as evidence in any trial or proceeding
under this Act other than an inquiry, the court may, if it thinks fit,
and shall if so requested by the accused or his advocate, summon, and
examine or make available for cross-examination, the person who gave
such report.
(4) In this section ''fingerprint" includes palm print, a toe print, and the
impression of a foot and ''fingerprint' shall be construed accordingly.
205.-(l) In any committal proceeding, trial or other proceeding by or
before a magistrate or a judge under this Act, a report in the form set out
in the seventh Schedule to this Act, given under the hand of an officer
appointed by order of the Director of Public Prosecutions for the purpose,
being a report upon any handwriting, or any photographic representation
of any handwriting, submitted to him for examination or comparison,
together with any photographic prints, enlargements or other annexures
referred to in it and signed by such officer, shall be receivable in
evidence and shall be evidence of the matters stated in it
Report of
handwriting
expert
(2) The court may presume that the signature to any such report, print,
enlargement or annexure is genuine.
(3) when any such report is received in evidence in any trial or proceeding
under this Act other than an inquiry, the court shall, if the accused
or his advocate so requests, and may if it thinks fit summon and examine
the person who made the report of make him available for cross-examinetion.
(b) Issue of Commission for Examination of Witness
206. (1) Whenever in the course of any proceeding under this Act,
the High Court or the district magistrate is satisfied that the examination
of witness is necessary for the ends of justice, and that the attendance of
such witness cannot be procured without an amount of delay, expense or
inconvenience which, in the circumstances of the case, would be unreasonable,
the court or magistrate may issue a commission to any magistrate,
within the local limits of whose jurisdiction such witness resides, to take
the evidence of such witness.
Issue of
Cssoiomnmi-
(2) The magistrate to whom the commission is issued shall proceed to
the place where the witness is or shall summon the witness before him,
and shall take down his evidence in the same manner, and may for this
purpose exercise the same power, as in the case of a trial.
207. (1) The parties to any proceeding under this Act in which a
commission is issued shall be informed by the court or magistrate issuing
the commission that they may respectively forward any interrogatories
in writing which the court or magistrate directing the commission may
think relevant to the issue, and the magistrate to whom the commission is
Parties
may
examine
witnesses
directed shall examine the witness upon such interrogatories.
(2) Any such party may appear before such magistrate by advocate, or
if not in custody, in person, and may examine, cross-examine and re-examine,
as the case may be, the said witness.
No. 9 Criminal Procedure 1985 79
208. (1) After any commission issued under section 206 has been duly
executed it shall be returned, together with the deposition of the witness
examined thereunder, to the High Court or the magistrate who issued it,
as the case may be, and the commission, the return thereto, and the
deposition shall be open at all reasonable times to inspection of the parties,
and may, subject to all just exceptions, be read in evidence in the case by
either party, and shall form part of the record.
(2) Any deposition so taken, if it satisfies the conditions of section 132
of the Evidence Act, 1967; may also be received in evidence at any subsequent
stage of the case before another court.
209. In every case in which a commission is issued wider section 206
the proceeding may be adjourned for a specified time reasonably sufficient
for the execution and return of the commission.
(c) Taking and Recording of Evidence
210.-(1) In trials, other than trials under section 213, by or before
, the evidence of the witnesses shall be recorded in the recording in the
following manner -
(a) the evidence of each witriess shall be taken down in writing in the
language of the court by the magistrate, or in his presence and
hearing and under his personal direction and superintendence, and
shall be signed by the him and shall form part of the record;
(b) such evidence shall not ordinarily be taken down in the form of
question and answer, but in the form of a narrative subject to subsection
(2);
(2) The magistrate may, in his discretion, take down or cause to be
taken down any particular question and answer.
(3) The magistrate shall inform each witness that he is entitled to have
his evidence read over to him. If a witness asks that his evidence be read
over to him the magistrate shall record any comments which the witness
may make concerning his evidence.
211.-(l) Whenever, any evidence is given in a language not understood
by the accused, and he is present in person, it shall be interpreted to him
in open court in a language understood by him.
(2) If he appears by advocate and the evidence is given in a language
other than the language of the court, and not understood by the advocate,
it shall be interpreted to such advocate in the language of the court.
(3) When documents are put in for the purpose of formal proof it shall
be in the discretion of the court to interpret as much of them as appears
necessary.
212. When a magistrate has recorded the evidence of a witness he shall
also record such remarks, if any, as he thinks material respecting the
demeanor of such witness whilst under examination.
Return of
Commission
Acts, 1967
No.6
Adjournment
of
proceeding
Interpretation
of evidence
to accused
or his
advocate
Remarks
respecting
demeanour
of witness
No. 9 Criminal Procedure 1985
213.-(1) Notwithstanding anything contained, in this Act, every
magistrate may, if he thinks fit, try any of the offences mentioned in the
next succeeding subsection without recording the evidence as hereinbefore
provided, but in any such case he shall enter in such form as the High
Court may direct the following particulars:-
Procedure
in cast of
minor
offences
(a) the serial number;
(b) the date of the commission of the offence;
(c) the date of the complaint;
(d) the name of the complainant;
(e) the name, parentage and residence of the accused;
(f) the offence complained of and the offence (if any) proved, and, in
cases coming under paragraph (c), (d) or (c) of the next succeeding
subsection, the value of the property in respect of which the offence
has been committed;
(g) the plea of the accused;
(h) the finding and, where evidence has been taken, a judgment embodying
the substance of such evidence;
(i) the sentence or other final order;
(j) the date on which the proceedings terminated.
(2) The offences referred to in the, preceding subsection are as follows:-
(a) offences punishable with imprisonment for a term not exceeding six
months or a fine not exceeding one thousand shillings;
(b) common assault under section 239 of the Penal Code;
(c) theft under Chapter XXVI of the Penal Code where the value of
the property stolen does not exceed one hundred shillings;
(d) receiving or retaining stolen property under Chapter XXXI of the
Penal Code where the value of such property does not exceed one
hundred shillings;
(c) malicious injury to property where the value of such property does
not exceed one hundred shillings;
(f) any other offence which the Chief Justice may, by order published
in the Gazette, direct to be tried in accordance with the provisions of
this section;
(g) aiding, abetting, counseling or procuring the commission of any of
the foregoing offences;
(h) attempting to commit any of the foregoing offences.
(3) When in the course of a trial under the provisions of this section it:
appears to the magistrate that the case is of a character which renders it
undesirable that it should be so tried, the magistrate shall recall any witnesses
and proceed to rehear the case in the manner provided by the preceding
section of this Part.
(4) No sentence of imprisonment for a, term exceeding six months or of
a fine of an amount exceeding one thousand shillings shall be passed in thecase
of any conviction under this section.
80
No. 9 Criminal Procedure 1985 81
214.-(l) Where any magistrate, after having, heard and recorded the
pwahrto alen oyr c aonmy mpairttt aolf pthroec eeveiddienngcse iisn faonry a tnriya lr eoar scoonn duuncatbedle i nto w choomlep olerte
the trial or the committal proceedings or he is unable to complete the
trial or committal proceedings within a reasonable time, another magistrate
who has and two exercises jurisdiction may take over and continue
(2) Whenever the provision of subsection (1) applies -
(a) in any trial the accused may, when the such other magistrate
commences his proceedings, demand that the witnesses or any of
them be re-summoned and re -heard and shall be informed of such
right by the second magistrate when he commences his proceedings;
(b) the High Court may, whether there be an appeals or not, set aside
any conviction passed on evidence not wholly recorded by the
magistrate to before the conviction was had, if it is of the opinion that
the accused has been materially prejudiced thereby and may order a
new trial.
(3) Nothing in subsection (1) shall be construed as preventing a magisrrate
who has recorded the whole of the evidence in any trial and who,
before passing the judgment, is unable to complete the trial, from writing,
the judgment and forwarding the record of the proceeding together
with the judgment who the magistrate who has succeded him for the
ment to be read over and, in the case of conviction, for the sentence to be
passed by such other magistrate
215. The High Court may, from time to tune, by rules, prescribe the
manner in which evidence shall be taken down in cases coming before the
court and the evidence or the substance those of it shall be taken down in
accordance with those rules.
D. Procedure in case of the Insanity or Incapacity of an Accused person
216.-(1) When in the course of a trial the court has reason to believe
that the accused is of unsound mind and consequently incapable of making
his, defence it shall, before inquiring into the fact of such unsoundness of
mind and notwithstanding the fact that the accused may not have pleaded
to the charge, call on the prosecution to give or adduce evidence in support
of the charge
(2) If at a close of the evidence in support of the of the charge it appears to the
court, that a case is not made out against the accused person it shall dismiss
the charge and acquit the accused person and may then proceed to deal
with him under the Mental Diseases Ordinance.
(3) If at the close of the evidence in support of the charge it appears to
the court that a case has been made out against the accused person it shall
then proceed to inquire into the fact of the unsoundness of mind of the
accused and for this purpose may order him to be detained in a mental
Conviction
or
committal
where
proceedings
heard partly by
one magistrate
and partly by
another
Manner of
recording
evidence
in the
High Court
Prosecutor
to give or
adduce
evidence
before
inquiry by
court as
insanity
of accused
Cap.98
or the trial committal proceedings as the case may be and the magistrate
so taking over may act on the evidence or proceeding recorded by his
predecessor and, may in the case of a trial re-summon the witnesses and
recommence the trial or the committal proceedings or otherwise subject
to subsection (2)
82 No. 9 Criminal Procedure 1985
hospital for medical examination or, in case where bail may be granted,
may admit him to bail on sufficient security as to his personal safety and
that of the public and on condition that he submits himself to medical
examination or observation by a medical officer as may be directed by the
court.
(4) The medical officer in-charge of the mental hospital in which an
accused person has been ordered to be detained or a medical officer
to whom he has been ordered to submit himself for mental examination
or observation pursuant to sub-section (3) shall, within forty-two days
of such detention or submission, prepare and transmit to the court ordering
the detention or submission, a written report on the mental condition of
accused stating whether in his opinion the accused is of unsound mind
and consequently incapable of making his defence.
(5) On the receipt by the court of the written report provided for by
sub-section (4) it shall resume its inquiry into the question of the
unsoundness of mind of the accused, and may admit as evidence for this
purpose any such written report purporting to be signed by the medical
officer preparing the same unless it is proved that the medical officer
purporting to sign the same in fact did not sign it.
(6) Where the court having considered any written report admitted in
evidence under sub-section (5) and any other evidence that may be available
to it regarding the state of mind of the accused, is of the opinion the
accused is of unsound mind and consequently incapable of making his
defence it shall record a finding to that effect, postpone further proceedings
in the case, order the accused to be detained in safe custody in such place
and mariner as it may think fit and transmit the court record or a certified
copy thereof to the Minister
(7) Upon consideration of the record the Minister may by order
directed to the court, direct that the accused be detained as a criminal
lunatic in a mental hospital or other suitable place of custody and the court
shall issue a warrant in accordance with such order. Any such order
and warrant shall be sufficient authority for the detention of such accused
person until released or otherwise dealt
by section 217 or 218.
with in the manner provided for
(8) Where the written report required by sub-section (4) is to the effect
that the accused is of sound mind and capable of making his defence,
proceedings shall be resumed as provided for by section 218.
217.-(1) Where an accused person detained in pursuance of a warrant
issued under section 216 or section 281 is found by the medical officer
tion bweh coasep acbhlaer goef hme aisk iton gh ahvies rdeecfoevnecreed, thhies msoeudnidcnaels so foffi cmeirn sdh aslulf ffiocri ewntiltyh
forward to the Director of Public Prosecutions a certificate to that effecr
stating therein also whether the accused would, but for the charge against
him, be fit for unconditional discharge from detention.
Procedure
when accused
certified as
capable
of making
defence
83 No. 9 Criminal Procedure 1995
(2) Upon receipt of the certificate Provided for in sub-section (1) the
Director of Public Prosecutions shall inform the court which issued
the warrant under section 216 or 281 whether it is the intention of the
Republic to continue proceedings against the accused.
(3) Where the court is informed by the Director of Public Prosecutions
that the Republic intends to continue proceedings against the accused, it
shall thereupon order the removal of the person from the place where he is
detained and shall cause him to be brought before it in the manner
provided by section 218.
(4) Where the court is informed by the Director of Public Prosecutions
that the Republic does not intend to continue proceedings against the
accused, the court shall-
(a) in cases where the certificate provided for m sub-section (1) states
that the accused is fit for unconditional discharge forthwith make an
order for his discharge,
(b) in all other cases record the fact that proceedings have been discontinued
discharge the accused of the charge and forthwith
proceed to deal with him under section 8 of the Mental Diseases Cap. 98
Ordinance as a person deemed to have been brought before it
under that Ordinance.
(5) Notwithstanding the Provisions of sub-section (4), any discharge of
the accused pursuant to this section shall not operate as a bar to any
subsequent proceedings against him on account of the same facts.
218.-(1) Whenever a written report under sub-section (4) of section 216
or information under sub-section (3) of section 217 is received by the court,
it shall, subject to sub-section 4 resume the trial and require the accused
to appear or be brought before it.
(2) Where proceedings are resumed under sub-section (1) the court shall
in all cases where the proceedings are resumed by virtue of sub-section (3)
of section 217 proceed to hear tile case de novo, and in any other case it
may in its discretion treat the case as partly heard and may then proceed
to hear further evidence in the case.
(3) Any written report given under sub-section (4) of section 216 or the
production of certificate issued under sub-section (1) of section 217, it may,
if still not satisfied that the accused is of sound mind and capable of making
his defence record a finding to that effect and proceed to make a fresh order
under sub-section (6) of section 216.
219.-(1) Where any act or omission is charged against any person as
an offence and it is intended at the trial of that person to raise the defence insanity
of insanity, that defence shall be raised at the time when the person 't law
is called upon to plead.
(2) If, on the evidence on record, it appears to the court that the accused
did the act or made the commission charged but was insane so as not to
be responsible for his action at the time when the act was done or the
omission was made, the court shall make a special finding to the effect
that the accused did the act or made the omission charged but by reason
of his insanity, as aforesaid, is not guilty of the offence.
Resumption
for a trial
Defence of
insanity
at trial.
No.9 Criminal Procedure 1995 86
been committed to prison shall be released, or if on bail his
recognizance shall be discharged; but such discharge of the accused
shall not operate as bar to any subsequent proceedings against
him on account of the same facts.
(2) A person sentenced to be detained during the President's pleasure
shall be liable to be detained in such place and under such conditions as
the Minister may, by order from time to time direct, and whilst so detained
shall be deemed to be in legal custody.
(3) The Minister may at any tune, of his own motion or after receiving
a report from any person or persons thereunto empowered by him,
order that a person so detained as in sub-section (2) aforesaid be discharged
or otherwise dealt with, subject to such conditions as to the said
remaining under supervision in any place or by any person and such other
conditions for ensuring the safety and welfare of the said person and the
public as the Minister shall think fit
(4) When a person has been detained during the President's pleasure
under sub-section 1 (a) or (b) of this section, the presiding judge or magistrate
shall forward to the Attomey-General a copy of the notes of evidence
taken on trial, with a report in writing signed by him containing any recommen
dation or observations on the case which he may think fit to make.
PART VII.
PROCEDURE IN TRIALS BEFORE SUBORDINATE COURTS
(i) Provisions Relating to the Hearing and Determination of Cases
222. If, in any case which a subordinate court has jurisdiction to hear
and determine, the accused person appears in obedience to the summons Non-appearance
of
complainant served upon him at the time and place appointed in the summons for the
at hearing hearing of the case, or is brought before the court under arrest, then, if the
complainant, having had notice of the time and place appointed for the hearing
of the charge does not appear, the court shall dismiss the charge and
acquit the accused person, unless for some reason, it shall think it proper
to adjourn the hearing of the case until some other date, and pending the
adjourned hearing, either admit the accused person to bail or remand him
to prison, or take such security for his appearance as the court shall think
fit.
223. If at a time appointed for hearing of the case both the complainant
and the accused person appear before the court which is to hear and
determine the charge, or if the complainant appears and the personal
Appearance
of both
parties
attendance of the accused
the court shall proceed to
Withdrawal 224. If a complainant, at any time before a final order is passed m any
of case under this part, satisfies the court that there are sufficient grounds for
complainant permitting him to withdraw his complaint, against the accused or, if there
be more than one accused persons, or any of them, the court may permit
No. 9 Criminal Procedure 1985 87
him to withdraw the same and shall thereupon acquit the accused against
whom the complaint is so withdrawn; save that this section shall apply
only in cases of minor offences.
225.-(1) Subject to sub-section (3) before or during the hearing of any
case, it shall be lawful for the court in its discretion to adjourn the hearing
to a certain time and place to be then appointed and stated in the presence
and hearing of the party or parties or their respective advocates then
present, and in the meantime the court may suffer the accused person to
go at large, or may commit him to prison, or may release him upon his
entering into a recognizance with or without sureties at the discretion of
the court, conditioned for his appearance at the time and place to which
such hearing or further hearing shall be adjourned.
(2) The provisions of sub-section (1) notwithstanding, no such adjournment
shall be for more than thirty clear days, or if the accused person has
been committed to prison, for more than fifteen clear days, the day following
that on which the adjournment is made being counted as the first
day.
(3) The court may commit the accused person to police custody-
(a) for not more than three clear days if there is no prison within five
miles of the court house, and may from time to time further comrnit
such accused person to police custody for a period of not more than
fifteen days in the aggregate; or
(b) for not more than seven clear days if there is no prison within five
miles of the court house and the court does not intend to sit again
at such court house within three days, and may from time to time
further commit such accused person to police custody for a period
of not more than fifteen days in the aggregate; or
(c) at the request of the accused person, for not more than fifteen
clear days.
(4) Except for cases involving offences under sections 39, 40, 41, 43,
45, 48(a) and 59, of the penal code or offences involving fraud, cons Cap. 20
piracy to defraud or forgery, it shall not be lawful for a court
to adjourn a case, in respect of offences specified in the First Schedule
to this Act, under the provisions of subsection (1) of this section for an
aggregate exceeding sixty days except tinder the following circumstances:
(a) Wherever a certificate by a Regional Crimes Officer is filed in court
stating the need and grounds for adjourning the case, the court
may adjourn the case for a further period not exceeding an aggregate
of sixty days in respect of offences stated in the First Schedule
to this Act.
(b) Wherever a certificate is filed in court by the State Attorney
stating the need and grounds for seeking a further adjournment
beyond the adjournment made under paragraph (a), the court
shall adjourn the case for a further period not exceeding in aggregate
of sixty days.
(c) Wherever a certificate a certificate is filed in court by the Director
of Public Prosecutions or a person authorised by him in that
behalf stating the need for and grounds for a further adjournment
Adjournment
and remand
of accused
No. 9 Criminal Procedure 1985 89
228.-(1) The substance of the charge shall be stated to the accused Accessed person by the court, and he shall be asked whether he admits or denies to be
the truth of the charge. ctoal lpelde aind
(2) If the accused person admits the truth of the charge, his admission
shall be recorded as nearly as possible in the words he uses, and the
magistrate shall convict him and pass sentence upon or make an order
against him, unless there shall appear to be sufficient cause to the contrary.
(3) If the accused person does not admit the truth of the charge, the
court shall proceed to hear the case hereinafter provided-
(4) If the accused person refused to plead, the court shall order a plea
of "not guilty" to be entered for him.
(5) (a) If the accused pleads-
(i) that he has been previously acquitted as the case may
be, of the same offence, or
(ii) he has obtained a pardon at law for his offence,
the court shall first try whether such plea is true in fact or not:
(b) If the court holds that the evidence adduced in support of
such plea does not sustain the plea, or if it finds that such plea
is false in fact, the accused person shall be required to plead
to the charge.
229.-(1) If the accused person does not admit the truth of the charge Procedure
the prosecutor shall open the case against the accused person, and shall on plea of
call witness and adduce evidence in support of the charge. ''not guilty''
(2) The accused person or his advocate may put question to each
witness produced against him.
(3) If the accused person does not employ an advocate, the court shall,
at the close of the examination of each witness for the prosecution, ask
the accused person whether he wishes to put any questions to that witness
or make any statement . If the accused person asks any question the
mmaaggiissttrraattee sshhaallll, rife choer tdh itnhkes a int sdweseirr,a balned i nif thhee imntaekreesst ao fs ttahtee ma aecnct utsheed
person, put the substance of such statement to the witness in the form of
a question and record the answer of such witness.
230. If at the close of the evidence in support of the charge, it appears
to the court that a case is not made out against the accused person
sufficiently to require him to make a defence either in relation to the offence
with which he is charged or in relation to any other offence of which
under provisions of sections 312-321 inclusive of this Act, he is liable to be
convicted, the court shall dismiss the charge and acquit the accused person.
231.-(1) At the close of the evidence in support of the charge, if it
appears to the court that a case is made against the accused person
sufficiently to require him to make a defence either in relation to the
Discharge of
accused
person when
no case
to answer
The defence
90 No. 9 Criminal Procedure 1985
offence with which he is charged or in relation to any other offence of
which under the provisions of sections 312-321 inclusive of this Act he is
liable to be convicted, the court shall again explain inclusive substance
of the charge to the accused and inform him of his right,
(a) to give evidence whether or not on oath or affirmation, on his own
behalf;
(b) to call witnesses in his defence; and
shall then ask the accused person, or his advocate, if it is intended to
exercise any of the above rights and shall record the answer. The court
shall then call on the accused person to enter on his defence save where
the accused person does not wish to exercise either of the above rights.
(3) If the accused, after he has been informed in terms of subsection (1)
elects to remain silent the court shall be entitled to draw an adverse
inference against him and the court as well as the prosecution shall be
permitted to comment on the failure by the accused to give evidence.
(4) If the accused person states that he has witnesses to call but that
they are not present in court, and the court is satisfied that the absence of
such witness is not due to any faults or neglect of the accused persons,
and that there is likelihood that they could, if present, give material evidence
on behalf of the accused person, the court may adjourn the trial and
issue process, or take other steps, to compel attendance of such witnesses.
232, Evidence
in reply
233. The prosecutor or his advocate and the accused or his advocate
shall be entitled to address the court in the same manner and order as in
the trial under the provisions of this Act before the High Court.
Order of
speech
234.-(1) Where at any stage of a trial, it appears to the court that
the charge is defective, either in substance or form, the court may make Variance
between
charge and such order for alteration of the charge either by way of amendment of the evidence and charge or by substitution or addition of a new charge as the court thinks
necessary to meet circumstances of the case unless, having regard to the
merits of the case, the required amendments cannot be made without
injustice, and all amendments made under the provisions of this sub-sectiof
charge
on shall be made upon such terms as to the court shall seem just.
(2) Subject to sub-section (1), where a charge is altered as aforesaid-
(a) the court, shall thereupon call upon the accused persons to plead
to the altered charge; and
aforesaidon
secti-
232. If the accused person shall have examined any witnesses or given
any evidence other than as to his general character, the court may grant
leave to the prosecutor to give or adduce evidence in reply.
(2) Notwithstanding that an accused elects to give evidence not on
oath or affirmation, he shall be subject to cross-examination by the
prosecution.
amendments
No. 9 Criminal Procedure 1985 91
(b) the accused may demand that the witnesses or any of them be
recalled and give their evidence afresh or be further cross-examined
by the accused or his advocate and, in such last mentioned event,
the prosecution shall have the right to re-examine any such witness
on matters arising out of such further cross-examination.
(c) the court may permit to the prosecution to recall and examine with
reference to any alteration of or addition to the charge that may be
allowed, any witness who may have been examined unless the
court for any reason to be recorded in writing considers that such
application is made for the purpose of vexation delay or
for defeating the ends of justice.
(3) Variance between the charge and the evidence adduced in support
of it with respect to the time at which the alleged offence was committed
is not material and the charge need not be amended for such variance if
it is proved that the proceedings were in fact instituted within the time,
if any, limited by law for the institution thereof.
(4) Where an alteration of the charge is made under sub-section (1)
or there is a variance between the charge and the evidence as described
in sub-section (2), the court shall, if it is of the opinion that the accused has
been thereby misled or deceived, adjourn the trial for such period as may
be reasonably necessary.
(5) Where an alteration of the charge is made under sub section (1)
the prosecution may demand that the witnesses or any of them be recalled
and give their evidence afresh or be further examined by the prosecution
and the court shall call such witness or witnesses unless the court for
reasons to be recorded in writing, considers that such application is made
for the purpose of vexation, delay or for defeating the ends of justice.
235. The court having heard both the complainant and the accused The decision person and their witnesses and evidence shall convict the accused and pass
sentence upon or make an order against him according to law, or shall
acquit him, or shall dismiss the charge under section 38 of the Penal Code.
236. The court may before passing sentence, receive such evidence as Evidence
it thinks fit, in order to inform itself as to the sentence proper to be passed relative to
proper
Sentences
or order
237. Without prejudice to the generality of section 236 a subordinate
court presided by a resident magistrate may subject to the provisions of
this section, for the purpose of assessing the proper sentence to be passed, on other
take into consideration any other offence committed by the accused offences
(a) it has been explained by the court to the accused person in ordinary
language that the sentence to be passed upon him for the offence of
which he has been convicted in those proceedings may be greater
if the other offence is taken into consideration; and
(b) after such explanation as aforesaid, the accused person-
(i) admits the commission of the other offence; and
(ii) asks the court to take the other offence into consideration.
Taking
into consideration
on other
offences
92 No. 9 Criminal Procedure 1985
(3) Nothing in this section shall entitle a court which has taken an
offence into consideration to pass upon an accused person any sentence
in excess of the maximum sentence which could be awarded by that court
for the offence of which that person was convicted in those proceedings.
238. The conviction or acquittal or other order may, if required, by
afterwards drawn up and shall be signed by the court making the same,
or by the clerk or other officer of the court.
239. The production of the copy of the order of acquittal, certified by
the clerk or other officer of the court, shall without other proof be a bar to
any subsequent charge for the same matter against the same accused.
240.-(1) In any trial before a subordinate court, any document
purporting to be a report signed by a medical witness upon any purely
medical or surgical matter shall receivable in evidence.
(2) The court may presume that the signature to any such document
is genuine and that the person signing the same held the office or had the
qualifications which he possessed to hold or to have when he so signed
the same.
3. When any such report is received in evidence, the court may, if it,
thinks fit, and shall if so requested by the accused or his advocate. summon
and examine or make available for cross-examination, the person who
made there port. The court shall inform the accused of his right to require
the person who made the report to be summoned in accordance with the
provisions of this subsection.
(b) Limitations and Exception CReoluarttisng to Trials Befo.re subordinate
241. Except where a longer time is specially allowed by law, no offence,
the maximum punishment for which does not exceed imprisonment , for six
months and/or a line of five thousand shillings, shall be triable by a
subordinate court, unless the charge or complaint relating to it is laid
within twelve months, from the time when the matter of such charge or
complaint arose.
242. If in the course of a trial it appears to the magistrate at any stage
of the proceedings that the case is one which ought to be tried by the
High court, he, shall stop further proceedings and commit the accused
person far trial upon information before the High Court, and in such
case he shall follow the procedure hereinafter directed in relation to
(iii) Provisions Mating to Committal of Accused Persons of Trial
Court for Trial
(a) Committal of Accused Persons by Subordinate Courts to the High
Court for Trial
243. Any magistrate may, unless precluded from so doing by the terms
of his appointment, commit any person for trial to the High Court.
Limitation
of time for
summary
trials in
certain cases
Procedure
in case of
offence
proving
unsuitable
for summary
trial
Power to
commit for
trial
Drawing
conviction
or order
Order of
dismissal
for
further
charges
Statements
by medical
witness
No. 9 Criminal Procedure 1995 93
244. Whenever any charge has been brought against any person of an
offence not triable by a subordinate court or as to which the court is
advised by the Director of Public Prosecutions in writing or otherwise
that it is not suitable to be disposed of upon summary trial committal
proceedings shall be held according to the provisions hereinafter
contained by a subordinate court of competent jurisdiction.
245.-(1) After a person is arrested, or upon the completion of
investigations and the arrest of any person or persons, in respect, of the
commission of an offence triable by the High Court, the person arrested
shall be brought within the period prescribed under section 32 of this
Act before a subordinate court of competent jurisdiction within whose
local limits the arrest was made, together with the charge upon which it is
proposed to prosecute him, for him to be dealt with according to law,
subject to this Act.
(2) Whenever a person is brought before or subordinate court pursuant
to sub-section (1), the magistrate concerned shall read over and explain to
the accused person. the charge or charges set out in the charge sheet in
respect of which it is proposed to prosecute the accused, but the accused,
person shall not be required to plead or make any reply to the charge.
(3) After having read and explained to the accused the charge or charges
the magistrate shall address to him the following words or words to the
like effect;
''This is not,your trial. If it is so decided, you will be tried later
in the High Court, and the evidence against you will then be adduced.
You will then be able to make your defence and call witnesses on your
behalf".
(4) After a person is committed to remand prison or on bail by a
sbuebfoorred itnhae tseu csopuecrtt oisr aarfrteesrt ethde, tihnev epsotliigcaet ioofnfisc hera,v oer boetehne rc poumbplilce toefdf ibceurt
in charge of the relevant criminal investigations under this Act, shall
forthwith cause the statements in quintuplicate of, persons intended to be
called as witnesses at the trial to be properly typed out, conveniently
compiled and sent, along with the police case file, to the Director of
Public Prosecutions or any other public officer designated by him in that
behalf.
(5) If the Director of Public Prosecutions or that other public officer,
after studying the police case file and the statements of the intended
witnesses, is of the view that the evidence available insufficient to
warrant mounting a prosecution, or it is a otherwise inadvisable to
prosecute, he shall, where the accused has already been charged,
immediately enter nolle prosequi; unless he has reason to believe that
further investigations can change the position, in which case he shall cause
further investigations to be carried out.
(6) If the Director of Public Prosecutions or that other public officer,
after studying the police case file and the statements of the intended
witnesses, decides that the evidence available, or the case as such, warrants
putting the suspect on trial, he shall draw up or cause to be drawn up an
Courts to
hold
committal
proceedings
Procedure
on arrest
94 No. 9 Criminal Procedure 1985
information in accordance with law, and when signed by him, submit it.
ogether with three copies of each of the statements of witnesses sent to
him under sub-section (4), including any document containing the
substance of the evidence of any witness who has not made a written
statement.
(7) After an information is filed in the High Court, the Registrar shall
cause a copy of it to be delivered to the district court Where the accused
was first presented or within the local limits of which the accused resides.
246.-(1) Upon receipt of the copy of the information and the notice
the subordinate court shall summon the accused person from remand
prison or, if not yet arrested, order his arrest and appearance before to
deliver to him, or to his counsel a copy of the information and notice of
trial delivered to it under section 245 (7) and commit him for trial by the
Court; and the committal order shall be sufficient authority for the person
in charge of the remand prison concerned to remove the accused person
from prisons on the specified date and to facilitate his appearance before
the court.
Committal
for trial
by court
(2) Upon appearance of the accused person before it, the subordinate
court shall read and explain or cause to be read and explained to the acc
used person the information brought against him as well as the statements
or documents containing the substance of the evidence of witnesses whom
the Director of Public Prosecutions intends to call at the trial.
(3) After complying with the provision of the foregoing sub-sections the
court shall address to the accused person the following word or words to
the like effect;
''You have now heard the substance of the evidence that the
prosecution intends to call at your trial. You may either reserve your
defence, which you are at liberty to do, or say anything which you may
wish to say relevant to the charge against you. Anything you say will
be taken down and may be used in evidence at your trial''.
(4) Before the accused person makes any statement the court shall state
to Win and give clearly to understand that he has nothing to hope from any
promise of favour and nothing to fear from any threat which may have
been held out to him to induce him to make any admission or confession
of his guilt, but that whatsoever he then says may be given in evidence on
his trial notwithstanding the promise or threat.
(5) Everything that the accused persons says shall be recorded in full
and shall be shown or read over to him and he shall be at liberty to explain
or add to anything contained in the record thereof.
(6) When the record of the statement, if any, made by the accused is
made confirmable to what he declares is the truth, the record shall be
attested by the magistrate who shall certify that such statement was taken
in his presence and hearing and contains accurately the whole statement
made by the accused person. The accused person shall sign or attest by
his mark such record. If he refuses the court shall add a note of his refusal
and the record may be used as if the accused had signed or attested it.
No. 9 Criminal Procedure 1985 95
247. Immediately after complying with the provisions of sections
245 to 246 the court shall make the list of all witnesses whom the Director a
of Public Prosecutions intends to call and shall ask the accused person
whether he intends to call witnesses at the trial and, if so, whether he
desires to give their names and addresses so that they may be summoned.
The court shall thereupon, record the names and addresses of any such
witnesses whom the accused may mention.
248.-(1) If from any reasonable cause to be recorded in the proceedings
the court considers it necessary or advisable to adjourn the proceedings
the court may, from time to time, by warrant, remand the accused for a
reasonable time, not exceeding fifteen days at any one, time to some prison
or any other place or security.
(2) Where the remand is for not more than three days the court may,
by word of mouth, order the officer or person in whose custody the accused
person is, or any other fit officer or person, to continue to keep the accused
in his custody and to bring him up at the time appointed for the commencement
or continuance of the inquiry.
(3) During a remand, a court may at anytime order the accused to be
brought up before it.
(4) Subject to the provision of section 148 the court may admit an accusod
on remand to bail.
249.-(1) A person who has been committed for trial before the High
Court shall be entitled at any time before the trial to have a copy of the
record of the committal proceeding without payment.
(2) The court shall, at the time Of committing him for trial inform the
accused person of his right to a copy of record of the committal
proceedings without payment.
(3) Every record of the proceedings supplied to the accused pursuant
to this section shall contain a copy of the charge or charges, copies of the
statements and documents produced to the court during the committal
proceedings and copy of the record of the proceedings before the court
250.-(1) A prosecutor may at any time during the trial before
the High Court, apply to the court to summon any person whose
attendance may be required at the trial to give evidence or to produce
any document and to bind such person to appear at the trial.
(2) Upon the application being made under sub-section (1) the court
shall summon the person in respect of whom such application is made to
appear before it, and when he so appears, the court shall bind him by
recognizance with or without sureties as it may deem requisite to appear at
tshecet itornia 2l 6i8n. compliance with any summons issued in accordance with
251. If a person required to enter into recognizance under section 241
refuses to enter into such recognizance , the court may commit him to
prison or into the custody of any other officer of the court there to remain
until such time as the trial has taken place or the case against the accused is
otherwise disposed of, unless in the meantime such person enters into
recog-nizance as required by the court.
Witness for
prosecutor
and defence
Refusal to
be bound
over
Court may
bind witness
to appear at
trial
Accused
entitled to
copy
proceedings
Adjourning
proceedings
96 No. 9 Criminal Procedure 1985
(b) Preservation of testimony in Certain Cases
Taking 252. Where it appears to a magistrate that any person, who is dangerousdeposition
dangerously sly ill or hurt and not likely to recover or who, for any other reason
ill or unable whatsoever, may not be available to give evidence at the trial, is able to
to trial and willing to give material evidence relating to any .offence, such court
may take in writing, a statement on oath or affirmation of such person,
and shall subscribe the same, and certify that it contains, accurately the
whole of the statement made by such person, and the magistrate taking
the statement shall certify his reason for taking the same and shall state
the date and place when and where the same was taken, and shall preserve
such statement and file for record:
Provided that where the statement is that of a person who by reason of
immature age or want of religious belief ought not, in the opinion of the
magistrate, to be sworn or affirmed, the statement may be taken without
oath or affirmation.
253.-(1) Where any person is tinder a charge or has been committed
for trial in respect of the offence to which such statement is expected to
relate (in sections 257 and 258 referred to as the ''accused person'')
reasonable notice shall be given of intention to take such statement both
Notice to
be given
to the prosecutor and to such person.
(2) If such person is in custody, he may, and shall if he so requests,
be brought by the officer in whose charge he is, under an order in writing
of the magistrate, to the place where the statement is to be taken.
for cross- person, such accused person or his advocate (the prosecutor also if he be
examination present) shall be given an opportunity to put questions to the deponent and
transmission and the answers of such deponent thereto shall form part of the statement;
and, if the accused person is committed for trial, the statement shall be
transmitted to the Registrar of the High Court, and a copy thereof to the
Director of Public Prosecutions.
mofe snttaste-
255.-(1) Every such statement duly subscribed and certified by the
magistrate in the manner required by section 254 shall, without further
proof, be admissible in evidence at any trial, whether before, the High
Court or subordinate court in which the accused person is charged with
the offence to which such statement relates if-
Use of
statements
in evidence
(a) the court is satisfied that the person who made the statement is
dead, or that his attendance cannot be procured without an amount
of delay, expense or inconvenience which, in the circumstances of
the case, would be unreasonable; and
(b) the accused received notice of the court to take such statement as
provided in section 243 and had, or might have had if lie had chosen
to be present, full opportunity of cross-examining the deponent.
(2) When any case in the course of which such statement has been
admitted in evidence is finally disposed of, the statement shall be returned
to the magistrate who took the same for filing in accordance with the
provisions of section 255.
(3) Nothing in this section shall be construed as affecting the provisions
Acts, 1967 of section 34 of the Evidence Act, 1967.
No. 6
No. 9 Criminal Procedure 1985 97
(c) Proceedings after Committal for Trial
256. When an accused person has been committed for trial the record of
committal proceedings, duly signed and authenticated by the magistrate,
shall be transmitted without delay by the committing court to the Registrar
of the High Court and authenticated copies of the charge and proceedings
aforesaid shall be forwarded to the Director of Public Prosecutions.
257. After the receipt of the copies of the record of committal
proceedings in the High Court the Registrar or his deputy shall endorse
or annex to every information filed as aforesaid and to every copy thereof
delivered to the officer of the court or police officer for service thereof,
a notice of trial which notice shall specify the particular sessions of the
High Court at which the accused person is to be tried on the said information,
and shall be in the following form, or as near thereto as may be:-
''A.B.
Take notice that you will be tried in the information whereof this a
true copy at the sessions of the High Court to be held at
on the day of
19
258. The Registrar shall deliver or cause to be delivered to the officer
of the court or police officer serving the information a copy thereof with
the notice of trial endorsed On the same or annexed thereto, and, if there
are more accused persons committed for trial than one, then as many
copies as there are such accused persons, and the officer of the court or
police officer aforesaid shall, as soon as may be after having received
the copy or copies of the information and notices or notices of trial, and
three days at least before the day specified therein for trial, by himself
or his deputy or other officer, deliver to the accused person or persons
committed for trial the said copy or copies of the information and notice
or notices, and explain to him or them the nature and interagency thereof;
and when any accused person shall have been admitted to bail and cannot
readily be found, he shall leave a copy of the said of the said information
and notice of trial with someone of his household for him at his dwelling
house or with someone of his bail for him, and if none such can be found,
shall affix the said copy and notice to the outer or principal door of the
dwelling house or dwelling houses of the accused person or of any of
his bail:
Provided always that nothing herein contained shall prevent any
person committed for trial, and in custody at the opening of or during any
session of the High Court, from being tried thereat, if he shall express
his assent to be so tried and no special objection be made thereto on the
part of the Republic.
259. The officer serving the copy or copies of the information and
notice or notice of trial shall forthwith make to the registrar a return
the made of service thereof.
7
Transmission
of
records to
the High
Court
Notice of
trial
Copy of
information
and notice
of trial to
be served
Returns
of
services
"
98 No. 9 Criminal Procedure 1985
Postpone- 260.-(1) It shall be lawful for the High Court upon the application
of the prosecutor or the accused person, if the court considers that there
is sufficient cause for the delay, to postpone the trial of any accused person
to the next sessions of the court held in the district or at some other convenient
place, or to a subsequent session.
ment of
trial
(2) The High Court may give such directions of the amendment of
information and the service of any notices which the court may deem
necessary in consequence of any order made under sub-section (1).
Information 261. All information drawn up in pursuance of section 261 shall be
in the name of and (subject to the provisions of section 92) signed by the
Director of Public Prosecutions.
to be
signed by
Director
of Public
Prosecutions
262. Every information shall bear date of the day when the same is
signed, and, with such modifications as shall be necessary to adapt it to
the circumstances of each case, may commence in the following form:-
Form of
informations
''In the High Court of Tanzania the day of 19
At the session holder at
on the day of 19
the court is formed by the Director of Public Prosecutions on behalf of
the United Republic that A.B is charged with the following offence
(or offences)''.
Witness 263. The Registrar of the High Court shall, before the commencement
to be
summoned of the trial, issue summons for the attendance of the trial of all witnesses
whose statements were produced during the Committee proceeding and
all witnesses whose names and addresses were given to the committing
magistrate by the accused.
PART VIII
PROCEDURE IN TRIALS BEFORE THE HIGH COURT
(a) Practice and the mode of Trial
Practice of
the High
Court in its
criminal
jurisdiction
264. The High Court may, subject to the provisions of this Act and
any other written laws, regulate its own practice in the exercise of its
criminal jurisdiction.
Trial before 265. All trials before the High Court shall be with aid or assessors the
High Court number of whom shall be two or more as the court thinks fit.
to be with
aaisds eosfsors (b) Assessors
266.-(1) Subject to exemptions under the provisions of section 267
and sub-section (3) of this section, all persons between the ages of twentyone
and sixty years shall be liable to serve as assessors.
Liability to
serve as
assessor
(2) The High Court shall from time to time make rules regulating the
area within which a person may be summoned to serve as an assessor.
No. 9 Criminal Procedure 1985 99
(3) A person shall be disqualified to serve as an assessor if he was convicted
and sentenced to a term of imprisonment exceeding six months for
an offence involving moral turpitude.
(4) No proceedings shall be invalid only by the reason that any of the
assessors was disqualified or exempt from serving as an assessor.
267. The following persons are exempt from liability to serve as assessors,
namely;
(a) Ministers and Members of National Assembly;
(b) Judges and Magistrates;
(c) persons actively discharging the duties of priests or ministers of
their respective religions;
(d) physicians, surgeons, dentists and apothecaries in actual practice;
(c) legal practitioners in actual practice;
(f) officers and men in the Armed Forces of the
(g) pperrosvoinssi oenxse m opf t ethde f r Comod pee orsf oCniavli al p Ppreoacreadnucere i no rc oanuyrt ruunledse rm thaede
thereunder;
(h) persons disabled by mental or bodily infirmity;
(i) officers of the Police and Prisons services;
(j) such other officers of the government and such persons as may be
exempted by the Chief Justice from liability to serve.
268. A person shall not be exempted by sex or marriage from liability
to serve as an assessor but any judge or magistrate may, in his discretion,
on an application made by or on behalf of the prosecution or the accused
or at his own instance, make an order that the assessors shall be composed
only of men or of women only, as the case may require, or may on the
application made by a woman to be exempted from service as an assessor
in respect of any case by reason of the nature of the evidence to be given
or of the issues to be tried, grant such exemptions.
(c) Attendance of Assessors
269.-(1) The Registrar of High court shall ordinarily not less than
fourteen days before the day fixed for holding any sessions of the High
Court, direct a resident of district magistrate for the time being exercising
jurisdiction in the district in which such sessions are to be held to summon
such number of persons to serve as assessors at the said sessions as to the
Registrar may appear necessary, and such magistrate shall comply with
such direction accordingly.
(2) Where in accordance with the provisions of sub-section (1), a resident
or district magistrate is directed to summon assessors, he shall select and
summon persons whom he considers to be suitable and to be liable under
the preceding sections to serve as assessors.
(3) Subject to the provisions of sub-section (1) and (2) a resident or
district magistrate so directed by the Registrar if any circumstances he so
deems, may delegate . such selection to any administrative officer having
jurisdiction in the same district or region.
Acts, 1966
No. 49
Exemptions
No exemption
by
sex or
marriage
from
liability to
serve as
assessor
Summoning
of
assessor
100 No. 9 Criminal Procedure 1985
270. Every summons to an assessor shall be in writing and shall require
his attendance at a time and place to be therein specified-
Form of
summons
271.-(1) Any person who has been served with a summons issued under
section 269 may, if he is of the opinion that he is of the not liable under the
Objections
to
summons
to serve as preceding section to serve as an assessor, appear without delay before a
assessor district or resident magistrate prior to the date when he is required by
summons to attend and object to the summons and if such magistrate is
satisfied that the said person is not liable to serve as an assessor he shall
thereupon rescind the summons and discharge the said person from the
attendance specified therein.
(2) Appearance before a district or resident magistrate under the
provisions of sub-section (1) shall be by the person objecting personally
except in case of person. objecting, under the provisions of paragraph (he)
of section 266 in which case a person who satisfied the magistrate that he
is duly authorized to appear may appear on his behalf.
272. The High Court, may for reasonable cause excuse any assessor
from attendance at any particular sessions, and may, if it shall think fit, at
the conclusion of any trial, direct that the assessors who have served at such
trial shall not be suiranoned to serve again for the period of twelve months.
Excuses
from
attendance
List of 273. At each session the High Court shall cause to be made a list of the
assessor names of those who have attended as assessors at such sessions.
attending
274.-(1) Any person summoned to attend as an assessor who, without
lawful excuse, fails to attend as required by the summons, or who, having
attended, departs without having obtained the permission of the High
Court, or fails to attend after adjournment of the court after being, ordered
to attend, shall be liable by order of the High Court to a fine not exceeding
five hundred shillings.
Penalty for
nonattendance
of
assessors
(2), Such fine shall be levied by the district or resident magistrate
movable property belonging to such assessor within the local limits of
jurisdiction of such magistrate.
(3) For good cause shown, the High Court may remit or reduce any
fine so imposed.
(4) In default of recovery. of the fine by attachment and sale an assessor
may, by order of the High Court be imprisoned as a civil prisoner for a
term of fifteen days unless such fine is paid before the end of the said term.
(d) Arraignment
inf2o7r5m. aTtihoen aschcaulls ebde ppelarscoend atot tbhee tbriaerd u bnefefottreer ethde, uHnilgehss C thoeu rcto uuprot nsh aanll Pleading
to informasion
see cause otherwise to order, and the information shall be read, over to
him by the Registrar or other officer of the court, and explained if need
be by that officer or interpreted by the interpreter of the court, and such
accused person shall be required to plead instantly thereto unless, where
the accused person is entitled to service of a copy of the information,
he shall object to the want of such service, and the court shall find that
he has not been duly served therewith.
No. 9 Criminal Procedure 1995 101
276.-(1) Every objection to any formal defect on the face an information
of shall be taken immediately after the information has been
read over to the accused person and not later.
i(t2 a) pWpehaerrse t boe tfhoer ec oau trrti atlh uatp othne iinnffoorrmmaattioionn o irs adte afnecyt isvtaeg, eth oef csouucrht tsrhiaalll
make such order for the amendment of the information as the court
thinks necessary to meet the circumstances of the case, unless, having
regard to the merits of the case, the required amendment cannot be
made without injustice. All such amendments shall be made upon
such terms as to the court shall seem just.
(3) Where an information is so amended, a note of the order for
amendment shall be endorsed on the information, and the information
shall be treated for the purposes of all proceedings in connection therewith
as having been filed in the amended form.
(4) Where, before a trial upon information or at any stage of such trial,
the court is of the opinion that the accused may be prejudiced or
embarrassed in his defence by reason of being charged with more than
one offence in the same information, or that for any reason it is desirable
to direct that the accused should be tried separately for any one or more
offences charged in an information, the court may order a separate
trial on any count or counts of such information.
(5) Where, before a trial upon information or at any stage of such trial,
the court is of the opinion that the postponement of the trial of the
accused is expedient as a consequence of the exercise of any power of the
court under this Act, the court shall make such order as to the postoponement
of the trial as appears necessary.
(6) Where an order of the court is made under this section for a separate
trial or for postponement of a trial
(a) the court may order that the assessors are to be discharged from
giving opinions on the count or counts the trial of which is postponed,
or on the information, as the case may be; and
(b) the procedure on the separate trial of a count shall be the same in all
respects as if the count had been found in a separate information,
and the procedure in the postponed trial shall be the same in all
respects (provided that the assessors, if any have been discharged)
as if the trial had not commenced; and
(c) the court may make such order as to admitting the accused to bail,
and as to the enlargement of recognizances and otherwise as the
court thinks fit.
(7) Any power of the court under this section shall be in addition to and
not in derogation of any other power of the court for the same or similar
purposes.
277.-(1) If an information does not state, and cannot by any amend- Quashing
of information
ment authorized by the last preceding section be made to state, any
offence of which the accused has had notice, it shall be quashed either on
a motion made before the accused pleads or motion made in arrest of
judgment.
Order for
amendment
of information
separate
trial and
postponement
of
trial
102 No. 9 Criminal Procedure 1985
(2) A written statement of every such motion shall be delivered to the
registrar or other officer of the court by or on behalf of the accused and
shall be entered upon the record.
278.-(1) Subject to sub-section (2) where an information contains a
count charging an accused person with having been previously convicted
Procedure
in cast of
previous
conviction of any offence, the procedure shall be as follows-
(a) the part of the information stating the previous conviction shall not
be read out in court, nor shall the accused be asked whether he has
been previously convicted as alleged in the information, unless and
until he has either pleaded guilty to or been convicted of the subsequent
offence;
(b) if he pleads guilty to or is convicted of the subsequent offence, he
shall then be asked whether he has been previously convicted as
alleged in the information;
(c) if he answers that he has been previously convicted, the judge
may proceed to pass sentence on him accordingly; but if he denies
that he has been so previously convicted, or refuses to or does not
answer such question, the court shall then hear evidence concerning
such previous conviction.
(2) If upon the trial of any person for any such subsequent offence,
such person shall give evidence of his own good character, it shall be
lawful for the advocate for the prosecution, in answer thereto, to give
evidence of the conviction of such person for the previous offience or
offences before he is convicted of such subsequent offence, and the court
shall inquire concerning such previous conviction or convictions at the
same time that it inquires concerning such subsequent offence.
Plea of 279. Every accused person who, upon being arraigned upon any informa- tion by pleading generally thereto the plea of ''not guilty'' shall, without
further form, be deemed to have put himself upon his trial. ''not
guilty''
Plea of 280.-(1) Any accused person upon whom an information is filed may autrefois pleadaacuqtrueifto
ainsd (a) that be has been previously convicted or acquitted, as the case may convict be, of the same offence; or
(b) that lie has obtained a pardon at law for his offence.
(2) If either of such pleas are pleaded in any case and denied to be true
in fact, the court shall try whether such plea is true in fact or not.
(3) If the court holds that the facts alleged by the accused do not prove
the plea, or it finds that it is false in fact, the accused shall be required
to plead to the information.
281.-(1) If any accused person being arraigned upon any information
stands mute of malice, or neither will, nor by reason of infirmity can, answer
directly to the information, the court if it thinks fit, shall order the
Registrar or other officer of the court to enter a plea of ''not guilty''
Refusal to
plead
on behalf of such accused person, and the plea so entered shall have
the same force and effect as if such accused person had actually pleaded
the same, or else the court shall thereupon proceed to try whether the
No. 9 Criminal Procedure 1985 103
accused person be of sound or unsound mind, and, if he shall be found
of sound mind, shall proceed with the trial, and if he shall be found
of unsound mind and consequently incapable of making his defence
shall order the trial to be postponed, and the accused person to be kept
meanwhile in safe custody in such place and manner as the court thinks
fit and shall transmit the court record to the Attorney-General for
consideration by the Minister. The Minister may order such accused
person to be detained in a mental hospital or other suitable place of safe
custody.
(2) Any subsequent proceedings in relation to the said accused person
shall be regulated by section 217 and 218 of this Act.
282. If the accused pleads ''guilty'' the plea shall be recorded and he
may be convicted thereon. guilty
283. If the accused pleads ''not guilt or if the plea of ''not guilty''
is entered in accordance with the provisions of section 281, the court
shall proceed to choose assessors, as hereinafter directed, and to try
the case; save that the same assessors may aid in the trial of as many
accused persons successively as the court thinks fit.
284. If, from the absence of witnesses or any other reasonable cause
to be recorded in the proceedings, the court considers it necessary or
advisable to postpone the commencement of or to adjourn any trial,
the court may from time to time postpone or adjourn the trial on such
terms as it thinks fit for such time as it considers reasonable, and may
by warrant remand the accused to some prison or other place of security.
During a remand the court may at any time order the accused to be
brought before it.
The court may on remand admit the accused to bail.
(d) Selection of Assessors
285. When a trial is to be held with the aid of assessors, the assessors
shall be selected by the court.
286. If, in the course of trial with the aid of assessors, at any time
before the finding any assessor is from any sufficient cause prevented
from attending throughout the trial, or absents himself, and it is not practicable
immediately to enforce his attendance, the trial shall proceed
before the remaining assessors but only if they are not less than two
in number, and where the trial so proceeds the remaining assessors shall
be deemed m all respects to be properly constituted for the purpose
of the trial and shall have power to return a verdict accordingly whether
unanimous or by majority.
287. If the trial is adjourned, the assessors shall be required to attend
at the adjourned sitting, and at any subsequent sitting until the conclusion
of the trial.
Plea of
Proceedings
after plea
of ''not
guilty''
Power to
postponed
or
adjourn
proceedings
Selection
of assessors
The
absence
of an
assessor
Assessors
to attend at
adjourned
sittings
104 No. 9 Criminal Procedure 1985
(c) Case for the Prosecution
288. When the assessors have been chosen, the advocate for the
prosecution shall open the case against the accused person, and shall call
witnesses and adduce evidence in support of the charge.
289.-(1) No witness whose statement or substance of evidence was
not read at committal proceedings shall be called by the prosecution at
the trial unless the prosecution has given a reasonable notice in writing
to the accused person or his advocate of the intention to call such witness.
Additional
witness for
prosecution
(2) The notice shall state the name and address of the witness and the
substance of the evidence which he intends to give.
(3) The court shall determine what notice is reasonable, regard being
had to the time when and the circumstances under which the prosecution
became acquainted with the nature of the witness's evidence and determined
to call him as a witness. No such notice need be given if the prosecution
first became aware of the evidence which the witness would give on
the date on which he is called.
Cross- 290. The witnesses called for the prosecution shall be subject to crossexamination
of witnesses
for the
prosecution
b eyx athmei n aadtivoonc bayte t hfoe ra tchceu sperdo speecrusotino no.r his advocate, and to re-examination
291.-(1) In any trial before the High Court, any document purporting
Statements to be a report signed by a medical witness upon a purely medical or
by medical
witnesses surgical matter, shall be receivable in evidence save that this sub-section
shall not apply unless reasonable notice of the intention to produce the
document at the trial, together with a copy of the document has been given
to the accused or his advocate.
(2) The court may presume that the signature to any such document
is genuine and that the person signing the same holds the office or had the
qualifications which he professed to hold or to have when he so signed the
same.
(3) Where any such evidence is received in evidence the court may, if
it thinks fit, and shall, if so requested by the accused or his advocate,
summon and examine or make available for cross-examination, the person
who made the report, and the court shall inform the accused of his right to
require the person who made the report to be summoned in accordance
with the provisions of this sub-section.
(4) Notwithstanding the provisions of subsection (3), the court may
dispense with the requirement of this sub-section where it is satisfied that
the person who made the report is dead or that the attendance of such
person cannot be procured without undue delay or expense.
292. Any statement of the accused person duly certified by the committing
magistrate in the manner provided by section 246 may, whether
signed by the accused person or not, be given in evidence without further
proof thereof, unless it is proved that the magistrate purporting to certify
the same did not in fact certify it.
Statement
of
evidence
of accused
Opening of
case for
prosecution
No. 9 Criminal Procedure 1985 105
293.-(1) When the evidence of the witnesses for the prosecution has
been concluded, and the statement, if any, of the accused person before
the committing court has been given in evidence, the court, if it considers,
after hearing the advocates for the prosecution and for the defence, that
there is no evidence that the accused or any one of several accused committed
the offence or any other offence of which, under the provisions of
section 312 to 321 inclusive of this Act, he is liable to be convicted, shall
inform each accused person of his right-
(a) to give evidence on his own behalf, and
(b) to call witnesses in his defence,
and shall then ask the accused person, or his advocate, if it is intended to
exercise any of the above rights and shall record the answer. They shall
then call on the accused. to enter on his defence save where the accused
person does not wish to exercise either of the above rights.
(2) If the accused, after he has been informed in terms of sub-section (1)
elects to remain silent the court shall be entitled to draw an adverse inference
against him and the court as well as the prosecution shall be permitted
to comment on the failure by the accused to give evidence.
(3) Not withstanding that the accused accepts or gives any evidence not
on oath or affirmation he shall be subject to cross-examination by the
prosecution.
(f) Case for the Defence
294. The accused person or his advocate may then open his case stating
the fact or law on which he intends to rely, and making such comments
as he thinks necessary on the evidence for the prosecution. The accused
person may then give evidence on his own behalf and he or his advocate
may examine his witnesses (if any), and after their cross-examination or
re-examination (if any), may sum up his case.
295.-(l) In addition to the witnesses summoned pursuant to the provisions
of section 268 the accused shall be allowed to examine any witness
who is in attendance at the trial.
(2) The accused shall not be entitled as of right to have any witness
summoned other than the witnesses whose names and address were given
by him to the magistrate at the committal proceedings, but any subordinate
court may, after committal for trial and before the trial begins, and the
court of trial may, either before or during the trial, issue a summons for
the attendance of any person as a witness for the defence if the court is
satisfied that the evidence is in any way material to the case.
296. If the person, or any one of several accused persons, adduces any
evidence, the prosecutor shall be titled to reply subject to the provisions
of section 201.
Close of
case for
prosecution
Case for
the defence
Additional
witnesses
for the
defence
Prosecutor's
reply
106 No. 9 Criminal Procedure 1985
297. If the accused person says that he does not mean to give or adduce
evidence and the court considers that there is evidence that he committed
the offence the advocate, for the prosecution shall then sum up the case
against the accused person and the court shall then call on the accused
person or personally or by his advocate to address the court.
Where
accused
person
does not
give
evidence
(g) Close of Hearing
298.-(1) When the case on both sides is closed, the judge may sum up
the evidence for the prosecution and the defence, and shall then require
each of the assessors to state his opinion orally as to the case generally and
Delivery
of
opinion
by assessors
and giving as to any specific question of fact addressed to him by the judge, and shall
of record such opinion.
(2) The judge shall then give judgment, but in doing so, shall not be
bound to confirm to the opinions of the assessors.
judgment
(3) If the accused person is convicted, the judge shall pass sentence on
him according to law.
(4) Nothing in this section shall be construed as prohibiting the assessors,
or any of them, from retiring to consider their opinions if they so wish or,
during any such retirement or at any time during the trial, from, consultation
with one another.
299.-(1) where any judge, after having heard and recorded the whole
or any part of the evidence in any trial is for any reason unable to complete
the trial or he is unable to complete the trial within a reasonable time,
another judge who has and who exercises jurisdiction may take over and
continue the trial and the judge so taking over may act on the evidence or
proceeding recorded by his predecessor, may, in the case of a trial resummon
the witnesses and recommence the trial; save that in any trial the
accused may, when the second judge commences his proceedings, demand
that the witnesses of any or them be re-summoned and re-heard and shall
be informed of such right the second judge when he commences his
proceeding.
Conviction
where
proceedings
heard
partly by
one judge
and partly
by another
(2) Nothing in sub-section (1) shall be construed as preventing a judge
who has recorded the whole of the evidence in any trial and who, before
passing the judgment and forwarding the record of the proceedings
together with the judgment to the judge who has succeeded him for the
judgment to be read over and, in the case of conviction, for the sentence to
be passed by such other judge.
PART IX
CONVICTIONS, JUDGMENT, SENTENCES AND THEIR EXECUTION
IN THE SUBORDINATE AND HIGH COURT
A.-Miscellaneous Provisions Relating to Convictions
300.-(1) When a person is charged with an offence consisting of
several particulars, a combination of some only of which constitutes
a complete minor offence, and such combination is proved but the
remaining particulars are not proved, he may be convicted of the minor
offence although he was not charged with it.
When
offence
proved is
charged
No. 9 Criminal Procedure 1985 107
(2) When a person is charged with an offence and facts are proved
which reduce it to a minor offence, he may be convicted of the minor
offence although he was not charged with it.
(3) For the purpose of this section the offences specified in section 222
of the Penal Code shall, where a person is charged with the offence of
attempted murder under section 211 thereof, be deemed to be minor
offences.
301. When a person is charged with an offence, he may be convicted
of having attempted to commit that offence, although he was not charged
with the attempt.
302.-(1) When a woman is charged with the murder of her newly
born child and the court is of the opinion that she, by any willful act or
omission, caused its death but at the time of the act or omission she had
not fully recovered from the effect of giving birth to such child and that
by reasons thereof or by reason of the effect of lactation consequent upon
the birth of the child, the balance of her mind was then disturbed, she
may, notwithstanding that the circumstances were such that but for the
provisions of section 199 of the Penal Code she might be convicted of
murder, be convicted of the offence of infanticide although she was not
charged with it.
(2) When a person is charged with the murder or manslaughter of any
child or with infanticide, or with an offence under section 150 or section
151 of the Penal Code (relating to the procuring of abortion), and the
court is of opinion that he is not guilty of murder, manslaughter or
infanticide or of an offence under section 150 or section 151 of the Penal
Code but that he is guilty of the offence of child destruction under section
219 of the Penal Code, he may be convicted of that offence although
he was not charged with it.
(3) When a person is charged with the offence of child destruction and
the court is of opinion that he is not guilty of that offence but that he is
guilty of an offence under either section 150 or section 151 of the Penal
Code, he may be convicted of that offence although he was not charged
with it.
(4) When a person is charged with the murder or infanticide of any
child or with child destruction and the court is of opinion that he is not
guilty of any of the said offences but that he is guilty of the offence of
concealment of birth, he may be convicted of that offence although he
was not charged with it.
303. When a person is charged with manslaughter in connection with
the driving of motor vehicle by him and the court is of the option that
he is not guilty of that offence, but that he is guilty of an offence under
section 42 of the Road Traffic Act, 1973 (relating to reckless or dangerous
driving or careless driving) he may be convicted of all offence under either
of those sections although he was not charged with it.
Person
charged
with any
offence may
be
convicted
if attempt
Alternative
verdict
under
Road
Traffic Act
in certain
manslaughter
cases
Acts, 1983
No. 8
108 No. 9 Criminal Procedure 1985
304.-(1) When a person is charged with an offence under section 131
or section 132 of the Penal Code and the court is of the opinion that
he is not guilty of that offence but that he is guilty of an offence under
one of sections 135, 136, 140 and 158 of the Penal Code, he may be
convicted of that offence although he was not charged with it.
(2) When a person is charged with an offence under section 158 of the
Penal Code and the court is of the opinion that he is not guilty of that
offence but that he is guilty of an offence under one of the sections 136
and 137 of the Penal Code, he may be convicted of that offence although
he was not charged with it.
(3) When a person is charged with an offence under section 136 of the
Penal Code and the court is of opinion that he is not guilty of that offence
but that he is guilty of an offence under sub-section (1) or sub-section (3)
of section 135 or under section 140 of the Penal Code, he may be convicted
of that offence although he was not charged with it.
305. When a person is charged with an offence under one of the sections
294 to 298 of the Penal Code and the court is of opinion that he is not
guilty of that offence but that he is guilty of any other offence under
another of the said sections he may be convicted of that other offence
although he was not charged with it.
Person
charged
with
burglary
etc. may
be
convicted
of
kindred
offences
306.-(1) When a person is charged with stealing anything and the
court is of opinion that he is not guilty of that offence but that he is guilty
of an offence in respect of that thing under one of the sections 302, 304,
311 and 312 of the Penal Code, he may be convicted of that offence
although he was not charged with it.
(2) When a person is charged with an offence under section 304 of the
Penal Code and the court is of opinion that he is not guilty of that offence
but that he is guilty of the offence of stealing the thing in respect of which
he is charged he may be convicted of that offence although he was not
charged with it.
(3) Where a person is charged with an offence under section 302 of the
Penal Code and the court is of opinion that he is not guilty of that offence
but that he is guilty of an offence under section 304 of the Penal Code,
he may be convicted of that offence although he was not charged with it:
and where a person is charged with an offence under section 304 of the
Penal Code and the court is of the opinion that he is not guilty of that
offence but that he is guilty of an offence under section 302 of the Penal
Code, he may be convicted of that offence although he was not charged
(4) When a person is charged under section 311 of the Penal Code
with the offence of receiving anything and the court is of opinion that
he is not guilty of that offence butt hat he is guilty of retaining the thing,
and when a person is charged under the said section with the offence of
retaining anything and the court is of opinion that he is not guilty of that
offence but that he is guilty of receiving the thing, then he may be convicted
under the provisions of the said section of retaining or receiving, as the
case may be, although he was not so charged.
Alternative
verdicts
in charges
of rape
and
kindred
offence
Cap. 20
Alternative
verdicts
in charges
of stealing
and
kindred
offences
No. 9 Criminal Procedure, 1985 109
307. Where any person is charged with an offence under sub-section
(1) of section 9 of the Prevention of Corruption Act, 1971, and the
court is of opinion that he did not corruptly acquire or receive the
PCroodpee rinty r besupt etchta to fh es,u icsh g purioltpye rotfy a, nth oef cfeonucret munadye cro snevcitciot nh i3m1 2o fo fs uthceh Plaetntearl
offence although he was not charged with it.
308. The provisions of section, 300 to 306, shall be construed as an
addition to, and not in derogation of, the provisions of any other Act and
309. If on any trial for a warrant offence the facts proved in
evidence amount to a non-warrant offence, the accused shall not for that
for a warrant offence on the same facts, unless the court shall think fit,
,in its discretion, to direct such person to be prosecuted for a non-warrant
previously been Put on trial for a warrant offence.
co3u1rt0 .m Aanyy o Pf errigsohnt bacec duesfeedn bdeefdo rbey a anny acdrivmocinaatel coofu trht,e oHthigerh tChaonu rat ,p rsiumbajreyct
always to the provisions of any rules of court made by the High Court
under powers conferred by Article 26 of the Tanganyika Order in Council,
1920 from time to time in force.
B.- Judgment Generally
311.-(1) The judgment in every trial in any criminal court shall be
pronounced in open court either immediately after the termination of the
trial or at some subsequent time of which notice shall be given to the
parties and their advocates if any; that where the judgment is in writing at
the time, of pronouncement the judge or magistrate may, unless objection to
such a course is taken by either the prosecution, or the defence, explain
the substance of such judgment in. open court in lieu of reading such judgment
in full.
(2) The accused person shall, if in custody, be brought up, or, if not in,
custody, be required by the court to attend, to hear judgment delivered
except where his personal attendance during the trial has, been dispensed
with and the sentence is one of file only or he is acquitted.
(3) Subject to sub-section (2), where there are more than one accused
persons and one or more of them doe's not attend the court on the date
on which, the judgment is to be delivered, the judge or magistrate may,
in order to avoid undue delay in the disposal of the case, deliver
the judgment notwithstanding his or their absence, as the case may be
Alternative
verdict
in charge
of being in
possession
of property
of having
been
corruptly
acquired
Acts. 1971
No. 16
Construction
of section
300 to 306
Person
charge
with a
warrant
offence
not to be
with a
arrestable
if a
offence is
proved
Right of
an accused
to be
defended
Mode of
delivering
judgment
the other provisions of this Code, and the provisions of sections 301 to 306
shall be construed as being without prejudice to the generality of the
provisions of section 300.
reason be acquitted of such a warrant offence; and no person tried
for such warrant offence shall be liable afterwards to be prosecuted
offence, whereupon such person may be dealt with as if he had
110 No. 9 Criminal Procedure 1985
(4) No judgment delivered by any court shall be deemed to be invalid
by reason only of the absence of any party or his advocate on the day or
from the place notified for the delivery thereof, or of any omission to
serve, or defect in serving, on the parties or their advocates, or any of
them, the notice of such day and place.
(5) Nothing in this section shall be construed as to limit m anyway the
provisions of section 400.
312.-(1) Every judgment under the provisions of section 311 shall,
except as otherwise expressly provided by this Act, be written by, or
reduced to writing under the personal direction and superintendence of,
the presiding judge or magistrate in the language of the court, and shall
contain the point or points for determination, the decision thereon and
the reasons for the decision, and shall be dated and signed by such
presiding officer as of the date on which it is pronounced in open court.
Content
Of
judgment
(2) In the case of conviction the judgment shall specify the offence of
which, and the section of the Penal Code or other law under which the
accused person is convicted, and the punishment to which he is sentenced.
(3) In the case of an acquittal the judgment shall state the offence of
which the accused person is acquitted and shall direct that he be set at
liberty.
313.-(1) On the application of the accused person a copy of the
judgment, or, when he so desires, a translation in his own language, if
practicable, shall be given to him without delay. Such a copy or transla-
Copy of
judgment
etc. to be
macacvuesne dto the tion shall be given to him free of cost.
or any (2) Any interested party or person affected by the judgment may be
provided with such copy of judgment on application: interested
party on
application
Provided that such person pays the prescribed fee, unless the court,
if it thinks fit for some reason, to give it to him free of costs.
C.-Sentences
(a) Passing Sentences in the High Court
314. If the judge convicts the accused person, or if he pleads guilty,
it shall be the duty of the registrar or other officer of the court to ask
Calling
upon
the whether he has anything to say why sentence should not be passed upon
him according to law, but the omission so to ask him shall have no
effect on the validity of the proceedings.
accused
315.-(1) The accused person may, at any time before sentence, whether
on plea of guilty or otherwise, move in arrest of judgment on the ground
that the information does not, after any amendment which the court is
willing and has power to make, state any offence which the court has
power to try.
Mention in
arrest of
judgment
(2) The court may, in its discretion, either hear and determine the
matter during the same sitting, or adjourn the hearing thereof to a future
time to be fixed for that purpose.
No. 9 Criminal Procedure 1985 111
(3) If the court decides in favour of the accused he shall be discharged
from that information.
316. If no motion in arrest of judgment is made, or if the court decides
against the accused person upon such motion, the court may sentence
the accused person at anytime during the sessions.
317. The court before which any person is tried for an offence
Power to
reserve
decisions
on
question
raised at
trial
reserve the giving of its final decision on questions raised at the trial,
tarniadl .its decision whenever given shall be considered as given at the time of
318.-(1) When any person has, in a trial before the High Court, been
convicted of an offence, the judge may reserve and refer for the decision
of a court consisting of two or more judges of the High Court any question
which has arisen in the course of trial, and the determination of which
would affect the event of the trial.
(2) If the judge reserves any such question, the person convicted shall
pending the decision thereon, be remanded to prison or, if the judge
thinks fit, be admitted to bail, and the High Court shall have power to
review the case, or such part thereof as may be necessary, and finally
determine such question and thereupon to alter the sentence passed by the
trial judge and to pass such judgment or order as the High Court may
think fit.
319. No judgment shall be stayed or reserved on the ground of any
objection, which if stated after the information was read over to the
accused person, or during the progress of the trial, might have been cured
by amendment by the court, nor, for any informality in swearing the
witnesses or any of them.
320. The court may, before passing the sentence, receive such evidence
as it thinks fit, in order to inform itself as to the sentence proper to be
passed.
321.-(1) without prejudice to the generality of section 320, the High
Court may subject to the provisions of this section, for the purpose of
assessing the proper sentence to be passed, take into consideration any
other offence committed by the accused person but of which he has not
been convicted.
(2) The High Court shall not take any offence into consideration
unless-
(a) it has boon explained by the court to the accused person in ordinary
language that the sentence to be passed upon him for the offence
of which he has been convicted in those proceedings may be greater
if the other offence is taken into consideration; and,
(b) after such explanation as aforesaid, the accused person-
(i) admits the commission of the other offence; and
(ii.) asks the court to take the other offences into consideration.
Sentence
Power to
reserve
questions
arising
in the
course of
the trial
Objections
cured by
judgment
Evidence
for
arriving at
a proper
sentence
Taking
of the
offences
into
account
112 No. 9 Criminal Procedure 1985
(3) Nothing in this section shall entitle the court, after taking into
consideration, to pass upon an accused person any sentence in excess of
the maximum sentence which could be awarded for the offence of which
that person was convicted in those proceedings.
(b) Sentences of Death
322.-(1) When any person is sentenced to death, he shall suffer
death by hanging.
Sentence
of hanging
(2) When any person is sentenced to death the sentence shall direct
that he suffers death by hanging.
323. When an accused person is sentenced to death, the court shall
inform him of the period within which, if he wishes to appeal, his appeal
Accused
to be
informed of right should be preferred.
appeal
324. A certificate under the hand of the registrar or other officer of the
court that sentence, of death has been passed, and naming the condemned,
shall be sufficient authority for the detention of such person.
Authority
for
detention
325.-(1) As soon as conveniently may be after sentence of death has
been pronounced, if no appeal from a sentence of death passed by the
High Court, is preferred, or if an appeal from any sentence of death is
preferred and the sentence is upheld on appeal, then as soon as
conveniently may be after the determination of the appeal the presiding
judge or magistrate exercising powers conferred on him by section 173
shall forward to the President a copy of the notes of evidence taken on
the trial with a report in writing signed by him containing any recommendation
or observations on the case he may think fit to make.
Record to
be sent to
President
(2) After the said report has been considered the President shall
communicate to the said judge or magistrate or his successor in office, the
terms of any decision to which he may come thereon, and such judge or
magistrate shall cause the tenor and substance thereof to be entered in
the records of the court.
(3) The President shall issue a death warrant, or an order of the sentence
of death to be commuted, or a pardon, under his hand and the
seal of the
sentence of death is to be carried out, the warrant shall state the place
where and the time when execution is to be had, and shall give directions
as to the place of burial of the body of the person executed. If the sentence
is commuted for any other punishment, the order shall
that punishment. If the person sentenced is pardoned, the pardon shall
state whether it is free, or to what conditions if any, it is subject.
(4) Subject to sub-section (3), the warrant may direct that the execution
shall take place at such time and at such place, and that the body of the
person executed shall be buried or cremated at such place, as shall be
appointed by some officer specified in the warrant.
(5) The warrant or order, or pardon of the President shall be sufficient
authority in law to all persons to whom the same is directed to execute
the sentence of death or other punishment awarded, and to carry out the
directions therein given in accordance with the terms thereof.
No. 9 Criminal Procedure 1985 113
323. (1) Where any Court thinks that the Charge is proved, but is of
opinion that, having regard to the Character, antecedents, age, health,
or mental condition of the person charged, or to the trivial nature of the
offence, or to the extenuating circumstances under which the offence was
committed, it is inexpedient to inflict any punishment, or that it is expedient
to discharge the offender conditionally as hereinafter provided, the
Court may, without proceeding to convict, either:
(a) order such offender to be discharged after such admonition as
to the Court as shall seem fit; or
(b) discharge the offender conditionally on his executing a bond, with
or without sureties, to be of good behaviour and to appear for
conviction and sentence when called on at any time during such
period, not exceeding three years, as may be specified in the order
of the Court.
(2) An order under Sub-Section (1) shall, for the purpose of re-vesting
or res-toring stolen property, or in respect of matters relating to the
restitution or delivers of property to the owner, have the like effect as
a conviction.
(3) A bond executed under this Section may contain such conditions,
as the court may, having regard to the particular circumstances of the
case, order to be inserted therein with respect to all or any of the following
matters:
(a) for prohibition the offender from associating with undesirable
persons, or from frequenting undesirable places;
(b) as to abstention from intoxicating liquor, where the offender was
drunkenness or an offence committed under the influence of drink;
(c) generally for securing that the offender should lead an honest and
industrious life;
(d) providing that the offender with his surety or sureties, if any, shall
appear in chambers before the judge of the court, such intervals
as may be specified in the order.
(d) Execution of Sentences
327. A warrant under the hand of the judge or magistrate by whom
any person shall be sentenced to imprisonment, ordering that the sentence
shall be carried out m any prison within Tanzania Mainland, shall be
issued by the sentencing judge or magistrate, and shall be full authority
to the officer in charge of such prison and to all other persons for carrying
into effect the sentence described m such warrant, not being a sentence
of death. Every sentence shall be deemed to commence from, and
to, include the whole of the day of the date on which it was pronounced,
except where otherwise provided in this Act or m the Penal Code.
Warrant in
case of
sentences of
imprisonment
114 No. 9 Criminal Procedure 1985
Warrant for 328.-(1) Where a court orders money to be paid by an accused person
or by a prosecutor or complainant for fine, penalty, compensation,
costs, expenses or otherwise, the money may be levied on the movable
and immovable property of the person ordered to pay the same by distress
and the sale under warrant. If he shows sufficient movable property to
satisfy the order his immovable property shall not be sold.
levy
(2) Such person may pay or tender to the officer having the execution
of the warrant the sum therein mentioned, together with the amount
of the expenses of the distress up to the time of payment or tender, and
thereupon the officer shall cease to execute the same.
(3) A warrant under this section may be executed within the local limits
of jurisdiction of the court issuing it, and it shall authorise the distress and
sale of any property belonging to such person when endorsed by a district
or resident magistrate within the local limits of whose jurisdiction such
property is found.
329.-(1) Any person claiming to be entitled to have a legal or equitable
interest in the whole or part of any property attached in execution of
a warrant issued under section 327, may, at any time prior to the receipt
by the court of the proceeds of sale of such property, give notice in writing
to the court of his objection to the attachment of such property. Such
notice shall set out shortly the nature of the claim which such person
(hereinafter in the section called the objector) makes to the whole or part
of the property attached, and shall certify the value of the property claimed
Objections
to
attachment
wbyit hh itmhe. Snuoctihc ev.alue shall be deposed to an affidavit which shall be filed
(2) Upon receipt of a valid notice given under subsection (1) the court
shall, by an order in writing, addressed to the officer having the execution
of the warrant, direct a stay of the execution proceedings.
by( 3n)o Uticpeo nin t hwe riistsi.nueg ,o df iarne cotr tdheer uonbdjeecr tsourb tsoe catpiopne a(2r )b tehfeo rceo usrutc shh aclol,urt
and establish his claim upon a date to be specified in the notice.
(4) A notice shall be served upon the person whose property was,
by the warrant issued under section 328, directed to be attached and,
unless the property is to be applied to the payment of a fine, upon the
person entitled to the proceeds of the sale of such property. Such
notice shall specify the time and place fixed for the appearance of the
objector and shall direct the person upon whom the notice is served to
appear before the court at the same time and place if he wishes to be heard
upon the hearing of the objection.
(5) Upon the date fixed for the hearing of the objection, the court
shall investigate the claim and, for such purpose, may hear any evidence
which the objector may give or adduce and any evidence given or adduced
by any person served with a notice in accordance with sub-section (4).
(6) If, upon investigation of the claim, the court is satisfied that the
property attached was not, when attached, in the possession of the
person ordered to pay the money or of some person in trust for him,
or in the occupancy of a tenant, or other person paying rent to him, or
that, being in the possession of the person ordered to pay the money a
1985 (7) If, upon the date fixed for his appearance, the objector fails to appear,
or if, upon investigation of the claim in accordance with subsection (5),
the court is of an opinion that the objector has failed to establish his
claim, the court shall order the attachment and execution to proceed wad
shall make such order as to costs as it deems proper.
(8) Nothing in this section shall be deemed to deprive a person who
has failed to comply with the requirements of subsection (1) of the right
to take any other proceedings which, apart from the provisions of his
section, may lawfully be taken by a person claiming an interest in property
attached under a warrant.
330.-(l) When an offender has been sentenced to a fine only and to
imprisonment in default of payment of the fine, the court may suspend the
execution of the sentence of imprisonment and may release the offender
on his executing a bond, within or without sureties, as the court thinks
fit, conditioned for his appearance before such court on a date not being
more than fifteen days from the time of executing the bond; and in the
event of the fine not having been realized the court may direct the sentence
of imprisonment to be carried into execution at once, or may from
time to time extend the operation of the bond for a further period of
not more than fifteen days.
(3) Without prejudice to the provisions of subsections (1) and (2),
in any case in which an order for the payment of money has been made,
and whether or not any order has been made for imprisonment in default
of payment, the court may, in its direction, either the time such order is
made or subsequently direct that the money may be paid by installments
at such times and in such amounts as the court may think fit.
(4) Where under subsection (3), the court directs that money may be
paid by installments and the whole of the amount outstanding shall
unless the court "tends the period within which such installment is to be
paid, become due and payable and all the provisions of this Act and
of the Penal Code applicable in the case of non-payament of a fine shall
apply to and in respect of the said amount outstanding.
331. If the officer having the execution of a warrant of distress reports
that he can find no property or not sufficient property where upon to levy
the money mentioned in the warrant with expenses, the court may by
the same or a subsequent warrant commit the person ordered to pay to
prison for a time specified, in the warrant, unless the money and all
expenses of the distress, to be specified in the warrant, are sooner paid.
(2) In any case in which an order for the payment of money has been
made, or non-recovery of which is not paid forthwith, the court may
require the person ordered to make such payment to enter into a bond as
prescribed in subsection (1), and in default of his so doing may at once
pass sentence of imprisonment as if the money had not been recovered.
such time it was so in his possession not on his own account or as his own
property but on account of or in trust for some other person or party
on his own account and partly on account of some other person, the court
shall make an order releasing the property, wholly or to such extent as it
thinks fit, form attachment.
No. 9 Criminal Procedure 115
Suspension of
execution of
sentence of
imprisonment
in default
of fire
Commitment
for want
of distress
116 No. 9 Criminal Procedure 1985
Commit- 332. When it appears to the court that distress and sale of property
would be ruinous to the person ordered to pay the money or his family
or (by his confession or otherwise) that he has no property whereon the
distress may be levied, or other sufficient reason appears to the court,
the court may if it thinks fit, instead of or after issuing a warrant of
distress, commit him to prison for a time specified in the warrant, unless
the money and all expenses of the commitment and conveyance to prison,
to be specified in the warrant, are sooner paid.
ment
in lieu of
distress
Payment in 333. Any person committed for non-payment may pay the sum
full after
commitment
mentioned in the warrant, with the amount of expenses therein authorized,
if any, to the person in whose custody he is, and that person shall there
upon release him if he is in custody for no other matter.
334.(1) If any person who is confined in any prison, for non-payment
of any sum adjudged by a court in its criminal jurisdiction to be paid
Part payment
offer after
commitment under this Actor under any Act, shall pay any sum in part satisfaction of the
sum adjudged to be paid, the term of his imprisonment shall be reduced
by a number of days bearing nearly as possible the same proportion to the
total number of days for which such person is committed, as the sum of
paid bears to the sum for which he is liable.
(2) The officer in charge of a prison in which a person in confined who
is desirous of taking advantage of the provisions of the preceding subsection
shall, on application being made to him by such person, at once
take him before a court, and such court shall certify the amount by which
the term of imprisonment originally awarded is reduced by such payment
in part satisfaction, and shall make such order as is required in the circumstances.
Who may 335. Every warrant for the execution of any sentence may be issued
issue warrant either by the judge or magistrate who passed the sentence or by his successor
in office or jurisdiction.
Limitation 336. No commitment for non-payment shall be for a longer period
of imprisonment
after
commitment
than six months, unless the law under which the conviction has taken place
enjoins or allows a longer period.
(d) Miscellaneous Provisions for Dealing with Offenders
(a) First Offenders
337.-(1) In any case in which a person is convicted before any courts
of any offence not punishable with death, and no previous conviction is Power to
release
probation
instead of
sentences to
punishment
proved against him, if it appears to the court before which he is convicted
that, having regard to the youth, character, antecedents, health or mental
condition, of the offender, or to the trivial nature of the offence, or to
any extenuating circumstances under which the offence was committed,
it is expedient to release the offender on probation, the court may instead
of sentencing him at once to any punishment, direct that he be released
on his entering into a bond, with or without sureties, and during such
No. 9 Criminal Procedure 1985 117
period (not exceeding three years) as the court may direct, to appear and
receive sentence when called upon and in the meantime to keep the peace
and be of good behaviour.
(2) An order under this section may be made by the High Court when
exercising its power of revision.
338.-(1) If at any time the court, which convicted the offender, is
satisfied that the offender has failed to observe any of the conditions of
his recognizance, it may issue a warrant for his apprehension.
(2) An offender when apprehended on any such warrant shall be
brought forthwith before the court by which the warrant was issued, and
such court may either remand him in custody until the case is heard or
admit him to bail with a sufficient surety conditioned for his appearing
for sentence. Such court may, after hearing the case, pass sentence.
Conditions
as to abide
of offender
339. The Court, before directing the release of an offender under section
338, shall be satisfied that the offender or his surety, if any, has a fixed
place of abode or regular occupation in the place for which the court
acts, or in which the offender is likely to live during the period named for
his observance of the condition.
340. Section 337, 339 and 339 of this Act, shall not apply in any
area of Mainland Tanzania to which the Probation of Offenders Ordinance
applies.
(b) Offenders with previous Conviction
341.-(1) When any person-
Person twice
convicted may
be subjected
to police
supervision
(a) has been convicted of any offence against sections 59 or 60 of the
penal Code or section 19, 20, or 21 of the Societies Ordinance, or
(b) having been convicted of any offence punishable with imprisonment
for a term of three years or upwards or of an offence under
section 342 of this Act,
the court may, if it thinks fit, at the time of passing sentence of imprisonment
on such person, also order that he shall be subject to police
supervision as hereinafter provided for a period not exceeding five years
from the date of his release from prison.
(2) If such conviction is set aside on appeal or otherwise, such order
shall become void.
(3) An order under this section may be made by the High Court
when exercising its powers of revision.
(4) Every such order shall be made out in the prescribed form and in
addition be stated in the warrant of commitment.
342.-(1) A court may at any time direct that a person shall, whilst
subject to police supervision and at large in Tanzania, comply with all
or any of the following requirements and may vat y any such direction
ally time:-
(a) To reside within the limits of any specified district;
Provisions
in case of
offender
failing to
serve
conditions
of his
recognizance
Sections 336,
337 and 338
not to
apply in
certain
circumstances
Requirements
from person
subject to
police
supervision
118 No. 9 Criminal Procedure 1985
(b) not to transfer his residence to any other district without the
written consent or the administrative officer or police officer in
charge of such district;
(c) not to leave the district in which he resides without the written
consent of the administrative officer or police m charge of such
district;
(d) at all times to keep the police office, or if there is no police officer
the administrative officer in charge of the district in which he resides
notified of the house or place in which he resides;
(c) to present himself, whenever called upon so to do by the administrative
officer or police officer in charge of the district m which he
resides, at any place in such district.
(2) For the purpose of giving any directions or of varying any directions
under sub-section (1) of this section, a court may issue a summons to a
person to whom the said subsection relates and who is within the jurisdiction
of such court requiring his attendance before such court at such
time and place as may be specified, and the provisions of sections 143,
144, 145, 146 and 147 of this Act shall apply mutatis mutandis to such
person as they apply to a witness.
(3) The Minister may make rules for carrying out the provisions of this
section.
343. If any person subject to police supervision who is at large in
Tanzania refuses or neglects to comply with any requirement prescribed
by the last preceding section or by any rule made thereunder, such person
shall, unless he proves to the satisfaction of the court before which he is
tried that he did his best to act in conformity with the law, be guilty of
an offence and liable to imprisonment for a term not exceeding six months
and on the second or any subsequent conviction for such offence to
imprisonment for a term not exceeding twelve months.
Failure to
comply
with
requirements
under
section 341
(c) Defects in Orders of Warrant
344. The court may at any time amend any defect in substance or in
form in any order or warrant, and no omission or error as to time and
Errors and
ommissions
in
orders and
warrant place, and no defect inform in any order or warrant given under this Act,
shall be held to render void or unlawful any act done or intended to be done
by virtue of such order or warrant, provided that it is therein mentioned,
or may be inferred therefrom, that it is founded on a conviction
or judgment and there is a valid conviction or judgment to sustain the
same.
D.-Miscellaneous Powers of the Court to Order Compensations, Gifts,
Forfeiture, etc. Persons
(a) Costs and Compensations
345.-(1) It shall be lawful for a judge of the High Court or any
magistrate to order any person convicted before him of an offence to
pay to the public or private prosecutor, as the case may be, such reasonable
Gifts
against
accused
No. 9 Criminal Procedure 1985 119
costs as to such judge or magistrate may seem fit, in addition to any
other penalty imposed; save that such costs shall not exceed four thousand
shillings in the case of the High Court or two thousand shillings in the
case of a subordinate court.
(2) It shall be lawful for a judge of the High Court or any magistrate
who acquits or discharges a person accused of an offence, if the prosecution
for such offence was originally instituted on a summons or warrant
issued by a court on the application of a private prosecutor, to order
such private prosecutor to pay to the accused such reasonable, costs as to
such judge or magistrate may seem fit; save that such costs shall not
exceed two thousand shillings in the case of an acquittal of discharge by
the High Court or one thousand shillings in the case or an acquittal or
discharge by a subordinate Court; save further that no such order shall be
made if the judge or magistrate shall consider that the private prosecutor
had reasonable grounds for making his complaint.
(3) The costs awarded under this section may be awarded m addition
to any compensation awarded under section 347.
(4) In this section-
"public prosecutor'' means any person prosecuting for or on behalf of the
United Republic or for on behalf of a public authority;
''private prosecutor'' means any prosecutor other than a public prosecutor;
346. An appeal shall lie against any order awarding costs under the last
preceding section, if made by a magistrate to the High Court and if by
a judge to the Court of Appeal. The Appeal court shall have power to
give such costs of the appeal as it shall deem reasonable.
347. If on the acquittal of an accused person any court shall be of
opinion that the charge was frivolous or vexations, such court may order
the complainant to pay to the accused person a reasonable sum as compensantion
for the trouble and expense to which such person may have
been put by reason of such charge in addition to his costs.
348.-(1) When an accused person is convicted by any court of any
offence not punishable with death and it appears from the evidence that
some other person, whether or not he is the prosecutor or a witness in
the case, has suffered material loss or personal injury in consequence of
the offence committed and that substantial compensation is, in the opinion
of the court, recoverable by that person by civil suit, such court may, in
its discretion and in addition to any other lawful punishment order the
convicted person to pay to that other person such compensation, in kind
or in money, as the court deems fair and reasonable.
(2) When any person is convicted of any offence under Chapters
XXVI to XXXI both inclusive of the Penal Code, the power conferred
by section (1) shall be deemed to include a power'' to award compensation
to any bona fide purchaser of any property in relation to which
the offence was committed for the loss of such property if the same is
restored to the possession of the person entitled thereto.
Order to
pay
Compesation
in
case of
frivolous
or vexation
charge
Power to
order
accused
to pay
compesation
Acts, 1979
No. 2
Sch.
Cap. 16
120 No. 9 Criminal Procedure 1985
(3) Any order for compensation under this section shall be subject to
appeal if an order for the payment of a fine of a similar amount would
have been subject to appeal and no payment of compensation shall be
made before the period allowed for presenting the appeal has elapsed or,
if an appeal be presented, before the decision on the appeal.
349. The sums allowed for costs or compensation shall in all cases be
specified in the conviction or order, and the same shall be recoverable
in like manner as any penalty may be recoverable under
Costs and
compensation
to be
specified in
order, how
recoverable
this Act; and in default of payment of such costs or compensation and
in default of distress as hereinafter provided the person in default shall
be liable to imprisonment for a term not exceeding six months unless such
costs or compensation shall be sooner paid.
350.-(1) Wherever any court imposes a fine, or confirms on appeal;
revision or otherwise a sentence of fine, or a sentence of which a fine,
Power of
costs to
award
expenses or
compesation
on out of fine
or forms part, the court may, when
any part of the fine recovered to be passing judgment, order the whole or
(a) in defraying expenses Properly incurred in the Prosecution;
(b) in the payment to any person of compensation for any loss or
injury caused by the offence when substantial compensation is
in the opinion of the court recoverable by civil suit.
(2) If the fine is imposed in a case which is subject to appeal no such
payment shall be made before the period allowed for presenting the
appeal has elapsed, or, if an appeal be presented, before the decision
of the appeal.
(3) At the time of awarding any compensation in any subsequent civil
suit relating to the same matter, the court hearing the civil suit shall take
into account any compensation paid or recovered under section 348.
(h) Forfeiture
Power to 351.-(1) Where a person is convicted of an offence and the court which passes sentence is satisfied that any property which was in his
possession or under his control at the time of his apprehension- order
forfeiture
(a) has been used for the purpose of committing or facilitating the
commission of any offence; or
(b) was intended by him to be used for that purposes,
that property shall be liable to forfeiture and confiscation and any
property so forfeited under this section shall be disposed of as the court
may direct.
(2) Where the court orders the forfeiture or confiscation of any property
as provided in sub-section (1) of this section but does not make an order
for its destruction or for its delivery to any person, the court may direct
that the property shall be kept or sold and that the some, or, if sold,
the proceeds thereof shall be held as it directs until same person establishes
to the court's satisfaction a right thereto. If no person established such
a right within six months from the date of forfeiture or confiscation,
such property or the proceeds thereof shall be paid into and form part of
the Consolidated Fund.
No. 9 Criminal Procedure 1985 121
(3) The power conferred by this section upon the court shall include
the power to make an order for the forfeiture or confiscation or for the
destruction or for the delivery to any person of such property, but shall
be exercised subject to any special provisions regarding forfeiture.
confiscation, destruction, detention or delivery contained in the written
law wider which the conviction was had or in any other written law
applicable to the case.
(4) When an order is made under this section in a case in which an
appeal lies, such order shall not, except when the property is livestock
or is subject to speedy and natural decay, be carried out until the period
allowed for presenting such appeal has passed or when such appeal is
entered until the disposal of such appeal.
(5) In this section any reference to-
(a) ''property'' includes, in the case of property regarding which an
offence appears to have been committed, not only such property
as has been originally in the possession or under the control of any
party, but any property into or for which it is exchanged and anything
acquired by such conversion or exchange, whether immediately
or otherwise;
(b) facilitating the commission of an offence shall include a reference to
the taking of ally steps after it has been committed for the purpose
of disposing of any property to which it relates or of avoiding
apprehension or detection.
352. Where a court has made an order for the forfeiture or confiscation
of an article the court or any justice may, if satisfied on information on
oath-
(a) that there is reasonable cause to believe that the article is to be
found in any place or premises; and
(b) that admission to the place or premises has been refused or that a
refusal of such admission is apprehended,
issue a warrant of search which may be executed according to law.
(c) Disposal of Exhibits
353.-(1) Where anything which has been tendered or put in evidence
in any criminal proceedings before any court has not been claimed by any
person who appears to the court to be entitled thereto within a period
of twelve months after the final disposal of such proceeding or if any appeal
entered in respect thereof, such thing may be sold, destroyed or otherwise
disposed of in such manner as the Court may by order direct and the
proceeds of such sale shall be paid into the general revenues of the Republic.
(2) If anything which has been tendered or put in evidence in any
criminal proceeding before any court is subject to speedy and natural
decay the court may, at any stage of the proceedings or any time after the
final disposal of such proceedings, order that it be sold or otherwise disposed
of but shall hold the proceeds of any such sale and, if unclaimed
Such
warrant for
forfeited
or confiscated
articles
Disposal
of exhibits
122 No. 9 Criminal Procedure 1985
at the expiration of a period of twelve months after the final disposal of
such proceedings, or any appeal entered in respect thereof shall pay such
proceeds into the general revenues of the Republic.
(3) Notwithstanding the provisions of subsection (1), the court may
if it is satisfied that it would be just and equitable so to do, order that
anything tendered, or put in evidence in criminal proceedings before it
should be returned at any stage of the proceedings or at any time after the
final disposal of such proceeding to the person who appears to be entitled
thereto, subject to such conditions as the court may see fit to impose,
(4) Any order of a court made under the provisions of sub-section (1) or
(2) shall be final and shall operate as a bar to any claim by or of any interest
in such thing by virtue of any title arising prior to the date of such order.
(5) When an order is made under this section in a case which an appeal
been lodged has been lodged such order shall not (except when the property
is livestock or is subject to speedy and natural (decay) be carried out until
the period allowed for lodging an appeal has elapsed, or when an appeal
is lodged, until such appeal has been disposed of
(6) In this section the term ''property'' includes in the case of property
regarding which an offence appears to have been committed not only
such property as has been originally in the possession or under the control
of any party but also any property into or for which the same may have
been converted or exchanged and anything acquired by such conversion
or exchange whether immediate or otherwise.
Disposed 354. (1) On a conviction in respect of any obscene or defamatory
of obscene or
defamatory
publication
hoxious or
adulterated
find, etc
publication, the court may order destruction of all the copies of the thing
in respect of which the conviction was had and which are in the custody of
the court or remain in the possession or power of the person convicted.
(2) The Court may in like manner on a conviction in respect of any
noxious or adulteration food, drink, drug or medical preparation order
the thing in respect of which the conviction was had to be destroyed.
355.-(1) Where any person is convicted of any offence attended by
criminal force and it appears to the court that by such force any person
has been dispossessed of any immovable property, the court may if it
Person
dispossessed
of
pmraoyperty thinks fit order such person to be restored to the possession of the same.
(2) No such order shall prejudice any right or interest in such
movable property which any person may be able to establish in a civil suit.
have it
356. No public officer having any duty connected with the sale of any
property under this Act shall, directly or indirectly, purchase or bid for
that property.
Public
officer
connected
with the
sale of
property
not to
purchase or
bid
for the property E. Restitution of Property
357. Where, upon the apprehension of a person charged with an offence,
any property is taken from him, the court before which he is charged
may order-
Property
found on
accused
person
No. 9 Criminal procedure 1985 123
(a) that the property or Part thereof be restored to the person who
appears to the court to be entitled thereto, and, if he be the person
charged, that it be restored either to him or to such other person as
he may direct: or
(b) that the property or a part thereof be applied to the payment
of any fine or any costs or compensation directed to be paid by the
person charged.
358.-(l) If any person guilty of an offence mentioned in chapters
XXVI to XXXI, both inclusive, of the Penal Code, in stealing, taking,
obtaining, extorting, converting or disposing of, or in knowingly receiving
any property, is prosecuted to conviction by or on behalf of the owner of
such property, the property shall be restored to the owner or his
representative.
(2) In every case referred to in this section the court before which
such offender is convicted shall have power to award from time to time
writs of restitution for the said property to order the restitution thereof
in a summary manner, save that-
(a) where goods as defined in the Sale of Goods Ordinance have been
obtained by fraud or other wrongful means not amounting to
stealing, the property in such goods shall not revest in the person
who was the owner of the goods or his personal representative by
reason only of the conviction of the offender: and
(b) nothing in this section shall apply to the case of any valuable
security which has been in good faith paid or discharged by some
person liable to the payment thereof, or being a negotiable instrument
has been in good faith taken or received by transfer or
delivery by some person for a just and valuable consideration
without any notice or without reasonable cause to suspect that the
same has been stolen.
(3) On the restitution of any stolen property if it appears to the court
by the evidence that the offender has sold the stolen property to any
person, and that such person has had no knowledge that the same was
stolen, and that money has been found in possession of and taken from
the offender on his apprehension the court may, on the application of
such purchaser, order that out of such money a sum not exceeding the
amount of the proceeds of such sale be delivered to the said purchaser.
(4) The operation of any order under this section shall unless the court
before which the conviction takes place direct to the contrary in any case
in which the title to the property is not in dispute be suspended-
(a) in any case until the time for appeal has elapsed; and
(b) in any case where an appeal is lodged, until the determination of
the appeal, and in cases where the operation of any such order is
suspended until the determination of the appeal the order shall not
take effect as to property in question if the conviction is quashed
on appeal. The High Court may made provision by rules for
securing the safe custody of any property, pending the suspension
of the operation of any such order.
Property
stolen
Cap. 214
124 No. 9 Criminal Procedure 1985
(5) Any person aggrieved by an order made under this section may
appeal to the High Court and upon the hearing of such appeal, the court
may, by order annul or vary any order made on a trial for the restitution
of any property to any person, although the conviction is not quashed;
and the order, if annulled, shall not take effect, and, if varied, shall take
effect as so varied.
PART X
APPEALS
(a) Appeals Generally
359.-(1) Save as hereinafter provided, any person aggrieved by any
finding, sentence or order made or passed by a subordinate court other
than a subordinate court exercising its extended powers by virtue of an
order made under section 173 of this Act may appeal to the High Court
and such subordinate court shall at the time when such finding, sentence
or order is made or passed, inform such person of the period of time
within which, if he wishes to appeal, he is required to give notice of his
intention to appeal and to lodge his petition of appeal.
Appeal to
the High
Court
(2) Any appeal to the High Court may be on a matter of fact as well
as on a matter of law.
369.-(1) No appeal shall be allowed in the case of any accused person
who has pleaded guilty and has been convicted on such plea by a subordinate
court except as to the extent or legality of the sentence.
No appeal
on a plea
of guilty
(2) Except with the leave of the High Court, no appeal shall be allowed
in cases in which a subordinate court has passed a sentence of a fine not
exceeding one thousand shillings only, or of a corporal punishment only
imposed on a person under sixteen years of age, or from a sentence of
imprisonment in default of the payment of a fine if no substantive sentence
of imprisonment has been passed.
(3) No sentence which would not otherwise be liable to appeal shall
be appealable on the ground that the person convicted is ordered to find
security to keep the peace.
361. No appeal from any such findings, sentence or order as aforesaid
shall be entertained unless the appellant- Limitation
(a) shall have given notice of his intention to appeal within ten days
from the date of the findings, sentence or order, or in the case
of a sentence of corporal punishment only, within three days of
the date of such sentence; and
(b) shall have lodged his petition of appeal within forty-five days from
the date of the finding, sentence or order:
Provided that in computing the said period of forty-five days the time
required for obtaining a copy of the judgment or order appealed against
shall be excluded;
No. 9 Criminal Procedure 190 125
And provided further that the High Court may, for good cause, admit
an appeal notwithstanding that the period of limitation prescribed in this
section has elapsed.
362.-(1) Every appeal shall be made in the form of a petition in
writing presented by the appellant or his advocate, and every such
petition shall, (unless the High Court otherwise directs) be accompanied
by a copy of the judgment or order appealed against.
(2) The petition shall contain particulars of the matters of law or of
fact in regard to which the subordinate court appealed from is alleged to
have erred.
363. If the appellant is in prison, lie may present his petition of appeal
and the copies accompanying the same to the officer in charge of the
prison, who shall thereupon forward such petition and copies to the
Registrar of the High Court.
364.-(1) On receiving the petition and copy required by section 62,
the High Court shall peruse the same and-
(a) If the appeal is against sentence and is brought on the grounds
that the sentence is excessive and it appears to the court that there
is no material in the circumstances of the case which could lead it to
consider that the sentence ought to be reduced; or
(b) If the appeal is against conviction and the court considers that the
evidence before the lower court leaves no reasonable doubt as to
the accused's guilt and that the appeal is frivolous or is without
substance; or
(c) If the appeal is against conviction and the sentence and the court
considers that the evidence before the lower court leaves no reasonable
doubt as to the accused's guilt and that the appeal is frivolous
or is without substance and that there is no material in the judgement
for which the sentence ought to be reduced, the court may
forthwith summarily reject the appeal by an order certifying that
upon perusing the record, the court is satisfied that the appeal has
been lodged without any sufficient ground of complaint.
(2) Notice of any order made under the provisions of this section shall
be forthwith given to the Director of Public Prosecutions.
365. If the High Court does not dismiss the appeal summarily, it shall
cause notice to be given to the appellant or his advocate, and to the
Director of Public Prosecutions, of the time and place at which such
appeal will be heard and shall furnish the Director of Public Prosecutions
with a copy of the proceedings and of the grounds of appeal; save that
such notice need not be given to the appellant or his advocate if it has
been stated in the petition of appeal that the appellant does not wish
to be present and does not intend to engage an advocate to represent
him at the hearing of the appeal.
Petition of
appeal
Appellant
in prison
Summary
rejection of
appeal
Notice of
time, place
and
hearing
126 No. 9 Criminal Procedure 1985
366.-(1) At the hearing of the Appeal, the appellant or his advocate
may address the court in support of the particulars set out in the petition of
appeal and the public prosecutor, if he appears, may then address the
court. The Court may invite the appellant or his advocate to reply
upon any matters of law of fact raised by the public prosecution in his
address. The court may then, if it considers there is, not sufficient ground
for interfering, dismiss the appeal or may-
Powers of
the High
Court
(a) in an appeal from a conviction-
(i) reverse the finding and sentence, and acquit the accused or
discharge him under section 38 of the Penal Code or order
him to be re-tried by a court of competent jurisdiction or direct
the subordinate court to hold a committal proceedings; or
(ii) alter the finding, maintaining the sentence, or with or without
altering the finding, reduce or increase the sentence; or
(iii) with or without such reduction or increase and with or without
altering the finding, alter the nature of the sentence;
(b) in an appeal against sentence, increase or reduce the sentence
or alter the nature of the sentence;
(c) in an appeal from any other order, alter or reverse such order,
and in any such case may make any amendment or any consequential
or incidental order that may appear just and proper.
(2) (a) An appellant whether in custody or not shall be entitled to be
present at the hearing of an appeal.
(b) The right of an appellant who is in custody to be present at the
hearing of the appeal shall be subject to his paying all expenses incidental
to his transfer to and from the place where the court sits for the determination
of the appeal; save that the court may direct that the appellant be
brought before the court in any case in which, in the opinion of the court,
his presence is desirable for the due determination of the appeal, in
which case such expenses shall be defrayed by the Government.
(3) Nothing in this section shall be construed as precluding the Court
from inflicting a greater Punishment than the punishment which might
have been inflicted by the court which have been inflicted by the court
which imposed the sentence.
Order of 367.-(1) When a case is decided on appeal by the High Court, it shall
certify its judgment or order to the Court by which the conviction, sentence
or order appealed against was recorded or passed.
the High
Court to
be
certified
(2) The court to which the High Court certifies its judgment or order
shall thereupon make such orders as are conformable to the judgment or
order of the High Court, and, if necessary the records shall be amended
accordingly.
to lower
court
368.-(1) After the entering of an appeal by a person entitled to appeal,
the High Court or the subordinate Court which convicted or sentenced
such person may, for reasonable cause to be recorded by it in writing-
Suspension
of
sentences
and
admission
to bail
pending
appeal
No. 9 Criminal Procedure 1985 127
(a) in the case of a person sentenced to a term of imprisonment, order-
(i) that such person be released on bail with or without sureties
pending the hearing of his appeal; or
(ii) that the execution of the sentence appealed against be
suspended pending the hearing of his appeal in which case such
person shall be treated as a remand prisoner pending the hearing
of his appeal; and
(b) in any other case order that the execution of the sentence or
order appealed against shall be suspended pending the hearing
of his appeal.
(2) If the appeal is ultimately dismissed and the original sentence
(being a sentence of imprisonment) is confirmed or some other sentence of
imprisonment substituted there for, the time during which the appellant
has been released on bail, or during which the sentence has been suspended
shall be excluded in computing the term of imprisonment to which he is
finally sentenced.
369.-(1) In dealing with an appeal from a subordinate court the High
Court if it thinks additional evidence is necessary shall record its reasons,
and may either take such evidence itself or direct it to be taken by a subordinate
court.
(2) When the additional evidence is taken by a subordinate court, such
court shall certify such evidence to the High Court which shall thereupon
proceed to dispose of the appeal.
(3) Unless the High Court otherwise directs, the accused or his advocate
shall be present when the additional evidence is taken.
(4) Evidence taken in pursuance of this section shall be taken as if it
were evidence taken at a trial before a subordinate court.
370. Appeals from subordinate courts shall be heard by one judge of the
High Court except when in any particular case the Chief Justice shall
direct that the appeal be heard by two or more judges of the High Court.
Such direction shall be given before the hearing of the appeal or at any
time before judgment is delivered.
If on the hearing of an appeal the court is equally divided in opinion
the appeal shall be dismissed.
371. Every appeal from a subordinate court (except an appeal from a
sentence of fine) shall finally abate on the death of the appellant.
(b) Revision
372. The High Court may call for and examine the record of any
criminal proceedings before any subordinate court for the purpose of
satisfying itself as to the correctness, legality or propriety of any finding,
sentence or order recorded or passed, and as to the regularity of any
proceedings of any such subordinate court.
Further
evidence
Number
of judges
on appeal
Abatement
of appeal
Power of
the High
Court to
call for
records
128 No. 9 Criminal Procedure 1985
373.-(1) In the case of any proceeding in a subordinate court the
record of which has been called for or which has been reported for orders,
or which otherwise comes to its knowledge, the High Court may-
Power of
the High
Court on
revision
(a) in the case of conviction, exercise any of the powers conferred on it
as a court of appeal by sections 366, 368 and 369 and may enhance
the sentence;
(b) in the case of any other order other than an order of acquittal,
alter or reverse such order, save that for the purposes of this paragraph
a special finding under sub-section (1) of section 219 of this
Act shall be deemed not to be an order of acquittal.
(2) No order under this section shall be made to the prejudice of an
accused person unless he has had an opportunity of being heard either
personally or by an advocate in his own defence; save that an order
reversing an order of a magistrate made under section 129 shall be deemed
not to have been made to the prejudice of an accused person within the
meaning of this sub-section.
(3) Where the sentence dealt with under this section has been passed
by a subordinate court, the High Court shall not inflict a greater punishment
for the offence, which in the opinion of the High Court the accused
has committed, than might have been inflicted by the court which imposed
the sentence.
(4) Nothing in this section shall be deemed to preclude the High
court converting a finding of acquittal into one of conviction where it
deems necessary so to in the interests of justice.
374. No party has any right to be heard either personally or by advocate
before the High Court when exercising its power of revision; save that
such court may, if it thinks fit, when exercising such powers, hear any
party either personally or by advocate, and that nothing in this section
shall, be deemed to affect subsection (2) of the last preceding section.
Discretion
of Court
as to
hearing
parties
375. All proceedings of the High Court in the exercise of its revisional
jurisdiction may be heard and any judgment or order thereon may be made
or passed by one judge:
Number
of
Judges in
revision
Provided that when the court is composed of more than one judge and
is equally divided in opinion, the sentence or order of the subordinate
court shall be upheld.
376. When a case is revised by a High Court it shall certify its decisionor
order to the court by which the sentence or order so revised was record
ed or passed, and the court to which the decision or order is so satisfied
shall thereupon make such orders as are conformable to the decision
certified, and, if necessary, the record shall be amended in accordance
therewith.
(c) Appeals by Director of Public Prosecutions
377. In the following section of this Part unless the context otherwise Interpreta- tion requires- ''Director of Public Prosecutions shall include any officer subordinate
to him acting in accordance with his general or special instructions;
High Court
order to be
certified
to lower
court
No. 9 Criminal Procedure 1985 129
''respondent'' means the person who was the accused in the proceedings
to which the appeal under section 390 relates and who may be affected
by any order of the High Court on such appeal.
378.-(1) Where the Director of Public Prosecutions is dissatisfied
with any acquittal, finding, sentence or order made or passed by a subordi
natc court other than a subordinate court exercising its extended powers
by virtus of an order made under section 173 of this Act he may appeal
to the High Court.
(2) An appeal to the High Court under this section may be on a matter
of fact as well as on a matter of law.
379. No appeal under section 370 shall be entertained unless the
Director of Public Prosecutions-
(a) shall have give notice of his intention to appeal to the subordinate
court within thirty days of the acquittal, finding, sentence or order
against which he wishes appeal; and
(b) shall have lodged his petition of appeal within forty-five days from
the date of such acquittal, finding, sentence or order; save that-
(i) in computing the said period of forty-five days the time
requisite for obtaining a copy of the judgment or order
appealed against shall be excluded; and
(ii) the High Court may for good cause admit an appeal
notwithstanding that the periods of limitation prescribed in
this section have elapsed.
380.-(l) Every appeal under section 370 shall be made in the form of
a petition in writing presented by the Director of Public Prosecutions and
shall, unless the High Court otherwise directs, be accompanied by a
copy of the judgment or order appealed against.
(2) The petition shall contain particulars of the matters of law or fact
in regard to which the subordinate court appealed from is alleged to have
erred.
381. Where a petition of appeal is lodged with the High Court in
accordance with the provisions of section 380 the High Court shall cause
notice to be given to the respondent or to his advocate, and every Such
notice shall state the time and place at which such appeal will be heard
and shall be accompanied by a copy of the petition of appeal and a copy
of the Judgment or order appealed against.
382.-(1) At the hearing of an appeal under section 378 the Director of
sPeut boluict iPnr othsee cpuettiiotniosn m oafy a apdpderaels asn tdh et hceo urerts pino nsudpepnot rotr o hfi tsh aed pvaorctiactuel amrsay
then address the court. The court may invite the Director of Public
Prosecutions to reply upon any matter of law or fact raised by the
respondent or his advocate. The court may then, if it considers there is
riot sufficient ground for interfering, dismiss the appeal or may-
(a) in an appeal from acquittal-
Appeal by
Director
of
Public
Prosecutor
Limitation
Petition of
appeal
Notice of
time less
and
hearing
Director
of
Public
Prosecutions
may
address
the court
130 No. 9 Criminal Procedure 1985
(i) reverse the finding, convict the respondent of the offence
with which he could have been convicted by the subordinate
court, and either proceed to sentence him or remit the case
to the subordinate court for passing the sentence; or
(ii) order the respondent to be tried by a court of competent juridiction
or
(iii) direct the subordinate court to hold committal proceedings;
(b) in an appeal against sentence, increase or reduce the sentence or
alter the nature of the sentence;
(c) in an appeal from any other order, alter or reverse such order and
in any such case may make any amendment or any consequential
or incidental order that may appear just and proper.
383.-(1) Where, on the day fixed for the hearing of an appeal under
section 378 or any other date to which the hearing may be adjourned, the
Director of Public Prosecutions does not appear when the appeal is called
on for hearing, the High Court may make an order that the appeal be
dismissed.
Non
attendance
of parties
(2) Where the Director of Public Prosecutions appears and the respondent
or his advocate does not appear and the High Court is satisfied
that the respondent or his advocate was duly served with notice of appeal,
proceed to hear the appeal expert or may adjourn
date and give notice thereof to the respondent or
the High Court may
the hearing to another
his advocate.
(3) When an appeal is dismissed under subsection (1) the Director of
Public Prosecutions may apply to the court for the re-admission of the
appeal, and where he satisfies the court that he was prevented by any
sufficient cause from appearing when the appeal was called on for hearing
the High Court may re-admit the appeal.
(4) Where at the hearing of an appeal the respondent does not appear
personally the High Court may make an order requiring the personal
attendance of the respondent and, if the respondent fails to comply with
such order, may issue a warrant for the arrest and production of the respondent
before the High Court on a date and time specified in the warrant.
384.-(1) In dealing with an appeal under section 378 the High Court,
if it thinks additional evidence is necessary, shall record its reasons and
may either take such evidence itself or direct it to be taken by a subordinate
court.
Further
evidences
(2) When the additional evidence is taken by a subordinate court Buck
court shall certify such evidence to the High Court which shall thereupon
proceed to dispose of the appeal.
(3) No additional evidence shall be taken under this subsection save
in the presence of the respondent or his advocate and such evidence shall
be taken as if it were evidence taken at a trial before a subordinate court.
No. 9 Criminal Procedure 1985 131
385. The provisions of section 382 shall apply to appeals under section
32.
386. Every appeal under section 378 shall abate on the death of the
respondent.
PART XII
SUPPLEMENTARY PROVISIONS
(a) Irregular Proceedings
asi3d8e7 m. Neroelfyi nodnin ggr, osuenntde nthcaet oirn qourdirey.r ,o tfr iaanl yo rc roimthienra pl rcoocueret dsihnagll, bine tsheet
course of which it was arrived at or passed, took place in a wrong region.
district or other local area, unless it appears that such error has in fact
occasioned a failure of justice.
388.-(1) Subject to the provisions herein before contained no findings
sentence or order made or passed by a court of competent jurisdiction
shall be reversed or altered on appeal or revision on account of any
error omission or irregularity in the complaint, summons, warrant,
charge, proclamation, order, judgment or in any inquiry or other proceedings
under this Act; save that where on appeal or revision, the court is
sfaaitliusfriee do ft hjuast tsicuec,h t heerr coor,u ortm misasyio onr doer ri rar eregturliaarl iotyr hmaask ien sfuaccht oocthcaesr ioorndeedr
as it may consider just and equitable.
sh3al8l9 a. pNeor sdoinst mreassk imnga dthe eu snadmere t bheis dAeecmt sehda lal tbree sdpeaesmseerd o unn alacwcofuunl,t noofr
any defect or want of form in the summons, conviction, warrant of
distress or other proceeding relating thereto.
(b) Directions in the Nature of' Habeas Corpus and writs
390.-(1) The High Court may whenever it thinks fit direct-
Power to
issue
direction
of the
nature of
habeas
corpus
(a) that any person within the limits of Tanzania Mainland be brought
up before the court to be dealt with according to law;
(b) that any person illegally or improperly detained in public or private
custody within such limits, be set at liberty;
(c) that any prisoner detained m any prison situate within such limits
be brought before the court to be there examined as a witness m
any matter pending or to be inquired into in such court;
(d) that any prisoner detained as aforesaid be brought before a courtmartial
or any commissioners acting under the authority of any
commission from the President for trial or be examined touching
any matter pending before such court-martial or commissioner
respectively;
Number of
judges on
appeal
Abatement
appeal
Proceeding
in wrong
place
Finding or
sentence
when
reversible
by reason
of error or
omission
in charge
or other
proceeding
Power to
illegal nor
distrainer a
trespasser
for affect
or want of
form in
proceedings
132 No. 9 Criminal Procedure 1985
(c) that any prisoner within such limits be removed from one custody
to another for the purpose of trial; and
(f) that the body of a defendant within such limits be brought in on a
return of cepi corpus to a writ of a attachment.
391.-(1) The High Court may i n the exercise of its criminal jurisdiction
issue any writ which may be issued by such court.
Power of
the High
Court
(2) The High Court may from time to time make rules to regulate the
procedure in cases under this section.
(e) Miscellaneous
392. Affidavits and affirmation to be used before the High Court may be
sworn and affirmed before a judge of the High Court or any magistrate or
the registrar or deputy registrar of the High Court or any justice of the
peace or commissioner for oath s .
Persons
before
whom
affida its
may be
sworn
393. If any person affected by any judgment or order passed in any
proceedings under this Act desires to have a copy of the judgment or Copies of
proceedings
order or any deposition or other part of the record he shall on applying
for such copy be furnished therewith provided, as respects any deposition
or part of the record other than the judgment or order, he pays for the
same unless the court for some special reason thinks fit to furnish it free
of cost.
Forms 394. Such forms as the High Court may from time to time approve,
with such variation as the circumstances of each case may require, may be
used for the respective purposes therein mentioned as and if used shall be
sufficient.
395. Subject to any rules which may be made by the Minister, any
court may order payment on the part of Government of the reasonable
expenses of any assessor, complainant or witness attending before such
court for the purposes of an inquiry, trial or other proceedings under this
Expenses
of
assessor
intresses
Act.
Repeals 396.-(1) The Criminal Procedure Code is hereby repealed.
(2) Notwithstanding the repeal of the Criminal Procedure Code any
rule, order, declaration and appointment made, sanction and direction
given, forms approved, power conferred and notification and proclamation
published under the said Criminal Procedure Code shall, so far as they are
consistent with the provisions of this Act, be deemed to have been
respectively made, given, approved, conferred and published under this
Act.
Amend- 397. The Police Force Ordinance is hereby amended
ment of
Police (a) by repealing section 32 and replacing it by the following new
Office section:
Ordinance. "32.-(1) Where a police officer suspects that a person
may have committed a serious offence, or believes that informa-
Cap. 332
tion has been received by the police that may implicate a
person in the commission of a serious offence, but that
suspicion or belief is not such as could, under section 13
No. 9 Criminal Procedure 1985 133
of the Criminal Procedure Act justify) he arrest of the person
without a warrant the police officer shall not ask him questions,
of the Criminal Procedure Act, justify the arrest of the person
without a warrant he may arrest that person but, the police
officer shall not ask him questions, unless he has first informed
him that he may refuse to answer any questions put to him
by the police officer.
(2) A police officer who informs a person as provided under
subsection (1) shall ask him to sign or thumb print an
acknowledgement, in accordance with a prescribed form,
of the fact that he has been so informed and of the date on.
which, and the time at which, he is so informed.
(3) Where it is necessary for the court in any proceedings,
to determine whether a police officer has informed a person
as required by section (1), and an acknowledgement referred
to subsection (2) and signed by the person is not produced
in evidence, the court shall assume, unless the contrary is
proved, that the person was not so informed.
(4) Notwithstanding the preceding provisions of this section,
where a police officer in the course of interrogating any person
under this section, believes that there is sufficient evidence
to warrant that person being charged with an offence, he shall
proceed to charge him accordingly and to caution him, in
writing an if practicable orally in the prescribed manner,
and to inform him that an inference adverse to him may
be drawn form his failure or refusal to answer any question
mora fttreorm w hhiisc hf amilauyre b oe rm reafteursiaall ttoo tdhiesc clhoasreg aet. ''t;hat stage any
(b) bsye cadtidoinn-g immediately after section 32 the following
32A.-(1) A police officer who interviews a
person for the purpose of ascertaining whether
the person has committed an offence shall, unless
it is in all circumstances impracticable to do so,
cause the interview or be recorded.
(2) Where a person who is being interviewed by
a police officer for the (purpose of ascertaining
whether he as committed an offence makes,
during the interview, either orally or in writing, a
confession relating to an offence, the police officer
shall make, or cause to be made, while the interview
is being held or as soon as practicableafter
the interview is completed, a record in writing,
setting out-
(a) so far as it is practicable to do so, the
questions asked of the person during the
interview and the answers given by the
person to those questions;
(b) particulars of any statements made by the
person orally during the interview otherwise
than in answer to a question;
134 No. 9 Criminal Procedure 1985
(c) whether the person wrote out any statement during the
interview and, if so, the times when he commenced to
write out the statement;
(d) whether a caution was given to the person before be
made the confession and, if so, the terms in which the
caution was given, the time when it was given and
any response made by the person to the caution;
(e) the times when the interview was commenced and
completed;
(f) if the interview was interrupted, the time when it was
interrupted and recommended.
(3) A police officer who makes a record of an interview
with a person in accordance with subsection (2) shall write,
or cause to be written, at the end of the record a form of
certificate in accordance with a prescribed form and shall
then, unless the person is unable to read
(a) show the record to the person and ask him
(i) to read the record and make any alteration or
correction to it he wishes to make and add to it
any further statement that he wishes to make;
(ii) to sign the certificate set out at the end of the
record, and
(iii) if the record extends over more than one page,
to initial each page that is not signed by him; and
(b) if the person refuses, fails or appears to fail to comply
with that request, certify on the record under his hand
what he has done and in respect of what matters the
person refused, failed or appeared to fail to comply
with the request.
(4) Where the person who is interviewed by a police
officer is unable to read the record or the interview or refuses
to read, or appears to the police officer not to read the record
when it is shown to him in accordance with subsection (3)
the police officer shall
(a) read the record to him, or cause the record to be read
to him;
(b) ask him whether he would like to correct or add
anything to the record;
(c) permit him to correct, alter or add to the record,
or make any corrections, alterations or additions to
the record that he requests the police officer to make;
(d) ask him to sign the certificate at the end of the record;
and
(e) certify under this hand, at the end of the record;
what he has done in pursuance of this subsection.'',
(f) in section 34 by repealing that section and by replacing for it with
the following new section
No. 9 Criminal Procedure 1985 135
34.-(1) If a police officer in charge of a police
station is satisfied that there is reasonable grounds
for suspecting that there is in any buildings,
vessels, carriage box, receptacle or place,
(i) anything with respect to which any offence
has been committed;
(ii) anything in respect of which there are
reasonable grounds to believe that it will
afford evidence as to the 'commission of
any offence;
(iii) anything in respect of which there are
reasonable grounds to believe that it is
intended to be used for the purposes of
committing any offence;
and any officer is satisfied that any delay would
result in the removal or distraction of that thing,
or would endanger life or property, he may search
or issue a written a authority to any police officer
under him to search the building, vessel,
carriage box receptacle, or place as the case
may be.
(2) When any authority referred to in subsection
(1) is issued, the police officer concerned
shall, as soon as practicable report the issue of
authority, the grounds on which it was issued,
and the result of any search made under it to
a magistrate.
(3) Where anything is seized in pursuance
of powers conferred by subsection (1) the officer
seizing the thing shall issue a receipt acknowledging
the seizure of that thing bearing the
signature of the owner of the premises, and
those of witnesses of the search of any.
(4) No prosecution resulting from the
excise of powers under this section shall be
commenced without the leave of the Director
of Public Prosecutions`
(d) section 35 by repealing that section and replacing for it the following
new section:
''35.-(1) Any police officer in charge of a police station
or any police officer investigating an offence may take or
cause to be taken measurements of, prints of the hand,
fingers, feet or toes of, or recordings of the voice or, photographs
of, or samples of the handwriting of any person who is
charged with an offence, whether such person is in lawful
custody of the police or otherwise where such measurements,
prints, recordings, photographs or samples, as the case may
be, are reasonably believed to be necessary for the identification
of the person with respect to, or for affording evidence
as to the commission of an offence which he is in custody or
charged.
136 No. 9 Criminal Procedure 1985
(2) Any police officer in charge of a police station or any
police officer investigating an offence may take or cause to
be taken measurements, prints of the hands, fingers, feet or
toes, recordings of the voice, photographs, or samples of the
handwriting, of any person who is not charged with any crime
where such measurements, prints, recordings, photographs
or samples, as the case may be are reasonably believed to be
necessary for facilitating the investigation of any crime.
(3) No person who is in lawful custody or who is charged
but not in lawful custody; shall be entitled to refuse or object
to having his measurements, prints, recordings, photographs
or samples taken, and where he so refuses or objects,
the police officer concerned may take such reasonable steps,
including the use of reasonable force, as may be necessary
to secure that the measurements, prints, recordings, photographs
or samples as the case may be, are taken.
(4) Any person who refuses to have his measurements,
prints, recordings photographs or samples taken as required
under sub-section (1) and (2) is guilty of an offence and shall
be liable on conviction to a fine not exceeding ten thousand
shillings or to imprisonment for a term not exceeding twentyfour
months or to both such fine and imprisonment.
(5) Subject to the provisions of subsection (10), a person
having the custody of measurements, prints, recordings,
photographs or samples and each person having the custody
of copies of measurements, prints, recordings, photographs
or samples shall destroy them
(a) in the case of a person show is in lawful custody upon
a charge of committing an offence
(i) if the prosecution of that person is not proceeded
with; or
(ii) where the prosecution is proceeded with, but
he is acquired;
(b) in the case of a person referred to in subsection (2),
if those measurements, prints, recordings, photograph
or samples, as the case may be are no longer required
for the purpose of facilitating the investigation.
(6) There shall be established at a place to be approved.
by the Minister responsible for criminal investigations, an
office to be known as the Criminal Records Office for the
preservation, comparison, and indexing of fingerprint of forms,
(7) The Criminal Records Office shall, subject to the general
supervision of the Inspector-General of Police, be under the
control of a senior police officer, expert in comparison of
fingerprints who shall be appointed from time to time by the
Attorney-General by notice published in the Gazette.
(8) Completed finger-prints forms shall be sent to and
preserved at the Criminal Records Office.
(9) All finger print forms shall be of the prescribed pattern.
No. 9 Criminal Procedure 1985 137
(10) Notwithstanding the provisions of sub-section (5)
it shall be lawful to retain all records obtained pursuant to
sub-sections (1) and (2) of this section in respect of any person
with regard to whom a removal order under the Township
(Removal of Undesirable Persons) (Ordinance or an expulsion
order under the Expulsion of Undesirable Persons Ordinance)
has been made and has been canceled or rescinded." ;
(e) by adding immediately after section 35 the following new sections
35A.-(1) A magistrate may on the application of a police
officer allow a Medical Officer to examine the person of a
person in lawful custody in respect of an offence or may allow
a medical officer to take and anally and analyses any specimen
from such a person if he has reasonable grounds for believing
that the examination or analysis would provide evidence
relating to the offence.
(2) After the Medical Officer has made the examination
and analysis as provided wider sub-section (1) the shall submit
a written report of the same to the court.
(3) In any proceedings, a court may order that any person
who is a party to or a witness in the proceedings submits
himself for medical examination and that person shall so
submit himself.
(4) The Medical Officer shall, after examining a person
in respect of whom the court lids ordered that he submits
himself for medical examination in accordance with the
provisions of sub-section (3) transmit to the court ordering
the examination a written report pertaining to the examination;
35B.-(1) Any police officer in-charge of a police station
or any police officer investigating an offence may hold
an identification parade for the purpose of ascertaining
whether a witness can identify a person suspected of the
commission of an offence.
(2) Any police officer in-charge of a police station or any
police officer investigating an offence may require any person
whose participation is necessary for the investigation of an
offence to attend and participate in an identification parade.
(3) No person who is required under sub-section (2) to
attend and participate in an identification parade shall be
entitled to refuse or object to attend and participate in an
identification parade.
(4) Any person who, without just cause, or who unreasonably
refuses to attend and participate in an identification
parade is guilty of an offence and shall be liable on conviction
to a fine not exceeding two thousand shillings or to
imprisonment for a term not exceeding six months or to both
such fine and, imprisonment.''.
398. Section 3 of the Probation of Offenders Ordinance, is amended-
(a) by deleting the full stop which appears at the end of that section
and replacing it with a colon;
(b) by adding immediately below that section the following proviso:-
Probation
of
offenders
ordinance
amended
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