Malaba and Othus v. R. Crim. App. 640 et al-M-1970; Undated – Jonathan, Ag. J.

Malaba and Othus v. R. Crim. App. 640 et al-M-1970; Undated – Jonathan, Ag. J.

The appellant were convicted on several counts of, inter alia, stealing by servant c/s 271 and 265 of the Penal Code. After conviction the prosecution produced a certificate of Registration of the Sima Growes Co-operative Society, the appellants’ employers, under the Co-operative Society, Ordinance. Further, an order was made in these terms; “All accused persons to compensate the Sima Growers Co-operative Society for the amount of Shs. 28,755/10”

            Held: (1) “[The production of the certificate after conviction] was patently irregular. Such evidence should have been led by the prosecution there by giving the appellants an opportunity to cross-examine on it. Without further ado the magistrate proceeded to sentence under the [Minimum Sentences] Act …… In a situation like this it would have been preferable, I think, if the magistrate had gone somewhat out of his way to find the Notice number under which the Society was registered in the Official Gazette. He could then have taken judicial notice of such gazettement and made a specific finding that it was a registered society.” (2) “I understand from [the compensation order] it was intended that the accused should pay this sum jointly and severally. It was not a fair order to make in respect of the 3^rd and 4^th accuseds who were convicted only on some of the stealing counts. In their case a proper order to make would have been that they should pay compensation jointly and severally with the accused only to the extent of their respective responsibilities.” (3) Appeals in part allowed.