Muniko v. R. Crim. App. 869-M-70; 7/12/71; Jonathan, Ag. J.

Muniko v. R. Crim. App. 869-M-70; 7/12/71; Jonathan, Ag. J.

The appellant and his younger brother were jointly charged with and convicted of shop-breaking and stealing c/ss 297 and 265 of the Penal Code. He was sentenced to consecutive terms of imprisonment of three years and one year respectively and ordered to receive 32 strokes of corporal punishment. In addition the trial magistrate ordered that they should contribute towards compensation of Shs. 3,335/- to the complainant despite the fact that the value of the property stolen was Shs. 2,414/= and that one of the items stolen a radio worth Shs. 700/= had been recovered. Three issues called for determination; First, whether the changes were properly brought under section 297 of the penal Code; Secondly, whether the order that sentences should run consecutively was proper and lastly, whether the compensation order was proper.

            Held: (1) “It is patently clear …… that the charges were wrongly brought under the afore-mentioned sections of the Penal Code. The facts were squarely within the scope of section 296 of the Penal Code, which provides for the charging of one offence only in respect of facts as those found by the court. Section 297 applies to a situation where there has been a breaking into one of the specified structures with intent to commit a felony but the intended felony has not, in fact, been committed. That being so, there would be no question of charging under a second count. Where, on the other hand, the intended felony has been committed, as was the case here, then section 296 would apply. This section comprises both the breaking – in with intent and the actual commission of the felony intended. In the particular facts of this case, therefore, the appellant should more properly have been charged under the section. I would not, however, consider that the convictions under the two counts should for this reason be set aside, and they are to stand.” (2)”Te learned district magistrate purported to sentence them under the Minimum Sentences Act. Clearly that was wrong as neither section 297 nor 265 as such, comes under the purview of the Act. In the case of the appellant, the magistrate ordered he should be given 32 strokes. He ordered so in these words: - ‘The sentences to run consecutively and the accused shall receive 32 strokes of corporal punishment (Sec 12 C.P.C. as amended by Act 10/69). It is incomprehensible that the

 

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Section cited should be construed as empowering a court to make an order in excess of 24 strokes for a conviction under the Minimum Sentences Act. I am inclined to think that the learned magistrate was referring to the consecutiveness of the sentences passed on the appellant.” (3) “I think that the sentences should run consecutively was also improper in the circumstances of the case, notwithstanding the provisions of section 12 of the Criminal Procedure Code. Save in exceptional cases, where two or more offences are committed in the same transaction, as in this case, it is improper to order that the sentences should be served one after another.” (4) “A compensation order was made in these terms: - “Order - Both accused men will contribute towards compensation of Shs. 3,335/- to complainant – recoverable as though it were a civil suit.” This order is imprecise while the amount is excessive. No doubt it was made under the Minimum Sentences Act which, as already indicated, was not applicable having regard to the failure to charge the appellant under section 296. The value of the things stolen was shown in the charge as Shs. 2,414/= and the court was incompetent to order for compensation in excess of that sum, itself excessive, as, included in the sum was a sum of Shs. 700/= being the value of one of the items stolen, namely the radio, which the court ordered should be handed back to the complainant. A proper order to make in the circumstances would have been under section 176 of the Criminal Procedure Code, thereby requiring both accused, jointly and severally, to compensate the complainant with a sum of Shs. 1,714/= and I so compensate the complainant with a sum of Shs. 1,714/= and I so order in substitution of the trial court’s order in this respect.” (5)Appeal against sentence dismissed compensation order varied and order for corporal punishment set aside.