Daudi v. R. Crim. App. 753-M-70; 10/2/71; El-Kindy Ag. J.

Daudi v. R. Crim. App. 753-M-70; 10/2/71; El-Kindy Ag. J.

The appellant was charged with and convicted on two counts of forgery c/s 337 of the Penal Code and sentenced to 6 months imprisonment on each count. He was also charged with and convicted on two counts of stealing by person employed in the public service c/s 265 and 270 of the Penal Code and sentenced to 2 years imprisonment and 24 strokes of corporal punishment. The appellant was a first offender and the amounts stolen were less that 100/-. The magistrate found there were no special circumstances.

Held: (1) “In mitigation the appellant said: “I have an old mother and I have four sisters and one young brother. He stays in a house which I rent and pay for. I am expecting to do the Longon G. C. E.” It would appear (from Gordon Masita v. R. (1968) H. C. D. No. 107) that having dependants could be special circumstances. I do not however, consider that in every case, the fact that a person has dependants necessarily means that special circumstances exist. If that were the case, then every convicted person would be able to escape the rigours of the Minimum Sentences Act since, within African context, he would not be free of dependants.” (2) “As for sitting for examinations, this, too, does not amount to special in the sense of the act.” (3) “The learned magistrate passed consecutive sentences of corporal punishment. This is contrary to section 10 of Corporal Punishment Ordinance Cap. 17.” (4) Sentences upheld except for the setting aside of one order of corporal punishment.