Juma Mndewa v. R., Crim. App. 291-M-71, 11/3/72, El-Kindly, J.

 

Juma Mndewa v. R., Crim. App. 291-M-71, 11/3/72, El-Kindly, J.

The appellant, presumably on medical grounds, wished to retire from the service of his employers, East African Railways Corporation. He was told he would have to obtain a medical certificate. He persuaded one Dodo, whom he gave 20/=, to pass himself off as the appellant and report for medical examination with a sick sheet in the appellant’s name. Dodo did so representing to the medical officer that he was the Juma Mndewa and was admitted to Hospital with “advanced bronchitis”. The appellant was charged and convicted of attempting to procure a certificate by false pretences c/s 309 of the Penal Code.

            Held; (1) “There was no false representation [by the appellant] at all, whether to the authority – meaning the East African Railways Corporation or to the hospital. The appellant was not the one who faced the doctor. The one who faced the doctor was indeed sick”. (2) “Conspiracy to commit a misdemeanour c/s 385 of the Penal Code and willfully procuring or attempting to procure a certificate by false pretences c/o 309 of the Penal Code are misdemeanours. In the latter offence the maximum term of imprisonment is one year, while in the former offence the maximum term of imprisonment is unspecified. Therefore according to section 35 of the Penal Code the maximum would be a term of imprisonment not exceeding two years or a fine-unspecified-or both ……. It appears that this Court cannot substitute a conviction as it was urged, on the well-established principle that a conviction for a serious offence cannot be substituted for a minor offence”. (3) Appeal allowed and conviction quashed.