Masiaga v. R. Crim. App. Crim. App. 883-M-70; Kisanga Ag. J.

 Masiaga v. R. Crim. App. Crim. App. 883-M-70; Kisanga Ag. J.

The appellant was convicted of robberty c/s 286 of the Penal Code instead of section 285 which creates the offence. There was ample evidence that the appellant used violence in stealing a khanga worth about Shs.12/+ from the complainant. Appellant was first offender and value of the property less than Shs. 100/- and the question was whether this constituted special circumstances under Section 5(2) (c) of the Minimum Sentences Act.

Held: (1) “In the case of R. v. Shabani Mwalyambwile [1969] H. C. D. 256 this Court took the views that there could hardly be special circumstances were the offence charged is robbery with violence. There is nothing to suggest why that principle should not apply to the present case where the circumstances could be considered to be aggravated in threat the robbery with violence was committed on a lady, a weaker sex. I therefore of the view that although the value of the property stolen was not substantial, this may not, considering the character of the offence, constitute special circumstances for the purpose of exerciser of clemency.” (2) “The charge was brought under section 286. This was improper because that section merely provided punishment for robbery. The charge ought to have been laid under section 285 which creates the offence of robbery. I am satisfied, however, that this defect was not fatal because the particulars clearly set out the offence of robbery and the appellant can have been under no misapprehension about it. In the circumstances, the appellant was not prejudiced and consequently there was no failure of justice.”