Omari Manamba v. R. Crim. App. No. 3-M-71; 16/9/71; El-Kindy; J.

Omari Manamba v. R. Crim. App. No. 3-M-71; 16/9/71; El-Kindy; J.

Appellant was convicted of stealing by a person employed in the public service c/s 270 and 265 of the Penal Code. He was sentenced to 2 years’ imprisonment. As he was over 45 years he did not qualify for the statutory corporal punishment, but he was ordered to pay Shs. 122/= as compensation to the E. A. P. & T. Corporation. The appellant was employed as a linesman by the Corporation at Tabora. In 1962, on his transfer to Kahama, he was issued with 5 empty mail bags for use in the course of his employment. But when he returned to Tabora he failed to return the bags. He retained them for his own use. A police constable searched the appellant’s house and found that the 5 empty mail bags had been sewn into a mattress. Appellant pleaded guilty to the charge. The main grounds of appeal were as to the amount of the compensation and as to sentence.

            Held: (1) “It seems to me that, for purpose of the Minimum Sentences act, 1963, Cap. 526, there must be strict proof of age and value of property an in the absence of such proof the benefit should be given to the appellant (see Abdallah Ali v. R. 1969 H. C. D. No. 298 and Haslett v. R. [1967] E. A. 802). In this case the learned magistrate erred in holding that the valued of the stolen bags were above Shs. 100/=. He had no evidence for this finding. In so doing, he fettered his discretion to act under S. 5 (2) of the Minimum Sentences Act, 1963, Cap. 526”. (2) ‘The appellant had worked for his employer for 30 years with a clean record, and he had a clean record for all that time. He was 48 years old. He had seven children who were attending school. He had a “very old” mother who depended on him. He also asked for mercy ………. The appellant had shown special circumstances: [Citing Juma s/o Saidi v. R. (1967) H. C. D. No. 359; R. v. Angasile s/o Mwaikuga (1968) H. C. D. 325 Paulo s/o Vincent v. R. (1968) H. C. D. 476 Shabani Mbunda (1969) H. C. D. 75; Hassan s/o Shemlungu (1969) H. C. D. 45] “and, therefore the learned magistrate could have exercised his unfettered discretion under section 5(2) of the Minimum Sentences Act, 1963, Cap. 526. (3) “This Act came into force on 17^th of June, 1963. And the alleged offence was committed in 1962 – the exact date was not given. This clearly shows that the offence was committed before the Act (Cap. 526) came into force. The issue, therefore, was whether this Act applied retrospectively to offences committed before the coming into force of this Ac. It is a well established rule of statutory interpretation that a statute would not be made to act retrospectively unless specifically or by necessary inference it is found that it applies retrospectively where it affected existing right or obligation unless it affected matter of procedure only.” His lordship then continues: “Section 4(1) – (1) Any person who, after the date of coming into operation of this Act, is convicted of a scheduled offence whether committed before or after such date of coming into operation shall be sentenced to imprisonment………” the underlined words leave me in no reasonable doubt that this Act was intended to act retrospectively by necessary implication form the wording of the statue itself. Therefore, the trial court was right in convicting him and passing a sentence under Act.” (4) The appellant qualified for treatment under Section 5(2) of the Minimum Sentence Act and taking into account the period he had been in prison serving sentence he should be released. Order for compensation set aside.