R. v. Nicholous Mkosa & Juma Elias Crim. Rev. 82-D-71; -/9/71; Saidi C. J.

R. v. Nicholous Mkosa & Juma Elias Crim. Rev. 82-D-71; -/9/71; Saidi C. J.

The accused were jointly charged with burglary c/s 294 of the Penal Code on the first count. The first accused was also charged with rape and the second accused with attempted rape. They were found guilty on all counts and both accused were put on 6 months probation on the first count. The first accused was awarded 10 strokes of corporal punishment on the count of rape and the second accused was awarded a stroke of corporal punishment on the count of attempted rape.

            Held: (1) “The order for probation is unsound for two reasons: in the first place a probation order cannot be for a period of less than 12 months (section 4(1) of Cap. 247);

In the second place a probation order could not be made upon a conviction for burglary even if the accused properly satisfied the conditions in section 5 (2) of the Minimum Sentences Act.” (2) “The sentences of strokes in counts 2 and 3 for rape and attempted rape are also not proper sentences in view of the seriousness of the offences themselves.” (3) Sentence of 2 years imprisonment and 24 strokes substituted on the first count and 2 years imprisonment on the 2^nd and 3^rd counts.