R. v. Ombe Crim Rev. 142-D-74; 26/11/71; Biron J.

R. v. Ombe Crim Rev. 142-D-74; 26/11/71; Biron J.

The accuses charged with entering a dwelling house with intent to steal and with stealing the from. It was established that the accused entered a house which was partly open and stole property worth Shs. 337/= the magistrate convicted him of burglary and stealing and sentenced him to ten strokes corporal punishment under the Minimum Sentences Act.

            Held: (1) “The magistrate wrongly convicted the accused of burglary and stealing to the evidence the door of the house had been left half open, there was therefore no breaking. And even if there had been a breaking, the offence would not be burglary, as the incident took place during daytime. However, as indicated the accused was not charged with burglary and the evidence does not establish burglary nor even housebreaking, but entering a dwelling house with intent to steal and with stealing, as he was originally charged, neither of which offence is a scheduled one. The sentence of ten strokes corporal punishment was therefore ultra vires.”