R. v. Samson Crim. Rev. –D-71; 2/6/71; Mwakasendo Ag. J.

R. v. Samson Crim. Rev. –D-71; 2/6/71; Mwakasendo Ag. J.

The accused, a housewife with no other source of income other than what her husband might choose to give her, was charged and convicted of using abusive language c/s 89(1) (a) of the Penal Code, Cap. 16 and was sentenced to a fine of Shs. 1000/- and Shs. 500/- compensation. The learned Resident Magistrate in assessing sentence did not take into account the accused’s ability to pay.

Held: (1) “While it must be conceded that the accused housewife used a most revolting and mean language towards her neighbour, it cannot be seriously asserted that he learned Resident Magistrate adopted the correct judicial approach in assessing sentence. This court has repeatedly stressed that the proper approach to be adopted by a court in assessing an appropriate and adequate sentence of payment of fine is first and foremost for the court to investigate the accused’s means or ability to pay the fine. The reasons for doing this can perhaps be gleaned from the following passage quoted from a paper delivered at the judges and Magistrates conference 1965, by the learned Chief Justice, Saudi, C. J.: “I have already touched upon the desirability or imposing such fines as are within the offenders’ financial ability to pay ……. It would be injudicious and highly unfair for a court to impose such a fine that will prove impossible for the offender to pay, having regard to his income and financial commitments. Such a fine will take away the right already given to the offenders by the law, for good reason, to escape the stigma of having been in prison since he will automatically have to go to jail as an alternative for his inability to pay the fine.” (2) Fine reduced to Shs. 100/- and compensation to Shs. 150/-.