Saidi and Kidagee v. R. (PC) Crim. Apps. 391 and 654-M-70; 9/4/71; Mnzavas Ag. J.

Saidi and Kidagee v. R. (PC) Crim. Apps. 391 and 654-M-70; 9/4/71; Mnzavas Ag. J.

The appellants Yusufu Saudi and Mziwand Kidagaa were jointly convicted of store breaking and stealing c/s 296(1) and 265 of the Penal Code and sentenced to two years and 24 strokes each. The only evidence against Mziwanda Kidagaa was that of Yusufu Saudi, a co-accused who said that Kidagaa was the person who was with him when they were ambushed.

Held: (1) “That in accepting the testimony of Yusufu that Mziwanda was the person who ran away on the material night the primary court magistrate erred against RULE 13 OF THE MAGISTRATES COURTS (RULES OF EVIDENCE IN PRIMARY COURTS ) REGULATIONS, 1964 Vide G. N. 22/1964. Rule 13(1) (2) is to the effect that “no evidence may be given in a case against a person accused of an offence (a) if a confession is to a police officer”. In this case when Yusufu said that Mziwanda was with him when they were aroused, he was in fact confessing to have stolen the tin of ghee. He confessed to Simo Nsase (P. W. 4) a primary court messenger. As the messenger was in this case exercising the duties of a police officer, the confession made to him by Yusufu was inadmissible evidence ……….Mziwanda’s conviction was based on inadmissible evidence” (2) Conviction of Mziwanda Kidagaa quashed. (3) There was ample evidence against Yusufu Saudi and therefore his appeal is dismissed.