Simon v. R. Crim. App. 892-M-71; 10/8/71; Makame, Ag. J.

Simon v. R. Crim. App. 892-M-71; 10/8/71; Makame, Ag. J.

The appellant was convicted of stealing postal matter contrary to section 267 of the Penal Code and sentenced to 12 month’s imprisonment but was not ordered to refund

Shs. 90/=, the value of the things stolen. The charge alleged that the item stolen belonged to the East African Posts and Telecommunications. The magistrate held that it did not belong to the postal administration and then he purported to act under s. 346 of the Criminal Procedure Code in order to cure the particulars of the charge which alleged that the parcel belonged to the East African Post and Telecommunications Administration.

            Held: (1) “This was incorrect, because a trial court has no power to cure anything under Section 346 of the C. P. C. Those powers are vested in an appellate court.” (2) “The Magistrate should have acted under Section 209 (1) of the Criminal Procedure Code which provides inter alia – ‘209 (1) Where, at any stage of a trial, it appears to the court that the charge is defective, either in substance or form, the court may make such order for the alteration of the charge either by way of amendment of the charge or by the substitution or addition of a new charge as the court thinks necessary to meet the circumstances of the case unless, having regard to the merits of the case, the required amendments cannot be made without injustice, and all amendments made under the provisions of this subsection shall be made upon such terms as to the court shall seem just ………….’” (3) ‘However, I am satisfied that the learned Magistrate’s failure to act under Section 209 of the C. P. C. did not occasion a failure of justice. Acting under Section 346 of the C. P. C., I cure the oversight. All along the appellant was ……… aware of what the allegation against him was.” (4) “The sentence of 1 year, if anything, on the lenient side stands.” (5) Appeal dismissed. Compensation order for Shs. 90/= made.

Note: The learned Judge added: “The learned trial Magistrate is advised to record the names of witnesses in full rather than give merely their first names and, in the broad spirit of our day, it is probably preferable to show a witness’s nationality rather than his tribe.