Stephen s/o Simbila v. R. Crim. App. 174-M-71; 12/11/71; El-Kindy J.

Stephen s/o Simbila v. R. Crim. App. 174-M-71; 12/11/71; El-Kindy J.

The appellant was charged with and convicted of stealing by a person employed in the public service c/ss. 270 and 265 of the Penal Code, Cap. 16. He did not enter a plea in court to the charge but was sentenced to imprisonment and ordered to suffer corporal punishment. He appealed against conviction and sentence.

Held: (1) “Like many other cases, this case too was tried without plea being taken. It sis well established law to date that if no plea is taken before the trial commences, such trial would be null and void. The import of he full bench decision of this Court in the case of Akberali Walimohamed Damji v. Reginum 2 T. L. R. p. 137 is that before trial commences, the presiding magistrate must take the plea of he accused even if his plea had been taken on the previous days by the same or different magistrates. This may sound too technical and unrealistic where an accused’s plea was taken before the date of his trial, but that is the law as it is now.” (2) “It may well be that this is one of the rules which ought to be considered again by the full bench of the High Court having regard to the recent amendment of the rules of interpretation of the Penal Code, Cap. 16 and the Criminal Procedure Code, Cap. 20 as per the administration of Justice (Miscellaneous amendments) Act, 1971, Act No. 26 of 1971 as enacted on the 29^th of October, 1971. Be that as it may, the trial was null and void.” (3) Conviction quashed, sentence set aside and retrial ordered.