Meraj Mihagacheri v. R., (PC) Crim. App. 793-M-69, 23/1/70, Seaton J.

Meraj Mihagacheri v. R., (PC) Crim. App. 793-M-69, 23/1/70, Seaton J.

The appellant was originally charged in the Primary Court with theft on an ox belonging to one Yusuf Marisho contra ss. 268 and 265 of the Penal Code. Yusuf had placed the ox in the care of one Makongoje. According to the prosecution witnesses, the appellant took the ox alleging that it belonged to him. The appellant called elders to witness he was taking the ox as it was his property; the elders advised him not to take away the ox until an investigation had been made. Notwithstanding this in the presence of both Makongoje and Yusuf the appellant, who had no other weapon except a walking-stick, took the ox away by force. On receiving a report from Makongoje, the headman ordered the appellant’s arrest. On the evidence as a whole, the Primary Court found that the accused took the ox by force; hence the court convicted the appellant not of the offence charged but instead of the offence of robbery under s. 286 of the Penal Code. the District court on appeal quashed the conviction for robbery being of the view that there was no the slightest evidence that the appellant had threatened violence immediately before at or after  he had taken the animal. Instead the District Court substitute a conviction for cattle theft as charged, and imposed the minimum sentence of 3 years and 24 strokes, remarking:

“It is this sentence that should be suffered by the appellant, not withstanding that he is absent and has as such not been given the chance of being heard under the proviso to paragraph (b) of S. 17 of the magistrates’ courts Act, 1963 because this is the minimum sentence.”

            Held: (1) “I am of the view that it was an error for the District Court to enhance sentence without giving the appellant an opportunity of being heard. It is only fair to an appellant to allow him to mention whatever he may be able before an appellate court makes such a decision. It is a misdirection to suppose that minimum sentences are exempt from the mandatory provisions of s. 17 (b) of the Magistrates’ Courts Act, Cap. 537.” (2) “The question arises, however, whether the offence of theft was established. According to the definition in s. 258(1) of the Penal Code, theft is committed by a person who “fraudulently and without claim of right takes anything capable of being stolen.” In the present case all the prosecution witnesses testified that the appellant claimed the ox to be his. The Primary Court should, before calling on the appellant, have dismissed the charge and acquitted him. The fact that in his defence, the appellant denied he took the ox does not materially effect the issue. The trial court believed the prosecution evidence as to the appellant’s taking of the ox and the circumstances in which it was taken, i.e. by force while claiming that it was his. (3) Appeal allowed and conviction quashed.