Petro Kimoani v. R., (PC) Crim. App. 221-M-70; 14/5/70; Mnzavas Ag. J.

Petro Kimoani v. R., (PC) Crim. App. 221-M-70; 14/5/70; Mnzavas Ag. J.

The appellant pleaded guilty unequivocally to cattle theft c/ss 265 and 268, Penal Code, and was convicted. However there was an irregularity in that in the primary court case file the charge is shown as killing animal with intent to steal c/s 279 of the Penal Code. The appellant is however recorded as saying: “I admit having stolen a she goat, the property of the complainant, and that I have slaughtered and eaten it”. After this the appellant admitted the facts which stated how complainant’s she – goat got stolen and how meat and the goat’s skin were found in his house.

            Held: “From these facts it is evident that the primary court Magistrate all through the proceedings believed that the appellant was being charged with the offence of cattle theft an offence to which the accused unequivocally pleaded guilty, although for reasons, not at all clear to this court, the primary court case-file shows a charge under section 279 of the Penal Code. This irregularly does not in my view occasion any injustice to the accused. It is certainly a curable irregularity under section 346 of the Cr. Procedure Code as well as under section 32(2) of Cap. 537. The correctness of the finding by the primary court magistrate cannot be impeached.” Appeal dismissed.