R. v. Basamaza, Crim. Rev. 39-M-70; 25-9-70, Mnzavas, Ag. J.

R. v. Basamaza, Crim. Rev. 39-M-70; 25-9-70, Mnzavas, Ag. J.

The accused, who was employed by Comworks Bukoba s a painter stole a tin of paint worth Shs. 23/-. He was charged with and convicted of stealing by a person employed in the Public service c/s. 270 of the penal Code alone. In convicting the accused, the learned Resident Magistrate waived the conviction against the accused, warned and discharged him.  

            Held: (1) with due respect to the learned resident magistrate I fail to see which provision of the law Entitles him to register a conviction and at the same time waive it. Once a conviction always a conviction; unless and until it is reversed, quashed or varied in any other way by a higher tribunal. The waiving of the sentence is illegal ….. The accused was found guilty of stealing c/ss. 265 and 270 of the Penal Code. The learned magistrate should have known that this is an offence under the Minimum Sentences Act, Cap [. 526 of the Laws. This being the position the magistrate’s only discretion as far as sentence is concerned is limited by section 5(2) of the Act. “The accused should have been charged with stealing by public servant c/s. 265 and 270 instead of under section 270 of the Penal Code only. I, however, see that this irregularity has no tin any way prejudiced the accused and is therefore curable under section 346 of the Criminal Procedure Code.” (3) “In this case the value of the property stolen is worth Shs. 23/- only and the accused is a first offender. There may also have been special circumstances crying for leniency. The magistrate could therefore, (instead of sentencing him to the minimum 2 years imprisonment and 24 strokes corporal punishment) have sentenced him to either 10 strokes corporal punishment or such term of imprisonment as would have appeared to him to meet the requirements of the case. “Warning and discharging” an accused after a conviction is a sentence unknown to laws of this country.” (4) Accused sentence to 3 months imprisonment.