John Mchenya v. R., Crim. App. 680-M-69, 13/10/69, Kimicha J.

John Mchenya v. R., Crim. App. 680-M-69, 13/10/69, Kimicha J.

The appellant was convicted of stealing by servant and in addition to sentences of imprisonment he was sentenced to the statutory 24 strokes of corporal punishment. He objected to the corporal punishment on the ground that he was 47 years old and produced a diary kept by his father. The trial magistrate rejected his submission and acted on the evidence of a medical doctor that the appellant was about 40 years old. The appellant has now appealed against corporal punishment on the ground that he was born in 1921.

            Held: (1) On the basis of the diary, the court found that the appellant was born on 8^th September, 1924 and that he was under 45 years of age on 109^th February 1969 when he was convicted and sentenced. The corporal punishment was therefore properly imposed. (2) “My view of the appeal is that the appellant had no doubt of his date of birth and he deliberately raised the objection with the open that he would qualify for exemption by the time his appeal is finally dealt with by this Court. He has in fact succeeded in his maneuvers because he is now above 45 years old and has escaped the first installment of corporal punishment which he would have received soon after his conviction. Whatever the fats may be, the appellant has now qualified for exemption from corporal punishment and it is ordered that that part of his sentence be set aside.”