Philipo Mtoakodi v. R., Crim. App. 684-M-68, 28/11/68 Seaton J.

 Philipo Mtoakodi v. R., Crim. App. 684-M-68, 28/11/68 Seaton J.

The accused was convicted in Primary Court of cattle theft and was sentenced to 3 years imprisonment and 24 strokes and to a fine of Shs. 500/- and in addition was ordered to pay compensation of Shs. 300/-. During the trial the Primary Court refused to permit the accused to call one of his wives as a witness, apparently on the theory that he had to call all of his wives or none of them. Exercising its revisional jurisdiction without notice to the accused the district court found that there were no special circumstances justifying a fine in addition to the prison sentence and set aside the fine. The accused then appealed the conviction to the District Court but his appeal was denied on the ground that an order in revision had already been made. Accused then appealed to the High Court against the conviction and the District Court dismissal of the appeal.

Held (1) The revisional order quashing the fine was properly made under s. 17, Magistrates’ Courts Act, Cap. 537.

            (2) Although the District Court could not on appeal review the previous order of revision made by a magistrate of that court, it could consider the portions of the memorandum of appeal which concerned matters which had not been the subject of its previous consideration such as the appeal against the conviction [Citing Suleman Ahmed v. Rex, (1922) 9 E.A.P.L.R. 19; Gordhan Gopal v. Chagan Raja (1935) 17 K.L.R. 65].

            (3) “(T)here is a question of some substance as to whether [accused] suffered an injustice by being deprived of the right to call his wife …….. as a defence witness”. Appeal allowed in part and case remitted to district court to hear and determine the appeal against conviction in the manner prescribed in ss. 16 – 17, Magistrates’ Courts Act.