Mbushi s/o Maganga v. R. Crim. App. 25-M-68, 22/5/68, Seaton J.

Mbushi s/o Maganga v. R. Crim. App. 25-M-68, 22/5/68, Seaton J.

Accused was charged with cattle theft, but was ultimately convicted, without the original charge ever having been amended, of criminal trespass (P.C. s. 299) (1)(a)).

            Held: The learned magistrate convicted accused of an offence with which he was not charged on the basis of section 181 (2) of the Criminal Procedure Code. “(F) or section 181 to be effective in this respect, the minor offence must be cognate to the offence of which the (accused) was charged.” [Citing Alli Mohamed Hassani v. R., (1963) E.A. 294]. “The (accused) could not be deemed to have been given notice, upon a charge of theft, of all the circumstances which would constitute the minor offence of criminal trespass.” Conviction quashed.