R. v. Kahema s/o Mkwe, (PC) Crim. Rev. 2-A-68, 23/9/68, Platt J.

R. v. Kahema s/o Mkwe, (PC) Crim. Rev. 2-A-68, 23/9/68, Platt J.

Accused were convicted in Primary Court of simple theft c/s 265, Penal Code and sentenced to 1 year and 12 strokes. On appeal the District Court, without making any record of having heard accused, not noting only that the “memorandum of appeal” had been “read incorporated”, substituted a conviction for robbery c/s 186, Penal Code, and imposed a sentence of 2 months and 12 strokes, purportedly under the Minimum Sentences Act, accused, having by that time received their corporal punishment, were soon released. The Supervisory Magistrate noting the errors in both proceedings below, sent the records of the cases to the High Court for revision, under s. 26(2)(a), Magistrates Courts Act.

            Held: (1) The Primary Court’s order for corporal punishment was ultra vires, since simple theft is not among the offences scheduled in the Minimum Sentences Act. (2) The District Court erred in substituting a conviction “for a more serious offence” without giving the accused an opportunity of being heard on appeal in person. (3) The Primary Court conviction for simple theft is upheld. To compensate the accused for the illegal corporal  punishment, and as they have suffered some imprisonment and have now been at large for some time, the sentences are reduced “to such term of imprisonment which would accord with the periods of imprisonment they have served together with normal remission.” The Court stated, obiter; had the robbery conviction been proper, the Magistrate would have been bound to apply the Minimum Sentences Act, ordering two years’ imprisonment and twenty-four strokes..