JANDO v. R (1967) HCD 7

Jando v. R (1967) HCD 7

"Though the 10-years sentence might be fully deserved, the appellate jurisdiction of the High Court in sentencing matters was limited by the sentencing power of the subordinate court, so that it too, could impose a sentence of no longer than 6 years."

MICHAEL Y. NUNGZAMA v. R (1967) HCD 25

Michael Y. Nungzama v. R (1967) HCD 25

“Every sentence shall be deemed to commence from and to include the whole of the day on which it was pronounced except where otherwise provided

DAMIAN GERVAS v. R (1970) HCD 217

Damiani Grevas v. R (1970) HCD 217

Penology

 “I also find that the substantial justice of the case in this particular case is that the appellant did possess the moshi as charged and that to acquit the appellant on the ground that the glass of moshi was improperly admitted in evidence would be acting contrary to the provisions of section 32(2) of the Magistrates Court Act. This section if very important in our present system of our courts. It takes into account that justice has to be administered justly to all citizens and that the majority of the magistrates are laymen. The section has been created in order to balance the situation. It is also serving another important purpose and that is it fosters good understanding between the citizens and the court because it enable them to understand the law under which they are administered. It is important for the masses to have some understanding of the functioning of the forces of law and order. They must feel that they are there for their benefit and not mere abstract conceptions imposed on hem. An acquittal, for example, in such a clear case of guilt as the one under consideration because of undue regard to technicalities would have resulted in a very bad understating of the courts by those members of the public conversant of the facts of the case. They would have wondered whether the courts were for them or for invisible human beings”

AUGUSTINO S/O MTEGA v. R. (1969) HCD 208

Held: “The Court should not have imposed two sentences of corporal punishment in respect of the burglary sentences to be carried out “concurrently”. The proper mode of sentencing is to pass the statutory minimum sentence (including the twenty – four strokes of corporal punishment) for the first of the burglary counts and to pass sentence of twenty-four months imprisonment only (or any other period which the Court deems fit, not less that two years), in respect of the second burglary Count. All sentences of imprisonment may then be ordered to run concurrently.” 

WUTHRICH v. R. (1970) HCD 144

WUTHRICH v. R. (1970) HCD 144

• Sentence – Compensation to the injured person a better and more appropriate remedy than imprisonment. 
• Provocation – No defence to charge – Grounds for mitigation in sentencing.

R. v. SAIDI ABDULLA RIYAMI (1969) HCD 107

R. v. SAIDI ABDULLA RIYAMI (1969) HCD 107

Sentence – offences charged in single count are punishable with a single sentence only – Concurrent sentences are proper for offences committed in a single transaction.

R. v. TAHIR ALI (1969) HCD 105

R. v. TAHIR ALI (1969) HCD 105
Sentence– Inconvenience to accused because of multiple trials to be considered in later sentencing. 

HELD: "The prosecution is at liberty to prefer fresh charges based on this alleged offence before a Resident Magistrate. “If this is done and the accused is re-convicted, the period that he has already served in prison and the convenience to him caused by the long trial should be taken into consideration in passing sentence.”

SHABANI MBUNDA v. R. (1969) HCD 75

SHABANI MBUNDA v. R. (1969) HCD 75
Sentencing – Dependency of relatives is “special circumstance" 

R. v. ABEL S/O MTIANA (1969) HCD 64

R. v. ABEL S/O MTIANA (1969) HCD 64

Sentencing-Absolute discharge – Appropriate where accused is convicted of written threats to murder his wife’s seducer.

JOHN S/O MHANZE (1969) HCD

JOHN S/O MHANZE (1969) HCD 62
Penology-Driving motor vehicle without insurance – Owner of vehicle rather than driver should be prosecuted.

R. v. JUMA MUSHO (1969) HCD

R. v. JUMA MUSHO (1969) HCD 61

Sentencing-Carrying excess passengers – Fine more appropriate than imprisonment. 

MOHAMEDI ALLI v. R (1969) HCD

MOHAMEDI ALLI v. R (1969) HCD
Sentence – Severity-sentence must fit crime

Sentence – Racial considerations irrelevant. Confiscation of firearm – Improper and illegal. 

(1) “The sentence is, however, in my opinion manifestly too severe. The appellant is a first offender. The injuries inflicted on the complainant were minor. The complainant is an admitted thief..." ;

(2) "…. One has an uncomfortable feeling that the district Magistrate permitted consideration of race to effect his judgment when he says: - “This Court feels compelled to set an example to impose a sentence which will act as guide to those in the same position as that of the accused in this ancient occupied Arab minor settlement. It is now a free minor settlement”.

HASSANI S/O SHENLUGU (1969) HCD 45

HASSANI S/O SHENLUGU (1969) HCD 45

     Sentencing– Special circumstances – Advanced age of accused and fact that he was merely a passive mediator in a corrupt transaction.

SWALEHE s/o MOHAMEDI (1969) HCD 44

SWALEHE s/o MOHAMEDI (1969) HCD 44

      Minimum Sentences Act – Special circumstances – Accused acted under influence of older man with criminal record.

R. v. KASSIAN PAUL KAUTA (1969) HCD 43

R. v. KASSIAN PAUL KAUTA (1969) HCD 43

      Imprisonment – Manslaughter – Death resulting from injection – Sentence of 6 months. 

R. v. OMARI S/O SAIDI (1969) HCD 42

R. v. OMARI S/O SAIDI (1969) HCD 42

Imprisonment – Inappropriate where offence is trivial and accused is youthful first offender. 

R. v. AMIRI s/o ALI (1969) HCD 41

Defilement – Mitigating factors in sentencing – Youth of the parties – Strong temptation. 

R.v. AMIRI s/o ALI (1969) HCD 41

Crim. Rev. 3-D-69, 10/1/69, Biron J.

The accused was convicted on his two years and to six strokes corporal punishment. The accused, who was sleeping in the same room as the complainant, in the middle of the night went to her bed, and without even awakening her, undressed her and had sexual intercourse with her, not only without her consent but without her knowledge. She however awakened, raised the alarm, and the accused was apprehended on the spot.

Held: “I fully agree with the learned magistrate that the offence is serious, although unfortunately rather prevalent, and must be discouraged and stamped out. Even so, every case must be considered in its own particular context and surrounding circumstances …. There are in this instant case strong mitigating factor ….. First there is the age of the two parties. The magistrate will recall that when the girl was first examined the doctor found her to be under fourteen years he then very properly had her again medically examined and …. The doctor found her to be under twelve years of age. Likewise, in the case of the accused, after a thorough medical examination, he was found to be over seventeen …… Thus the accused is just above the age of a juvenile, whilst the complainant is just below the age of consent. But the strongest mitigating factor is that this case differs from the usual run of such offences, where the offender entices a little girl into the bush, or rapes a little girl whilst her parents are away. In this case the accused had temptation thrust upon him, in that, sleeping together in the same room; he was doubtless affected by the proximity and tempted by the sight and presence of the sleeping girl so near him. In those circumstances… a short sharp lesson to teach the accused self-control would serve a much more useful purpose than sending him to prison for a long spell, where he would be exposed to the dangers of contracts with hardened criminals and probably come out a much worse citizen than when he went in ….. the sentence of imprisonment imposed is accordingly reduced to such term as will result in the immediate discharge of the accused, and the corporal punishment awarded is increased to ten strokes”.

R. v. MWITA S/O MUHONI (1969) HCD

R. v. MWITA S/O MUHONI (1969) HCD

      Sentencing-Principles of punishment – Provocation – Manslaughter – Deceased caught in adultery – Sentence of 12 months.

MACKREYO KINGU S/O NAKALA V. R (1968) HCD 105

MACKREYO KINGU S/O NAKALA V. R (1968) HCD 105

Held: 

“In cases of this nature between husband and wife and where the injuries inflicted are not serious, recourse should be had to the provisions of section 134 of the Criminal Procedure.” Sentence reduced to result in immediate release.

R. v. KITILA S/O TINTINA (1968) HCD 65

R. v. KITILA S/O TINTINA (1968) HCD 65

Sentencing-Principles relating to domestic offences
 

Held

The offence was “a domestic one.” The magistrate failed to consider that, by imposing “such a long term of imprisonment, he was in fact causing the complainant to suffer more.” By depriving her of her breadwinner. Sentence altered to result in immediate release.

R. v. FITINA S/O NCHUMBA (1968) HCD 470

R. v. FITINA S/O NCHUMBA (1968) HCD 470
“It is appreciated that the learned magistrate’s motive was to spare the accused the more severe and degrading punishment of imprisonment. Nevertheless, insofar as corporal punishment is concerned, a person of the age of 16 years or over is an adult, upon whom the award of corporal punishment is prohibited save for one of the offences mentioned in the schedule to the Corporal Punishment Ordinance, Cap. 17”.

R. v. MSINGWA S/O MNYELELE (1968) HCD 471

R. v. MSIGWA S/O MNYELELE (1968) HCD 471

“The accused must have already received the 10 strokes … nevertheless, it is pertinent to point out that corporal punishment should only be awarded for such offences when there exist aggravating circumstances such as the use of exceptional violence or the fact that the victim is a woman or a child.”

R. v. MUSA S/O THOMAS (1968) HCD 479

R. v.  MUSA S/O THOMAS (1968) HCD 479

Held: 

“It has been repeatedly stated in these courts that, normally, sentences of imprisonment should not be imposed in cases where attempted suicide is involved. No reasons were disclosed as to what prompted the accused to act as he did, but it is clear that in cases of this nature an accused person is usually deserving of sympathy and not punishment.” 

Sentences reduced to such term as will result in the immediate release of accused.

R. v. PAUL T. MSILU (1968) HCD 64

R. v. PAUL T. MSILU (1968) HCD 64

Held: 

There is no authority for ordering awards of corporal punishment to run concurrently. The Corporal Punishment Ordinance, Cap. 17, Sec. 10, provides; “When a person is convicted at one trial of two or more distinct offences, any two or more of which are legally punishable with corporal punishment, only one sentence of corporal punishment may be passed in respect of all the offences.” 

Accordingly, the sentences were set aside and a single sentence of 10 strokes was imposed in respect of all the convictions.

FRANCIS CHILEMBA v. R.(1968) HCD 510

FRANCIS CHILEMBA v. R.(1968) HCD 510

Held: 

Appeal allowed. The sentences imposed in this case are ordered to run concurrently with the sentence imposed in the previous case, as from the date the previous sentence itself was imposed. (1) It was to the accused ’s credit that he pleaded guilty to the charges. “It is generally, if not universally, recognized that an accused pleading guilty to an offence with which he is charged, qualifies him for the exercise of mercy from the court. The reason is, I think, obvious, in that one of the main objects of punishment is the reformation of the offender. Contrition is the first step towards reformation, and a confession of a crime, as opposed to brazening it out, is and indication of contrition. Therefore, in such a case, a court can and does impose a milder sentence than it would otherwise have done. “ 

(2) “By section 295 of the Criminal Procedure Code (Amendment) Act, 1963(by the addition of the words “or in the Penal code” at the end thereof):- “….Every sentence shall be deemed to commence from and to included, the whole of the day of the date on which it was pronounced, except where otherwise provided in this Code or in the Penal Code.” It is evident from the respective provisions of the Penal Code [s36] and the Criminal Procedure Code, before that in the latter was amended by the addition of the words “in the Penal Code,” the power of a court to order a sentence of imprisonment to run concurrently with a previous one imposed was limited to ordering it to run concurrently with only the unexpired portion of such previous sentence, as there is no provision in the Criminal Procedure Code which permits a court to order a sentence to run earlier than the day on which it is pronounced. On my construction [of s. 295, Criminal Procedure Code as amended, and s. 36, Penal Code] read together…… a court is empowered to order a sentence to run concurrently with a previous sentence as from the date the previous sentence itself commenced to run.”

KISHORILAL DHANIRAM AGGARWAL v. R (1968) HCD 331

KISHORILAL DHANIRAM AGGARWAL v. R (1968) HCD 331

Held: 

(1)...(N/A)

(2) As accused was represented by counsel both at the trial and on appeal, and as the matter of the error in the charge was not raised at the trial an the appeal is against sentence only, the complaint against the conviction cannot be entertained, but the error may be considered in assessing sentence. 

(3) The trial magistrate acted properly in ordering that the sentences on the counts referring to each single day run concurrently with each other the issuance of several cheques on the same day could be considered to be one transaction because the offences were of the same nature. It was also proper to order that counts referring to each successive day run the offences on separate days constituted separate transaction. 

(4) The total sentence should be reduced, “not necessarily on the grounds of … ill health,” but because the maximum sentence for obtaining credit by false pretences is one year, whereas the maximum sentence for. Obtaining goods by false pretences is three years. This does not constitute interference with the conviction itself. Sentences reduced to a total of three years imprisonment, the maximum that would have been permissible if accused had been convicted under section 305, and if the counts referring to a single day are to run concurrently.

ALI MOHAMED v. R (1968) HCD 63

ALI MOHAMED v. R (1968) HCD 63

Held: 

(1) When a court does not specify whether sentences are to run consecutively or concurrently, they are to run consecutively unless a higher court orders otherwise. Here the High Court ordered the two sentences of imprisonment to run concurrently. 

(2) There is no authority for the Court to order sentences of corporal punishment in two separate cases to be executed concurrently.

R. v. MABULA MASOTA CHARLES (1968) HCD 328

R. v. MABULA MASOTA CHARLES (1968) HCD 328

, Dist. Ct. Crim. Case 58-D-68, 3/4/68, Inspection Note by Saudi J.

Accused, a first offender, was convicted of traveling on a railroad without a valid ticket, which would have cost Shs. 7/10, and was sentenced to 1 month’s imprisonment.

            The Court noted: In this case, a conditional discharge order accompanied by an order to pay the fare to the Railways would have “met the justice of the case.” The Court called attention to High Court Circular No. 2 of 1961, where the Court’s views on this problem are elaborated.

RECENTINATO TOTINATI MANGISTO v. R (1968) HCD 154

RECENTINATO TOTINATI MANGISTO v. R (1968) HCD 154

Held: 

(1) “The fraudulent false accounting was part and parcel of the stealing offence. In such cases, unless there is good reason to the contrary, it is customary to order the various sentences in respect of the several convictions which are all part and parcel of the same transaction to run concurrently.”

 (2) “The offences of false accounting were acts of omission. As opposed to commission, which deserve more lenient treatment. Sentences were ordered to run concurrently.

DANIEL MTUNZE v. R (1968) HCD 321

DANIEL MTUNZE v. R (1968) HCD 321

Held: 
Court may not impose a sentence of corporal punishment upon an accused who claims exemption by reason of age without first obtaining the findings of a medical examination. 

The sentences on the two counts here were incorrectly made to run consecutively. As they arose out of the same transaction, they should be concurrent.

Original conviction quashed and sentence passed thereon set aside; conviction on nine separate counts of each offence originally charged substituted, and concurrent sentences of 6 months’ imprisonment imposed.