Held the trial court should have heard medical

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Held : The trial court should have heard medical evidence as to the age of accused, made a finding of fact on that issue, and then passed sentence accor- dingly. The case was remanded to Theo trial court for the hearing of medical evi- dence and proper sentencing. 210. R.v. Athumani s/o Selemani , Crim. Rev. 64-D-67; -/-/67; Saidi, J. Accused were convicted of assaulting a police officer, resisting lawful arrest and obstructing a police officer. The first accused was fined Shs. 800/- or 12 months imprisonment in default on one count, and Shs. 100/- or 3 months on the second and third counts. The second and third accused were each sentenced to 2 months’ imprisonment on counts 1 and 2, the sentences to run concurrently. At the time of the High Court judgment, the latter accused had served their sen- tences. Nothing on the record indicated that the first accused was able to pay the fine imposed. Held; (1) The fines imposed on the first accused were set aside as exces- sive, there being “nothing on the record indicating that the accused was able to pay so large a fine.” Fines “should bear reasonable relation to the accused ’s power to pay…..” Citing Mohamed Juma v. Rex, 1T.L.R.257; Nyakulina d/o Cha- cha v. Rex, 1 T.L.R. 341. (2) Under section 29 of the Penal Code, the maximum term of imprisonment in default of payment of any fine is six months. (3) As the
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accused were all first offenders, the magistrate “should have imposed exactly the same sentence on all of them.’ (1967) H.C.D. - 57 – The sentence of the first accused was reduced to result in immediate release. 211. R. v. Doti Bakari , Crim. Rev. 58-D-67, 25/5/67, Duff, J. Accused was convicted of recklessly and negligently setting fire to complainant’s crops, for which a three month sentence was imposed. In addition, accused was ordered to pay Shs. 3200/- to complainant by way of compensation for the dam- age he had caused. Held (1) Section 176 (1) of the Criminal Procedure Code limits the amount of compensation that may be awarded in cases not arising under the Minimum Sentences Act to Shs. 2000/- (2) It is open to complainant to institute civil pro- ceedings if he deems Shs. 2,000/- to be insufficient to cover his losses. 212. Mbaruku Ndima v. R., Crim. App. 78-D-67; 24/6/67; Hamlyn, J. Accused were convicted of assault occasioning actual bodily harm. (P.C. s. 241) Each was sentenced to a fine of Shs. 500/-, or six months’ imprisonment in liou thereof, and to pay compensation of Shs. 40/- to each injured person. In impos- ing this heavy sentence, the magistrate stated that crimes of this nature were very common in the area. Held: This was a proper factor to consider in assessing sentence. The Court stated, obiter; “(N)ormally if the prosecutor alleges such a state of affairs it is as well that he makes the allegation in court before the accused and the letter be given an opportunity to contradict or comment upon it.” The appeals were dismissed.
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  • Fall '17
  • Dean Majamba

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