Held 1 clearly the accused participated in the

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Held: (1) Clearly, the accused participated in the assault. Conviction en- tered accordingly. (2) However, although the accused “shared a common inten- tion to prosecute an unlawful purpose, namely, the beating of so-called thieves,” it is not clear that they themselves committed any robbery directly, nor is it clear that “all of the accused shared the intention to steal.” Absent such proof, the con- viction for robbery must fail. 53. Edward Rwehabula v. John Rwehabula, (PC) Civ. App. 186-D-66, 28/12/67, Saudi J. Appellant’s appeal to a district court was dismissed because he did not appear in court either in person or by agent on the appointed day. Appellant had submitted a statement of his arguments to the district court. Subsequently he also pre- sented a medical certificate to the court showing that he was ill on the date set for his hearing. Held: (1) Rule 13(1) of the Rules of Court (G.N. No. 312 of 1964) entitles a party to have his appeal heard without his presence if he submits a written statement of the arguments supporting his appeal. (2) Additionally, the district
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court should have heard the appeal because appellant had a reasonable expla- nation for his failure to appear on the appointed day. Case remanded to the dis- trict court for hearing on the merits. 54. Lameck Bundala v. R., Crim. App. 707-M-67, 15/11/67, Cross J. Accused was convicted of stealing by servant. The particulars of the offence stated that “The person charged …. Did steal cash Shs. 2,882/- the property of his employer ……” The only evidence of theft was that 8.5 cartons of tea were missing. Held : In the absence of an amendment of the charge, the prosecution is bound by the particulars, and these particulars were not proved. Conviction quashed because of this matter and the general insufficiency of the evidence (1967)H.C.D. - 21 - 55. Edward Opiyo s/o Auguro v. R., Crim. App. 893-M-67, 5/11/67, Mustafa J. Accused was convicted on two counts of obtaining money by false pretences. The first count alleged that he had taken money “with intent to defraud” on a promise to “forbear the arresting” of a certain person and to “stand and refuse removal” of that person for “detention as a cattle thief following the President’s order of January, 1967.” The second count alleged a promise to “forbear the support of returning” another person “who had been sent in detention following the President’s order of January 1967.” The evidence on the first count revealed a promise to be a witness for the named person against those who were charg- ing him with cattle theft. Held : (1) As to the second count, the generality of the particulars and the absence of the words “with intent to defraud” are fatal to the conviction, since the accused may not have understood the charge against him. “The false pretence must be set out in the charge with sufficient certainty.” (2) The difference be- tween the false pretence alleged in the first count and that revealed by the evi- dence is fatal to the conviction on that count. Convictions quashed.
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56. Nyaku s/o Ntandu v. R., Crim. App. 805-D-67, 6/12/67, Biron J.
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  • Fall '17
  • Dean Majamba

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