By the time the case came before the high court on

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taken as a plea of guilty, and he was sentenced to three months’ imprisonment. By the time the case came before the High Court on revision, accused had com- pleted this sentence and been released. Held: The conviction for violating the terms of a probation order must be quashed although it is too late for this to be of benefit to the accused. Section 6 of Cap. 247 “does not of itself create an offence punishable with imprisonment in the case of a probationer committing an offence during the period of his proba- tion.” It merely empowers the court, upon receiving information in writing and on oath that the probation terms have been violated, to summon the probationer to court. If he has been convicted of a further offence, the court may then pass any sentence for the original offence which it could have passed at the original pro- ceedings; or, if the probationer was not convicted during the original proceedings, the court may convict him on the original charge and pass sentence (1968)H.C.D. - 115 – Accordingly. The Court stated, obiter (1) In cases of attempted suicide, just as it is un- desirable to impose sentences of imprisonment, so is it inappropriate to order an accused placed on probation, which may result in imprisonment. (2) Section 7 of Cap. 247 does provide for a fine for violation of certain terms of probation. 311. R. v. Joshwa s/o Motiya @ Motiya @ Mangiti s/o Motiya , Resident Magistrate’s Court Crim. Case 878-Moshi-67, 8/6/68, Inspection Note by Platt J. Accused was convicted of burglary and sentenced to 2.5 years imprisonment. The Resident Magistrate’s judgment noted that the sentence had to be con- firmed. The Court noted; “A subordinate court presided over by a Resident Magi- strate need not seek confirmation of a sentence in the case of a scheduled of-
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fence unless the Minimum Sentence is exceeded by more than six months”. Since the sentence was exactly six months in excess of the minimum, no confir- mation was required. 312. Andrea s/o Kimbulu v. R., (PC) Crim. App. 277-M-68, 3/6/68, Seaton J. Accused was charged in Primary Court with housebreaking, theft, and assault. At the close of the prosecution case, the magistrate substituted a charge of robbery [P.C. s. 286], and accused was duly convicted of that offence. The record indi- cates that after the original charges were read and the accused was addressed in terms of section 41(2)(b) of the Magistrates Courts Act, he stated that he did not wish to be tried by the court. The record also indicates that after the charge was altered and read to the accused, he denied guilt and was altered and read to the accused, he denied guilt and was put upon his defence. Held: (1) The requirement of transfer under the Magistrates Courts Act, section 41(2)(b), is not discretionary. If the Accused is charged with an offence punishable with imprisonment for more than 12 months or by corporal punish- ment, and elects to be tried in the District Court, the Primary Court Magistrate “shall transfer” the case. (2) “The alteration or substitution of the charge at the end of the case for the prosecution should have been followed by the appellant
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  • Fall '17
  • Dean Majamba

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