Juma Salum and another v. R., Crim. App. 408-M-71; 14/4/72; El-Kindy, J.

Juma Salum and another v. R., Crim. App. 408-M-71; 14/4/72; El-Kindy, J.

The appellant were jointly charged with and convicted of robbery with violence c/ss 285 and 286, Penal Code and each appellant was sentenced to imprisonment for 2 years with 24 strokes. Each appellant was ordered to compensate the complainant in the sum of Shs. 32/=

            Held: (1) “Having regard to the nature of the case against both appellants, it is necessary to review the evidence …… As it was said in the cases of Peters v. Sunday Post (1958) E.A. 424, Shantilal M. Ruwala v. R. (1957) E.A. 570 and Pandya v. R. (1957) E.A. 336, as approved recently  by the same court of appeal in the case of David Shisia Okeno v. R., Cr. App. No. 72 of 1971 (not yet reported), and I quote:- “It is not the function of a first appellate court merely to scrutinize the evidence to see if there was some evidence to t support the lower court’s findings and conclusions; it (the appellate court ) must make its own findings and draw its own conclusions. Only then can it decide whether the Magistrate’s findings should be supported. In doing so, it should make allowance for the fact that the trial court has had the advantage of hearing and seeing the witnesses.” (2) The court then reviewed the evidence and, finding that it supported the charges, dismissed the appeals against conviction. (3) “The second appellant was 18 years old, and in my view the learned Magistrate properly imposed the minimum sentence. I see not reason to interfere with the sentence imposed on the second appellant (Charles John.). This appeal against sentence, by the second appellant, is also dismissed. However, I am unable to uphold the sentence imposed on the first appellant due to his age. He was 15 years old. Therefore, he was a juvenile in terms of Section 3 of the Minimum sentences Act, 1963 Cap. 526 as it was and as it still is after the enactment of the Minimum sentences Act, 1972, being Act No. 1 of 1972. In terms of both Acts, the provisions of the Minimum Sentences Acts do not apply to juveniles …. The sentence and order imposed on the first appellant was unlawful and is accordingly set aside. Except for the issue of age, the position of the first appellant is the same as that of the second appellant. In the circumstances there would be no justification for imposing a sentence which is wildly different from that imposed on the second appellant. It is correct that in normal circumstances a juvenile is not sent to prison, but in this case I think such a course is fully justified. Having regard to the facts and the circumstances of this case, and their age difference, I substitute therefore a sentence of imprisonment of 20 months on the first appellant, and I order that the first appellant compensate the complainant in the sum of Shs. 32/=”.