Muwa v. R. Crim. App.144-M-70; 2/10/70; Mnzavas, Ag. J.

 

Muwa  v.  R.  Crim. App.144-M-70; 2/10/70; Mnzavas, Ag. J.

The appellant was convicted on his own plea of guilty of failure to     draw his vehicle to his left or near side of the road where stopping in a township c/r 35 (2) (h) and Rule 69 of the Traffic Ordinance, Cap.168 and was sentenced to a fine of Shs.201/= or distress in default. It was argued on behalf of the appellant that (i) he (the appellant ) could not be convicted on the basis of a written document which was not in evidence at the trial.(ii) Even if the conviction was sound in law, the sentence was excessive since the appellant was not given an opportunity to admit or deny previous convictions.

Held: (1) “Appellant’s attendance in court was dispensed with under s.99 of the Criminal Procedure Code; and on being served with the summons on 21/1/70 he, in compliance with section 99 of the Code pleaded guilty in writing to the offence charged, and signed his name at the back of Criminal Form No.3A below the words – “Nimekubali Kosa hili sina zaidi”.  “This being the position, the matter is governed by section 313 of the Criminal Procedure Code, and as such the appeal against conviction is clearly incompetent.” (2) “As for sentence the learned magistrate should not have admitted the alleged previous conviction without giving the appellant an opportunity to be heard regarding the allegation notwithstanding the fact that the charge was disposed of under section 99 of the Criminal Procedure Code. The magistrate should have complied with section 99 (4) of the Criminal Procedure Code before he accepted the alleged previous conviction. The improper acceptance of an alleged previous conviction. The improper acceptance of an alleged previous conviction must have greatly influenced the learned magistrate when imposing the sentence he did. In the absence of sufficient evidence to show that the appellant has a previous conviction, the appellant has to be treated as a first offender.” Appeal against conviction dismissed; sentence reduced to a fine of Shs.30/= or distress in default.