Omari Saudi and Another v. R., Crim. Rev. 43-DSM-72, 16/6/72, Mfalila, Ag. J.

 

Omari Saudi and Another v. R., Crim. Rev. 43-DSM-72, 16/6/72, Mfalila, Ag. J.

The two accused were convicted of corrupt transactions with agent c/s 3(2), Prevention of Corruption Ordinance, Cap. 400. The Ordinance was repealed and replaced by the Prevention of Corruption Act, 1971, which came into force on 7/5/71. The accused were charged under the old law on 1/10/71, subsequent to its repeal. The main question before the court was what effect this had on the convictions.

            Held: “If it is discovered that the accused persons were prejudiced by this oversight, the proceedings in the lower court must be declared a nullity. However, a closer examination of the repealed S. 3(2) of Cap. 400 and the new S. 3(2) of the Prevention of Corruption Act, 1971, reveal that, apart from very minor details they are identical. In these circumstances it cannot be suggested that the accused persons were in any way prejudiced by charging them under the repealed legislation. The English Court of Appeal, grappling with the same problem In R. v. Tuttle (1929) 45 T.L.R. 357, held: “When it appears as it does that the offence under the earlier Act of 1861 was in the same word as the offence under the consolidation Act of 1916, it is clear that the appellant could not have been prejudiced and that no injustice could have been done to any defence which he had by this amendment …..” These observations were quoted with approval by the Court of appeal for Eastern

Africa in Matu s/o Gichumu  (1951) 18 E.A.C.A. 311, where the appellants had been charged and convicted under a repealed Rule, holding that the appellant was in no way prejudiced by the citation of the repealed rule since the prohibition was re-enacted in identical words in the current rules and that therefore the necessary amendment could have been made. Since I have held that the accused persons on this case were not prejudiced by the citation of a repealed legislation, the defect in the charge is curable under S. 346 C.P.C., as amended by G. N. 170/71, by amending the charge and cite it under S. 3(2) of the Prevention of Corruption Act 1971 and to regard the accused persons as having been charged and convicted under that Act. The charge is amended accordingly.”