Petro v. R. Crim. App. 318-A-70; 26/3/71; Kwikima Ag. J.

 

Petro v. R. Crim. App. 318-A-70; 26/3/71; Kwikima Ag. J.

The appellant was convicted of assault causing actual bodily harm c/s 241 of the Penal Code. He attacked the complainant who was a Magistrate and who had just convicted him of theft, with stones and harmer. He appealed.

Held: (1) Since the case was decided on the credibility of the witnesses, it would be improper for the appeal court to interfere. While conceding that “an appellate tribunal trial court’s conclusion should stand,” I would hasten to point out that “such power should be exercised with caution” (Murray v. Murji 1968 H. C. D. 390). Indeed I am highly persuaded, if not bound by the decision in the case of Mwabusila v. Mwafwila 1967 H. C. D. 59 where it was held; “an appellate court should reassess the credibility of witnesses only if there are circumstances of an unusual nature which appear in the record”, I must confess that I find no circumstances of an unusual nature in this case. The sentence awarded to the appellant, though stiff, cannot be excessive in view of the fact that a deterrent sentence had to be meted out to protect magistrates from similarly – inclined characters. (2) Appeal dismissed.