Robert v. R. Crim. App. 367-M-70; 6/11/70; El Kindy, Ag. J.

Robert v. R. Crim. App. 367-M-70; 6/11/70; El Kindy, Ag. J.

Appellant was charged with and convicted of burglary c/s 294 (1) of the Penal Code, and two counts of stealing c/s 265 of the Penal Code. he was sentenced to two years imprisonment and twenty four strokes of corporal punishment on the first count and twelve months imprisonment of each of the two counts of stealing. Sentences were to run consecutively. Evidence established that the victims of his burglary and they left their shop-cum[ dwelling house at about 9 p. m. for a walk. Before they left, they secured the front and back doors of their house which was one block. In one of the bedrooms was a suitcase and in the store were drums and tyres. When the occupants returned at about 11 p. m. they found that the front door was open and noise creating from the house. They closed this door and made an alarm. On searching the house appellant was found lying in the store and the suit – case was found in the kitchen. On further inspection several clothes were stolen from the wardrobe in the bedroom. Appellant admitted having been found in the house but testified that he was waiting for one of the occupants of the house. From the proceedings, it appeared that the magistrate decided to visit the locus but did not record any notes of his visit.

            Held: (1) “If the appellant was waiting for Sarudin, as he claimed, he would not have hidden himself in the store. He would have waited for him, at least in the bed room. An innocent person cannot wait for another while lying flat on his stomach in a state of nervousness ad sweating between the tyres and the drums in the store. His presence in the circumstances could not be innocent at all.” (2) “It appears that after the evidence of two witnesses has been taken the magistrate decided to visit the locus, but the magistrate did not record any notes of his visit. It has been held by the Court of Appeal in the case of MWANJA S/O NKII v. REX 16 E. A. C. A. p. 142 that: “Where

a view of the locus is made in a criminal trial and the judge makes notes of what he observed it should appear clearly from the record that these notes were read out in court and that the opportunity was given to call evidence on any point in the notes.” In other words, when a visit is made to the locus, the trial magistrate should make notes of his observation, and that these notes should be read out in Court, and the opportunity be given to call any witnesses to testify on what has been made in the notes. Although this decision was concerned with what a “Judge” did, the remarks are equally applicable to the magistrates (see SUMAILI S/O BWALA v. R. 1967/68 H. C. D. No. 12).  In this case the learned magistrate did not make any notes on what he observed at the scene. Instead there was an address by the prosecutor as to what the scene looked like. Without deciding whether the prosecutor was entitled to comment as he did, these did not constitute substituted of notes made by the trial magistrate. However, I do not consider that this irregularity has caused any injustice to the appellant in my view, without the visit part of the evidence, there was sufficient evidence to convict the appellant.” (3) “The court ordered that the sentences should be served consecutively thus giving the appellant a total of four years in prison, as the learned magistrate is well aware, all of these offences were committed during one act., and normally sentences, in such cases, are ordered to be served concurrently. He departed from this practice, on the ground that offences of this nature were “rife in Ukerewe District” and constituted “a complete terror to the public owing to loss of property”. He also had on previous conviction of similar nature. As he had given his reasons clearly for making the sentences consecutive, I would not interfere with his discretion” (4) Appeal dismissed.