Sunderji v. R. Crim. App. 313-D-71; 30/7/71; Biron J.

Sunderji v. R. Crim. App. 313-D-71; 30/7/71; Biron J.

The appellant was charged and convicted of corruption. After information that some tins of cooking oil were missing from army stock, the police investigated and seized some oil at the appellant’s premises. The appellant is then alleged to have offered Shs. 2000/= at the police station in order the further investigations should be stopped. The particulars of the charge stated the appellant had been detained. Appellant’s defence was that he offered the money for bail and not as a bribe. At the trial the prosecution applied for amendment of the charge so as to remove the statement that appellant had been detained. The magistrate allowed the amendment but fund as a fact that the appellant had been detained. He also found that as there was no evidence that bail had been asked for, the Shs. 2000/- in issue could not have been for bail, on appeal it was argued on behalf of the appellant that the trial magistrate had erred in throwing the onus on the appellant to establish his innocence instead o merely upholding the submission of no case to answer.

            Held: (1) [Citing s. 209 Crim. Procedure Code, Maulidi Abdullah Chengo v. R. [1964] E. A. 122, and Mbithi Kisoi v. R. (1955) 22 E. A. C. A.  484). the necessary prerequisite tot eh application of s. 209 of the criminal Procedure Code is that the charge should be defective. The original charge was not defective and it is therefore questionable whether the magistrate had power to amend the charge. (2) “Before an accused can be called upon to make his defence the prosecution must establish at lowest a prima facie case “……..” to set out a passage in the judgment of the court of Appeal for East Africa in Ramanlal Trambaklal Bhatt v. R. [1957] E. A. 332 at 335:- “It may not be easy to define what is meant by a ‘prima facie case’, but at least it must mean one on which a reasonable tribunal, properly directing its mind to the law and the evidence would convict if no explanation is offered by the defence.” ……… if the magistrate had applied this definition of a prima facie case he would have upheld the submission that there was no case to answer.” (3) “The fact that because the appellant had not been asked for bail therefore he could not have given the money as bail is, with respect, a non sequitur …. In this case, as noted, the magistrate rejected the evidence of the prosecution witnesses that the appellant was not under arrest, but found as a fat that he was; therefore in such case the money offered by the appellant could well have been for bail …….” (4) Moreover investigations against the appellant proved that nothing was irregular and therefore there was no motive for offering a bribe. (5) Appeal allowed.