Peter s/o Mutabuzi v.R., Crim. App. 1-M-68, 12/2/68, Mustafa J.

Peter s/o Mutabuzi v.R., Crim. App. 1-M-68, 12/2/68, Mustafa J.

Accused, a microscopist working in a government hospital, demanded payment from complainant for performing tests; he was charged with corrupt transaction with agent [Prevention of Corruption Ordinance, Cap. 400, s. 3(1)]. On the grounds that he was a public servant and received the money “through his official functions” as such, the Magistrate substituted a conviction under section 6 of the Ordinance. At the trial, the Magistrate refused to hear one of the defence witnesses, because the witness had been present in court during the trial.

            Held: (1) Neither the Prevention of Corruption Ordinance nor the Criminal Procedure Code authorizes the substitution of a conviction under section 6 of the Ordinance for a charge brought under section 3(1). (2) “(N)o sanction in terms of section 14 was obtained which is necessary before any further proceedings in respect of an alleged offence contrary to section 6 of Cap. 400 can be taken against any person.” (3) The presence of a witness during proceedings may affect the weight to be given to his testimony, but not its admissibility. (4) Regarding re-trials, each case must depend on its own particular facts; re-trials should be ordered only “where the interests of justice require it an should not be ordered where it is likely to cause an injustice to an accused person. The trial magistrate seriously misdirected himself in this case”. [Citing Ahmedi Ali Dharamsi Sumar v. R. (1964) E.A. 481, 483.] Re-trial not ordered.