R. v. TAIMU S/O NZUNDA (1972) HCD 25

Crim. Rev. 181-D-71; 24/12/71

Mwakasendo Ag. J.

The accused was convicted of attempted rape c/s 132 of the Penal Code and sentenced to 12 months imprisonment. The sentence was suspended for 8 months under Section 294A of the Criminal Procedure Code.

HELD:

 (1) “While no one would quarrel with the reasons given by the Magistrate for not sending the accused to jail [he was 17 years old and had a clean record] it is quite clear   That the Magistrate has misunderstood the whole object of the provision of Section 294A of the C.P.C.” 

(2) “The court has no power to order the suspension of a sentence imposed on a person convicted of an offence specified in the sixth Schedule to the Criminal Procedure Code or in the Schedule to the Minimum Sentences Act 1963. Rape and attempted rape are some of the offences prescribed under the sixth Schedule to the C. P.C. It was therefore illegal for the magistrate to suspend the sentence inflicted for attempted rape.” 

(3) “It may also be noted that the provisions of Section 294A of the Code were primarily intended as an alternative to imprisonment. In O’Keefe [1969] 1 All E. R. 426 the English Criminal Court of Appeal said that suspended sentences should only be imposed when by having eliminated all other alternatives the court decides that the case is one for imprisonment. At page 428 of its judgment the English Court said ….” And the final question, it being a case for imprisonment, is immediate imprisonment required, or can I give a suspended sentence?” 

(4) “The Magistrate having already ruled out the propriety of a prison sentence had the option of one or more of the following sentences: absolute discharge, conditional discharges probation order, a fine or corporal punishment.”

 (5) The sentence of 12 months suspended was quashed and a sentence of 10 strokes of corporal punishment was substituted.