GARDNER, J.S.: delivered the judgment of the court.
The appellant was convicted of stock theft; the particulars of the offence being that he stole one ox valued at K200.
The case was dealt with by a magistrate class III and, after conviction, it was disclosed that the appellant had a previous conviction for stock theft. By the provisions of Act 29 of 1974 the appellant was therefore liable to a statutory minimum sentence of seven years' imprisonment with hard labour. Because the trial magistrate had no power to pass such a sentence he committed the appellant to the High Court for sentence purportedly in accordance with s. 217 of the Criminal Procedure Code. The appellant was then sentenced by the High Court to the minimum sentence of seven years' imprisonment with hard labour.
In the case of The People v Chilembe (1) Cullinan, J., held that s. 217 of the Criminal Procedure Code gave a discretionary power to a magistrate, who was of the opinion that greater punishments should be imposed than he had power to impose, to commit a convicted person to the High Court for sentence. In that case it was held that the provisions of s. 217 were not enacted to cover cases of statutory minimum sentences outside the
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sentencing powers of trial courts and that only senior resident magistrate, and resident magistrates, who had such powers of sentencing, had jurisdiction to try cases where mandatory minimum sentences should be imposed. The ruling in that case has been adopted and, in fact, a procedural direction has been given to magistrates to comply with it.
As the proper procedure was not adopted in the case before us we find that the purported trial in the magistrates' court was a nullity. We quash the conviction and set aside the sentence and we order that the appellant be retried by an appropriate subordinate court of the firm class 19 to be presided over by a resident magistrate or a senior resident magistrate.
Retrial ordered |
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