Munyera, J.: The three respondents were charged jointly and with another (4th accused) before Kenyana Primary Court. They were charged with robbery. It was prosecution's case that on 27/9/82 the complainant (PW.1) was driving a herd of 51 heads of cattle from Kenyana to Buchanchari E Village. He was sending them to his brother for safe custody. He was being helped by one Machota Nyisaba (P.W.2). When they arrived at a place called Nyantare a group of about 8 people was sighted. They were armed with bows and arrows and one of them had a rifle. They attacked the F complainant and his companion (PW.2). The latter ran into a creek for safety. The gang drove all the cattle away, which were never recovered. The robbery took place near Buchanchari Village where the complainant intended to send his cattle. He reported the matter to the village chairman naming the three respondents and the 4th accused as among the gangsters. They were arrested and charged as G stated above. All of them denied that they robbed the complainant. The trial court unanimously convicted them and sentenced the three respondents to seven (7) years' imprisonment each. The 4th accused was found to be under age and was discharged absolutely. All were ordered to pay 51 head H of cattle to the complainant as compensation. They appealed to the District Court and won. The District Magistrate quashed the conviction and acquitted all of them. The Republic appealed against the order of acquittal in relation to the three appellants. The learned counsel for the appellant argued that the prosecution has amply proved the charge and the District Magistrate's order of acquittal I was unjustified.
A In reading the record I discovered that the learned District Magistrate had two grounds for reversing the judgment of the trial court; one of law and the other of facts. With regard to the point of law it was submitted by the respondent's advocate (at the first appeal) that the provisions of B Section 41(2) of the Magistrates' Court Act were not complied with because the respondents were asked whether they were content to have their case tried before the Primary Court and this was done after their pleas were taken. The counsel argued that the irregularity was fatal and prayed for a retrial C or if that was uncalled for, an acquittal. It is true the record of the trial court shows that the respondents first appeared before the court on 26/10/82 and were called upon to plead. The case was adjourned till 17/11/82. On that day the trial magistrate wrote "Nimewakumbusha shtaka lao na bado wanakana." Then he wrote "fungu 41(2) (b) MCA limetekelezwa, washtakiwa wanakubali D kesi isikilizwe na mahakama ya mwanzo". Obviously the section was complied with after the pleas had been taken and this offended the provisions of the same section which require that the election be made before pleas were taken. But I do not see what harm the error had caused. If the E respondents so elected the case could still be transferred to the District Court notwithstanding the plea had already been taken. The error did not occasion a failure of justice and was curable under section 32(2) of the M.C.A.
I now turn to the question of facts. There was evidence of the complainant (PW.1) and his aider F (PW.2) that they were attacked by a gang and they recognised the three respondents (and the 4th accused) whom they said they knew very well. The robbery took place at about 4 p.m. so the conditions were favourable. The learned District Magistrate called PW1 and PW 2 liars. I do not G know what lies they had told. The complainant had produced a letter dated 26/9/82 which the Katibu Kata had written authorising him to move 51 head of cattle from Kenyana na Buchanchari. These cattle never reached Buchanchari. Were the complainant and his companion (PW2) telling lies when they said the cattle were stolen on the way? Definitely the answer is No. The cattle were stolen. If H the District Magistrate thought the complainant and his companion cooked up the story against the respondents then there was evidence of an independent witness, Mwiso Matoto (PW4). This witness put the story very clearly. He said on that day cattle belonging to one Kentunguye were I stolen from Buchanchari in grazing. The alarm was raised and he and the respondents joined other people to trace the stolen cattle. They did not find them. On returning they met two
people driving a herd of cattle towards Buchanchari. The alarm men thought those two men were A thieves but on approaching them they ascertained that they were innocent people. Despite all contrary advice, the three respondents (and others) attacked those two men and took away the cattle. Although the witness did not say who those two men were, clearly it was the complainant and B his companion. The witness (PW.4) estimates the herd at 50 head or over. The learned District Magistrate branded this witness a liar as well. Again there was evidence of Robert Nyamhanga (PW.3) to the effect that on the material day Ketunguye's cattle were stolen and the three respondents were among the people who responded to the alarm. In the evening these three C respondents and others returned with many cattle but not the ones stolen from Katunguye. They drove those cattle towards a place called Nyamihuru and the cattle vanished. If Ketunguye's cattle which the respondents were tracking had not been recovered, where did they get the cattle they came with? All this proved that the complainant had been robbed of his cattle and the robbers were D the three respondents and others not identified. They were rightly convicted and the sentence of seven (7) years was the minimum prescribed. The order of compensation was mandatory. The appeal is allowed. I set aside the District Magistrate's order of acquittal and restore the conviction recorded E by the trial court and the sentence imposed. The order of compensation is also restored.
The records of the lower courts to be remitted back. The three respondents to be arrested and sent back to prison concerned to serve the remaining sentence. F
Appeal allowed. G
A