Mwalusanya, J.: The appellant Wambura s/o Nyango was charged at Musoma District Court in Mara Region with cattle theft c/s 268 (1) and (3) of the Penal Code Cap. 16. At the end of the trial, the learned trial District I Magistrate substituted a conviction of the offence of using abusive language c/s 89 (1) (a) of the Penal Code Cap 16 for
which the appellant was sentenced to 10 months imprisonment. The appellants' conviction for the latter's offence A was allegedly made under S. 300 of the Criminal Procedure Act No. 9/1985. The appellant is now appealing against conviction and sentence.
The course of action taken by the learned trial District Magistrate was clearly strange and irregular. Very correctly B the appellant has drawn attention to the learned trial magistrate the decision of this court in Nathanael s/o Nkulikiye v R. [1982] T.L.R. 129 by Chua J. and I may point out that there are hundreds of similar cases in our High Court Digests. All these cases stand for the proposition of law to the effect that the general rule applicable in C substituting conviction is that the verdict sought to substitute the existing one, must be one involving a minor and cognate offence to the offence charged. It is crystal clear that the offence of using abusive language is minor to the offence of cattle theft but it is not cognate. So the substituted conviction was obviously bad in law. The State Attorney Mr. Mbago was of the same view and did not support the conviction. D
In the event the appeal succeeds. The appeal is allowed, the conviction is quashed and the sentence is set aside. The appellant should be released forthwith unless held for any other offence. E
Appeal allowed.
F
________________
