R v Alufonso Lukwesa (Criminal Review Case 1 of 1937) [1937] ZMHCNR 7 (31 December 1937)

134 Vol. I] R. v. ALUFONSO LUKWESA. A C rim in al R e v ie w Ca s e o f 1937. Criminal Procedure Code sections 8 and 12— sentence submitted to High Court for confirmation must be sentence actually passed not merely recommended. When a Subordinate Court sends a record to the H igh Court for confirmation of sentence, such sentence must be one which has actually been passed and must not be merely a " recommended ” sentence; the High Court has no power in its revisional jurisdiction to impose a sentence recommended by the Subordinate Court or some sentence other than the sentence so recommended. A Subordinate Court may, pursuant to section 197A o f the Criminal Procedure Code, commit to the High Court for sentence an accused who is of the apparent age o f not less than seventeen years if it is of the opinion that greater punishment should be inflicted than it has power to inflict. Francis, J .: Any sentence sent up for confirmation b y the High Court must be a “ sentence which has been passed ” in accordance with the requirements of the law. The sentence in this case is submitted as one “ recommended ” . From this I can only draw the conclusion that it has not yet been imposed. Because of distance and the length o f time already taken up in this case, I have given consideration to all o f the several powers conferred upon the Court in its Revisional Jurisdiction, with a view to discovering some way out of the difficulty. Although the point may, to the layman, appear but technical, I cannot find that I have any authority to impose the sentence myself, and in the absence of such authority, I do not propose on this occasion even, to indulge in irregularity by so doing. I am afraid the record must go back again, with an order that the It is probable that the Magis­ elemental requirement be complied with. trate has been acting under the old procedure in Cap. 41 section 27 (1), but this has long ago been repealed. 1 Magistrates’ Courts Ordinance which was repealed and replaced b y the Subordinate Courts Ordinance in 1933.—Editor.