R v Alufonso Lukwesa (Criminal Review Case 1 of 1937) [1937] ZMHCNR 7 (31 December 1937)
The High Court cannot confirm or impose a sentence that has not actually been passed by the subordinate court; only sentences actually passed may be submitted for confirmation.
Source-derived case information.
- Citation
- [1937] ZMHCNR 7
- Parties
- Prosecution: Republic; Accused: Alufonso Lukwesa
- Court
- High Court of Northern Rhodesia
- Jurisdiction
- Zambia
- Case Number
- Criminal Review Case 1 of 1937
- Procedural Posture
- Criminal Review / High Court Review of Subordinate Court Sentence for Confirmation
- Outcome
- Record returned to subordinate court for compliance with legal requirements.
- Legal Topics
- Sentence Confirmation, Revisional Jurisdiction, Subordinate Court Powers
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Republic
Prosecution
Alufonso Lukwesa
Accused
Procedural Posture
Criminal Review / High Court Review of Subordinate Court Sentence for Confirmation
Legal Issues
- 1 Whether the High Court can confirm a sentence that has not actually been passed but only recommended by a subordinate court
- 2 Whether the High Court has power to impose a sentence recommended by the subordinate court
Ratio Decidendi
The High Court cannot confirm or impose a sentence that has not actually been passed by the subordinate court; only sentences actually passed may be submitted for confirmation.
Court Disposition
Record returned to subordinate court for compliance with legal requirements.
Orders
- The record must go back to the subordinate court for the sentence to be properly passed before submission for confirmation.
Full Case Text
Judgment text and source record
1 paragraphs
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.