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Kgomotso v The State (Criminal Appeal No. 7/94 ) [1994] BWCA 10 (4 July 1994)
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IN THE COURT OF APPEAL FOR BOTSWANA HELD AT LOBATSE
CRIMINAL APPEAL NO. 7/94
In the matter between:
SEIPATO KGOMOTSO
- Appellant
vs.
THE STATE
- Respondent
Appellant In Person
Mr. K. Kapinga for the State
JUDGMENT
CORAM; T.A. AGUDA, J.A.
P.H. TEBBUTT, J.A.
TEBBUTT. J.A.;
In this matter the Appellant has applied for leave to appeal. He was convicted at a Molepolole Magistrate's Court on one count of shop breaking and one count of robbery and sentenced to five years in jail. He wished to appeal to the High Court but the record of his trial in the Magistrate's Court was lost. The Magistrate indicated that it would be impossible to reconstruct the record. Accordingly the High Court intimated that the conviction and sentence could not stand and had to be set aside and it was so ordered.
The Appellant now has appealed to this court asking that this court should do two things. Firstly, that he should be acquitted and not merely that his conviction and sentence be set aside. On this aspect the law is clear. Where a record is lost the correct thing is to set aside the conviction and sentence. The court does not have the power to acquit.
The second aspect is that he asked that certain money which
2
he said he at the time of the trial he had should be returned to him. There is nothing before us as to this and therefore we have
no power to make such an order.
In the result, therefore, the setting aside of the conviction and sentence in the High court is confirmed. The court makes no order as to his money. This is a matter which he should pursue with the Clerk of the Court in Molepolole.
Delivered in open court on this 4th day of July 1994.
P.H. TEBBUTT JUDGE OF APPEAL
T.A. AGUDA
JUDGE OF APPEAL
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