[1989] KEHC 103 (KLR)
The court found that section 30 of the Rent Restriction Act, under which the appellant was charged, merely relates to the jurisdiction of the Tribunal and does not create any criminal offence. The charge was therefore fundamentally defective. The court relied on the persuasive authority of Opidi v Republic, which...
Source-derived case information.
- Citation
- [1989] KEHC 103 (KLR)
- Parties
- Appellant: Ali; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Nairobi (Milimani Law Courts)
- Jurisdiction
- Kenya
- Case Number
- Criminal Appeal 1152 of 1987
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal allowed
- Legal Topics
- Charging Section Error, Rent Restriction Offences, Jurisdiction of Tribunal
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Ali
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether section 30 of the Rent Restriction Act creates a criminal offence.
- 2 Whether the appellant was properly charged under a valid offence-creating provision.
Ratio Decidendi
The court found that section 30 of the Rent Restriction Act, under which the appellant was charged, merely relates to the jurisdiction of the Tribunal and does not create any criminal offence. The charge was therefore fundamentally defective. The court relied on the persuasive authority of Opidi v Republic, which held that a conviction based on a non-existent offence is incurable. Consequently, the conviction and sentence could not be sustained and were set aside.
Court Disposition
appeal allowed
Orders
- Conviction quashed.
- Sentence set aside.
Full Case Text
Judgment text and source record
22 paragraphs
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA
AT NAIROBI
CRIMINAL APPEAL NO 1152 OF 1988
BETWEEN
ALI............................................................... APPELLANT
VERSUS
REPUBLIC..............................................RESPONDENT
JUDGMENT
(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of theSecond Class District
Magistrate’s Court at Makadara)
*****************************
October 2, 1989, Porter Jdelivered the following Judgment.
The Appellant was convicted in the court below of Subjecting a tenant to annoyance C/S 30 of the Rent Restriction Act Cap 296 as amended.
The sole point argued on the appeal is that S 30 does not create any offence. Going a little further than that argument, I have perused the record and I agree on my own assessment of it that the Learned Trial Magistrate’s findings of fact are correct and that this is indeed the sole point on the appeal.
S 30, under which the Appellant is charged relates to the jurisdiction of the Tribunal and does not create an offence. Probably the intention was to charge under S 29. As it is the Appellant was charged with a non280existent offence.
I am able to trace only one authority directly on this point and that is the case of Opidi-v-Rep[1965] EA 614. I am referred also to Sabur-v-R[1958] EA 126 which was considered in Opidi’scase and a distinction drawn as in Sabur’scase the section wrongly quoted was at least an offence.
It is the Opidiargument which applies to this case. Whilst Opidicomes from a neighbouring jurisdiction, the argument in it is very powerful, and I find difficulty in departing from it. The result therefore is that the error in the charge in this case is incurable.
Appeal allowed conviction quashed and sentence set aside.
Dated and Delivered at Nairobi this 2nd October , 1989.
C. PORTER
JUDGE.