[1992] KEHC 82 (KLR)
The Magistrate lacked jurisdiction to convict the appellant under section 131 of the Penal Code in civil proceedings, as no criminal charge was framed nor was the appellant asked to plead to such a charge. Furthermore, the proceedings were civil in nature and the Magistrate could not proceed under section 5(1) of...
Source-derived case information.
- Citation
- [1992] KEHC 82 (KLR)
- Parties
- Appellant: Saidi; Respondent: Republic
- Court
- High Court
- Court Station
- High Court at Mombasa
- Jurisdiction
- Kenya
- Case Number
- ? 45 of 1992
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- appeal_allowed
- Legal Topics
- Contempt of Court, Jurisdiction, Criminal Charges, Civil Enforcement
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saidi
Appellant
Republic
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether the Magistrate had jurisdiction to convict the appellant under section 131 of the Penal Code in civil proceedings.
- 2 Whether proper criminal procedure was followed in charging and convicting the appellant.
- 3 Whether the order allegedly disobeyed contained the requisite warning for punishment for contempt.
Ratio Decidendi
The Magistrate lacked jurisdiction to convict the appellant under section 131 of the Penal Code in civil proceedings, as no criminal charge was framed nor was the appellant asked to plead to such a charge. Furthermore, the proceedings were civil in nature and the Magistrate could not proceed under section 5(1) of the Judicature Act, as she lacked jurisdiction and the order allegedly disobeyed did not contain the necessary warning for punishment. The conviction and sentence were therefore without jurisdiction and must be quashed.
Court Disposition
appeal_allowed
Orders
- The conviction of the appellant is quashed.
- The sentence imposed on the appellant is set aside.
Full Case Text
Judgment text and source record
12 paragraphs
REPUBLIC OF KENYA
Saidi v Republic
High Court, at Mombasa
June 3, 1992
Omolo J
Criminal Appeal No. 45 of 1992
June 3, 1992, Omolo J delivered the following Judgment.
The learned Ag. Resident Magistrate purported to convict the Appellant under section 131 of the Penal code. The provisions of that section are as follows:-
“Everyone who disobeys an order, warrant or command, duly made, issued or given by an court, officer or person acting in any public capacity, and duly authorized in that behalf, is guilty of a misdemeanour and liable, unless any other penalty or mode of proceedings is expressly prescribed in respect of the disobeyance, to imprisonment for two years.”
That is a Penal Code offence, and to convict a person of that offence a charge must be framed in those terms, and the person to be convicted asked to plead to it. The Magistrate did not frame any charge and did not ask the appellant to plead to any such charge. Indeed she could not have done so because the proceedings in which she purported to convict the Appellant were civil and the Appellant was brought before her on a warrant of arrest issued by her on an earlier date. When she issued the warrant of arrest the order was and I quote:-
“Warrant of arrest to issue to the defendant to shw cause why he should not be committed to civil Jail.”
Committing a person to civil jail for disobeying a civil order is totally different from convicting a person of an offence under section 131 of the Penal Code. I do not have the terms of the civil order which the Appellant is supposed to have disobeyed, but if the Magistrate was proceeding with the matter under section 5(1) of the Judicature Act (assuming for the moment that she had jurisdiction under that section), then the order being disobeyed would itself be required to specifically warn the Appellant on the face thereof that disobedience of the same would result in punishment. That is now well established law as the High court or the Court of Appeal in punishing for contempt applied the law applicable in the High of Justice in England. It has been held by the Kenya Court of Appeal that to punish for a civil contempt the order disobeyed must contain on its face a warning of punishment in the event of its being disobeyed. But the Magistrate did not purports to be proceeding under the provisions of section 5(1) of the Judicature Act. Indeed she would have no jurisdiction to proceed under that section. That left her only with section 131 of the Penal Code and as I have said, she did not in any way take appropriate steps to have a charge framed against the Appellant. The conviction and the subsequent punishment of the Appellant was accordingly without jurisdiction and I accordingly quash that conviction and set aside the sentence imposed on the appellant. The fine of Shs.5,000/- is to be refunded to him if it was paid.