[1952] EACA 327

### 131

### APPELLATE CRIMINAL

### Before SIR HECTOR HEARNE, C. J. and BOURKE, J.

# AMINA ABUBAKAR w/o HUSSEIN MOHAMED MOTI, Appellant

## (Original Accused)

ν.

## REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 620 of 1951

(Appeal from the decision of the Resident Magistrate's Court at Nairobi, W. F. G. Browne, Esq.)

Criminal Procedure Code, section 197—Fine in excess of limits of sub-section (4)— Presumption where prescribed form used—Although non-summary formalities complied with.

The appellant was convicted on two charges of failing to comply with the requirements of a notice under section 241 and another under section 242 of the Nairobi By-laws, 1948. Under section 376 of the By-laws she was fined Sh. 500 in each conviction. The Magistrate purported to try the appellant for a minor offence under section 197 Criminal Procedure Code, and passed a sentence in excess of the Sh. 400 permitted under section 197 (4) Criminal Procedure. Code.

Held (30-1-52).—(1) Sentencing in excess of the limit provided by section 197 (4) did not render the proceedings void *ab initio*. The Appellate Court could, while maintaining a finding by a Magistrate, substitute a proper penalty for a wrong penalty which had been imposed.

(2) Where the form prescribed for the trial of minor offences is used, it will be assumed that the trial was under section 197 Criminal Procedure Code even though the formalities of a trial other than one under this section are complied with. The sentence in excess of limits under that section would be reduced. Fine reduced to Sh. 400 on each conviction or two months' simple imprisonment in default. Appeal dismissed.

Cases referred to: Rex v. Willesden Justices, ex parte Utley, (1947) (2) A. E. R. 838, Rex v. Hobson, 29 Cr. App. Rep. 30.

Khanna for appellant.

Mackie-Robertson for respondent on instructions of the Hon. Attorney General.

JUDGMENT.—The appellant was convicted on two charges of failing to comply with the requirements of a notice under section 241 and another under section 242 of the Nairobi By-laws, 1948. There was clear, uncontradicted evidence that she had been in default for nine months and under section 376 of the By-laws she was sentenced in respect of each conviction to a fine of Sh. 500 or to two months simple imprisonment.

The grounds of appeal as stated in the memorandum were that there was no evidence that the appellant was the owner of the property to which the notices related, that there had been no personal service of the notices on her and that the sentence was excessive. But at the hearing of the appeal the advocate for the appellant sought to argue, inter alia, that the appellant had not been personally served with a summons to appear before the Magistrate and even, as her advocate had obtained leave to appear for her under section 99 (1) of the Criminal Procedure Code, that she had been illegally tried in her absence!

Several of the arguments when tested by the realities of the case were withdrawn, and in the result the advocate for the appellant finally rested the appeal on two grounds.

The first was that there was no evidence that the property in respect of which the appellant had been served "as owner" was her property. Evidence was given by the witness Mackintosh that the appellant is the owner and it was elicited in cross-examination that she was registered as the owner. The gist of the offence of which the appellant was convicted is non-compliance with a statutory notice and, in a case like the present one, it would not appear to be necessary for the prosecution to prove more than that the alleged owner is the ostensible owner. If for instance it was shown that she exercised the rights of and accepted the obligations of ownership then, in the absence of any evidence to the contrary of a matter within her knowledge, she could properly be held to be the owner. But, without deciding this point, the assertion that there was no evidence that the appellant is the owner of the property which was the subject of the notices is just to shut one's eyes to the record of the trial. There was, the advocate for the appellant at the trial did not submit there was not, and the Magistrate was entitled to assume that the evidence was not contradicted as it was incapable of contradiction.

The second ground which was not included in the memorandum of appeal is this. The trial Magistrate purported to try the appellant for a minor offence under section 197 of the Criminal Procedure Code and passed a sentence of a fine of Sh. 500 on each charge which he could not do by reason of the provisions of sub-section (4) of section 197, and for this reason the whole of the proceedings were void *ab initio* and the convictions and sentences must be quashed by this Court which is thereafter precluded from ordering a retrial.

The authority for this proposition is said to be found in the judgment of Lord Goddard, C. J., in Rex v. Willesden Justices, ex parte Utley, (1947) (2) A. E. R. 838. Whatever may be the practice of the Divisional Court in England sitting in certiorari proceedings, the simple point for our consideration is whether this Court on appeal has the power, while maintaining a finding by a Magistrate, to substitute a proper penalty for a wrong penalty that has been imposed. It has consistently been done in accordance with the provisions of section 354 (1) (a) (iii) of the Criminal Procedure Code and, if any authority is required, it is done in England, e.g. in *Rex v. Hobson* 29 Cr. App. Rep. 30, under section 4 (3) of the Criminal Appeal Act, 1907. Section 4 (3) does not expressly refer, as the advocate for the appellant supposed, to sentences which are illegal, but generally to all sentences against which appeals have been preferred.

There remains the question of whether the sentence passed by the Magistrate was wrong in law. It has been held by this Court, at any rate in revision, that where the form prescribed for the trial of minor offences is used, it will be assumed that the trial was under section 197 of the Criminal Procedure Code. even if, as in the instant case, the formalities of a trial other than a trial for a minor offence are complied with, and that the sentence passed on a conviction at such trial must not exceed a fine of Sh. 400 or three months' imprisonment. This case has been carefully tried and with due regard to procedure, but as the form prescribed for the trial of a minor offence under section 197 was used, we are obliged to reduce the fines imposed to Sh. 400 in respect of each conviction or two months' simple imprisonment in default. Apart from this the appeal is dismissed.