[1954] EACA 174
The court held that the restriction on the right of appeal under section 348 (2) of the Criminal Procedure Code applies only where the sentence consists of a fine not exceeding Sh. 100 and nothing more. In this case, the sentence included both a fine of Sh. 100 and an order for payment of costs of Sh. 8. The costs...
Source-derived case information.
- Citation
- [1954] EACA 174
- Parties
- Appellant: Maniben Jagjivan Chavde and another; Respondent: The City Council of Nairobi
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 81 of 1954
- Procedural Posture
- Criminal Appeal / Ruling on Preliminary Objection to Competence of Appeal
- Outcome
- Appeal is competent; right of appeal is not barred.
- Judges
- Bourke J
- Legal Topics
- Right of Appeal, Criminal Procedure Code Section 348 2, Penalty and Sentence, Costs in Criminal Cases
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Maniben Jagjivan Chavde and another
Appellant
The City Council of Nairobi
Respondent
Procedural Posture
Criminal Appeal / Ruling on Preliminary Objection to Competence of Appeal
Legal Issues
- 1 Whether an order for costs in addition to a fine forms part of the sentence for the purpose of restricting the right of appeal under section 348 (2) of the Criminal Procedure Code.
- 2 Whether the appeal is barred where the fine imposed does not exceed Sh. 100 but costs are also ordered.
Ratio Decidendi
The court held that the restriction on the right of appeal under section 348 (2) of the Criminal Procedure Code applies only where the sentence consists of a fine not exceeding Sh. 100 and nothing more. In this case, the sentence included both a fine of Sh. 100 and an order for payment of costs of Sh. 8. The costs are considered a penalty forming part of the sentence. Therefore, the right of appeal is not barred, and the appeal is competent. The court analogized this situation to cases where an order for forfeiture forms part of the sentence, which also preserves the right of appeal even if the fine is Sh. 100 or less.
Court Disposition
Appeal is competent; right of appeal is not barred.
Orders
- The preliminary objection to the competence of the appeal is overruled.
- The appeal shall proceed on its merits.
Full Case Text
Judgment text and source record
15 paragraphs
# APPELLATE CRIMINAL
#### Before BOURKE, J.
### MANIBEN JAGJIVAN CHAVDE AND ANOTHER, Appellants
ν.
# THE CITY COUNCIL OF NAIROBI, Respondent
# Criminal Appeal No. 81 of 1954
Criminal Procedure and Practice--Criminal Procedure Code, section 348 (2)-Restriction on right of appeal to fine of Sh. 100 only—Whether order for costs is a penalty forming part of sentence for purpose of appeal.
The magistrate fined each accused Sh. 100 with an ancillary order for costs of Sh. 8. The accused appealed. The respondent submitted that the appeal was incompetent because no appeal was allowable in respect of fines not exceeding Sh. $10\overline{0}$ .
Held (28-4-54).—Section 348 (2) of the Criminal Procedure Code does not allow an appeal<br>where any fine imposed does not exceed "Sh. 100 only". In this instance there was<br>not only a fine of Sh. 100 but also an order for pay were a penalty forming part of the sentence. The restriction on appeal imposed by the section did not apply so that the appeal was not barred.
Case referred to: Hirji Meghji and Company v. R., Supreme Court Criminal Appeal No. 17 of 1953.
$R$ , $N$ . Khanna for appellants.
Mackie-Robertson for respondent.
RULING.—The point has been taken that because the appellants were sentenced to pay a fine of Sh. 100 and Sh. 8 as costs or undergo one month's imprisonment in default of payment, that no right of appeal lies under section 348 (2) of the Criminal Procedure Code.
It is true that under section 172, Criminal Procedure Code, a special right of appeal lies from any order awarding costs; but under section 348 (2) appeal is not allowable where, *inter alia*, there is "a fine not exceeding Sh. 100 only."
In this case there is not only the fine of Sh. 100 but also the order for payment of costs in Sh. 8. It accordingly seems to me that the right of appeal is not barred. The costs to be paid is to my mind a penalty forming part of the sentence and so section 348 (2) does not restrict the right of appeal conferred by section 347 (1). Where, by analogy, an order for forfeiture forms part of the sentence and is not merely statutorily automatic there would, as I understand it, be a right of appeal though the other part of the sentence be a fine of Sh. 100 or less (see Hirji Meghji & Co. v. R., Criminal Appeal Supreme Court 17 of 1955). I rule that there is a right of appeal.