[1952] EACA 324

## APPELLATE CRIMINAL

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

**BHAGUBHAI LALBHAI PATEL, Respondent (Original Accused)**

v

REX, Appellant (Original Prosecutor)

Criminal Appeal No. 456 of 1951.

(Appeal from decision of Resident Magistrate's Court at Kisumu,

## $R. J. Quin, Esq.)$

Autrefois acquit—Order of Appellate Court—Effect.

The accused respondent was duly tried and convicted in accordance with law. On appeal the conviction entered was quashed and the sentence set aside for the reason that the appellate court found itself unable to adjudicate properly on the appeal because part of the lower court record was missing. The order of the Appeal Court contained the words: "Leave it open to the Crown to take further proceedings on the original complaint." The Crown did so and at the<br>trial the respondent pleaded autrefois acquit. The Magistrate upheld his submisssion and discharged the respondent. The Crown applied by way of case stated. The Magistrate duly stated a case.

For the Crown it was submitted that the effect of the order of the Supreme Court was to discharge the accused and render the trial a nullity so that the accused could not be regarded as having been in jeopardy and the plea in bar would not lie.

Held (20-1-52).—The words used in the order of the Supreme Court, "leave it open to the<br>Crown to take further proceedings in the original complaint" do not amount to an<br>order for retrial and cannot be taken as derogatin put forward the plea and obtain adjudication thereon in his favour if the circumstances warrant. There was nothing to show that the lower court trial was a nullity. Plea of autrefois acquit upheld.

Cases referred to: Rex v. Abdi Moge and Others 15 E. A. C. A. (1948) 86, 87. Simpson v. Nakuru District Council 19 K. L. R. 27, Rex v. Kamunan s/o Bulejeya 2 E. A. C. A. (1935) 122.

Templeton, Crown Counsel, for Crown.

Stacey with A. R. Kapila for respondent.

JUDGMENT.—The question reserved in this case, which has been admirably stated by the learned Resident Magistrate, has already been envisaged by the Court of Appeal for Eastern Africa in Rex v. Abdi Moge and Others 15 E. A. C. A. (1948) 86, 87, where it was said: "We think a better order for an Appeal Court to make in such a case would be to order a new trial since the quashing of the conviction without such order might well lead to a successful plea of autrefois acquit." The case under reference in that passage was Simpson v. Nakuru District Council, 19 K. L. R. 27, in which the same order was made on appeal as fell to be considered by the Lower Court in the instant matter upon a plea of autrefois acquit being raised. The terms of the order as given in the case stated are, "we accordingly set aside the conviction and sentence and the proceedings in the Magistrate's Court and leave it open to the Crown to take further proceedings on the original complaint". It is quite evident that no retrial was

ordered by this Court, though power to make such an order is conferred under the provisions of section 354 (1) (a) (i) of the Criminal Procedure Code (and see Rex v. Kamunan s/o Bulejeya, 2 E. A. C. A. (1935) 122. The position then is that the conviction and sentence were set aside but no order for acquittal or discharge or retrial was made. It is submitted for the Crown that the effect of the order was to discharge the accused and render the trial a nullity so that the accused could not be regarded as having been in jeopardy and the plea in bar would not lie. We are unable to accept this reasoning. The words used in the order, "leave it open to the Crown to take further proceedings on the original complaint," which plainly do not amount to an order for retrial, really serve no purpose at all, for the Crown is anyway at liberty to take further proceedings though facing the risk of being met by the plea of autrefois acquit that in fact was raised. The words under reference cannot be taken as derogating from the right of the accused to put forward the plea and obtain adjudication thereon in his favour if the circumstances so warrant. Whether or not the trial was a nullity raises a question of law. It it the case that the accused was duly tried in accordance with law and on appeal the conviction entered was quashed and the sentence set aside for the reason that the appellate court found itself "unable to adjudicate properly on the appeal" because part of the record of the lower court was missing. There is nothing revealed in the case to show that the trial was a nullity, and the remark that it is open to the Crown to take further proceedings cannot operate to render it a nullity so as to enable the prosecution to proceed again on the same charge and successfully meet a plea in bar of autrefois acquit. The conviction and sentence having been set aside, the effect, in the opinion of this Court, in the absence of an order for retrial, is that of acquittal, and the lower court was correct in upholding the plea of autrefois acquit.