[1943] EACA 68

## CRIMINAL REVISION

BEFORE SIR JOSEPH SHERIDAN, C. J., AND LUCIE-SMITH, J.

REX, Prosecutor

$\mathbf{v}$ .

## MOHAMED ABDULLA, Accused

## Criminal Revision Case No. 68 of 1943

Defence Regulations—Regulations 94 and 96—Government Notice 163/43— Sentence—"Caution"—Enhancement of sentence.

Note.—For purposes of judgment twelve other revision cases were consolidated with Criminal Revision Case No. $68/43$ .

Held (1-6-43).—That a "caution" is not a sentence known to our law.

Barret for accused.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—On the 27th April, 1943, some 18 persons were prosecuted before the Resident Magistrate, Nairobi, on a charge of "Failing to comply with Regulations 94 and 46 of the Defence Regulations, 1939, and Government Notice $163/43.$

Particulars of Offence: (Name of accused) of Nairobi in the Central Province, being a person who had in his possession on the 16th day of February, 1943 (quantity of produce) in excess of the quantities specified in the second column of the Schedule to Government Notice No. 163 of 1943, failed to submit a return of the same to the Produce Controller, Nairobi, before the 21st day of February, 1943, as required by paragraph 1 of the aforesaid Government Notice."

Paragraph 1 of the Notice appears in the Official Gazette Supplement of the 16th February, 1943, and reads: -

"Every producer, consumer, trader, miller or other person who has in his possession stocks of the articles specified in the first column of the Schedule hereto, shall submit to the Produce Controller, P. O. Box 921, Nairobi, within four days of the date of this Order, a return stating the quantity in pounds of such stocks on hand in excess of the quantities specified in the second column of the Schedule hereto on the 16th day of February, 1943, provided that in the case of maize on the cob the quantity shall be stated in cubic feet."

This Gazette, it was conceded, would ordinarily reach subscribers on the 18th (Thursday) and in many of the cases before us it is improbable that the accused were subscribers.

All 18 accused persons were convicted of the offence charged, on the 1st May, 1943, and for the most part were cautioned.

On the 4th May, 1943, the Attorney General drew the Supreme Court's attention to 17 of the cases, suggesting that the Court might consider it proper to enhance the sentences.

A Judge of the Supreme Court, as a result of this communication, decided to call on the accused in 14 cases to show cause why the sentences passed should not be enhanced. The cases came on for hearing before two Judges on the 27th May, 1943, when Crown Counsel was heard, as also Counsel for the accused, and the accused themselves where they were not represented by Counsel. Of the<br>14 cases, in the case of *The Crown v. Fred Ayub (Fred's Bakery)* (Criminal Revision Case No. 80 of 1943) the conviction was quashed, it being shown that no offence had been committed. Of the remaining 13 cases the accused in nine cases were cautioned. Looking at the category of punishments in the Penal Code (S. 28) it will appear that "caution" is not a form of punishment known to the law. The position then with regard to those nine cases is either that no sentence was

$\mathcal{L}_{\bullet}$

passed or else that the learned Magistrate without saying so purported to act under the provisions of S. 36 (1) of the Penal Code, which provides: —

"Where, in any trial before a subordinate court, the court thinks that" the charge against the accused person is proved, but is of opinion that, having regard to the character, antecedents, age, health or mental condition of the accused, or to the trivial nature of the offence, or to the extenuating circumstances in which the offence was committed, it is inexpedient to inflict any punishment, the court may, without proceeding to conviction, make an order dismissing the charge."

As against this supposition there is the fact that he registered a conviction in each case. However that may be, the fact remains that no legal punishment was inflicted and that fact is an insuperable objection to this Court enhancing the sentences in these cases. Where there has been no sentence inflicted there can be no enhancement.

There remain four cases in which the following fines were imposed: $-$

| Criminal Revision Case No. 69 | | | $10^{-1}$ Sh. 10 ^-1 | | |-------------------------------|--|--|----------------------------------|--| | Criminal Revision Case No. 74 | | | $\ldots \quad Sh. 20$ | | | Criminal Revision Case No. 78 | | | Sh. 10 | | | Criminal Revision Case No. 79 | | | $\therefore \quad \text{Sh. 10}$ | |

It would be within the power of this Court to enhance these sentences were they considered manifestly inadequate. Even if considered manifestly inadequate the Court has a discretion. We have decided not to enhance them for the following reasons, *inter alia*: (1) All 13 cases belong to a batch of cases prosecuted at the same time for the same kind of offence and where some of the accused, to use a well-understood expression, were "let off with a caution", it would not be equitable to enhance the sentences of those who were ordered to pay a fine; (2) the Magistrate has recorded that "the Court Prosecutor did not appear to press in any case". In Criminal Revision Case 73/43 the Court Prosecutor expressed his agreement that the offence was of a very trivial nature. In another case, Criminal Revision Case 74/43, the Court Prosecutor said, "I have no instructions on the question of sentence. But I do not ask for a heavy fine in case of small quantities"; (3) It was not alleged that there was any element of concealment on the part of any of the accused in failing to make the required return. This is important with regard to sentence, though immaterial as to conviction; (4) From the point of view of the authorities it was necessary that only short notice of the order should be given, but from the point of view of the accused and on the question of sentence, it has to be borne in mind that some of them never saw the notice until the time prescribed for furnishing the information had expired; (5) Cases such as these under consideration must be distinguished from cases where persons sell goods or produce to the public in excess of the controlled price. In the latter case there is frequently present the intention on the part of the vendor to flout the Regulations. Crown Counsel conceded that such cases are in quite a different category; (6) Finally it is beyond question that the learned Magistrate considered and decided all the cases without showing any racial discrimination. Amongst those prosecuted there was only one African, and the manner in which the Magistrate dealt with the cases is revealed in Crown v. Kimani Gaitho, Criminal Revision Case No. 71/43. The accused in answer to the charge said: "It is true. I did not know about it, that is, about having to make a return", and the Magistrate after convicting the accused said: "This is the only case where a native is involved. Accused said he did not know he was to send in a return. Prosecution submitted the matter was well broadcast in the press and elsewhere. I should like to know exactly in what manner the provisions of the Regulation were conveyed to the natives. Having cautioned so many non-natives, and under the circumstances, I am not prepared to penalize the only native accused".

For the reasons given this Court does not propose to make any order in revision.