[1941] EACA 31

# COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

## REX, Respondent

#### $v$ .

#### MOHAMED ASLAM, Appellant

## Criminal Appeal No. 196 of 1940

## Appeal from the decision of H. M. Supreme Court of Kenya

Criminal Procedure—Sentence enhanced on appeal by Supreme Court from a fine: to imprisonment without the option—Powers of Supreme Court in enhancing: sentences—Whether any appeal lies to the Court of Appeal for Eastern Africa. from such an enhancement in view of section 346 of the Criminal Procedure Code.

Appellant appealed to the Supreme Court of Kenya from a conviction of the Second Class Magistrate's Court at Kericho on a charge of assaulting a police. officer in the execution of his duty contra section 231 (b) of the Penal Code, and from the sentence to a fine of Sh. 101 passed therefor. In dismissing the appeal the Supreme Court enhanced the sentence to one of six months H. L. without the option of a fine. The appellant appealed to this Court on the ground, inter alia, that the Supreme Court of Kenya had acted on wrong principles in. increasing the sentence of the subordinate court in the manner in which it did having regard to all the circumstances of the case and that the enhanced sentencewas too severe.

*Held* $(28-1-41)$ .—(1) Assuming an appeal lies from the decision of the Supreme Court of Kenya in such a case, the action of the Supreme Court in altering the sentence from one of fine to one of hard labour without the option was justified in view of the exceptional gravity of the offence committed and the inadequacy of the original sentence.

(2) The fact that the two persons co-accused with the appellant had not had their sentences of fine interfered with, largely due to their not having made any appeal from the subordinate court, was irrelevant, and could not be taken into consideration by the Court of Appeal for Eastern Africa—who were only considering the case of the appellant.

(3) That no appeal now lay in view of the finding supra (1) that the Supreme Court had not acted on any wrong principle, and therefore the only remaining ground was that<br>of severity of sentence which is expressly precluded as a ground for second appeal by section 346 of the Criminal Procedure Code.

(4) Ouery.—Would an appeal lie to the Court of Appeal for Eastern Africa if the: Supreme Court had enhanced the sentence excessively acting on a wrong principle?

Ross for the Appellant.

#### Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—Until towards the end. of the hearing of this appeal, the arguments proceeded on the assumption that an. appeal lay to this Court from the decision of the Supreme Court in its appellate: jurisdiction and for that reason we propose to follow the unusual course of considering the appeal in the first instance on that assumption, reserving our decision on the question as to whether an appeal lies until later.

Assuming then that an appeal lies from the decision of the Supreme Court in: its appellate jurisdiction the one question we need answer is whether the Supreme-Court was justified in altering a sentence of a fine of Sh. 101 to one of imprisonment for six months.

The offence of which the accused was found guilty was that of assaulting an elderly native policeman in the execution of his duty. The assault was made by a mob and the appellant and his co-accused who did not appeal to the Supreme Court were identified as participators in the assault. We are quite satisfied that a fine of Sh. 101 was a manifestly inadequate punishment for the offence. The question is whether an increased fine rather than imprisonment would not be fitting punishment. An assault on a police officer acting in the execution of his duty must at all times be a serious matter and this aspect of the case was stressed by the Supreme Court. From the evidence it is clear that the police constable was badly knocked about and had to remain in hospital for a week as a result of the injuries received in the course of the attack. While we hesitate to approve of the substitution of a sentence of six months imprisonment for a sentence of fine when the Magistrate is also a District Officer whose sentences should not be lightly interfered with on the ground that they err on the side of leniency, yet we are so impressed with the inherent gravity of the offence, made additionally so in the present case by the assault having taken place in the course of an attack by a mob as well as by the serious physical consequences to the police constable, we are convinced that the view taken by the Supreme Court was justified.

It may be thought that it is a hardship for the appellant to suffer imprisonment when his co-accused has only had to pay a fine, but on reflection it should be clear that because one person who is not before the Court has been indequately punished that is no ground for not meting out a proper punishment to an offender who is not only properly before the Court but has brought himself there. The coaccused has been fortunate in not having had a notice served on him to show cause why his sentence should not be enhanced when the question of the inadequacy of the appellant's sentence was being considered by the Supreme Court.

And now to deal with the question as to whether an appeal lies. Section 346, Criminal Procedure Code, in so far as it is material to this appeal, provides: —

"Any person aggrieved by a decision of the Supreme Court in its appellate jurisdiction under this Part may appeal to the Court of Appeal for Eastern Africa on a matter of law (not including severity of sentence) but not on a matter of fact."

This is a second appeal on the ground that the sentence is severe and for that reason no appeal lies. As to whether an appeal would lie on the ground that the Supreme Court had enhanced a sentence, acting on a wrong-principle, which is not this case, we express no opinion, leaving the point to be decided in a case in which a decision is essential to the result of the appeal.

The appeal is dismissed.