[1948] EACA 77

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متناسبات والمراجعات

Before SIR BARCLAY NIHILL, C. J.

REX, Respondent (Original Prosecutor)

$\begin{bmatrix} \mathcal{A} & \mathcal{A} \\ \mathcal{A} & \mathcal{B} \end{bmatrix} = \begin{bmatrix} \mathcal{A} & \mathcal{A} \\ \mathcal{A} & \mathcal{B} \end{bmatrix} \begin{bmatrix} \mathcal{A} & \mathcal{A} \\ \mathcal{A} & \mathcal{B} \end{bmatrix} = \begin{bmatrix} \mathcal{A} & \mathcal{A} \\ \mathcal{A} & \mathcal{B} \end{bmatrix} \begin{bmatrix} \mathcal{A} & \mathcal{A} \\ \mathcal{A} & \mathcal{B} \end{bmatrix} = \begin{bmatrix} \mathcal{A} & \mathcal{A} \\ \math$ $\mathcal{L} = \mathcal{L} \mathcal{L}$ GATURO s/o NJAU, Appellant (Original Accused No. 1) Criminal Appeal No. 340 of 1948 $\mathcal{M} \to \mathcal{M}$

Crimnial Law-Assaulting a person on account of an act done by him in execution of a duty imposed by Law-Penal Code, section 247 (e)-Evidence Practice—Criminal Procedure Code, section 209—Sentence.

The Native Tribunal Elders, on the instructions of the President of the Tribunal, were inquiring into a case of trespass brought against the appellant's son. The appellant approached the Elders in anger, flung their bundle of case sticks against the ankles of one of them and raised a heavy iron stick in a threatening manner demanding to know which was the senior Elder that he might kill him. The Elders said they would not give judgment and retreated. The appellant was charged with and convicted of an offence under section 247 (e) of the Penal Code and ordered to pay a fine of Sh. 400, in default three months' detention. On appeal

Held $(28-9-48)$ .—(1) That although mere words can never amount to assault, if they are accompanied by an act indicating an intention to use violence against the person of another, an assault is committed.

(2) That there was sufficient evidence from which it could be inferred that a technical assault had been committed.

(3) That the sentence was not excessive in the circumstances of the case.

Appeal dismissed.

In this report special note is to be taken of the observations of His Lordship on the importance of strict compliance with the provisions of section 209 of the Criminal Procedure Code before the trial Magistrate puts an accused on his defence, and on the necessity of entering on the record that the section has been complied with.

A. R. Kapila for the Appellant.

Modi for the Crown.

JUDGMENT.—Two points arise for consideration on this appeal (a) whether on the evidence as accepted by the Magistrate the offence of assault was disclosed; and $(b)$ whether the failure of the Magistrate to record that he had complied with the provisions of section 209 vitiates the proceedings.

As regards the first point in my opinion there was sufficient evidence from which the Magistrate could infer that a technical assault had been committed. Although mere words can never amount to assault if they are accompanied by an act which indicates an intention to use violence against the person of another an assault is committed. According to the evidence of the ex-chief (P. W.5) on whom the Magistrate seems to have placed special reliance the appellant came up and faced the three Native Tribunal Elders in a very angry mood. He then seized a heavy iron pointed stick and raised it threateningly like a spear and demanded to know which was the senior Elder so that he might kill him. It is evident from the other witnesses that had not the Elders beat a fairly hasty retreat from the scene and desisted from their inquiries actual violence would have followed.

On the second point both this Court and the East African Court of Appeal have over and over again emphasized the necessity that Magistrates should comply with the provisions of section 209 of the Criminal Procedure Code and should indicate on the record that they have done so and it is highly regrettable to find a Magistrate holding First Class powers neglecting to do so. Whilst such an omission to comply is not necessarily fatal to a conviction the Court will in every such case consider most earnestly whether such omission may have occasioned a failure of justice and if there be any doubt in the matter it will not hesitate to intervene. Every case must be decided on its own facts. In the present case I have come to the conclusion, not without some hesitation, that it is safe to conclude that no failure of justice has in fact occurred. The appellant did make his defence and the Magistrate has recorded that there were "no defence witnesses" from which I think it safe to assume that the appellant's rights in that respect were explained to him. It is true that the appellant in his memo. of appeal which was not drawn by Counsel has complained that he wished to call witnesses but was refused, but I can hardly regard this submission seriously in view of the entry on the Magistrate's record. Further, the fact that the Magistrate did not swear or affirm the appellant and that he was not subjected to cross-examination seems to indicate that he was told the difference between giving evidence and making an unsworn statement. The evidence in this case is relatively clear and simple and the appellant's own statement answered the material points made against him. I can see no ground therefore for concluding that his defence was prejudiced by the Magistrate's failure, if he did so fail, to explain properly to him the provisions of section 209.

This is an appeal also; against sentence. The fine imposed bearing in mind the circumstances of the appellant is no doubt a heavy one but his conduct was provocative in the extreme and directed against the administration of justice. I am not prepared to say that under these circumstances the sentence was excessive.

$\mathcal{L}^{\mathcal{A}}(\mathcal{L}^{\mathcal{A}})$

The appeal is dismissed.