[1945] EACA 49
The appeal was dismissed because the judgment of the magistrate did embody the substance of the evidence heard, and no affidavits were presented to show that any omitted evidence was substantial or would have affected the decision. The magistrate's order binding over the appellant in his own recognizance and...
Source-derived case information.
- Citation
- [1945] EACA 49
- Parties
- Appellant: Hasham Merali; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 109 of 1945
- Procedural Posture
- Criminal Appeal / Appeal Dismissed
- Outcome
- appeal_dismissed
- Judges
- Horne J, Lucie-Smith Ag CJ (Kenya)
- Legal Topics
- Summary Trial, Minor Offences, Appeal Procedure, Sentence, Binding Over Order
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Hasham Merali
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Appeal Dismissed
Legal Issues
- 1 Whether the magistrate's order binding over the appellant was competent under the relevant statutory provisions.
- 2 Whether the judgment in a summary trial must embody the substance of the evidence heard, and the procedure for challenging such omission on appeal.
Ratio Decidendi
The appeal was dismissed because the judgment of the magistrate did embody the substance of the evidence heard, and no affidavits were presented to show that any omitted evidence was substantial or would have affected the decision. The magistrate's order binding over the appellant in his own recognizance and ordering costs was found to be within jurisdiction and competent under the relevant statutory provisions. The appellate court affirmed that, in summary trials, the procedure for challenging the sufficiency of the judgment requires affidavits specifying the omitted evidence and its likely impact, which was not satisfied in this case.
Court Disposition
appeal_dismissed
Orders
- Appeal dismissed.
- Order of magistrate binding over the appellant in his own recognizance for six months in the sum of Sh. 200 affirmed.
Full Case Text
Judgment text and source record
16 paragraphs
## APPELLATE CRIMINAL
## BEFORE LUCIE-SMITH, AG. C. J., AND HORNE, J.
## REX, Respondent
$\nu$ .
## HASHAM MERALI, Appellant Criminal Appeal No. 109 of 1945
Criminal law—Practice—Summary trial of minor offences—Kenya Criminal Procedure Code Section 197—Appeal—Procedure—Sentence.
The appellant was convicted of common assault after a summary trial before a magistrate under section 197 Criminal Procedure Code and bound over in his own recognizance in the sum of Sh. 200 for six months under section 34 Penal Code and ordered to pay Sh. 50 costs.
The appellant appealed.
*Held* $(21-6-45)$ .—(1) The order of the magistrate was competent.
(2) In an appeal against conviction on a summary trial on the ground that the judgment does not embody the substance of the evidence heard one or more affidavits would be required showing what the omitted evidence was and that it was substantial and if incorporated would be likely to affect the decision.
Appeal dismissed.
Khanna for the Appellant.
Todd, Crown Counsel, for the Crown.
JUDGMENT.—Appeal fails: to enable this Court to set aside a judgment given under section 197 on the ground that it does not embody the substance of the evidence heard, an affidavit or affidavits would be required showing what the omitted evidence was and that it was substantial and if incorporated would be likely to have effect upon the decision. Here apparently the evidence has been embodied in the judgment. With regard to the order binding over we think it is within the jurisdiction. Sub-section 4 of section 197 restricts the amount of imprisonment and fine and no more.
Appeal dismissed.
Editorial Note.—Leave to appeal to the Privy Council was refused by the Privy Council, the appellant being ordered to pay the costs.