[1946] EACA 59

## APPELLATE CRIMINAL

## Before THACKER, J., and DE LESTANG, Ag. J.

## REX, Respondent $\mathbf{v}$ .

## B. C. MOHINDRA, Appellant Criminal Appeal No. 80 of 1946

Criminal Law-By-laws 106 and 591, Nairobi Municipality By-laws, 1944-"Autrefois acquit"—The true test—Sentence.

The facts appear fully from the judgment.

Held (26-7-46).—That an acquittal for an offence under By-law 106 is no bar to proceedings for an offence under By-law 591, Nairobi Municipality By-laws, 1944, in respect of the same premises.

Appeal dismissed.

Shah for the Appellant.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—On 3rd May, 1945, the appellant was charged in Criminal Case No. 881/45 on four counts with erecting a building before giving notice of his intention to do so to the Town Clerk, contrary to By-law 106 of the Nairobi Municipality By-laws, 1944.

The learned Magistrate held that as the buildings in question had been erected more than twelve months before the institution of the proceedings he had no jurisdiction to try the case (*vide* section 216, Criminal Procedure Code) and he accordingly dismissed it.

On 27th June, 1945, a notice issued by the Town Clerk was served on the appellant requiring him completely to demolish two of the buildings which formed the subject of counts 1 and 4 in Criminal Case 881/45 within 30 days of the service of the notice. The appellant having failed to comply with the said notice was on 9th February, 1946, charged with the following offence: -

"Failing to comply with the requisition of a served notice, contra by-law 591, Nairobi Municipality By-laws, 1944.

Charge.—That on 27th June, 1945, a notice issued by the Town Clerk, Nairobi, was served on you requiring you, at L. R. 209, Plot No. 1939, Fairview Road, Nairobi, within thirty days of service, to completely demolish an unauthorized stone garage and to remove the reinforced concrete tank forming the roof of an unauthorized building, and on 7th August, 1945. it was found that the aforesaid garage had not been demolished and the reinforced concrete tank had not been removed."

The appellant pleaded *autrefois acquit* which plea was overruled by the Magistrate and he was convicted and sentenced to pay a fine of Sh. 200 with three months' simple imprisonment in default.

From his conviction and sentence the appellant has appealed. The first question which we have to decide is whether the Magistrate was right in rejecting the appellant's plea of *autrefois acquit*. It seems clear to us that he was. The principle underlying the doctrine of *autrefois acquit* is that a person should not be put twice in jeopardy for the same offence and the test to be applied in order to determine whether the plea of autrefois acquit should succeed or not is laid down in Archbold's Criminal Pleadings, 31st Ed., at page 136, as follows: -

"Whether the facts are the same in both trials is not a true test; the test is rather whether the acquittal on the first charge necessarily involved an acquittal on the second charge."

It will be observed from the facts which we have advisedly stated in full earlier on in this judgment that (1) the offences in the first case, i.e. "erecting a building before giving notice of intention to do so to the Town Clerk", are different from the offence in the second case, i.e. "failing to comply with the requisition of a notice from the Town Clerk", (2) at the trial of the first case the offence charged in the second case had not been committed, (3) the evidence necessary to prove the first case does not prove the second case and vice versa.

Apart, therefore, from the question whether there has been an acquittal at all in the first case (on which we do not make any decision) we consider that for the reasons given the plea of *autrefois acquit* was properly rejected.

The second question relates to the sentence. By-law 591 provides: —

"Any person who shall fail to comply with the requisition of any notice served under these by-laws or under any by-laws that may be issued under the Municipal Corporations Amendment Ordinance, 1922, within the time specified by such notice, shall be guilty of an offence and shall be liable to a fine not exceeding Sh. 30 for every day in which he shall be in default, and in default of payment of such fine to imprisonment of either kind fora period not exceeding two months."

The Magistrate possibly inadvertently imposed a fine of Sh. 200 with threemonths' simple imprisonment in default. Such a sentence is invalid for two reasons: -

- (a) By-law 591 provides a fine not exceeding Sh. 30 for every day the appell- $\frac{1}{2}$ ant is in default; and - (b) the sentence of imprisonment in default is *ultra vires* the by-law, twomonths being the maximum.

We therefore dismiss the appeal and in order to give effect to the penalty imposed by the Magistrate, we substitute a fine of Sh. 1 per day from the 28th July, 1945, to the date of the trial, i.e. 9th February, 1946, inclusive; in default of payment two months' simple imprisonment.