[1950] EACA 113

## **MISCELLANEOUS CRIMINAL**

## Before SIR BARCLAY NIHILL, C. J., and CONNELL, Ag. J.

# IN THE MATTER OF AN APPLICATION BY NDEGWA s/o KURIA FOR A WRIT OF CERTIORARI

#### AND

# IN THE MATTER OF ORIGINAL CRIMINAL CASE No. 71 OF 1948 OF THE SECOND CLASS MAGISTRATE'S COURT AT NYERI ENTITLED REX v. LABON MWITA

### Miscellaneous Criminal Case No. 3 of 1950

Section 171 Criminal Procedure Code—Costs awarded by Magistrate to accused against complainant—Objection to be by appeal not certiorari.

Under section 171 (2) Criminal Procedure the applicant was ordered by the Magistrate to pay the sum of Sh. 400 "to cover costs and inconvenience" suffered by a person who had been charged with an offence but acquitted. He therefore applied for a rule *nisi* calling for a writ of certiorari to quash the order on the ground that he was not a private prosecutor in the case but a witness called by the Crown whose prosecution it was.

Held (6-11-50).—That application for a writ of certiorari was not the proper procedure which<br>was by way of appeal. Section 172 Criminal Procedure Code specifically gives a right of appeal from any order awarding costs made by a Magistrate to the person damnified by the order, who in this case was the applicant.

Morgan for the applicant.

JUDGMENT.—This is an application made under section 389 of the Criminal Procedure Code for a rule *nisi* calling for the issue of a writ of certiorari to quash an order made by a Third Class Magistrate at Nyeri under section 171 sub-section (2) of the Criminal Procedure Code. By this order a person charged but acquitted of the offence of being found in possession of stolen goods was awarded a sum of Sh. 400 "to cover costs and inconvenience" to be paid to him by the applicant for this rule. It has always been and still is the contention of the applicant that the Magistrate acted in excess of jurisdiction in making this order because he was not a private prosecutor but witness called by the Crown in the course of public prosecution.

This matter has had an extraordinary history for it has been in and out of this Court in a variety of ways over a period of nearly two years.

The date of the Magistrate's order was 25th October, 1948, and Mr. Morgan, who has since represented the applicant appears to have been first instructed towards the end of November, 1948. We say this because of his letter on the file dated 30th November, 1948, addressed to the Registrar of the Supreme Court asking one of the Judges to review on revision the order made by the Magistrate.

We have asked Mr. Morgan during the course of this hearing why he did not enter an appeal against the order complained of and he has told us that he did not do so because he thought that had he done so this would have stopped him from claiming that his client was not a party to the criminal proceedings. In our view this was an entire misconception that the considerable delay which has occurred in the determination of the quite simple issue involved in this case must be directly attributed. Second 172 of the Criminal Procedure Code gives specifically a right of appeal to the Supreme Court from any order awarding costs made by a Magistrate under the preceding section. Most clearly, the right of appeal accrues to the person damnified by the order, which in this case is the applicant for this rule, no matter what his status may have been at the time the order was made. If he was not a private prosecutor on whose application a summons or warrant was issued by the Court then the Magistrate did act in excess of jurisdiction and the applicant must have succeeded on appeal. Because this simple issue has been buried under the debris engendered by Mr. Morgan's successful struggles to obtain the issue of a high prerogative writ this contention has never been examined and determined by this Court.

We now must return to Mr. Morgan's letter to the Registrar of 30th November, 1948.

The matter did come before a Judge of the Supreme Court who refused to make any order in revision. From the letter addressed to Mr. Morgan by the Registrar of the Supreme Court dated 14th January, 1949, it would seem that Mr. Justice Modera did examine the merits of the applicant's contention that the Magistrate acted in excess of jurisdiction. On our view of the case, taking into account the provisions of section 363 (5), the learned Judge never had jurisdiction to exercise his revisional jurisdiction at the instance of Mr. Morgan acting for the applicant because an appeal did lie against the Magistrate's order. It follows then that the learned Judge's order refusing revision, whether the reasons given were good and bad ones, was a good order and the only one that could have been made. What then was the applicant's proper remedy when he first consulted Mr. Morgan in November, 1948? Section 172 of the Civil Procedure Code does not specify a limitation period under which appeals against orders under the preceding section must be filed but from the wording of section 349 of the Criminal Procedure Code we conclude that this period is 30 days from the date of the order. It is impossible that when the applicant first consulted Mr. Morgan his time for filing an appeal had already expired. It did expire on 25th November, 1948, but if this was the case the applicant could have been advised and we think should have been advised to avail himself of the proviso to section 349 and have filed his application for leave to appeal out of time. This then is the position to-day. The applicant has a right of appeal which he has never exercised nor has he ever submitted an application for leave to appeal out of time. So far then as the present motion is concerned that is an end of the matter. This Court will not authorize the issue of a high prerogative writ when a lesser remedy is or was open to a person aggrieved. In discharging the motion however we are not disposed to leave matters as they are. For two years this applicant has been trying to get a simple issue reviewed and determined by this Court and it is no fault of his that he has not succeeded. We think it just therefore that we should treat this motion in fact as an application for leave to appeal out of time and that we should grant this application. The circumstances of this case are entirely exceptional and the delays that have occurred are in no way attributable to any lack of diligence by the applicant. We give him 14 days in which to file a memorandum of appeal under section 172 of the Criminal Procedure Code against the order made against him by the Magistrate under section 171. When this is done the appeal will be admitted to hearing before two Judges at the next Criminal Appeal Sessions and Mr. A. R. Kapila who, we understand, represents the person acquitted at the criminal proceedings and in whose favour the order was made will be notified of the date of hearing. Meanwhile the money will remain on deposit with the District Commissioner at Nveri.