[1951] EACA 167

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

# (1) NYARWAI D/0 WAMBUGU and (2) WAMBUI D/0 WAMBUGU. Appellants (Original Accused)

## υ

# REX. Respondent

### Criminal Appeals Nos. 9 and 10 of 1951 (Consolidated)

(Appeal from decision of H. M. Supreme Court of Kenya (Appellate Side)— Thacker and Modera, JJ.)

The two appellants were convicted in the Resident Magistrate's Court at Nyeri firstly of obstructing the police in the execution of their duty and secondly with aiding a prisoner to escape from the custody of the police *contra* section 119 Penal Code.

On appeal the Supreme Court of Kenya quashed the conviction and set aside the sentence on the second count. The Court also quashed the conviction on the first count and substituted convictions for common assault under section 245 of the Penal Code against both appellants and by its order reproduced the same sentence as had been imposed by the learned Magistrate namely, six months' imprisonment with hard labour and a fine of Sh. 500 or a further six months' imprisonment in default of non-payment.

It was argued that as the original convictions were quashed and a new conviction substituted by the Supreme Court the appeal to the E. A. C. A. was in fact a first appeal against that conviction and sentence.

Held (8-5-51).—The Supreme Court when deciding a case on appeal certified its order to the<br>Court below under section 355, Criminal Procedure Code, and under sub-section 2 of that section the Subordinate Court receiving the certificate made an order conformable to the judgment or order so certified. The conviction for assault was a conviction by the Subordinate Court and no appeal against severity of sentence lies under section 360,<br>Criminal Procedure Code, to the E. A. C. A.

Appeal dismissed,

Swaraj Singh for appellant.

#### Templeton, Crown Counsel (Kenya), for Crown.

JUDGMENT.—These two appellants, whose appeals we have consolidated, were convicted in the Magistrate's Court of two offences, firstly, obstruction of the police in the execution of their duty contrary to section 248 of the Penal Code, and secondly, with aiding a prisoner to escape from the custody of the police contrary to section 119 of the Penal Code.

On appeal to the Supreme Court of Kenya the conviction on the second count was quashed and the sentence set aside, and we need not concern ourselves with that part of the Supreme Court's judgment. The Court also quashed the conviction on the first count on the ground that it was not satisfied that the evidence established without doubt that the police were acting in the execution of their duty when they entered the first appellant's hut. On the evidence as recorded by the learned Magistrate we agree that the point is open to doubt and that under these circumstances the Supreme Court was right in quashing the conviction.

Having quashed the convictions of both offences of which the Magistrate had convicted the appellants, the Supreme Court then proceeded to substitute convictions of common assault under section 245 of the Penal Code against both appellants. This the Supreme Court had the power to do because section 245 is a minor offence to the offences of which the appellants had been convicted by the learned Magistrate. The view taken by the Supreme Court was that even assuming that the police officers were technically trespassers the degree of force used by the appellants was quite unjustifiable.

Learned counsel for the appellants has urged that this view is hardly a reasonable one, and that the Court below has failed to take sufficiently into account that the appellants were women and that the entry into the first appellant's hut took place at night. We are unable to accept this submission for in our opinion the Supreme Court had ample justification for adopting the course it did. In the case of the first appellant the evidence, as accepted by the learned Magistrate, proved that she threw a bottle twice at the police officers which caused not untrivial injuries. There was also evidence that there was a man in the hut with her at the time, so that it seems to us that the inference is clear that she adopted the violence that she did not because she was frightened of the police officers as trespassers but because they were police officers and she understood well their mission. The case of the second appellant is an even weaker one as she threw stones at the officers as they were leaving the premises.

Two other points have been taken by learned counsel for the appellants, the first being that the Appellate Court below was wrong in not placing more importance on the omission of the learned Magistrate to record his compliance with section 194 (2) of the Criminal Procedure Code. Here again we are of the opinion that the Supreme Court was right, even on the assumption that the Magistrate did not inform each witness that he or she was entitled to have the evidence read over to them, in coming to the conclusion that this irregularity was curable under section 381 of the Criminal Procedure Code. There is nothing from the record, nor has it been seriously argued by counsel, that the omission, if there was an omission, could have occasioned a failure of justice.

Lastly, it has been urged that the sentence imposed by the Supreme Court for the substituted offence is so excessive as to warrant intervention of this Court. The Supreme Court by its order in regard to sentences in fact reproduced the same sentence as had been imposed by the learned Magistrate on each appellant. namely, six months' imprisonment with hard labour and a fine of Sh. 500 or a further six months' imprisonment in default of non-payment. This was a lawful sentence for a conviction of an offence under section 245 of the Penal Code, and this being a second appeal we are of the opinion that appeal against its severity cannot be entertained under the provisions of section 360 of the Criminal Procedure Code. It has been argued that as the original convictions before the learned Magistrate were quashed and a new conviction substituted by the Supreme Court this is in fact a first appeal against that conviction and sentence. The point taken is an ingenious one, but we cannot accept it. Under section 354 of the Criminal Procedure Code the Supreme Court is given certain powers in the exercise of its appellate jurisdiction over subordinate Courts, and under section 355 when a case is decided on appeal it is the duty of the Supreme Court to certify its order to the Court below, and under sub-section (2) of the same section it is the duty of the subordinate Court on receiving the certificate to make an order conformable to the judgment or order so certified by the Supreme Court. In this case then, the conviction for assault entered against the two appellants is a conviction not by the Supreme Court but by the subordinate Court of trial and the ordinary rule set out in section 360 must apply.

For these reasons these appeals fail on all points and must be dismissed.