[1938] EACA 54

# COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya); WHITLEY, C. J. (Uganda); and GAMBLE, J. (Uganda)

# A. J. SIMPSON, Appellant (Original Accused)

# THE DISTRICT COUNCIL OF NAKURU, Respondent (Original Complainant)

#### Cr. App. No. 39/1938

# (From conviction by Resident Magistrate, Nakuru, directed by the Supreme Court of Kenya)

### Right of appeal—Case stated—Jurisdiction—Criminal Procedure Code (Kenya), sections 346, 364—Eastern Africa Court of Appeal Order in Council, 1921, Art. 2.

The appellant was convicted by the Resident Magistrate, Nakuru, by the direction of the Supreme Court of Kenya on a case stated. The appellant appealed to the Court of Appeal for Eastern Africa against the conviction and the decision on the case stated.

Held (20-4-38).—That as the Supreme Court had not exercised its appellate jurisdiction in the case and as the appellant was not convicted on a trial before the Supreme Court there was no right of appeal to the Court of Appeal for Eastern Africa at this stage.

Allan for the appellant.

Wallace, Acting Solicitor-General (Kenya) for the respondent.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—In a case between one A. J. Simpson and the District Council of Nakuru the former was acquitted by the Resident Magistrate, Nakuru, on two charges under Ordinance 26/1928, The Traffic Ordinance. Thereupon the District Council of Nakuru applied for a case stated under section 353 of the Criminal Procedure Code with the result that the Supreme Court remitted the case to the learned Resident Magistrate with a direction to convict on one of the charges, the other charge having been abandoned at the hearing of the case stated. On the conviction so directed by the Supreme Court, the Magistrate imposed a fine of Sh. 101 and made an order against A. J. Simpson to pay costs. The case now comes before this Court on an application by A. J. Simpson to be heard on appeal against the conviction and sentence. The question is whether at this stage an appeal lies to this Court. $\operatorname{We}$ derive our appellate powers from Article 2 of the Court of Appeal Order in Council. Referring to that Article we find that the right of appeal is to be found in the law for the time being in force in Kenya: this law is to be looked for in the Criminal Procedure Code, for the Ordinance under which the applicant was convicted makes no reference to a right of appeal. The two relevant sections on the point are sections 346 and 364. The first gives a right of appeal to any person aggrieved by a decision of the Supreme Court in its appellate jurisdiction in a matter of law. In our view the Supreme Court when hearing a case stated is not exercising its appellate jurisdiction, and so the applicant cannot invoke that section before this Court. Still

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less in our view can he have recourse to section 364 which gives any person convicted on a trial before the Supreme Court a right of appeal in certain circumstances. In the present case there was no trial before the Supreme Court and so that section does not help the applicant.

The question then is, has the applicant no remedy by way of appeal. This is a matter which may come up for decision before the Supreme Court on the interpretation of other sections of the Criminal Procedure Code which have been mentioned before us. In these circumstances we are of the view that it would not be proper for us to express any opinion on the interpretation to be placed upon those sections. It is obvious that we should confine our decision to the one point as to whether at this stage an appeal lies to this Court and for the reasons we have indicated our opinion is that the question must be answered in the negative. The application is refused with costs. We would add however that the case is one in which the public authority might well decide to forgo costs.