[1941] EACA 50

# COURT OF APPEAL FOR EASTERN AFRICA

### Before SIR HENRY WEBB, C. J. (Tanganyika), GAMBLE, J. (Uganda) FRANCIS, J. (Uganda)

### A. J. SIMPSON, Appellant

# DISTRICT COUNCIL OF NAKURU, Respondents Criminal Appeal No. 21 of 1941

# Appeal from decision of H. M. Supreme Court of Kenya.

Costs of original prosecution, proceedings on a case stated and appeal when original conviction set aside without an acquittal on the ground of illegibility of record.

Appellant was prosecuted in a subordinate court for an offence against the Traffic Ordinance and in the first instance he was acquitted. On a case stated the Supreme Court remitted the case with a direction for a conviction and ordered the applicant to pay Sh. 695, the costs of the case stated. The magistrate then convicted and sentenced the appellant to pay a fine of Sh. 101, with Sh. 220 costs payable to the respondents. Appellant appealed to the Supreme Court and then it was found that the record was so illegible that the Supreme Court was unable to form any opinion on the facts and dealt with the case as if the original record was lost by setting aside the conviction with liberty to the respondents to take proceedings anew on the original complaint if so advised. The Supreme Court directed that the appellant should be refunded the Sh. 220 paid by him in respect of the conviction by the magistrate, but allowed him no costs of the appeal.

Appellant appealed to this Court asking for an order that in addition he should have been allowed, inter alia: -

(1) Sh. 220 for his own costs in the Magistrate's Court.

(2) A refund of the Sh. 695 paid as costs on the case stated.

(3) A like sum as his own costs on the case stated.

$(4)$ His costs on the appeal.

## (5) That the fine paid by him should be ordered to be refunded

**Held** $(14-5-41)$ —(1) That the appellant was not entitled to an order for his costs in the magistrate's court for though the conviction had been set aside he had not been finally acquitted of the charge.

(2) The appellant was not entitled to an order for the refund of costs paid to the respondents in respect of the case stated or for an order for his own costs in that matter since the decision upon the case stated, which he had resisted, had not been decided to have been wrong.

(3) That the Supreme Court, in refusing to allow costs of the appeal had not exercised its discretion wrongly.

(4) That no order should be necessary in respect of the fine which must be refunded.

(5) That if further proceedings were taken and resulted in the acquittal of the appellant the trial court shall award the appellant his costs of the original trial and the court made no order as to the costs of the present appeal. $\cdot$

#### Allan for the Appellant.

#### Windsor-Aubrey for the Respondent.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—The appellant was prosecuted in the court of the Resident Magistrate, Nakuru, for an offence against the Traffic Ordinance. The Resident Magistrate acquitted him, but on the application of the respondents stated a case for the opinion of the Supreme Court, which

remitted the case to the Resident Magistrate with a direction to him that he should convict the appellant. The respondents were awarded Sh. 695 costs in respect of the proceedings in the Supreme Court. These costs have been paid. The Resident Magistrate accordingly convicted the appellant and fined him Sh. 101 with Sh. 220 costs payable to the respondents. The fine and costs have been paid. The appellant appealed from this decision to the Court of Appeal, which dismissed the appeal on the ground that no appeal lay to that Court from what was in fact a decision of the Resident Magistrate's Court. No order was made as to the costs of this appeal. The appellant then appealed to the Supreme Court against the decision of the Resident Magistrate. This appeal was dismissed on the ground that a decision upon a case stated is final and Sh. 250 costs were awarded to the respondents and paid by the appellant. From this decision the appellant appealed to the Court of Appeal, which held that an appeal did lie to the Supreme Court, and the appellant was awarded Sh. 1,500 costs in the Court of Appeal, Sh. 250 costs in the Supreme Court, and it was ordered that the Sh. 250 costs paid by him in respect of the first appeal to the Supreme Court should be refunded. As a result of this last appeal to the Court of Appeal the case at last came before the Supreme Court for the determination of the questions at issue. Upon the hearing of this appeal it was found that the original record was so illegible that the Court was unable to form any opinion upon the facts, and accordingly it was compelled to treat the case as if the original record had been lost and to set aside the conviction of the appellant, leaving the respondents to take proceedings anew, if they should be so advised. But the Supreme Court did not reverse the decision upon the question of law submitted by the case stated, as regards costs the Supreme Court, after hearing argument, directed that the appellant should be refunded the sum of Sh. 220 paid by him in respect of the conviction by the Resident Magistrate.

The appellant now appeals against this last order. He submitted that in addition to this he should be awarded (1) Sh. 220 as his costs of the proceedings in the Resident Magistrate's Court since the conviction has been set aside; (2) the sum of Sh. 695 paid by him in respect of the respondents' costs of the case stated; (3) a like sum as his costs of the case stated; (4) the sum of Sh. 250 paid by him in respect of the respondents' costs of the first appeal to the Supreme Court; (5) his costs of the final appeal to the Supreme Court; and (6) that the fine paid by him should be ordered to be refunded.

It is not surprising that counsel have been unable to cite any authority and obviously all that this Court can do is to endeavour to make such an order as will be equitable in such unusual and regrettable circumstances. In our opinion the first item of the appellant's claim is unsustainable because, though the conviction has been set aside, he has not been finally acquitted of the charge. Similarly the second and third items of his claim fail because it has not been decided that the judgment of the Supreme Court upon the case stated, which he resisted, was wrong. As regards the fourth item, no order is necessary, seeing that there is already in existence an order of the Court of Appeal directing the repayment of this sum. As regards the fifth item, we are of opinion that the Supreme Court did not exercise its discretion wrongly in the circumstances: if it had been possible to read the original record it is possible that the conviction might have been confirmed, or it might have been reversed; as no decision was possible it is not inequitable that each party should have been left to bear his own costs of that appeal. With regard to the fine, no order should be necessary, but in case any question should arise we make an order that it be refunded to the appellant.

If further proceedings are taken, and if such proceedings result in the aquittal of the appellant, we direct that the trial court shall award the appellant his costs of the original trial before the Resident Magistrate. We make no order as to: the costs of this appeal.