Rex v Naj-Muddin (Criminal Appeal No. 94 of 1947) [1947] EACA 36 (1 January 1947)

COURT OF APPEAL FOR EASTERN AFRICA

Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

REX. Respondent (Original Prosecutor) $\nu$ .

SAYED MOHAMED NAJ-MUDDIN, Appellant (Original Accused) Criminal Appeal No. 94 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal law—Entering Kenya without entry permit—Defence (Admission of Male Persons) Regulations, 1944, Reg. 5—Criminal procedure—S. 216 Criminal Procedure Code—Deportation order—Sentence.

On 11th February, 1947, a charge was laid against the appellant for entering the Colony of Kenya on or about the 6th January, 1945, without an entry permit contrary to Reg. 5 (1) (a) of the Defence (Admission of Male Persons) Regulations, 1944. He was convicted and appealed on the ground, inter alia, that the prosecution was barred by limitation under s. 216 Criminal Procedure Code. The Supreme Court taking the view that the deportation which must follow such a conviction was part of the punishment held that s. 216 Criminal Procedure Code had no application and dismissed the appeal. The appellant appealed to the Court of Appeal for Eastern Africa.

Section 216 Criminal Procedure Code provides: —

"Except where a longer time is specially allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months and/or a fine of fifty pounds, shall be triable by a subordinate court, unless the charge or complaint relating to it is laid within twelve months from the time when the matter of such charge or complaint arose."

- Held $(7-8-47)$ .--(1) That as the maximum penalty prescribed for the offence is a fine of Sh. 500 or one month's imprisonment and as the charge was brought more than twelve months after the date of the alleged offence the prosecution was barred by the limitation imposed by section 216 Criminal Procedure Code. - (2) That the order of deportation was merely a legislative arrangement and did not form part of the sentence.

Appeal allowed.

Budhdeo for the appellant.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant's advocate has argued before us two of the grounds of appeal included in the memorandum of appeal-Nos. 3 and 4.

Ground No. 3 is as follows: $-$

"The learned Appellate Court erred in holding that the learned Magistrate had jurisdiction to try the appellant despite the provisions of section 216 of the Criminal Procedure Ordinance."

As this ground of appeal attacks jurisdiction we think it logical to deal with it first, and we have heard the appellant's advocate and Crown Counsel on this ground with the result that we are satisfied that it is a good ground of appeal.

Section 216 is in the following terms: —

"Except where a longer time is specially allowed by law, no offence, the maximum punishment for which does not exceed imprisonment for six months and/or a fine of fifty pounds, shall be triable by a subordinate court, unless the charge or complaint relating to it is laid within twelve months from the time when the matter of such charge or complaint arose."

The maximum penalty prescribed for the offence charged is a fine of Sh. 500 or one month's imprisonment. The charge was brought more than twelve months after the date of the alleged offence. In our opinion these two propositions are sufficient to bring the charge within the time limitation ban of section 216.

The learned Magistrate and the learned Judges in the first appellate Court in our opinion wrongly held that the charge was taken out of the time limitation ban of section 216 by the provision in the Regulations for an order of deportation to be made automatically by the Magistrate whenever there was a conviction under section 3 of the Regulations. In our view this consequentially automatic order by the Magistrate is not an additional judicial punishment, but only a legislative arrangement to enable the Executive to tidy up the situation which arises where a person convicted of entering the country illegally is still in the country. Indeed, without such a provision the Regulations might be rendered nugatory. It is interesting to note in confirmation of this view that during any detention of such person necessary for the arranging of his deportation he is to be treated as a person awaiting trial, that is to say, not as a person serving a period of detention as an additional punishment following on a conviction. It is not difficult to imagine circumstances in which an order for deportation at Government's expense might be *welcomed* by the deportee.

For these reasons we hold that owing to the delay in bringing the charge now in question the Magistrate had no jurisdiction to try it by reason of section 216 and for that reason we allow the appeal, quash the conviction and sentence. and order that any part of the fine paid be refunded. The deportation order which by legislation automatically followed the conviction is set aside and we direct that the appellant if detained in respect of that order be released forthwith.

This appeal having been allowed on the ground of appeal dealing with jurisdiction it is unnecessary for us to deal with any of the other grounds of appeal.