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Rex v Ruto (Cr. Rev. Case No. 19/1936) [1936] EACA 136 (1 January 1936)
- Citation
- [1936] EACA 136
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Sheridan CJ, Webb, J
- Case number
- Cr. Rev. Case No. 19/1936
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Sheridan CJ, Webb, J
- Case number
- Cr. Rev. Case No. 19/1936
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the proceedings for recovery of Native Hut and Poll Tax under Ordinance 40/1934 are criminal in nature, as indicated by the use of the word 'conviction' in section 6(1). Therefore, the applicable scale of costs is that set out in Part XI, Schedule II of the Rules of Court, with the additional statutory limitation that the total costs awarded must not exceed six shillings, as provided by section 6(2) of the Ordinance. The court further emphasized that while it is within the court's competence to award costs in such cases, magistrates should exercise their discretion to ensure that the imposition of costs does not operate as a penalty for non-payment of tax, particularly given that the costs can amount to a significant proportion of the tax due and that it is not customary to order costs in minor offences.
Court disposition
Application for determination of scale of costs allowed; scale clarified.
Orders
- The scale of costs applicable in Native Hut and Poll Tax cases is that set out in Schedule II to Part XI of the Rules of Court, subject to the limitation of six shillings imposed by section 6(2) of Ordinance 40/1934.
- Magistrates are advised to exercise discretion so that costs do not become a penalty for non-payment of tax.
02
Material facts
Parties
Rex
Applicant Counsel: Wallace, Crown CounselKabienit Arap Ruto
RespondentAmounts and remedies
- Maximum Court Costs Awardable: KES 6
- Service of Summons Within 2 Miles: KES 2
- Service of Summons Beyond 2 Miles: KES 4
- Hearing Costs: KES 4
03
Procedural history
Posture
Criminal Revision / Judgment
04
Questions and positions
Legal issues
- 01
What is the applicable scale of costs in Native Hut and Poll Tax cases under Ordinance 40/1934 and the Rules of Court.
- 02
Does the recovery of tax under section 6(2) of Ordinance 40/1934 constitute criminal proceedings for the purpose of court fees.
- 03
Should magistrates exercise discretion to avoid making costs a penalty for non-payment of tax.
Party arguments
- Applicant
- The Crown argued that the scale of costs in Native Hut and Poll Tax cases should be determined by the Rules of Court, specifically Part XI, Schedule II, but subject to the statutory limitation imposed by section 6(2) of Ordinance 40/1934.
- Respondent
- No formal argument from the accused is recorded; the matter was set for determination of the applicable scale of costs, not for contesting liability or conviction.
05
Court’s reasoning
Legal principles
- 01
Ordinance 40/1934, Sec. 6(2); Rules of Court, Part XI, Schedule II
The scale of costs in Native Hut and Poll Tax cases is governed by Part XI, Schedule II of the Rules of Court, but subject to a maximum of six shillings as per section 6(2) of Ordinance 40/1934.
- 02
Ordinance 40/1934, Sec. 6(1)-(2)
Proceedings for recovery of tax under section 6(2) are criminal in character due to the use of the term 'conviction'.
- 03
Judicial discretion as discussed in judgment
Magistrates should exercise discretion so that costs do not become a penalty for non-payment of tax, especially in minor offences.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the proceedings for recovery of Native Hut and Poll Tax under Ordinance 40/1934 are criminal in nature, as indicated by the use of the word 'conviction' in section 6(1). Therefore, the applicable scale of costs is that set out in Part XI, Schedule II of the Rules of Court, with the additional statutory limitation that the total costs awarded must not exceed six shillings, as provided by section 6(2) of the Ordinance. The court further emphasized that while it is within the court's competence to award costs in such cases, magistrates should exercise their discretion to ensure that the imposition of costs does not operate as a penalty for non-payment of tax, particularly given that the costs can amount to a significant proportion of the tax due and that it is not customary to order costs in minor offences.
Obiter and limits
- Magistrates should avoid making the imposition of costs a penalty for non-payment of tax, especially since costs can constitute up to 50% of the tax due in many cases.
- It appears to be the practice not to order persons convicted of minor offences to pay costs, and this should inform the exercise of judicial discretion.
Court disposition
Application for determination of scale of costs allowed; scale clarified.
- The scale of costs applicable in Native Hut and Poll Tax cases is that set out in Schedule II to Part XI of the Rules of Court, subject to the limitation of six shillings imposed by section 6(2) of Ordinance 40/1934.
- Magistrates are advised to exercise discretion so that costs do not become a penalty for non-payment of tax.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
CRIMINAL REVISION
Before SIR JOSEPH SHERIDAN, C. J., and WEBB, J.
REX. Complainant
$v$ .
KABIENIT ARAP RUTO, Accused
Cr. Rev. Case No. 19/1936
Costs-Native Hut and Poll Tax-Ordinance 40/1934, Sec. 6 (2)-Rules of Court, Part XI, Schedule II.
Held (7-3-36).—That the scale of costs applicable in Native Hut and Poll Tax cases is that set out in Schedule II to Part XI of the Rules of Court, subject to the limitation of Sh. 6 imposed by section 6 (2) of Ordinance 40/1934.
Wallace, Crown Counsel, for the Crown.
JUDGMENT.—This case was set down for argument for the purpose of having determined the scale of costs applicable to Hut and Poll Tax cases. Section $6'(2)$ of Ordinance $40/1934$ provides that whenever proceedings are taken for the recovery of any tax under the Ordinance it shall be lawful for the Court to order the person in default to pay such sum in respect of Court costs, not exceeding in any case six shillings, as the Court in its discretion may determine. Section 6 $(1)$ says that after January 31 the amount due from any person shall on conviction be recoverable by distress and in default of distress the Court may order imprisonment or detention.
In our opinion the use of the word 'conviction' imports that the proceedings for the recovery of tax are criminal in character and therefore the scale of Court Fees applicable is that set out in Part XI, Schedule II of the Rules of Court (Subsidiary Legislation Vol. I, page 91). Subject to the maximum limitation of Sh. 6, the sums that can be awarded would therefore be: for service of summons or warrant (if a summons or warrant is actually issued) Sh. 2 or Sh. 4, according as the service is within or beyond 2 miles of the Court issuing the same, on hearing Sh. 4, and on warrant of commitment $$
We think it right to observe, however, that, while it is competent for the Court to award costs in such cases, we are of opinion that Magistrates should so exercise their discretion as not to make the imposition of costs a penalty for non-payment of tax, particularly as it appears to be the practice not to order persons convicted of minor offences to pay costs, and as the sum that can be awarded amounts, in many tax cases, to as much as 50 per cent of the tax due.
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