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Rex v Saburu (Conf. Case No. .848 of 1934.) [1934] EACA 3 (1 January 1934)
- Citation
- [1934] EACA 3
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Gamble. Ag. J. (Kenya), Sheridan CJ, Webb, J
- Case number
- Conf. Case No. .848 of 1934.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Gamble. Ag. J. (Kenya), Sheridan CJ, Webb, J
- Case number
- Conf. Case No. .848 of 1934.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Supreme Court held that the order of imprisonment in default of payment of prosecution costs must comply strictly with section 169 of the Criminal Procedure Code, which requires that imprisonment be ordered only 'in default of payment or distress.' The court further reasoned that, although section 169 allows up to three months' imprisonment in default, in the absence of special circumstances, the period should not exceed that set for non-payment of a fine under section 28(4) of the Penal Code. Accordingly, the court set aside the original order of two months' imprisonment in default and substituted an order for fourteen days' hard labour, aligning with the statutory maximum for fines. The court emphasized that an order of imprisonment solely in default of payment, without reference to distress, is invalid.
Court disposition
sentence varied and confirmed in part
Orders
- The sentence of six months' hard labour is confirmed.
- The order to pay Sh. 20 costs of prosecution and in default (under section 169 C. P. C.) a further two months' hard labour is set aside.
- The substituted order is: to pay Sh. 20 costs of prosecution and in default of payment or of distress fourteen days' hard labour.
02
Material facts
Parties
Rex
Applicant Counsel: WallaceKipkoske arap Saburu
DefendantAmounts and remedies
- Costs of Prosecution: KES 20
03
Procedural history
Posture
Criminal Confirmation / Confirmation of Sentence
04
Questions and positions
Legal issues
- 01
Whether the order of imprisonment in default of payment of prosecution costs was lawful under section 169 of the Criminal Procedure Code.
- 02
Whether the period of imprisonment imposed in default of payment or distress should exceed that prescribed for non-payment of a fine under section 28(4) of the Penal Code.
Party arguments
- Applicant
- The Crown argued that the sentence of six months' hard labour was proper, but the additional order of two months' imprisonment in default of payment of prosecution costs required scrutiny under section 169 of the Criminal Procedure Code.
- Respondent
- The accused did not present substantive arguments, having been convicted on his plea; the legality of the default imprisonment order was the subject of judicial review.
05
Court’s reasoning
Legal principles
- 01
Criminal Procedure Code, section 169
Imprisonment in default of payment of prosecution costs can only be ordered 'in default of payment or distress' as per section 169 of the Criminal Procedure Code.
- 02
Penal Code, section 28(4)
The period of imprisonment in default should not exceed that prescribed for non-payment of a fine under section 28(4) of the Penal Code, unless special circumstances exist.
06
Ratio, limits and disposition
Ratio decidendi
The Supreme Court held that the order of imprisonment in default of payment of prosecution costs must comply strictly with section 169 of the Criminal Procedure Code, which requires that imprisonment be ordered only 'in default of payment or distress.' The court further reasoned that, although section 169 allows up to three months' imprisonment in default, in the absence of special circumstances, the period should not exceed that set for non-payment of a fine under section 28(4) of the Penal Code. Accordingly, the court set aside the original order of two months' imprisonment in default and substituted an order for fourteen days' hard labour, aligning with the statutory maximum for fines. The court emphasized that an order of imprisonment solely in default of payment, without reference to distress, is invalid.
Obiter and limits
- The court noted that the inclusion of 'or of distress' in section 169 is mandatory and any order omitting this phrase is legally defective.
- The court observed that judicial discretion to impose longer periods of imprisonment in default should be exercised only in the presence of special reasons, which were absent in this case.
Court disposition
sentence varied and confirmed in part
- The sentence of six months' hard labour is confirmed.
- The order to pay Sh. 20 costs of prosecution and in default (under section 169 C. P. C.) a further two months' hard labour is set aside.
- The substituted order is: to pay Sh. 20 costs of prosecution and in default of payment or of distress fourteen days' hard labour.
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 CONFIRMATION.
Before SIR JOSEPH SHERIDAN, C. J., WEBB, J., and GAMBLE, Ag. J.
REX, Prosecutor
11.
KIPKOSKE arap SABURU, Accused.
Conf. Case No. 848 of 1934.
Criminal Procedure Code, section 169—Costs—Imprisonment in default—Period of imprisonment.
Accused and another were charged before the Second Class Magistrate at Kericho with theft of eight goats under section 255 of Penal Code. The other accused was acquitted and the present accused was convicted on his plea and sentenced to "six months" hard labour and to pay Sh. 20 costs of prosecution and in default (under section 169 Cr. P. C.) a further two months' imprisonment with hard labour". The matter was set down before the Supreme Court for argument on a question as to the legality of sentence.
$Held$ (4-1-35).—That where a convicted person is ordered to pay costs of prosecution an order of imprisonment can only be made "in default of payment or distress". Although, under section 169, a period of three months imprisonment in default of payment or distress may be imposed, in the absence of special circumstances the period should not exceed that laid down by section 28 (4) of the Penal Code in the case of fines.
Wallace for Crown.
ORDER.—The sentence of six months' hard labour is confirmed but the order "to pay Sh. 20 costs of prosecution and in default (under section 169 C. P. C.) a further two months' hard labour" is set aside and the following order substituted therefor: "to pay Sh. 20 costs of prosecution and in default of payment or of distress fourteen days' hard labour". In view of the 'words "or of distress' in the section an order of imprisonment in default of payment is bad. Our reasons for reducing the period of imprisonment to fourteen days is that although a term not exceeding three months is competent we are of opinion that the period should not exceed that fixed for non-payment of a fine by section 28 (4) of the Penal Code in the absence of special reasons.
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