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Rex v Wage (Cr.A. 38/1934.) [1937] EACA 148 (1 January 1937)
- Citation
- [1937] EACA 148
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Gamble. Ag. J. (Kenya), Horne J, Lucie-Smith Ag CJ (Kenya)
- Case number
- Cr.A. 38/1934.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Gamble. Ag. J. (Kenya), Horne J, Lucie-Smith Ag CJ (Kenya)
- Case number
- Cr.A. 38/1934.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that although the statutory three-day notice period for service of information prior to trial was not observed, there was no possibility of a failure of justice in this case. Therefore, section 335 of the Criminal Procedure Code could be invoked to cure the procedural defect. The evidence supported the conviction and the appeal was dismissed.
Court disposition
appeal dismissed
Orders
- The appeal is dismissed.
02
Material facts
Parties
Rex
Respondent Counsel: Bruce (Solicitor-General, Kenya)Luguda s/o Wage
Appellant03
Procedural history
Posture
Criminal Appeal / Judgment
04
Questions and positions
Legal issues
- 01
Whether failure to give three days' notice of trial after service of information in the High Court constitutes a fatal irregularity.
- 02
Whether section 335 of the Criminal Procedure Code can cure the irregularity of insufficient notice if no miscarriage of justice occurred.
Party arguments
- Applicant
- The appellant was not present and did not advance any arguments.
- Respondent
- The respondent, represented by the Solicitor-General, argued that although the statutory period for service of information was not observed, no miscarriage of justice occurred and the defect could be cured under section 335 of the Criminal Procedure Code.
05
Court’s reasoning
Legal principles
- 01
Tanganyika Criminal Procedure Code, sections 230 and 335; Kenya Criminal Procedure Code, sections 238 and 367.
Non-compliance with statutory notice period for trial may be cured if no miscarriage of justice is shown.
06
Ratio, limits and disposition
Ratio decidendi
The court held that although the statutory three-day notice period for service of information prior to trial was not observed, there was no possibility of a failure of justice in this case. Therefore, section 335 of the Criminal Procedure Code could be invoked to cure the procedural defect. The evidence supported the conviction and the appeal was dismissed.
Court disposition
appeal dismissed
- The appeal is dismissed.
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 CASES.
COURT OF APPEAL FOR EASTERN AFRICA.
Before LUCIE-SMITH, Ag. C. J. (Kenya), HORNE, J. and GAMBLE, Ag. J. (both of Kenya).
REX (Respondent) (Original Prosecutor)
$\overline{\mathcal{D}}$
LUGUDA S/O WAGE (Appellant) (Original Accused). Cr. A. $38/1934$ .
- The Criminal Procedure Code of Tanganyika Territory—Sections 230 and 335—Failure to give three days' notice of trial in High Court after service of information—Irregularity that may be cured. - Held (3-5-34).—That, although the statutory period of three days' service of the information and trial as required by section 230 Criminal Procedure Code had not elapsed, never heless, as no miscarriage o occurred through this omission, the provisions of section 335 (a) might be invoked to cure the irregularity (see Kenya Criminal Procedure Code, sections 238 and 367).
Bruce (Solicitor-General, Kenya) for Attorney-General of Tanganyika.
Appellant not present.
The facts of this case are not important.
JUDGMENT.—There being no possibility in this case of a failure of justice having been occasioned by non-compliance with section 230 we are of opinion that section 355 cures the defect in service.
The evidence supports the conviction; the appeal is dismissed.
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