Rex v Yusufu (Criminal Appeal No. 152 of 1942) [1943] EACA 48 (1 January 1943)

APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, Č. J., AND HAYDEN, J.

REX, Respondent $\mathbf{v}$ .

AWAD s/o YUSUFU, Appellant

Criminal Appeal No. 152 of 1942

Criminal Law and Procedure—Security for keeping the peace—Order calling upon accused to show cause invalid unless it states the condition of the bond-No power to order security for good behaviour in cases coming under section 42 of the Criminal Procedure Code-Criminal Procedure Code, sections 42 and 47. $\frac{1}{2}$

Acting under section 42 (1) of the Criminal Procedure Code the magistrate made an order against the appellant in the following terms, viz.:-

"Information having been received that on 8th October, 1942, you did threaten to stab the informant, Sheikh Omar, if he appeared in Isiolo Manyatta at Isiolo, you are hereby required to execute a bond of £100 (Sh. 2,000) which shall remain in force for the period of one year from the time of execution and that you will obtain three sureties who shall be male members of your tribe (Dolbahanta)".

Appellant appeared to show cause against this order, but the cause was disallowed and the judgment ordered the appellant "to execute a bond of £100 to be of good behaviour for the period of one year after execution" and to find sureties, etc., with imprisonment with hard labour for one year in default.

Appellant appealed.

Held (25-2-43).-(1) That the order which was the basis of the proceedings was invalid in as much as it did not state the purpose for which the bond was to be executed, namely for keeping the peace.

(2) That the reference to good behaviour in the judgment was an error since the proceedings were under section 42 of the Criminal Procedure Code.

Appellant in person.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—After questioning the accused through the Court Interpreter we have very little doubt that the accused did not understand what he was called upon to do, but we are not deciding this appeal on that basis.

With the assistance of the learned Crown Counsel we have examined the proceedings, and found that the order which is the basis of the proceedings is defective inasmuch as it does not state the purpose for which the bond was to be executed. It should have stated that the accused was being called on to show cause why he should not be ordered to execute a bond for keeping the peace. This is a fatal defect. If the order had been a valid order we should have reduced the amount of the bond very considerably for the amount mentioned seems to us to be excessive. The reference to "good behaviour" in the judgment is an error for the proceedings were not under section 44.

The appeal is allowed and the accused is directed to be set at liberty. In making this order, which we are obliged to make, we think it well in the accused's own interests to warn him of the consequences of his failing to keep the peace and the grave peril he will expose himself to if he attempts to put into force any threat against the complainant or anyone else.