Jairos v. R. Crim. App. 740-D-70; 26/3/71; Biron J.

 Jairos v. R. Crim. App. 740-D-70; 26/3/71; Biron J.

The appellant was convicted of contempt of court by a District Magistrate and sentenced to six months imprisonment. The alleged contempt occurred during the trial of the appellant for burglary and stealing when his brother was giving evidence for the defence, the conduct held to constitute contempt was recorded thus; “Accused does not want to get into (the) dock. I have warned him several times. Accused makes disturbances in court. This is contempt of court under section 114 Penal Code and I convict him and sentence accused to 6 months imprisonment.”

            Held (1) (Citing Joseph odhengo s/o Ogongo v. R. XXI E. A. C. A. 1954, 302 and Morris v. Crown Office [1970] 2 W. L. R. 792, 801) “Although the decision of the Court (of Appeal for Eastern Africa) was on the Kenya Penal Code, as the corresponding provision of our Code is the same, the Court’s ruling is binding on our courts. Therefore, despite, as remarked, the ex facie purport of the section, it is incumbent on a court even when acting under section (2) (of section 114 of the Penal Code) to frame a charge and call upon the accused to show cause why he should not be convicted upon the charge so framed and give him a fair opportunity to reply”. (2) “Although the construction by the Court of Appeal of the subsection rather restricts the power of a court on committal for contempt, from a practical point view, it has the salutary effect of given magistrates who might otherwise be carried away and act hastily, cooling time, so as to avoid such embarrassing cases like committing for contempt a court clerk for failing to produce an exhibit or a file in time, or a prosecutor for appearing late in court.” (3) Appeal allowed. Conviction quashed and sentence set aside.