Joseph v. R. Crim. App. 340-D-71; 13/8/71; Biron J.

Joseph v. R. Crim. App. 340-D-71; 13/8/71; Biron J.

The appellant was convicted of stealing by agent and he was sentenced to three years imprisonment. As far as the conviction was concerned the appellate court held that there was no merit at all and so one of the issues involved on appeal concerned the sentence imposed by the trial magistrate. In sentencing the appellant, the trial magistrate said:- “Offences of this nature are

ripe in Sumbawanga District. Accused has decided to live a criminal life, he steals any valuable thing at sight …………. He has little claim to leniency when one considers his shocking long list of previous convictions. He deserves a long period in jail to make him rest of his hard (sic) job of stealing and also to relieve the public of his menaces. The severe sentences he has been frequently experiencing in those previous convictions have proved a total failure ………….” Apparently the severest sentence the appellant had had before was twelve months imprisonment. During the trial the magistrate summarily convicted the appellant for contempt of court without framing the charge, calling upon the appellant to show because why he should not be convicted on that charge and affording him a fair opportunity to reply – purporting to act under Section 114(2) of the Penal Code and sentenced appellant to six months imprisonment.

            Held: (1) “Leaving aside the last conviction which as noted, was on the very same day as this instant one, the heaviest penalty the appellant had to –dated was imprisonment for twelve months. The magistrate’s remark that “the severe sentences he has been frequently experiencing in those previous convictions have proved a total failure” is therefore less that true and the severest sentences, that of three years imposed on the same day, as it was by the same court it was probably by the same magistrate, apart from the fact that it cannot in the circumstances be treated as a previous conviction as it was subsequent to this instant offence if, as would appear to be the case, it was imposed by the same magistrate, it may well have been as equally well merited as the sentence in this instant case, which, as already remarked, is excessive.” (2) “As will be noted the magistrate specifically stated that he was acting on the powers vested in him under section 114(2) of the Penal Code. The magistrate is directed to read the subsection where under he purported to act and wherefrom he will. 400/- or imprisonment for one month in default. Not only had he no power to impose imprisonment for six months, but he had not even any power under that subsection to impose any sentence of peremptory imprisonment …………. Ex facie the wording of subsection (2) would appear to empower a court to take cognizance of a contempt committed in front of it and sentence the offender. Even so, it does not appear that a conviction will lie under that subsection, and in any event, the magistrate’s sentence was ultra vires, as the maximum sentence which can be imposed under the subsection is a fine of four hundred shillings or imprisonment for one month in default. The Court of Appeal for East Africa in Joseph Odhengo s/o Ogongo v. R. XXI E. A. C. A. 1954, 302, construed the corresponding subsection of he then section 116 of the Kenya Penal Code (1948), now section 122 of the revised penal Code of 1962, which incidentally has only amended the subsection by increasing the fine to Shs. 1,400/- or imprisonment for a month in default. Subsection (2) of the then section 116 of the Penal Code is substantially the same word for word as our own subsection (2) of section 114 of the Penal Code. In the case cited the Court held, quoting from the headnote; ‘(1) when a Court ‘takes

Cognizance’ of an offence under the provision of section 116(2), Penal Code, the Court should frame and record the substance of the charge, call upon the person accused to show cause why he should not be convicted upon that charge and give him a fair opportunity to reply. (2) In every such case the record should show that this procedure has been followed and should contain an adequate note of the accused person’s reply, if any, and the court’s decision.’ ………… although the decision of the Court was on the Kenya Penal code, as the corresponding provision in 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 subsection (2), 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.” (3) Proceedings for contempt of court nullified; sentence reduced to 12 months imprisonment.