Sebastian Lothi and others v. R., Crim. App. 200-D-68, 18-D-69, 19-D-69, 20-D-69, 23-D-69, 21/3/69, Platt J.

Sebastian Lothi and others v. R., Crim. App. 200-D-68, 18-D-69, 19-D-69, 20-D-69, 23-D-69, 21/3/69, Platt J.

The five appellants appeal against their convictions of contempt of Court and fines of Shs. 400/-, imposed by the District Court of Kilimanjaro, at Moshi. In Criminal Appeal No. 200 or 1968, the appellant, Sebastian Lothi, was fined Shs. 400/- for belching and yawning and making a lot of noise. In Criminal Appeal No. 23 of 1969, the appellant, Zakaria Ndemfoo, was fined Shs. 400/- for having laughed and talked in Court while proceeding were in progress. In Criminal Appeal Nos. 18, to 20 of 1968, inclusive the three appellants were jointly fined Shs. 400/-, having been convicted of making noises in the precincts of the Court building. In each of these cases, the leaned Magistrate took cognizance of the offence and punished the offender brevi manu. The procedure adopted was as follows. In the case of the three appellants in appeal Nos. 18, 19 and 20 of 1969, the charge is simply stated as contempt of Court c/s 114 (1) (a) of the Penal Code. The court then set out its observations of the offence and fined the offenders. In criminal appeal No. 23 of 1969m Zakaria Ndemfoo is alleged to have said that he understood and admitted that he was laughing; the charge of contempt of court was then noted; the court added its observations and thereafter the offender was fined. In Criminal Appeal 200 of 1968, the record reveals that the accused said “It is true”. That was entered as a plea of guilty. No charge was noted but the court set out its observations upon which the appellant was found guilty. No charge was noted but the court set out its observations upon which the appellant was found guilty of contempt of Court and punished. These appeals were argued on the question of what procedure should properly be followed in the case of contempt of Court ex facie the court.

            Held: “It seems that on must return to ODHENGO v. R. (1954) 21 E.A.C.A. 302 ……. The Court of Appeal expressed the view ……. That where a court ‘takes cognizance’ of an offence, it is in effect assuming an exercising a jurisdiction to deal summarily with the offence and that in every such case, it is essential that the court should confirm and record the substance of the charge, call upon the person accused to show cause why he should not be convicted on that charge and give him a fair opportunity to reply. It further observed that it was desirable that the record should show that this procedure has been in fact followed and should contain an adequate note of the accused person’s reply if any, as well as the court’s decision. It was pointed out that if these particulars did not appear on the record, the appellate court would he hampered. If that decision is to be followed then it would seem that in none of these cases did the court first frame and record the substance of the charge before calling upon the accused person to show cause why he should not be convicted. Nor is it clear that the offenders were given a fair opportunity to reply to the observations of the court upon which it was said that the offenders were guilty. I cannot say that I think, that the record merely did not reveal what has taken place and

therefore I fear that the proceedings in each case must be considered null. Certainly the appellants have not put forward explanations in their petitions. But Odhengo’s case was considered with some care by Simmons, J. in HAMISI s/o MURUIRO v. R. Cr. App. No. 141 of 1968. The result of that appeal was that the observation of the Court of Appeal in Odheng’s case was considered obiter and therefore not binding, while it was said that the actual contempt might allow for a different procedure. So for instance, the contempt in Odheng’s case was refusing without lawful excuse to answer a question. Simmons, J. was prepared to concede that in the case of that kind of contempt it might well be contrary to naturally justice not to give the contemnor an opportunity of advancing a lawful excuse if he had one. But in Hamisi’s case, the contempt consisted of insults heard by the Court, who demanded no proof and admitted of no explanation; in that event the Court was entitled to punish brevi manu. On the strength o this decision it is clear that in all of these cases, the offenders had excuses to put before the court. They were not acts which admitted of no explanation and therefore, even on the analysis of Simmons, J., I am thrown back on the general though obiter pronouncement of the Court of Appeal in Odhengo’s case. The matter was also referred to in Criminal Appeal No. 424 of 1960 by Sir Ralph Windham, C.J. but he left the matter open for further consideration. With respect, I think that the view of Simmons J., though no doubt useful on occasion, must necessarily have such little practical advantage that the procedure laid down by the Court of Appeal should generally obtain. But as I have explained, all thee appellants fell to be dealt with under the procedure laid down in Odhengo’s case in any event. I agree with the Republic that the convictions cannot e allowed to stand; they are quashed and the sentences imposed on them are set aside.” Appeal allowed.