Umbwa Mbegu and another v. R., Misc Crim. App. 25-D-68, 12/4/69, Hamlyn. J.

Umbwa Mbegu and another v. R., Misc Crim. App. 25-D-68, 12/4/69, Hamlyn. J.

The accused were charged with four counts of assault causing actual bodily harm c/s 241, Penal Code. In the middle of the trial they decided to plead guilty, and the magistrate thereupon made an order for “reconciliation” under s. 134, Criminal Procedure Code, and also ordered compensation to the four complainants. One of these complainants is now appealing against this order, on the grounds that he had been aggrieved by it.

            Held: (1) “The first point which falls for decision in this matter is the question of whether the appellant has in fact any right of appeal to this Court ….. Appeals in criminal matters are governed by the provisions of Section 312 of the Procedure Code, which reads:- “Save as hereinafter provided, any person aggrieved by any fining, sentence or order made or passed by a subordinate court … may appeal to the High Court. The question which now arises is whether the appellant is a “person aggrieved” by the order passed by the lower court. Certainly he was not a party to those proceedings; he was it is true, a person injured by the assault, but he was not the prosecutor in the case. That was the Republic, nor was the proceedings brought by one who had obtained the leave of the court to conduct a prosecution as a private person. Jumbe Mohamed Tambaza v. Hashil Hemed and another (1960) E.A.L.R. 527 laid down the proposition  that a private prosecutor has no right to appeal by way of case stated against an acquittal – a decision which, though not on all fours with the present case, is at least indicative of the underlying principles which were are investigating. I think that some assistance can be obtained from a consideration of section 81(1) of the Criminal Procedure Code…..From the wording of this section it seems clear that the conduct of “any criminal case” is in the hands of the Republic and that, despite a private person conducting the prosecution, and despite a complainant having by his complaint having by his complaint instigated the proceedings, the two parties before the Court are in reality the Republic and the accused. What then of the “person aggrieved by any order” spoken of in section 312 of the Code, for he is given the right of in section 312 of the Code, for he is given the right of appeal… section 21(1) of the Magistrates’ Courts Act (Cap. 537) provides for appeals from District Court in matters originating in Primary Courts to the High Court While again this is not the background to the present case, it at least indicates the basic grounds on which appeals are rooted. It provides that in criminal proceedings the Direct of Public Prosecutions alone may appeal to the High Court, while in “any other proceedings” any party “If aggrieved” may appeal. The provision of that section were pointed out

by this Court in the case of Katamba Mwaisunga v. Republic 1967 H.C.D. n. 58 and while, as I say, it has no direct bearing on the present case, it seems to be in accordance with the thesis that the only persons before the court as parties (and who can therefore be “aggrieved”) are Attorney General and the accused persons. It is established law that a right of appeal can only be given by statue and in that case only by words which are clear, express and free from ambiguity. I consider that the wording of section 312(1) of the Criminal Procedure Code is not so clear as to give the appellant the right to come before this Court as a “person aggrieved.” I think that the appellant might well have considered that he always had a civil remedy, in damages and, though it is true that in such action the court should bear in mind the amount of any sum which he had recovered in the criminal matter, the award of the lower court in this case does not preclude additional compensation from being sought in the civil courts. It is therefore a little difficult to see in what the appellant is aggrieved by the order of the District Court. In the event it appears clear that the appellant has no status in this Court and that his appeal is misconceived. He was neither a party to the lower court proceedings, nor can he be heard by this Court. Accordingly his appeal must be and is hereby dismissed. (2) “One other matter however remains for this Court to decide and that must be done in its reversionary powers under Section 329(1) of the Criminal Procedure Code ….. The order of the District Court, which I have found to be made under Section 134 of the Code, purported to impose upon-the respondents an obligation to pay a sum of money to the appellant and others. While the respondents have not expressed any dissatisfaction with the order, the appellant clearly is in no agreement with it; else he would not have instituted these proceedings in this Court. Section 134 provides for the making of such Order where two conditions exist. The first is that the case is one in which such Orders are permissible and Republic v. Saidi  Ibrahim (1960) E.A.L.R. 1058 discusses the scope of the section. At p. 1061 the Court said: - “All felonies are expressly excluded. And from the express inclusion of common assault, it would seem that other kinds of assault constituting only misdemeanors, as for instance assault causing actual bodily harm, are excluded by implication.” Following this opinion as I do, it seems evidence that the District Court had no jurisdiction to deal with the matter as on falling within section 134 and that consequently the Order made by it was a nullity.” (3) “A second consideration also makes it appear that the Court’s order cannot stand. That is (and I have already referred to this) that the making of such Order presupposes an agreement between accused, complainant and court as to the terms of the Order. “Reconciliation” connotes a restoration o harmony between the injured person and the guilty party and consonance can only be achieved by consents; it cannot be imposed by fiat from above upon an unwilling recipient. In this I consider that the trial magistrate was wrong, for it does not appear from the record that any consent was given to the terms of the settlement. It was contemplated by the section.” (4) Proceedings declared void and order set aside, with option to start fresh proceedings. (Editors’ Note: as to whether or not reconciliation can by ordered in assault cases other that common assault, see Mackreyo Kingu s/o Nakala v. R., (1968) H.C.D. n. 105, which impliedly takes the opposite view).