Oscar Mwambola v. R., Misc. Crim. Cause 3-M-67, 1/11/67, Mustafa J.

Oscar Mwambola v. R., Misc. Crim. Cause 3-M-67, 1/11/67, Mustafa J.

Accused was arrested on a charge of violating section 5(1)(a) of Cap. 45, the Official and other Secrets Act. He sough bail, which was denied by the District Court. Section 13 of the Act provides, inter alia, “ ……. (E)very offence under this ordinance shall be ….. non-bailable.” Sec. 17 provides that a prosecution under the Act may be instituted only with the consent of the Director of Public Prosecutions. However, a person may be arrested without such consent and remanded “in custody or on bail”, but no further proceedings may be taken until the consent of the Director has been obtained.

            Held(1) If an accused has been arrested pursuant to Cap. 45, but the Director of Public Prosecutions has not yet consented to prosecute the case, accused may be released on bail. [Sec. 17.] Once such consent has been obtained, however, the District Court no longer has authority to grant bail. [Sec. 13.] Here consent had not yet been granted, so the trial court could have granted bail, and the High Court proceeded to do so. (2) The Court noted that Crim. Proc. Code s. 123 (3) gave to it, but not to any lower court, the power to grant bail for any offence, notwithstanding the provisions of other statutes such as Cap. 45. Thus, had the Director of Public Prosecutions consented to proceedings being instituted, Cap. 45, s. 13 would have precluded the District Court from granting bail, but the High Court would not be so precluded.