Mzee s/o Selemani v. R., Crim. App. 244-D-68, 21/6/68, Georges C. J.

Mzee s/o Selemani v. R., Crim. App. 244-D-68, 21/6/68, Georges C. J.

Accused, a Divisional Executive Officer, was convicted of wrongful confinement [P.C. s. 253] and abuse of office [P.C. s. 96]. Complainant went to accused ’s house to seek a permit to hold an ngoma. When accused replied that no such permits were available, complainant apologized for bothering him. At this point accused rebuked complainant for interrupting a “bwana mkubwa” and ordered a clerk to arrest complainant. No warrant for the arrest was issued. Complainant was charged with an offence contrary to section 124 of the Penal Code and was released on bail after being detained for short period. This charge against complainant was later dropped. Accused argued that because he was an ex officio justice of the peace, he was immune from prosecution as a judicial officer under section 16 of the Penal Code and section 60 of he Magistrates’ Courts Act.

            Held: (1) The immunity of judicial officers extends only to those actions taken by the officer in the performance of a judicial function. [Citing Saudi Bakari Kionywaki v. R., Crim. App. 714-D-67, High Court Digest, Vo, I, case No. 443]. (2) Although the issuance of a warrant of an arrest has been held to be a judicial function [Citing Saudi Bakari Kionywaki v. R., supra], the arrest of a person without warrant for an offence allegedly committed within the officer’s view does not constitute a judicial function. In the first case, the officer is to make an impartial evaluation of the grounds justifying the warrant; in the second case he is exercising a function similar to that of countless police officers. Therefore, there was no immunity and the conviction for wrongful confinement was proper. (3) Penal Code section 124 provides for the disobedience of a lawful order, and since no order has been made by accused which could be disobeyed, the arrest of complainant was unlawful. (4) Penal Code section 96 provides that any officer “who …. Does or directs to be done, in abuse of the authority of his office, any arbitrary acts prejudicial to the rights of another, is guilty of misdemeanor.” Accused knew that the arrest was wrongful, and the arrest was arbitrary and prejudicial to complainant. Sentence on first count reduced from nine months to three months; appeal otherwise dismissed.