Ntibabara s/o Mwaloha v. R., Crim. App. 504-M-68, 16/9/68, Mustafa J.

Ntibabara s/o Mwaloha v. R., Crim. App. 504-M-68, 16/9/68, Mustafa J.

Accused, being charged with common assault, failed to appear on the date fixed. A bench warrant was issued for his arrest; when two policement met him and attempted to arrest him, he felled one of them with a spear. The record showed no finding as to his age, which he gave as 60 years and which the charge sheet alleges to be 45 years. For failing to appear, accused was convicted of contempt of court c/s 114(1)(b), Penal Code; for resisting arrest, he was convicted under s. 243(a), Penal Code, and sentenced to 3 years’ imprisonment. He was also convicted on the common assault charge, and sentenced to 6 month’s imprisonment. Accused was a first offender.

            Held: (1) s. 114(1)(b), applied to persons “having been called upon to give evidence in a judicial proceeding ….. “ i.e., to witnesses, and does not apply to a failure to appear by the accused himself. Conviction for contempt quashed. (2) A sentence of 3 years’ imprisonment for an “elderly” first offender, for the offence charged here, was “manifestly excessive.” Sentence reduced to 15 months. (3) For the same reason, the assault sentence was reduced to 3 months, to run concurrently.

Accused was charged with contempt of court c/s 114, Penal Code, for showing disrespect to the court by laughing during the course of a trial in which he was involved. Accused said that a fly had entered his nose, which was the cause of the ensuing noise that he made. He was sentenced to 8 months imprisonment.

            Held: (1) “It is to be presumed that an offence under s. 114(1) (a) of the Penal Code requires mens rea. The offender must intend to show disrespect to the officer administering justice or to the proceeding, in which he is engaged.” The record did not contain such a showing. (2) The proper procedures for a court to follow in summarily dealing with contempt of court was set out by the Court of Appeal in Joseph Odhengo s/o Ogongo v. R. [(1954) 21 E.A.C.A. 302, a case involving the equivalent section of the Kenya Penal Code.]. These were not followed here. (3) The maximum sentence of imprisonment permitted under s. 114 (2)is one month. (A fine can also be imposed). Thus the court erred in passing a sentence of eight months imprisonment . (4) “(A) good principle to bear in mind when dealing with contempt of court cases is that trivial incidents ought not to be magnified into offences.” Conviction quashed.