Ali v Republic [1989] KEHC 103 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA

AT NAIROBI

CRIMINAL APPEAL NO 1152 OF 1988

BETWEEN

ALI............................................................... APPELLANT

VERSUS

REPUBLIC..............................................RESPONDENT

JUDGMENT

(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of theSecond Class District

Magistrate’s Court at Makadara)

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October 2, 1989, Porter Jdelivered the following Judgment.

The Appellant was convicted in the court below of Subjecting a tenant to annoyance C/S 30 of the Rent Restriction Act Cap 296 as amended.

The sole point argued on the appeal is that S 30 does not create any offence. Going a little further than that argument, I have perused the record and I agree on my own assessment of it that the Learned Trial Magistrate’s findings of fact are correct and that this is indeed the sole point on the appeal.

S 30, under which the Appellant is charged relates to the jurisdiction of the Tribunal and does not create an offence. Probably the intention was to charge under S 29. As it is the Appellant was charged with a non280existent offence.

I am able to trace only one authority directly on this point and that is the case of Opidi-v-Rep[1965] EA 614. I am referred also to Sabur-v-R[1958] EA 126 which was considered in Opidi’scase and a distinction drawn as in Sabur’scase the section wrongly quoted was at least an offence.

It is the Opidiargument which applies to this case. Whilst Opidicomes from a neighbouring jurisdiction, the argument in it is very powerful, and I find difficulty in departing from it. The result therefore is that the error in the charge in this case is incurable.

Appeal allowed conviction quashed and sentence set aside.

Dated and Delivered at Nairobi this 2nd October , 1989.

C. PORTER

JUDGE.