Chavde and Another v City Council of Nairobi (Criminal Appeal No. 81 of 1954) [1954] EACA 174 (1 January 1954)

# APPELLATE CRIMINAL

#### Before BOURKE, J.

### MANIBEN JAGJIVAN CHAVDE AND ANOTHER, Appellants

ν.

# THE CITY COUNCIL OF NAIROBI, Respondent

# Criminal Appeal No. 81 of 1954

Criminal Procedure and Practice--Criminal Procedure Code, section 348 (2)-Restriction on right of appeal to fine of Sh. 100 only—Whether order for costs is a penalty forming part of sentence for purpose of appeal.

The magistrate fined each accused Sh. 100 with an ancillary order for costs of Sh. 8. The accused appealed. The respondent submitted that the appeal was incompetent because no appeal was allowable in respect of fines not exceeding Sh. $10\overline{0}$ .

Held (28-4-54).—Section 348 (2) of the Criminal Procedure Code does not allow an appeal<br>where any fine imposed does not exceed "Sh. 100 only". In this instance there was<br>not only a fine of Sh. 100 but also an order for pay were a penalty forming part of the sentence. The restriction on appeal imposed by the section did not apply so that the appeal was not barred.

Case referred to: Hirji Meghji and Company v. R., Supreme Court Criminal Appeal No. 17 of 1953.

$R$ , $N$ . Khanna for appellants.

Mackie-Robertson for respondent.

RULING.—The point has been taken that because the appellants were sentenced to pay a fine of Sh. 100 and Sh. 8 as costs or undergo one month's imprisonment in default of payment, that no right of appeal lies under section 348 (2) of the Criminal Procedure Code.

It is true that under section 172, Criminal Procedure Code, a special right of appeal lies from any order awarding costs; but under section 348 (2) appeal is not allowable where, *inter alia*, there is "a fine not exceeding Sh. 100 only."

In this case there is not only the fine of Sh. 100 but also the order for payment of costs in Sh. 8. It accordingly seems to me that the right of appeal is not barred. The costs to be paid is to my mind a penalty forming part of the sentence and so section 348 (2) does not restrict the right of appeal conferred by section 347 (1). Where, by analogy, an order for forfeiture forms part of the sentence and is not merely statutorily automatic there would, as I understand it, be a right of appeal though the other part of the sentence be a fine of Sh. 100 or less (see Hirji Meghji & Co. v. R., Criminal Appeal Supreme Court 17 of 1955). I rule that there is a right of appeal.