Gachohi v Rex (Criminal Appeal No, 191 of 1950) [1950] EACA 84 (1 January 1950)

### APPELLATE CRIMINAL

# Before SIR BARCLAY NIHILL, C. J., and THACKER, J.

### KARIOKI s/o GACHOHI, Appellant (Original Accused)

v

### REX, Respondent (Original Prosecutor)

#### Criminal Appeal No. 191 of 1950

## Defence (Control of Prices) Regulations, 1948—Section 11 (1)—Traders Licensing Ordinance—Section 17 (1)—Cancellation of licence—Date and period of cancellation—Not specified in order—Previous convictions—No police record—Oral admission by accused—Effect.

Karioki s/o Gachohi was prosecuted, under Defence (Control of Prices) Regulations, 1948, section 11 $(1)$ , for overcharging 4 cents for a loaf of bread, and pleaded guilty. He was convicted on his plea, and the Court's order was, "Accused admits two previous convictions for similar offences. Accused sentenced to pay a fine of Sh. 50 and to have licence cancelled contra section 2 Ord. VIII of 1943" (now section 17 (1), Cap. 279, Revised Laws). No date or period of cancellation was specified in the order, and no written record of the previous convictions was produced.

Accused appealed.

Held (24-8-50).—(i) That an order under section 17 (1), Traders Licensing Ordinance must follow the wording of that section, and the date and period of cancellation of the licence must be stated, the former to be fixed so as to give the accused time necessary to enable him to dispose of his existing stocks.

(ii) That the previous convictions, unsupported by the usual Police form, should not have been taken into account on the mere oral admission of the accused.

. Sentence varied.

Bhandari for the appellant.

Templeton, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against sentence only.

In the Memorandum of Appeal the appellant has stated that the learned Magistrate wrongly construed his pleas as one of guilty, but this point has not been seriously pressed by his Counsel in the argument before us—and we think rightly so-because on the face of the record nothing could be much clearer than that the appellant admitted without equivocation that he had charged a customer for a loaf of bread 4 cents in excess of the controlled price.

On this plea the Magistrate was fully entitled to proceed to sentence. The sentence the Magistrate imposed was a fine of Sh. 50, together with cancellation of the appellant's licence, by which we must assume the Magistrate meant his Trading Licence, which the Magistrate purported to do under section 2 of Ordinance No. 8 of 1943 which is now embodied in section 17, sub-section (1) of Cap. 279 of the new addition of the Revised Laws.

We have certain observations to make about this part of the Magistrate's order. First of all he did not give the appellant any time to enable him to dispose of his existing stocks, and he did not indicate for what period he intended him to be debarred from holding a trading licence. In omitting to do either of these two things the Magistrate failed to comply with the provisions of the section.

Furthermore, there seems to have been no proper evidence before the Magistrate of the appellant's previous convictions (if any). The usual police form is not included in the case file and there is nothing therefore to indicate how the Magistrate obtained knowledge of these convictions. He has simply recorded that the accused admitted before him to two previous convictions for similar offences. In this state of the record we are not prepared to take either of these two<br>alleged previous convictions into account. We are left therefore with the position that the Magistrate has exercised his discretion to take away the livelihood of the appellant without our being in possession of the facts which led the Magistrate to do this. We consider therefore that under these circumstances this part of the sentence should not be allowed to stand. Again we would emphasize that where a Magistrate exercises the discretion given him by section 17 of the Traders Licensing Ordinance it is imperative that he should comply with the wording of the section.

As regards the amount of the fine imposed, we think that this might well have been more, and in view of our decision not to take away from the appellant his power to continue trading we propose to increase this to Sh. 100. The appellant will be allowed 14 days to pay and in default will go to prison for two months with hard labour.