In Re: Application for an Order of Certiorari; In Re: Criminal Case No. 233 of 1951 of the first Class Magistrate's Court at Machakos Entitled Rex v Varma and Another (Miscellaneous Criminal Case No. 7 of 1951) [1951] EACA 138 (1 January 1951)

### **MISCELLANEOUS CRIMINAL**

#### Before SIR HECTOR HEARNE, C. J., and BOURKE, J.

## IN THE MATTER OF AN APPLICATION FOR AN ORDER OF **CERTIORARI**

AND

# IN THE MATTER OF CRIMINAL CASE No. 233 OF 1951 OF THE FIRST CLASS MAGISTRATE'S COURT AT MACHAKOS ENTITLED REX $v$ . R. S. VARMA AND ANOTHER

#### Miscellaneous Criminal Case No. 7 of 1951

*Certiorari*—Where no right of appeal—Whether "Revision" a lesser remedy.

The applicant obtained an order nisi directed to the 1st Class Magistrate, Machakos, to show cause why a writ of *certiorari* should not issue to remove to this Court Criminal Case No. 233/51 and to quash the order for forfeiture of the liquor licences.

The short facts were that the applicant was acquitted of an offence contra section 43 (1), Cap. 266, Laws of Kenya, but the Magistrate forfeited his licences. It was admitted that the Magistrate had no jurisdiction to make that order.

Held (10-10-51).—(1) That in the instant proceedings the applicant had no right of appeal though he could have asked for a revision.

(2) It cannot be said that "revision" is a lesser remedy as "revision" is entirely discretionary as there is no right to be heard, and is not a means as of right to seek understanding as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ as $\frac{1}{2}$ absolute.

Case referred to: Rex v. Barnes and Others (1910) 102 L. T. 860.

Stephen for the applicant.

Boyle, Crown Counsel, for Crown.

JUDGMENT.—The applicant obtained an order *nisi* directed to the First Class Magistrate, Machakos, to show cause why a writ of *certiorari* should not issue to remove to this Court Criminal Case No. 233/51 of his Court and to quash the order made therein for the forfeiture of the liquor licences of the applicant.

The applicant who was charged with an offence contra section 43 (1), Cap. 266 of the Laws of Kenya, was acquitted and, notwithstanding the acquittal, the Magistrate made an order forfeiting his licences. It was not contested by Crown Counsel who appeared for the Magistrate that he had no jurisdiction to make this order, but it was submitted by Crown Counsel, quoting from the judgment of<br>this Court in Miscellaneous Criminal Case No. 3 of 1950, that "this Court will not authorize the issue of a high prerogative writ (of certiorari) when a lesser remedy is or was open to an aggrieved person". It is of interest to note that in England under rule 29 of the Crown Office Rules "No writ of certiorari shall be granted, issued or allowed to remove convictions or orders of justices from which an appeal lies to the sessions before the matter be determined on appeal or the time for appealing has passed.", also that in *Rex v. Barnes and Others,* ex parte Lord Vernon (1910) 102 L. T. 860, Lord Alverston, C. J., said that he made the rule "as the fact that the defendant had appealed to quarter sessions was not mentioned". He, therefore, appears to have made the rule because he thought the defendant had not exercised his right to appeal.

But the instant case can clearly be differentiated from Miscellaneous Criminal. Case No. 3 of 1950. In the latter there was a right of appeal whereas the applicant before us has no such remedy. Crown Counsel argued that he should have applied to this Court to exercise its revisional jurisdiction. The exercise by this Court of its revisional jurisdiction is entirely discretionary and under section 364, Criminal Procedure Code, there is no right to be heard. It can hardly be said that the applicant had a lesser remedy open to him, if by a lesser (legal) remedy is meant, and this is what we understand by it, the means as of right, to seek judicial intervention for the purpose of preventing, redressing or compensating for a wrong, or the violation of a right, which has been suffered.

The order nisi is made absolute and the order of the Magistrate forfeiting the applicant's licences is set aside. No costs.