Javer v Rex (Criminal Appeal No. 249 of 1950) [1950] EACA 87 (1 January 1950)

## APPELLATE CRIMINAL

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

### HABIB JAVER, Appellant (Original Accused)

ν

# REX, Respondent (Original Prosecutor) Criminal Appeal No. 249 of 1950

### (Appeal from the decision of Resident Magistrate's Court at Nyeri-A. C. Harrison, Esq.)

Traffic Ordinance, 1928, section 12 (1)—Driving without valid certificate of competency—Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945 -Driving an uninsured car-Disqualification from holding certificate of competency—Third Party Risks (Amendment) Ordinance, XXVII of 1949-Discretion of Court.

Habib Javer, accused, pleaded guilty to two charges, the first, under Traffic Ordinance, 1928, section 12 (1), of driving a car without a valid certificate of competency, and the second, under section 4 (1), Motor Vehicles Insurance (Third Party Risks) Ordinance, 1945, of driving a car without a valid policy of insurance covering third party risks. He was convicted on his pleas, and sentenced to pay a fine on each count. On admission of the appeal, it was questioned whether the learned Magistrate had discretion, except for special reasons, to refrain from disqualifying the appellant from holding a certificate of competency for a period of 12 months.

Held (28-8-50).—(i) That the absence of a certificate of competency was due to the negligence of the appellant.

(ii) That the amendment of the Motor Vehicles Insurance (Third Party Risks) Ordinance, by Ordinance XXVII of 1949, left it to the discretion of the Court to disqualify from holding a certificate of competency, and disqualification does not follow automatically on conviction.

Appeal dismissed.

Appellant absent, unrepresented.

Templeton, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against sentence only passed against the appellant on conviction of an offence-

(1) against the Traffic Ordinance; and

(2) against the Motor Vehicles Insurance (Third Party Risks) Ordinance.

As regards the first offence, according to the appellant's Memorandum of Appeal, had he taken the trouble to do so he could have obtained a valid certificate of competency to drive the particular type of vehicle he was then driving without such certificate had he made application to the police. Even if this be the case we do not regard the fine imposed as being anything more than a just penalty for his negligence in not doing so. As regards the second offence, the learned Judge who admitted this appeal to hearing raises the point that the learned Magistrate had no discretion, except for special reasons, to refrain from disqualifying the appellant from holding a certificate of competency for a period of 12 months from the date of conviction. This was the position up to the recent amendment of the Third Party Risks Ordinance by Ordinance No. 27 of 1949. The matter is now left to the discretion of the Court and disqualification does not follow automatically on conviction.

This appeal is dismissed.