Khimji v Municipal Board of Mombasa (CriminalAppeal No. 24 of 1946) [1946] EACA 71 (1 January 1946)

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

KASSAM KHIMJI, Appellant (Original Accused)

## MUNICIPAL BOARD OF MOMBASA, Respondent (Original Prosecutor) Criminal Appeal No. 24 of 1946

Criminal law-Contravention of By-law 145 Mombasa Municipality (Building and Sub-division) By-laws, 1931—Sentence—Costs.

The appellant was convicted of failing to comply with a notice requiring him to demolish an unauthorized erection within the time specified by such notice contrary to By-law 145 of the Mombasa Municipality (Building and Sub-division) By-laws, 1931, and sentenced to pay a fine of Sh. 2,000. He was also ordered to pay the costs of the prosecution.

*Held* $(15-3-46)$ .—(1) That the fine was excessive in the circumstances of the case.

(2) That it is only in exceptional circumstances that an accused person is ordered to pay costs to the prosecution.

Sentence reduced and order for payment of costs set aside.

A. C. Satchu for the Appellant.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—We do not consider that there is any substance in the point taken on behalf of the appellant that as the notice was not served on him "as owner" he was not bound to comply with it. The appellant was in fact the owner of the premises on which an unauthorized alteration or addition had been made and under By-law 146 of the Municipality (Building and Sub-division) By-laws, 1931, he was the only person on whom a notice to demolish could be served. He failed to comply with it. The appeal against conviction is accordingly dismissed.

As regards the sentence, however, we are of opinion that it is excessive in the circumstances of this case. We are informed by learned Advocate for the appellant that in Mombasa offences of this nature are usually visited with a fine ranging between Sh. 200 and Sh. 300 and it appears from an examination which we have made of several records in the Resident Magistrates' Courts, Nairobi, that the average penalty imposed here on a first offender is a fine of Sh. 200. While we fully appreciate that the failure of the appellant to comply at all with the notice to this day might properly call for the imposition of a larger fine than is usually imposed, we cannot help thinking that in imposing the unheard of fine of Sh. 2,000 the learned Magistrate must have been influenced by certain improper considerations such as the appellant's failure to comply with a notice *duces tecum.* We allow the appeal against sentence and reduce the fine to one of Sh. 500.

As regards the order for payment of costs we are unable to recollect any case under Municipal By-laws in which an accused person has been ordered to pay the costs of the prosecution as distinct from actual disbursements in respect of Court fees. We would in this connexion refer to a passage in the judgment of Sir Joseph Sheridan, C. J., and Bartley, J., in Murray v. Rex, Cr. App. 11/45, which reads as follows: "The order as to costs, however, is set aside as it must be in very exceptional circumstances that an accused person is ordered to pay costs to the Public Prosecutor ... " The position of a public prosecutor is in<br>no way different from that of a private prosecutor (*vide* Section 171 Criminal Procedure Code) and we consider that the principle laid down in the Murray case (supra) is the proper one to be applied in criminal proceedings generally. We are unable to find in this case any exceptional circumstances justifying an order for the payment of costs as distinct from disbursements by the appellant and it occurs to us that the reason given by the learned Magistrate for so doing is clearly wrong. The order as to costs excluding disbursements in respect of Court fees is set aside.