Kisiangani v Reginam (Criminal Appeal No. 985 of 1954) [1955] EACA 344 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), DE LESTANG, J. (Kenya) and WINDHAM, J. (Kenya)

REUBEN WAMBWA KISIANGANI, Appellant (Original Accused No. 1)

## REGINAM, Respondent Criminal Appeal No. 985 of 1954

(Appeal from decision of H. M. Supreme Court of Kenya, MacDuff, J.)

Justice—Whether seen to be done—Consent to prosecute—Trial by District Commissioner who authorized prosecution-Validity of consent not apparent ex facie—Penal Code sections 71 and 72.

Section 72 $(1)$ of the Penal Code provides that a prosecution for an offence under section 71 of the said Code shall not be instituted except with the consent of the Governor, and, by Government Notice No. 319 of 1951, the Governor deputed, inter alios, the District Commissioner, Kitale, the power conferred by section 72 (1) aforesaid of consenting to prosecutions under section 71 aforesaid, within his district in respect of the unlawful society known as Dini ya Msambwa.

Two days after giving consent for the appellant to be charged with being a member of the said unlawful society under section 71 aforesaid, the District Commissioner, himself, tried and convicted the appellant for the said alleged offence.

The form of consent given by the District Commissioner was in the following form: "Permission is hereby granted to Chief Inspector Nunn, Kenya Police, Kitale, to institute proceedings in the case of Reuben Wambwa and Daniel Akinga on charges of being members of the D. Y. M. Society."

Held $(13-5-55)$ .—(1) In arriving at his decision to consent to the prosecution, the District Commissioner might have taken cognisance of matters prejudicial to the accused, so that it could not be said that justice had been seen to be done.

(2) The validity of the consent to prosecute should have been apparent ex facie, so that the consent was irregular in form as it omitted to state that the District Commissioner acted or purported to act, under power delegated by the Governor, but this irregularity would not have the effect of invalidating the conviction.

Appeal allowed. Conviction and sentence set aside.

Appellant absent, unrepresented.

O'Beirne for respondent.

JUDGMENT (prepared by de Lestang, J.).—The appellant was convicted by the First Class Magistrate, Kitale, who is also District Commissioner for that district, of being a member of an unlawful society, namely, the Dini $ya$ Msambwa Society, contrary to section 71 (a) of the Penal Code. He appealed unsuccessfully to the Supreme Court and, although we can see no merit in hisgrounds of appeal to this Court, we have felt constrained to allow his appeal on a point which was not taken in the memorandum of appeal. We now give our reasons for so doing.

Section 72 (1) of the Penal Code provides that a prosecution of an offence under section 71 of that Code shall not be instituted except with the consent

of the Governor. By Government Notice No. 319 of 1951, the Governor deputed, inter alios, the person for the time being holding the office of District Commissioner, Kitale, to exercise within his own district the power conferred upon him by section 72 (1) of the Penal Code of consenting to prosecutions under section 71 of the Penal Code in respect of the unlawful society known as Dini ya Msambwa. Accordingly, the consent to prosecute was in the present case given by the District Commissioner, Kitale. It was in the following form: -

"Office of the District Commissioner,"

Trans Nzoia.

Kitale.

$25/8/54.$

Permission is hereby granted to Chief Inspector Nunn, Kenya Police, Kitale, to institute proceedings in the case of Reuben Wambwa and Daniel Akinga on charges of being members of the D. Y. M. Society.

C. J. DENTON,

$D. C.''$

The validity of a written consent to prosecute ought, in our view, to be apparent on its face, and consequently the above-quoted consent was irregular in form, since it omitted to state that the District Commissioner purported to act, as he must have, under a power delegated to him by the Governor. We do not, however, think that this irregularity would have the effect of invalidating the consent. What has, however, exercised us is the fact that the district commissioner who gave the consent to prosecute was also the magistrate who tried the case two days later. Learned Crown counsel has conceded that in these circumstances the conviction cannot stand. We agree. We do not know, and do not wish to speculate on what might have induced the district commissioner to give his consent. Suffice it to say that, unknown to the appellant, he may have taken cognisance of matters highly prejudicial to him. The courts have often said that justice must not only be done but be seen to be done. We do not think that justice is seen to be done when the magistrate before the trial considered matters relating to the case in the absence of and unknown to the accused.

For these reasons we have already allowed this appeal, set aside the conviction and sentence, and ordered the release of the appellant.