Mbocha v Regina (Criminal Appeal No. 478 of 1953) [1953] EACA 29 (1 January 1953)

## APPELLATE CRIMINAL

## Before HEARNE, C. J.

## RAPHAEL MBOCHA, Appellant

## REGINA. Respondent Criminal Appeal No. 478 of 1953

Criminal Procedure-Criminal Procedure Code-Section 45 (g)-Magistrate requiring a person to show cause why a bond should not be executed— Information not on oath—Whether proceedings a nullity—Effect of section 58 Criminal Procedure Code-No period fixed during which security might be found—Section 52 (3) Criminal Procedure Code considered—Whether evidence other than that of mere repute ought to be given.

The prosecutor applied to the Court for an order for security for good behaviour on the grounds that the appellant was a member of the Dini Ya *Msambwa*, an unlawful society, whereupon the magistrate, purporting to act under the provisions of section 45 $(g)$ , Criminal Procedure Code, required the appellant to execute a bond in Sh. 1,000 for his good behaviour, for a period of one year, with two sureties, each in the sum of Sh. 500. The magistrate then took evidence on oath, entirely hearsay of repute. The appellant denied, on oath, that he was a member of the society and intimated that he had at the time no sureties available, whereupon the magistrate committed him to prison, forthwith, for failure to execute the bond as ordered. No period was allowed to find security. The appellant appealed. The Crown did not support the order.

Held (24-9-53).—The proceedings were a nullity, the magistrate having required security without being informed on oath of a prerequisite essential under section 45, Criminal Procedure Code.

(2) Section 58, Criminal Procedure Code contemplates that a period should be fixed during which the person before the Court is required to find security and that he should<br>not be committed without being given an opportunity, within a fixed, period, to find security.

(3) Notwithstanding the provisions of section 52 (3) Criminal Procedure Code. it is desirable that some evidence other than mere repute, should be given.

Appeal allowed and order set aside.

Appellant in person.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—It has been brought to my notice by Crown Counsel that proceedings were commenced against the appellant in the absence of compliance with the provisions of section 45 Criminal Procedure Code, in that no information was given on oath to the court. This makes a nullity of the proceedings. It has also been brought to my notice that section 58 Criminal Procedure Code clearly contemplates that a period should be fixed during which the person before the Court is required to give security and that he should not be dealt with forthwith without being given an opportunity, within a fixed period, to find security. Notwithstanding the provisions of section 52 (3) Criminal Procedure Code, it is, in my view, desirable that some evidence, other than mere evidence of repute, should be given.

The order of the magistrate committing the appellant to prison is set aside.