Nairobi Municipal Council v Din and Another (Criminal Revision Case No. 61 of 1950) [1950] EACA 111 (1 January 1950)

# **CRIMINAL REVISION**

# Before CONNELL, Ag. J.

## NAIROBI MUNICIPAL COUNCIL, Respondent

# (1) FIROZ DIN, (2) AZIZ DIN, Applicants

# Criminal Revision Case No. 61 of 1950

Revision—Complaint against owners under section 124 Public Health Ordinance— Order to vacate served on tenants—Whether tenants are parties so as to entitle them to be heard in revision—Sections 361 to 365 Criminal Procedure Code—Costs in Revision.

The owners were summoned under the Public Health Ordinance and a demolition order was granted respecting the premises and the tenants ordered to vacate on 30th September, 1950. It was sought by the tenants to extend the period on Revision.

Held $(10-10-50)$ —(1) Any person may call the attention of the Court to a wrong or illegal order made by a Magistrate or one made in excess of or without jurisdiction.

(2) As the Magistrate's order was not unreasonable, the Court declined to interfere<br>on Revision. (Uganda Misc. Cause No. 19/49, L. R. Suppt. Uganda Gazette—15-11-49.) (3) Revision being a creature of statute there is no power in the Courts to supplement it by awarding costs. (A. T. S. Mudaliar v. N. Mudaliar & Others, 45 Mad. 913.)

Hunter for applicants.

#### Schermbrucker for respondent.

RULING.—Firoz Din and Aziz Din, owners of Plot No. 697/35, River Road, were summoned to appear before the Magistrate, Mr. Ross, on 9th August, to show cause why an order for demolition of their premises should not be made under section 124 Public Health Ordinance. They appeared and admitted the truth of the Medical Officer's complaint, whereupon the Magistrate granted an order of demolition to commence on 1st October and to be completed on 31st December, 1950. Tenants were ordered to vacate on 30th September, 1950.

Mr. Hunter who appears for two of the tenants, who were in no sense parties to the proceedings in the Magistrate's Court (they were merely served with the Magistrate's order as required by section 124 (2)) quite correctly does not attack the validity of the proceedings in any way whatever. The only thing he seeks to do is to obtain for his two clients a variation of the order so as to extend the time for commencement and completion of demolition.

A very important point, I think, is whether revision lies at all in a matter of this sort. Mr. Hunter argues that he has come across cases in Uganda where the Court has interfered in revision on "restitution orders" made by a Criminal Court. Possibly they were on application by the accused himself. I do not know. In any case in our Code there is a wide power under section 178 (5) giving "any person aggrieved by such an order" a right of appeal. Such wide words do not appear in any of the sections 361-365 relating to revision and Mr. Schermbrucker has stressed that the words "any party" which appear in sections 363 and 364 make it apparent that only "parties" to the proceedings may be heard in revision.

I must say, on consideration, that in my view there is considerable substance in Mr. Schermbrucker's argument though I do not decide the point; there is no doubt that any person may call the attention of a Court to a wrong or illegal order made by a Magistrate, or one made in excess of or without jurisdiction. But the order in this case is not attacked on any of those grounds. All, as I have said, Mr. Hunter seeks to do is to get an order varied in the favour of tenants who

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are not parties to these proceedings at all, but were compulsorily served with an order under section 124 (2) ordering them to vacate in seven weeks. It may be a hard order so far as it affects Mr. Hunter's clients; hard in the sense that it is difficult for them to find other shops. But even assuming the application lies at their instance (as to which I have considerable doubt) I cannot describe the Magistrate's order as being in any sense unreasonable. On this point I am fortified by the decision in Misc. Cause No. 19/49 Law Report Supplement—Uganda Gazette, dated 15th November, 1949. In that case where proceedings were by way of prohibition the tenant received only one month's notice to vacate; the learned Judge stated, "The occupier is not a party to the proceedings and is entitled to no more than notice—reasonable notice—to quit after the demolition order has been made".

For the reasons I have stated and even assuming I had power to exercise revisional jurisdiction. I do not consider that this is a fit or proper case for me to interfere in revision and I accordingly make no order in revision.

ORDER.—The effect of my above ruling being in effect to dismiss the application. Mr. Schermbrucker has asked that costs be awarded. He has admitted that there is no statutory rule providing for costs, but asks 'the Court to rely on its inherent jurisdiction.

The question of costs in revision application was gone into fully in a Madras case (A. T. S. Mudaliar v. N. Mudaliar and others XLV Mad, page 913). On that case at page 921, Coutts Trotter, J., whilst arguing that the English Courts had jurisdiction to award costs in cases arising on the equity or the Common Law side of the Court went on to say (at page 921): "Revision is not an inherent power of this or any other Courts; the whole machinery of revision is a creature of statute and has to be found within the four walls of the Code of Criminal Procedure. So far as criminal cases are concerned I do not see how we can possess an inherent power in ourselves to supplement that purely statutory machinery by assuming to ourselves the power of supplementing it by the awarding of costs". Coutts Trotter, J., also continues that it is for the legislature to consider whether it should arm the Courts with such powers. It should be noted for instance that the Supreme Court in Kenya expressly possesses such powers in "cases stated".

I respectfully agree with the reasoning of Coutts Trotter, J., which I find. applicable in Kenya.

There will be no order as to costs.