Naker v Reginam (Criminal Appeal No. 55 of 1956) [1950] EACA 528 (1 January 1950)

## 528.

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), SINCLAIR (Vice-President) and BRIGGS, Justice of Appeal

### RATILAL MANISHANKER NAKER, Appellant (Original Accused)

v.

# REGINAM, Respondent

### Criminal Appeal No. 55 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J., and Rudd, J.)

Procedure—Effect of change in constitution of Court—Kenya Criminal Procedure Code, section 360.

The appellant was convicted on three counts by a Magistrate's Court. He appealed against conviction and sentence on counts 1 and 2 and against sentence on count 3 to which he had pleaded guilty. The Supreme Court affirmed the conviction on count 1, ordered a retrial on count 2 and adjourned the appeals against all sentences. After the retrial the Supreme Court, differently constituted, set aside the conviction and sentence on count 2, affirmed the sentence on count 1 and reduced that on count 3.

Held (21-5-56)—As a result of the reconstitution of the Court at the inal hearing the proceedings should have been heard ab initio and the final decision was a nuility. Order in form which Supreme Court should have made.

Appeal allowed in part.

No cases.

### Morgan for appellant.

#### Brookes for respondent.

JUDGMENT (prepared by Briggs, J. A.).—The appellant was charged before the magistrate at Ruiru with dangerous driving, failure to maintain a vehicle in that the brakes were inefficient, and driving without a licence. He wished to be represented, but failed to retain counsel in sufficient time. Further adjournment was refused and the case proceeded in the absence of counsel. The appellant, who pleaded not guilty on the first two counts, but guilty on the third, did not crossexamine the prosecution witnesses and stood silent when called on for his defence. He was convicted and sentenced to three months' imprisonment and a fine of Sh. 2,000 or a further three months on the first count, and fines of Sh. 500 or one month on each of the others. He appealed from the two convictions where he had pleaded not guilty and from all three sentences. Application was made for leave to call expert evidence to show that the brake failure was due to a sudden and unforeseeable accident and not to lack of maintenance, and it was contended that this affected both the first and second charges. The Supreme Court on 8th August, 1955, rejected this submission and dismissed the appeal against the conviction on the first count; but it allowed the application in relation to the<br>second count and adjourned the appeal against that conviction and all the sentences. On resumption on 20th October, 1955, the Supreme Court ordered a retrial on the second count, and said: $-$

"When the result of that is known, the case is to be set down before this Court again for adjudication on the sentences on counts 1 and 3 and on any appeal which there may be from the decision in the new trial."

On the retrial the magistrate convicted on the second count and sentenced the appellant to a fine of Sh. 60. He refused an application that this be increased to Sh. 101 in order to make the conviction and sentence appealable, so the appellant was obliged to petition for revision. The adjourned appeal and the revision proceedings were heard on the same day. On the revision proceedings the conviction and sentence on the second count were set aside on the ground that the vehicle did not belong to the appellant and there was no evidence that he was under a duty to maintain it. On the appeal from sentence on the first and third counts the Court said: -

"This is a bad case of dangerous driving and we cannot say that the sentence on count 1 is manifestly excessive and we think that it must stand.

On count 3 the fine of Sh. 500 is reduced to Sh. 30 or one week's imprisonment in default.

The amounts of Sh. 500 and Sh. 500 ordered by the learned magistrate to be paid respectively to Waweru s/o Kimani and Mr. Jankustin as compensation for injuries will stand. The remaining Sh. 1,000 payable on count 1 will be paid to the owner of the Austin car KBB 808 in lieu of the Sh. 2,000 ordered by the magistrate. The fine on count 3 will go to the Crown."

The appellant appeals to this Court from the dismissal of his appeal on the first count, both as to conviction and sentence. He also sought in form to appeal from the sentence of Sh. 30 or one week on the third count, but this was not argued. The appeal raised some unusual points of law and we reserved judgment.

On the merits of the case it was submitted that the conviction on the first count depended on two elements, of which the first was bad driving involving excessive speed, and the second knowingly driving with inefficient brakes. It was submitted that it could not be said with certainty that the learned magistrate would have convicted if he had relied only on the first element. As regards the second element, the new evidence made it appear that the knowledge that the brakes were bad may have been lacking, and, although the learned magistrate had on the retrial found against the appellant on this issue, his findings have been set aside on revision. There is, therefore, no valid finding against the appellant either on the issue that the brakes were bad, or, if so, on the further issue that he knew they were bad. The appellant joined with these submissions a further one that the Supreme Court either could not remit, or at least should not have remitted, the case for rehearing on the second count without at the same time remitting the first count. There is no doubt that the first limb of this last argument is not sound. An appellate Court is, in general, entitled to confirm convictions on some counts and order retrial on others. As regards the question of discretion, it is less certain that the Supreme Court were wise to do so in this case. Their reasons were that, on their construction of the Subordinate Court's findings, that Court must have convicted on the first count even if the element of inefficient brakes had been absent. Not without some hesitation, we are of opinion that this view was justified. The evidence of bad driving was clear and compelling and standing alone it fully justified conviction. We think the wording of the judgment indicates that the learned magistrate would have convicted on that evidence alone. As regards the dismissal of the appeal from conviction on the first charge, we should not be prepared on these grounds to intervene. The appeal from sentence, however, stands on a different footing. It is apparent from the grounds which the learned magistrate gave for his substantial sentence on the first count that he regarded the condition of the brakes as a grave circumstance of aggravation which justified a heavier sentence than he would otherwise have imposed. The subsequent history of the second count should, we think, have been treated by the Supreme Court as in effect removing this circumstance of aggravation. The sentence on the first count had to that extent been assessed on a wrong principle, and should

prima facie have been reduced. If the Supreme Court had observed this factor and stated that, nevertheless, the sentence was not excessive and should be confirmed, we might not have desired, and should not have been able, to interfere, for the question would then have been purely one of "severity". Section 360 Cr. P. C. But the words used by the Supreme Court appear to us to indicate that. while they considered the sentence on the general ground of severity, they did not consider whether, in the changed circumstances, the sentence must be treated as having been assessed as a wrong principle. On this point of principle we should be disposed to intervene and we consider that the sentence on the first count should be reduced.

There is, however, a further point raised in the appeal. At the hearing on 8th August, 1955, when the appeal from conviction on the first count was dismissed and further evidence was ordered to be taken, and at the second hearing on 20th October, 1955, when the retrial on the second count was ordered, the Court consisted of the learned Chief Justice and de Lestang, J. Before the resumed hearing counsel for the appellant asked for an early date in view of the impending departure of de Lestang, J., on promotion, but when the appeal was called on, although de Lestang, J., appears still to have been in Nairobi, the<br>Court consisted of the learned Chief Justice and Rudd, J., and they finally decided the appeal on 25th February, 1956. No objection was taken at the time, but the question is one of jurisdiction. The appellant contends that he could not have appealed to us at any time before 25th February, 1956, since the appeal was a single proceeding and was not concluded till then. We think he is right in this and would observe that otherwise his appeal as regards conviction on the first charge would be out of time, and there would have had to be two appeals, one dealing with the conviction and the other with the sentence. There is no statutory power in Kenya enabling one Judge to complete a criminal trial in the Supreme Court begun and left part-heard by another, and there is no such power relating to appellate Courts. We do not think it desirable that there should be such a power. The change of Court in this case may well have been the cause of what we consider to have been an erroneous decision concerning the sentence on the first count. We think that, if it became impossible for de Lestang, J., to sit and conclude the hearing of the appeal, the earlier hearings should have been treated as wholly abortive, in spite of there having been what was intended as a final decision on part of the appeal. We think the appeal should have been reheard ab initio by the newly constituted Court. It was legitimately argued that this Court has similarly decided an appeal against conviction and has later, when differently constituted, dealt with an appeal against sentence in the same case. Whether that practice is justifiable may require further consideration at some future time; but at present it is sufficient to point out a factor which, in our view, distinguishes the two cases. On some appeals the Court is concerned with quantum of sentence, and many of the arguments presented may be relevant both as to conviction and as to sentence. The issue regarding brakes in this appeal is an example of this. In this Court the question in issue in the cases referred to was not quantum, but legality, of sentence. On that issue, arguments relevant to conviction do not apply. The appeal so far as it concerns sentence is therefore severable, if one may so express it, in a way which does not apply where severity of sentence is in issue.

We are of opinion that the change of Court in this case obliges us to treat the whole of the final decision of the Supreme Court on the appeal, as opposed to their decision on the petition for revision, which is not before us, as a nullity. This conclusion would ordinarily be followed by an order remitting the matter to the Supreme Court with an order to hear and determine the appeal. We think, however, that in view of the protracted and expensive proceedings and the suspense to which the appellant has been subjected, it will be better in this case to

exercise our powers of making such order as in our opinion the Supreme Court ought to have made.

We therefore allow this appeal in part, set aside the orders of the Supreme Court relating to the first and third counts, and substitute the following order: -

$(1)$ that the conviction of the appellant on the first count in the charge sheet be affirmed, but, that the sentence thereon be reduced to one day's imprisonment and a fine of Sh. 2,000 or in default three months' imprisonment:

(2) that the conviction of the appellant on the third count in the charge sheet be affirmed, but that the sentence thereon be reduced to a fine of Sh. 30 or in default one week's imprisonment:

(3) that out of the fine of Sh. 2,000 on the first count, Sh. 1,000 are to be paid to the owner of the Austin car KBB 808, Sh. 500 are to be paid to Wameru s/o Kimani, and Sh. 500 are to be paid to Mr. Jankustin, by way of compensation for injuries or damage."

The conviction and sentence on the appellant on the second count in the charge sheet having been set aside by the Supreme Court in revisionary proceedings, this Court makes no order on the appeal, so far as it relates to the second count.