Rex Okumba and Another (Cr. Revision Case No. 764/35.) [1935] EACA 134 (1 January 1935)

## 'CRIMINAL REVISION. $\mathcal{L}^{(1)}(\mathcal{M})$

Before SIR JOSEPH SHERIDAN, C. J., and GAMBLE, Ag. J.

## REX. Prosecutor $v$ .

## OKANI s/o OKUMBA, and WABASHA s/o MORI, Accused.

Cr. Revision Case No. 764/35.

Criminal Law-Corporal Punishment-Accused unfit at time of sentence—Penal Code, section $27$ (7) (8).

Held (1-7-35).-Section 27 (8) of the Penal Code does not authorize an accused, who has been sentenced to corporal punishment and found unfit, to be detained until he has recovered health sufficiently to receive a whipping,

In such circumstances a sentence in substitution of that of corporal punishment should be imposed under section 27 (7).

Dennison for Crown.

ORDER.—The Attorney General having declined to support the conviction in this case, neither accused having been called upon to make his defence, the convictions are quashed. As both accused have already undergone the punishment imposed no order for retrial is made.

There remains to be considered whether the order of the magistrate that one of the accused be detained for fourteen days until he was fit to receive a whipping was a competent order.

The order for detention was presumably made under section 27 (8) of the Penal Code but in our opinion this sub-section merely makes legal detention for the short period necessary to obtain a medical report and for the attendance of a prison officer to administer the corporal punishment imposed.

Section 27 $(7)$ obviously contemplates a substituted sentence when a prisoner is found unfit at the time to undergo a whipping and is the proper sub-section to invoke when a person cannot be whipped for physical or other reasons. In our opinion were , sub-section (8) construed to sanction an indefinite detention until such time as an accused person regained sufficient health to undergo a beating it would in effect be imposing a punishment additional to that awarded by the trial magistrate.

We are not prepared to place such an interpretation on section 27 (8) and accordingly hold that the order of the magistrate detaining the accused for fourteen days was illegal.