Rex v Gurham (Cr. App. 23/1931.) [1931] EACA 22 (1 January 1931)

## APPELLATE CRIMINAL.

Before SIR JACOB BARTH, C. J. and DICKINSON, J.

## REX (Respondent) (Original Prosecutor)

## . NADU GURHAM (Appellant) (Original Accused).

## Cr. App. 23/1931.

Criminal Procedure Code, sections 166 and 168-costs against private prosecutor in frivolous or vexatious proceedings.

Held (9-6-31): -- That section 168 authorizes making an order for payment of compensation although an order for costs has not been made.

Malik, for Appellant.

Doran, Crown Counsel, for Crown.

Charges were brought by the appellant in the Second Class. Magistrate's Court at Nairobi against certain persons under sections 84, 235, 252, and 310 (1) of the Penal Code. Evidence in support of the charges was given before the Magistrate by appellant alone. The case was prosecuted by appellant in the lower Court through the Police. After appellant had given evidence the Police withdrew all the charges against the persons prose-The Magistrate thereupon held that the charges brought cuted. were frivolous and vexatious and without foundation, and ordered the accused to be discharged, and that the complainant (appellant) under section 168 should pay Sh. 150 compensation being part costs of the defence, or in default that she should be imprisoned for two months with hard labour.

Malik submitted that the prosecution in the lower Court was not a "private" prosecution as the charge of theft was. cognizable to the Police. He also submitted that an order forpayment of compensation must on a strict reading of section 168: only follow an order for payment of costs under section 166.

The Judgment of the Court was delivered by Sir J. W. Barth, Chief Justice.

JUDGMENT.-This is an appeal from an order of the Magistrate holding a Second Class Subordinate Court in Nairobi under section 168 Criminal Procedure Code, awarding Sh. 150 compensation to the accused in Criminal Case No. 276 of 1931 of his Court on the ground that the charge was frivolous and vexatious.

The main argument for the appellant is that section 168. provides that compensation to the accused may be ordered "in addition to his costs"; that it therefore follows that an order-

v.

under section 166 (2) awarding costs is a condition precedent to an order under section 168; that in fact in this case the prosecution was by the Police and was therefore not a private prosecution; and that therefore no order under section 166 (2) could have properly been made; and that it follows that no order under section 168 can be made.

In our opinion this argument is fallacious. Section 168 is a separate enactment and gives the Court power to award, in cases in which it considers the charge was frivolous or vexatious. compensation to the accused person in addition to his costs. The provision is applicable to "any case," and is not limited to cases initiated by a private prosecutor. A limitation which applies to section $166$ (2), sub-section 3 of that section, makes it clear that the award of costs is independent of the power to award compensation under section 168. In our judgment the section gives power to award compensation and that such compensation may be irrespective of costs. The award of costs under section 166 (2) is not a condition precedent to the award of compensation under section 168. The Magistrate appears at first sight to have muddled up the two matters, and to have awarded a sum of Sh. 150 compensation as "part costs of the defence." But it is possible he had in view the fact that the Police were prosecuting, and regarded the power given by section $166$ (2) as unavailable, and therefore provided some provision for costs by way of compensation.

In our judgment the award of compensation is not irregular. and there is nothing to show that the Magistrate's discretion under section 168 was not judicially exercised.

The appeal is dismissed.