Rex v Muholi (Con. C. 548/1933.) [1933] EACA 24 (1 January 1933)

## CRIMINAL CONFIRMATION.

Before SIR JACOB BARTH, C. J., and LANE, Ag. J. (Kenya).

## REX

$v$ .

## WANDHALA S/O MUHOLI.

## Con. C. 543/1933.

Penal Code, section 30-Compensation-Criminal Procedure Code, section 318—Levy of distress.

Held (27-9-33).—That the remedy for non-payment of compensation is a levy by distress and sale of the accused person's property.

Branigan, Acting Crown Counsel, for Crown.

Accused was charged with and convicted of assault causing grievous bodily harm, contra section 214, Penal Code, and sentenced to six months' imprisonment with hard labour, and ordered to pay to complainant Sh. 101 compensation, and in default of payment to undergo two months' hard labour.

Branigan submitted that sections 28 (iv) and 30 of the Penal Code appear to justify the infliction of a term of imprisonment in default of payment of compensation.

ORDER.-The short point for decision is whether or not a Court has power under section 28 of the Penal Code to order imprisonment in default of payment of a sum ordered to be paid as compensation under section 30 of the Penal Code.

The argument in support of the sentence, which was six months' hard labour and to pay the complainant Sh. 101 compensation or in default an additional two months' hard labour, is that section 28 (iv) of the Penal Code enacts that the term of imprisonment ordered by a Court in respect of the non-payment of any sum of money adjudged to be paid by a conviction or in respect of the default of a sufficient distress to satisfy any such sum shall be such term as in the opinion of the Court will satisfy the justice of the case, but shall not exceed in any case the maximum set out in the scale appended to the section.

Section 30 of the Penal Code enacts that any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence.

It has been suggested that section 28 (iv) of the Penal Code would cover an award of compensation under section 30 of the Penal Code. But the clauses (i) to (iv), both inclusive, of section 28 are governed by the words at the beginning of the section,

i.e. "Where a fine is imposed under any law, then in the absence of express provisions relating to such fine in such law the following provisions shall apply:—" Then follow clauses (i) to (iv). It is thus clear that the provisions of the section are confined to the subject of fines, and that the section is not an authority for sentencing an accused person to imprisonment in default of payment of compensation awarded under section 30 of the Penal Code.

The remedy for non-payment of such compensation is to be found in section 318, Criminal Procedure Code, which prescribes a levy by distress and sale on the accused person's property.

We therefore vary the sentence by quashing the order for two months' hard labour in default of the payment of the comnensation awarded. The sentence is otherwise confirmed.