Rex v Munyoki (Criminal Appeal No. 5 of 1942) [1942] EACA 64 (1 January 1942)

## APPELLATE CRIMINAL

# BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

REX, Respondent $\mathbf{v}_{\mathcal{N}}$

### MUREFU MUNYOKI, Appellant

Criminal Appeal No. 5 of 1942

Criminal Law-Sentence of fine-First principle governing amount of fine inflicted.

The appellant on being convicted of failing to carry a registration certificate on his person contrary to section 5(2) of the Native Registration Ordinance (Cap. 127) and having admitted sixteen previous convictions including two convictions for similar offences was sentenced to pay a fine of Sh. 400 or in default three months imprisonment with hard labour.

**Held** $(16-1-42)$ .—That the necessity for consideration being given to the capacity of an accused person to pay a fine is a first principle in inflicting this mode of punishment.

#### Appellant in person.

### Spurling, Crown Counsel, for the Crown.

JUDGMENT.-In imposing a fine of Sh. 400 in this case on the accused who is a native the learned Magistrate has failed to consider what is a first principle in passing a sentence of fine, namely the capacity of the accused to pay and so the possibility of the fine being realized. It is obvious that it would take the accused years to earn the amount of the fine imposed in this case. The sentence was passed under section 17 of the Native Registration Ordinance which provides: $-$

"Any person contravening any of the provisions of this Ordinance, for which no special penalty is provided, or of any rules made thereunder, shall on conviction be liable to a fine not exceeding fifty pounds or in default of payment to imprisonment for a term not exceeding three months."

From that section it is clear that the imposition of a fine of Sh. 400 is competent, but such a fine would be reserved for a particularly bad case and even in such a case the capacity of the individual to pay would be a very necessary and relevant matter for consideration. The following circular which was issued by the Courts in India and which is to be found at pages 52 and 53 of the 6th edition of Sohoni's Criminal Procedure Code (India) is so apt on the point that we incorporate it in our judgment. It reads as follows: $-$

"The attention of the Courts is directed to the very great importance of exercising great discretion in regulating the sentences of fine passed by them so as to accord with the circumstances of the persons on whom the sentences are passed. Fines are sometimes imposed which are manifestly impossible of realization, while there is reason to fear that many fines, imposed in petty cases, though realized, are paid only with difficulty. It would appear that in dealing with numerous petty cases some magistrates fall into a way of fixing the fines at particular amounts as a matter of course, without much thought as to how they will be felt by the particular individual on whom they are imposed.

It is a first principle in inflicting this mode of punishment that it is necessary to have as much regard to the pecuniary circumstances of the offender as to the character and magnitude of the offence. Fines should never, in any case, be imposed which are not likely to be realized at all, and they should never be imposed in petty cases so severe as not to be easily realizable."

We reduce the fine to Sh. 21 and allow the sentence in default to stand.