Rex v Mutabirwa (Criminal Appeal No. 292 of 1945) [1945] EACA 44 (1 January 1945)

### APPELLATE CRIMINAL

BEFÖRE SIR JÖSEPH SHERIDAN, C. J., AND HÖRNE, J.

# $\overbrace{\cdots\cdots\cdots\cdots}$ REX, Respondent

# KRISTOFA LABOWA SIMION MUTABIRWA, Appellant

#### Criminal Appeal No. 292 of 1945

Criminal law—Security for good behaviour from habitual offender—S. 45 et seq Criminal Procedure Code—Practice—Incorrect order—Absence of finding. By section 45 Criminal Procedure Code it is provided:—

"Whenever a magistrate empowered to hold a subordinate court of the first class is informed on oath that any person within the local limits of his jurisdiction-

(a) is by habit a robber, house-breaker or thief; or

- (b) is by habit a receiver of stolen property, knowing the same to have been stolen; or - (c) habitually protects or harbours thieves, or aids in the concealment or disposal or stolen property; or - (d) habitually commits or attempts to commit, or aids or abets in the commission of, any offence punishable under Chapters XXX, XXXIII or XXXVI of the Penal Code; or - (e) habitually commits or attempts to commit, or aids or abets in the commission of, offences involving a breach of the peace; or - $(f)$ is so desperate and dangerous as to render his being at large without security hazardous to the community;

such magistrate may, in manner hereinafter provided, require such person to show cause why he should not be ordered to execute a bond, with sureties for his good behaviour for such period, not exceeding three years, as the magistrate thinks fit."

On being informed on oath that the accused was a habitual thief and had been found in Government Road, Nairobi, in such circumstances as to lead to the belief that he was there for the purpose of pocket-picking the magistrate ordered that the accused "shall enter into a bond in Sh. 500 with one surety to be of good behaviour for one year."

The accused being under arrest the magistrate there and then informed him of the order and proceeded to inquire into the truth of the information as required by section 52 Criminal Procedure Code and in due course made the following order: $-$

"On the recorded evidence I find that accused is an habitual thief and the order for him to enter into a bond in Sh. 500 with one surety in Sh. 500, to be or good behaviour for one year, is made absolute with effect from to-day. In default of execution of bond, to be detained at simple imprisonment for one year.

Informed of right of appeal".

#### **COLLEGIA** The accused appealed. $\cdots$

Held $(20-12-45)$ .—(1) The circumstances disclosed by the information were not such as to justify an order being made calling upon the accused to furnish security for good behaviour.

(2) The procedure adopted by the magistrate does not appear to have been correct, for instead of calling upon the accused to show cause he made an order in the first instance that he should enter into a bond.

(3) Before ordering a habitual offender to give security for good behaviour the magistrate must record a finding that it is necessary for maintaining good behaviour that the accused should furnish security. $\mathcal{L} \times \mathcal{L}$

$\circ$

(4) Great care should be exercised in making orders to give security. Appeal allowed.

Appellant present unrepresented.

Lowe, Crown Counsel, for the Crown.

JUDGMENT.—We have read the affidavit supporting the application calling upon the accused to show cause why he should not give security for good behaviour under section 45, Criminal Procedure Code. Our opinion is that the circumstances were not such as that any order under the section should have been made. But apart from this the procedure adopted by the Magistrate does not appear to have been correct, for an order that the accused should enter into a bond was made and not an order to the appellant calling on him to show cause. There is also a defect in the order in the omission to specify the class of surety required, such for instance as to whether he should be a householder. Furthermore, the Magistrate's order is lacking inasmuch as there is no finding under section 53 that it was necessary for maintaining good behaviour that the accused should enter in a bond. It is obvious that very great care should be exercised in applying the sections in question, for there is always a danger that a person who is an old offender may feel that he can never so to speak rid himself of his past, and that however innocent his actions may be he is liable to be arrested and imprisoned. We purposely say imprisoned for what hope has a person like the accused of finding any money or sureties. The order is set aside and the accused is directed to be released.