Rex v Muthani (Confirmation Case No. 502 of 1941) [1940] EACA 66 (1 January 1940)

# CRIMINAL CONFIRMATION

#### Before SIR JOSEPH SHERIDAN, C. J., LUCIE-SMITH, J. and BARTLEY, J.

#### REX. Prosecutor

#### $\mathbf{v}$

# KINYUMU S/O MUTHANI. Accused

# Confirmation Case No. 502 of 1941

## Criminal Procedure—Sentence of imprisonment and order for police supervision— Necessity for confirmation.

Held (13-9-41).—That in the case of a sentence of imprisonment passed by a first class magistrate, the case need not be sent for confirmation unless the period of imprisonment to be served exceeds twelve months and in the case of a second class magistrate six months and the fact that an accused person has been directed to report to the police does not affect the question.

### Accused absent unrepresented.

## Spurling, Crown Counsel, for the Crown.

ORDER.—The question submitted for our consideration is whether a sentence of one year's imprisonment with hard labour with an order that the accused should report to the police for a period of three years passed by a first class magistrate requires confirmation by the Supreme Court before being executed. Since the 1st June, 1941, a magistrate of the first class is empowered to pass a sentence not exceeding three years except in cases specially provided for in Part VII of the Criminal Procedure Code (Special provisions relating to the trial of Europeans). Where, however, he passes a sentence "exceeding 12 months imprisonment (whether such sentence shall be a substantial sentence of imprisonment or a sentence of imprisonment in default of payment of a fine, or costs, or compensation, or a combination of such sentences.)" the sentence shall not be executed until .... "the sentence has been confirmed by the Supreme Court".

The meaning of this proviso in our opinion is that provided (in the case of a first class magistrate) the aggregate sentence of imprisonment is not for a longer period than 12 months the sentence does not require confirmation before execution. The period an accused person has to serve is not increased by reason of his being ordered to report to the police under section 329 of the Criminal Procedure Code and so the sentence does not require confirmation before execution.

This view prevailed until the 24th October, 1933, in connexion with the interpretation of a similar provision of the Criminal Procedure Code which has recently been repealed. On the date mentioned a Circular to Magistrates (No. 14 of 1933) was issued directing that cases in which a sentence of six months together with an order for police supervision was awarded should in future be forwarded for confirmation.

(We should say that until recently sentences in excess of six months, irrespective of whether the magistrate had first or second class powers, required confirmation before execution.)

This circular was not based on a decided case. We now have had the opportunity of considering the question in a case brought to our notice and our decision is that the sentence does not require confirmation.

For the future therefore in the case of a sentence of imprisonment passed by a first class magistrate, the case need not be sent for confirmation unless the period of imprisonment to be served exceeds 12 months and in the case of a second class magistrate six months and the fact that an accused person has been directed to report to the police does not affect the question.

The effect of this order is to cancel Circular to Magistrates No. 14 of 1933.