Rex v Nyankangi (Criminal Appeal No. 123 of 1948) [1948] EACA 68 (1 January 1948)

# APPELLATE CRIMINAL

# Before SIR BARCLAY NIHILL, C. J., and DE LESTANG, J.

### REX. Respondent (Original Prosecutor)

# JONATHAN NYANKANGI, Appellant (Original Accused) Criminal Appeal No. 123 of 1948

Criminal Law—Assault causing actual bodily harm—Penal Code, section 245— Sentence of fine and imprisonment—No order for compensation—Appeal against sentence—Practice.

The facts are sufficiently clear from the judgment below.

Held (29-6-48).—The Appellate Court disapproves of the practice of some Magistrates in imposing fines in addition to heavy sentences of imprisonment unless there is some special feature in the case which appears to demand it.

Sentence of imprisonment upheld. Fine set aside.

### Appellant absent, unrepresented.

### Todd, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against sentence only. At his trial the appellant maintained that he hit the complainant under the stress of provocation because the complainant had hit him first, and he has maintained this contention in his Memorandum of Appeal. The learned Magistrate, however, has manifestly accepted evidence of the complainant who swore that he neither assaulted the appellant nor attempted to do so. On that finding of fact it is impossible for us to say that the sentence of 18 months' imprisonment with hard labour, although a severe one, is so excessive as to call for our intervention. There was evidence before the learned Magistrate that the appellant assaulted the complainant with a heavy stick and that in consequence the complainant was in hospital for fifteen days and was unable to work for two months.

We are, however, unable to understand that part of the learned Magistrate's sentence which, in addition to imposing a long term of imprisonment, ordered the appellant to pay a fine of Sh. 1,000 as well. This Court has often commented with disapprobation on the practice of some Magistrates in imposing fines in addition to heavy sentences of imprisonment unless there is some special feature in a case which seems to demand it.

In the case before us the complainant did not ask for compensation, neither did the learned Magistrate direct that any portion of the fine, if recovered, should be paid to the complainant. Neither did the learned Magistrate make any order with regard to imprisonment in default of non-payment of the fine. For what reason, therefore, he thought fit to order the appellant to pay so large a fine taking into account that there was evidence before him that the appellant's total wages amounted to Sh. 18 a month, we are quite unable to discover.

We sustain the sentence of imprisonment imposed by the Magistrate but rescind that part of the sentence which deals with the fine.