Rex v Okech (Confirmation Case No. 52 of 1941) [1940] EACA 64 (1 January 1940)

## CRIMINAL CONFIRMATION

### Before LUCIE-SMITH, J. and BARTLEY, J.

#### REX, Prosecutor

# OTIENO OKECH. Accused

## Confirmation Case No. 52 of 1941

Criminal Law and Procedure—Whether omissions of a magistrate to sign and/or date his judgment are curable defects-Whether section 188 of the Criminal Procedure Code applies where one magistrate has proceeded to conviction and a second magistrate imposes sentence.

The accused was wholly tried and convicted by a magistrate who failed either to date or sign his judgment; whilst the accused was on remand pending the arrival by post of his previous record sheet from the Criminal Records Office. Nairobi, this magistrate was transferred, and, subsequently, his successor in office, on receipt of the record sheet, proceeded to sentence the accused to two months hard labour and a fine of Sh. 100 or in default three months hard labour. The case went up to Supreme Court for confirmation and was argued before two judges.

Held (15-2-41).—(1) That the failure of the first magistrate either to date or sign his judgment was not an incurable irregularity.

(2) That on its correct interpretation, section 188 of the Criminal Procedure Code could only apply to cases where the first magistrate had not already proceeded to conviction.

(3) That there were no such enabling provisos as sub-sections 188 $(a)$ and 188 $(b)$ in a case where the first magistrate had proceeded to conviction before transfer.

$*(4)$ In view of the absence of any machinery to legalize sentence by his successor, the first magistrate should have sentenced the accused before proceeding on transfer, even if it necessitated doing so without having access to accused's past record.

(5) In view of $(2)$ and $(3)$ supra the trial was a nullity.

(Conviction and sentence set aside.)

Brown, Solicitor General, for the Crown.

Accused absent, unrepresented.

ORDER.-In this case the accused was tried by the Second Class Magistrate, Central Kavirondo, at Kisumu, on a charge of stock theft. This magistrate recorded all the evidence in the case and wrote a judgment in which he convicted the accused. At the close of the judgment he wrote, "sentence reserved for<br>evidence of previous convictions". The judgment was neither signed by the magistrate nor was it dated.

We would pass the following comments on the record in this case and on the facts as set out above up to this point: $-$

- (a) there is no date given at the commencement of the proceedings showing on what date the trial opened; - (b) after three witnesses were called the following entry was made on the record:- - "Hearing adjourned for further evidence. Accused remanded, Chief written. $28/12/40$ ."

Since 23rd December, 1942, section 198 (2) of the Consolidated Edition of the Criminal Procedure Code has provided enabling powers for cases in which a magistrate ceases to exercise jurisdiction and is succeeded by another magistrate between conviction and sentence.

ν.

Section 193 of the Criminal Procedure Code authorizes a magistrate to adjourn the hearing of a case "to a certain time and place to be then appointed" with the proviso that the adjournment shall not be for more than fifteen clear days if the accused person has been committed to prison. An indefinite adjournment is clearly illegal.

The record shows that the hearing was resumed on the 1st January, 1941, and as no further adjournments are recorded we must presume that the judgment was written and delivered on the 1st January, on which date the accused was again improperly remanded in custody on adjournment to no fixed date awaiting information as to previous convictions. This judgment, as we have already stated, was neither signed nor dated, thus contravening section 164 (1) of the Criminal Procedure Code.

The next entry on the record is dated 20th January, 1941. As the law only provides a remand in custody for fifteen clear days the accused obviously was illegally detained for several days.

On the 20th January, 1941, another magistrate who was then Second Class Magistrate of Central Kavirondo Court proceeded to sentence the accused on the conviction already recorded. The record does not disclose that this other magistrate had succeeded the magistrate who recorded the conviction, within the meaning of section 188 of the Criminal Procedure Code, which it should have done. The Official Gazette, however, shows that the magistrate who recorded the conviction was transferred to North Kavirondo on the 7th January, 1941.

Hayden, J. in dealing with this case in revision raised two questions—

- (1) the effect of the failure of the magistrate to sign and date his judgment; - (2) whether a magistrate who succeeds another magistrate within the meaning of section 188 of the Criminal Procedure Code can proceed to sentence the accused on a conviction recorded by his predecessor.

With regard to the first of these two questions the learned Solicitor General referred us to a note on page 817 of Sohoni, 13th edition, where on the authority of a case cited as $7 R. 370$ , to which case unfortunately we are unable to refer, it is stated that an omission to sign and date a judgment is a curable irregularity under the corresponding section of the Indian Criminal Procedure Code to our section 367. We are of the opinion that this irregularity is curable.

With regard to the second question section 188 of the Criminal Procedure Code reads: -

"Whenever any magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise jurisdiction therein and is succeeded, whether by virtue of an order of transfer under the provisions of this Code or otherwise, by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor $\gamma$ . and partly by himself, or he may resummon the witnesses and recommence the inquiry or trial:

Provided that-

(a) in any trial the accused may, when the second magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and reheard and shall be informed of such right by the second magistrate when he commences his proceedings:

(b) the Supreme Court may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was had, if it is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial".

To our mind that section does not cover a case such as this. The words of proviso (a) obviously show that the section can only apply to a case where the transferred magistrate had not proceeded to conviction. The wording of proviso (b) also tends to show that our reading of the section is the right one, as by that proviso the Supreme Court may "set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the *conviction* was had", etc.

In our view the magistrate who recorded the conviction should most certainly have sentenced the accused before he proceeded on transfer, even though the information as to previous convictions was not available.

We are of the opinion that as the provisions of the above quoted enabling section do not apply there is no provision in Code of Criminal Procedure legalizing a sentence being awarded by one magistrate on a conviction entered by another magistrate.

The procedure adopted makes the trial a nullity and we therefore set aside the conviction and sentence.