Rex v Osinda and Others (Con. C. 422/1932.) [1932] EACA 14 (1 January 1932)

## CRIMINAL CONFIRMATION.

Before SIR JACOB BARTH, C. J., and GAMBLE, Acting J.

## REX

$\overline{v}$ .

## CHACHA OSINDA AND 2 OTHERS.

## Con. C. 422/1932.

- The Criminal Procedure Code, section 202-Order of dismissal bar to further procedure—Autrefois acquit—Native Tribunals Ordinance, 1930, section 30 (c)—Power to transfer case before or after sentence passed—Section 32—Procedure when case transferred from Native Tribunal for trial or re-trial. - $Held$ (30-8-32):—That where a case against accused persons is dismissed, further trial is barred on a plea of *autrefois acquit*, and that section 202 of the Criminal Procedure Code in regard to Native Tribunals should not are no written records therein.

Davies, Crown Counsel, for Crown.

The facts of the case are sufficiently set forth in the Order. Gases quoted: $-$

Queen v. Keepers of Peace and Justices of the County of London (1890), 25 Q. B. 357 at 360.

Foss v. Best (1906), 2 K. B. 105.

ORDER.-In this case the three accused have been convicted of arson under section 303, Penal Code, and sentenced as follows: Chacha Osinda to three years' hard labour and a fine of Sh. 200 or one month's hard labour in default; Nyakororobi Peneti and Chacha Gicheri each to two years' hard labour and a fine of Sh. 100 or one month's hard labour in default.

It would appear from the evidence of Chief Mzungu that the case came before the Elders, who dismissed it. It is not stated anywhere why the case was re-heard by the District Commissioner after it had been dismised by the Native Tribunal.

We have had the assistance of Mr. Davies, a learned Crown Counsel, who tells us that the Native Tribunal for the Nyabassi Location has been gazetted under the Native Tribunal Rules. 1911, and it appears on page 155 of the Consolidated Orders, Proclamations, Rules and Regulations. By Government Notice 224 of 1931 such tribunals were recognized as tribunals under the Native Tribunals Ordinance, 1930. Section 30 (c) of that Ordinance gives a Provincial Commissioner or a District Commissioner power to transfer any cause or matter either before trial or at any stage of the proceedings whether before or after sentence passed or judgment given to any Subordinate Court of the First or Second Class. Presumably such transfer is for the purpose of trial or re-trial although the section does not specifically say so, but section 32 makes such purpose clear. The provisions of section 30 (c) do not, however, deal with the case of an acquittal or discharge. We are of opinion that the words: " before or after sentence passed" refer to criminal causes or matters and they necessarily exclude cases of acquittal or discharge.

The learned Crown Counsel has not attempted to support the conviction and emphasizes the fact that there is nothing in the Native Tribunal Ordinance, 1930, to deprive a person acquitted by a Native Tribunal of the plea of *autrefois acquit*.

We agree with his contention that the dismissal of a complaint by a Native Tribunal amounts to an acquittal, and that the formality set out in section 202, Criminal Procedure Code, cannot be expected where natives and Native Tribunals are concerned.

As Lord Coleridge, C. J., said in the Queen v. Keepers of Peace and Justices of the County of London (25 Q. B. at 360): "The general principle of law is that if acquitted he is not to be a second time vexed." In our judgment this principle applies equally to Native Tribunals and if legislation is to abrogate or affect this principle it must do so clearly and without ambiguity.

For the reasons tated above we are of opinion that these convictions and sentences cannot stand and they are accordingly quashed and we order the accused to be set at liberty.