Rex v Ruto (Cr. Rev. Case No. 19/1936) [1936] EACA 136 (1 January 1936)

## CRIMINAL REVISION

## Before SIR JOSEPH SHERIDAN, C. J., and WEBB, J.

### REX. Complainant

#### $v$ .

# KABIENIT ARAP RUTO, Accused

## Cr. Rev. Case No. 19/1936

Costs-Native Hut and Poll Tax-Ordinance 40/1934, Sec. 6 (2)-Rules of Court, Part XI, Schedule II.

Held (7-3-36).—That the scale of costs applicable in Native Hut and Poll Tax cases is that set out in Schedule II to Part XI of the Rules of Court, subject to the limitation of Sh. 6 imposed by section 6 (2) of Ordinance 40/1934.

Wallace, Crown Counsel, for the Crown.

JUDGMENT.—This case was set down for argument for the purpose of having determined the scale of costs applicable to Hut and Poll Tax cases. Section $6'(2)$ of Ordinance $40/1934$ provides that whenever proceedings are taken for the recovery of any tax under the Ordinance it shall be lawful for the Court to order the person in default to pay such sum in respect of Court costs, not exceeding in any case six shillings, as the Court in its discretion may determine. Section 6 $(1)$ says that after January 31 the amount due from any person shall on conviction be recoverable by distress and in default of distress the Court may order imprisonment or detention.

In our opinion the use of the word 'conviction' imports that the proceedings for the recovery of tax are criminal in character and therefore the scale of Court Fees applicable is that set out in Part XI, Schedule II of the Rules of Court (Subsidiary Legislation Vol. I, page 91). Subject to the maximum limitation of Sh. 6, the sums that can be awarded would therefore be: for service of summons or warrant (if a summons or warrant is actually issued) Sh. 2 or Sh. 4, according as the service is within or beyond 2 miles of the Court issuing the same, on hearing Sh. 4, and on warrant of commitment $$

We think it right to observe, however, that, while it is competent for the Court to award costs in such cases, we are of opinion that Magistrates should so exercise their discretion as not to make the imposition of costs a penalty for non-payment of tax, particularly as it appears to be the practice not to order persons convicted of minor offences to pay costs, and as the sum that can be awarded amounts, in many tax cases, to as much as 50 per cent of the tax due.