Shah v Queen (Criminal Appeal No. 330 of 1952) [1955] EACA 248 (1 January 1955)

## APPELLATE CRIMINAL

# Before SIR KENNETH O'CONNOR, C. J., and RUDD, J.

## MOHANLAL KARAMSHI SHAH, Appellant

ν.

# THE QUEEN, Respondent

### Criminal Appeal No. 330 of 1952

# Criminal Procedure and Practice-Different cases charging same accused tried. simultaneously—Whether trial a nullity.

Six tenants each made two complaints against their landlord, the accused. The magistrate framed two identical counts in respect of each of the complainants. and these were embodied in different case files, consecutively, but separately, numbered. The magistrate then proceeded to try all six cases simultaneously and found the accused guilty on all 12 counts in respect of which fines were imposed. The accused appealed.

Held $(3-1-55)$ .—(1) It is elementary in English criminal law that a man cannot be tried at the same time on two indictments charging different offences and the same rule has been applied to Kenya in the case of an accused person tried simultaneously on twoinformations. Any such trial is a nullity. The same rule must apply to an accused person tried simultaneously in different criminal cases by a magistrate.

(2) This was not a case with one charge sheet containing several charges or counts but there were six different cases each with a separate charge sheet containing two counts. The effect of trying all six cases together rendered the trial a nullity.

#### Appeal allowed.

Cases cited: R. v. McDonnell, (1928) 20 Cr. App. Rep. 163; R. v. Wilde, (1933) 24-<br>Cr. App. Rep. 98; Jeremiah s/o Mwangi v. R., 18 E. A. C. A. 218; R. v. Mashiki s/o<br>Ngila, (1940) 7 E. A. C. A. 50; Saulos Ndima and Another v. R.

### Morgan for appellant.

#### Crown unrepresented.

JUDGMENT.—This appeal has an involved history which may be summarized. as follows. The appellant is the landlord of certain premises in Eldoret which were subdivided and let to six tenants. It was a term of the tenancy that the appellant was to supply water and electric light to the premises occupied by each of these tenants.

On 27th December, 1951, one of the tenants swore a complaint before the Resident Magistrate, Eldoret, praying that the appellant be charged contrary tosections 25 and 30 of the Increase of Rent (Restriction) Ordinance, 1949, and that a warrant of arrest be issued against the appellant to answer the charges. This. complaint set out the complainant's tenancy with the appellant and alleged that. on or about 27th August, 1951, the appellant, with intent to harass the complanant, had the electric light installed in the premises cut off; that on 19th. December, 1951, the Municipal Board of Eldoret cut off water connexion at the premises, which to the best of the complainant's knowledge, information and belief was done at the instructions of, and/or on default in payment of the waterbill owing by, the appellant, and that the appellant had wilfully by his agents.

disconnected light first and then water with intention of compelling the complainant to vacate the premises or to pay directly or indirectly a higher rent for the premises.

The learned magistrate ordered a summons to issue for 16th January, 1952, and on 24th December, framed the following charge in his Criminal Case No. 2515A of $1951$ :—

Charge—

- (1) Depriving tenant either directly or indirectly of service contrary to section 25 of Increase of Rent (Restriction) Ordinance, 1949. - (2) Subjecting tenant to annoyance—section 30 of Increase of Rent (Restriction) Ordinance, 1949.

$\therefore$ Particulars of offence—

Count 1:

That the accused Mohanlal Karamshi Shah, on or about 27th August, 1951, had the electric lights installed in the premises occupied by the complainant cut off in order to deprive Ambalal Chhotabhai Patel of the services of the electric light.

### $Count 2:$

That the accused Mohanlal Karamshi Shah, on 19th December. 1951, had the water connexion of the premises occupied by Ambalal Chhotabhai Patel cut off with the intention of subjecting the complainant to annoyance and with the intention of compelling Ambalal Patel to vacate the premises or to pay directly or indirectly a higher rent for the premises.

On 14th January, 1952, each of the other five tenants swore a similar complaint against the appellant. Each of these complaints was given a case number commencing with Criminal Case No. 68 of 1952, the last number being Criminal Case No. 72 of 1952. The magistrate on the same day framed two counts in respect of each of these complaints, which were exactly similar, except for the names of the tenants concerned, to those framed in Criminal Case No. 2515<sub>A</sub> of 1951. Each set of two counts was headed with the case number of the complaint on which they were framed, but the particulars of offences were numbered 3 to 12. Thus in Criminal Case No. 68 of 1952 there was no count numbered 1 or 2 and the offences charged were shown as counts 3 and 4. Similarly in case 69 of 1952, the offences as shown were numbered as counts 4 and 5. The other case numbers were dealt with similarly, the charges in respect of case No. 72 of 1952 being numbered 11 and 12.

On 16th January, the appellant appeared in Criminal Case No. 2515<sub>A</sub> of 1951 and was charged with and pleaded not guilty to all the 12 counts, the oddnumbered counts referring to the cutting-off of electric light and section 25 of the Ordinance, while the even-numbered counts referred to the cutting-off of water and section 30 of the Ordinance. All these counts, though they were separate cases with separate case numbers were tried in the file of Case No. 2515A of 1951. No objection was taken to this course. The complainants were all represented by one and the same advocate, and the record shows that the appellant had been consulted as regards hearing dates which had been fixed at his request.

There was evidence, accepted by the learned magistrate, that the appellant had agreed as a term of the tenancies to supply water and electric light to each of the tenants; that the appellant had for years been trying to pass these burdens. on to the tenants; that the Rent Control Board had not consented to the transfer of either of these burdens to any of the tenants; that the electric light was cut off from the premises on the instructions of the appellant; that the appellant had given: similar instructions for the water supply to be cut off, but the supplier refused to act on those instructions; that the appellant was warned that the water supply should not be cut off without the consent of the tenants; and that the appellant refused to pay the arrears due by him for water supplied and the supply was. cut off because of this default in payment of arrears. The cutting-off of the water supply necessarily caused annoyance and inconvenience to the tenants.

The appellant was simultaneously convicted in all the cases on the six counts. of indirectly depriving the complainants of services without the consent of the Rent Control Board contrary to section 25 of the Ordinance, and on six counts. of causing annoyance to tenants with the intention of compelling them to pay a higher rent for their premises contrary to section 30 of the Ordinance. He was sentenced to pay a fine of Sh. 100 or three months' simple imprisonment inrespect of each count, and in addition to pay Sh. 500 costs or three months' simple imprisonment.

The appellant appealed to the Supreme Court, which purported to dismiss the appeal, but upon further appeal to the Court of Appeal, it was held that thedismissal of the appeal by the Supreme Court was a nullity because the Attorney-General had not been informed of the appeal or given an opportunity to be heard. The Court of Appeal ordered that the appeal to the Supreme Court should be reheard after notice had been given to the Attorney-General, but the Attorney-General elected not to appear in the matter.

Mr. Morgan, for the appellant, only became interested in the case at a latestage and after the Supreme Court had purported to dismiss the appeal. He applied by motion for leave to amend the Memorandum of Appeal abandoning some of the grounds of the original Memorandum, recasting others and adding additional grounds. The Court refused to allow an amendment of the Memorandum of Appeal at so late a stage, but decided to hear Mr. Morgan, as some aspects of the case appeared to call for the intervention of the Court either in its appellate or revisional jurisdiction. It is only necessary to deal with one of Mr. Morgan's points (which would have been taken by the Court if he had not taken it), as this is sufficient to dispose of the matter. Mr. Morgan submitted, inter alia, that separate cases charging different offences committed against different persons. should not have been consolidated and tried together.

It is elementary in English criminal law that a man cannot be tried at the same time on two indictments charging different offences. The trial is a nullity. (R. v. McDonnell, (1928) 20 Cr. App. Rep. 163; R. v. Wilde, (1933) 24 Cr. App. R. 98). In Jeremiah s/o Mwangi v. Rex, 18 E. A. C. A. 218, the Court of Appeal for Eastern Africa held that the same rule applies in Kenya to an accused person tried simultaneously on two informations. The trial is a nullity. In that case the Court of Appeal for Eastern Africa declined to follow the case of Mashiki s/o Ngila, (1940) 7 E. A. C. A. 50, preferring the authority of R. v. Saulos Ndima and Another, (1936) 3 E. A. C. A., 34. R. v. Jeremiah (supra) in the latest decision and is binding upon us. Moreover we respectfully agree with it and, in particular, with its comments on Mashiki's case. We take it that the same rule must apply to an accused person tried in the court of a magistrate, simultaneously in different cases. This was not one case with one charge sheet containing several charges or counts. in respect of several complainants. There were six different cases, each with a separate charge sheet containing two counts. These cases should not have been tried together. The trial was a nullity.

This is sufficient to dispose of the present appeal. We quash the convictions. of the appellant. It will be for the Crown or the complainants to decide whether or not they wish to proceed against the appellant according to law.

Before leaving the case, we desire to say that the practice (which seems lately to have become prevalent in Kenya) of specifying in charge sheets or informations which contain more than one count the statement of each offence seriatim followed by the particulars of each offence *seriatim* is not one which should beadopted. The particulars of each offence should follow immediately after thestatement of that offence, so that each count is completed before another count. is commenced.