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Githigi and Another v Rex (Criminal Appeal No. 166 of 1950 (Case Stated))

East African Court of Appeal · [1950] EACA 72 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal by way of case stated from conviction in Resident Magistrate's Court
Decision
Appellants' convictions quashed and fines remitted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that where subsidiary legislation is published in the Government Gazette, it can only be amended, varied, rescinded or revoked by publication in the same manner, pursuant to section 12(a) of the Interpretation Ordinance, 1948. The Price Controller's Order No. 20 of 1949, which purported to fix maximum charges for African barbers but was not published in the Government Gazette, could not validly vary Government Notice No. 914 of 1948, which had been gazetted. The appellants' convictions for overcharging were therefore quashed.

Outcome

Appellants' convictions quashed and fines remitted

Facts

The two appellants operated an African barber's saloon in Nairobi. They were prosecuted for charging Sh. 1 for a haircut, allegedly an overcharge of 50 cents according to Price Controller's Order No. 20 of 1949. Government Notice No. 914 of 1948, published in the Government Gazette, had fixed maximum charges for hairdressing services. Under that Notice, the appellants, who had been in business since 1947, could lawfully charge Sh. 1. Price Controller's Order No. 1 of 1949, not published in the Gazette, purported to cancel all previous Price Orders for Nairobi District. Order No. 20 of 1949, also not gazetted, purported to fix a maximum charge of 50 cents for African barbers' haircutting services. The appellants were convicted and fined Sh. 100 each. As the sentence was not appealable, they initially applied for revision, which was refused. They then appealed by way of case stated.

Issues

  1. Whether appeal by way of case stated is the appropriate remedy where the sentence imposed is not appealable.
  2. Whether the Price Controller's Order No. 20 of 1948, which was not published in the Government Gazette, validly varied Government Notice No. 914 of 1948.
  3. Whether paragraph 8 of Price Controller's Order No. 1 of 1949 effectively cancelled Government Notice No. 914 of 1948.
  4. Whether the Price Controller could amend, vary, rescind or revoke an order published in the Government Gazette by means of an order not so published, notwithstanding section 12(a) of the Interpretation Ordinance, 1948.

Orders

  • Appeal allowed.
  • Convictions quashed.
  • Fines to be remitted to the appellants if already paid.

Rules and key headnotes

Administrative Law — Subsidiary Legislation — Publication Requirements — Amendment of Gazetted Orders
Where subsidiary legislation has been published in the Government Gazette, it may only be amended, varied, rescinded or revoked by publication in the same manner, in accordance with section 12(a) of the Interpretation Ordinance, 1948, unless a contrary intention appears.
Statutory Interpretation — Interpretation Ordinance — 'In the Same Manner' — Method of Publication
The phrase 'in the same manner' in section 12(a) of the Interpretation Ordinance, 1948, includes the method of publication. An order published in the Government Gazette cannot be validly varied by an order not so published.
Administrative Law — Price Control — Validity of Orders — Publication Requirements
Although there is no statutory obligation on the Price Controller to publish orders in the Government Gazette under Regulation 99(1) of the Defence Regulations, 1939, if the Controller elects to publish an order in the Gazette, any subsequent amendment, variation, rescission or revocation of that order must also be published in the Gazette to be effective.
Criminal Law & Procedure — Appeals — Case Stated — Non-Appealable Sentences
Where a sentence imposed is not appealable by right, the appropriate remedy is an appeal by way of case stated, not an application for revision.

Legislation cited (8)

  • Defence (Control of Prices) Regulations, 1945, Reg. 11(1)(b)
  • Defence (Control of Prices) Regulations, 1945, Reg. 4(1)(a)
  • Defence (Control of Prices) Regulations, 1945, Reg. 4(1)(b)
  • Defence (Control of Charges for Services) Order, 1948 (Government Notice No. 914 of 1948)
  • Interpretation Ordinance, 1948, s.12(a)
  • Defence Regulations, 1939, Reg. 2(4)
  • Defence Regulations, 1939, Reg. 99(1)
  • Defence Regulations, 1939, Reg. 101

Cases cited (3)

  • Chhagan Raja v Gordhan Gopal (17 K.L.R. Part I p. 69)
  • Falmouth Boat Construction Ltd v Howell [1950] 1 All ER 538
  • Jackson Stansfield & Sons v Butterworth (1948) 64 TLR 481

Full judgment

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Githigi and Another v Rex (Criminal Appeal No. 166 of 1950 (Case Stated)) [1950] EACA 72 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.