Wakilii

In Re - Application for an Order of Certiorari; In Re - Criminal Case No. 233 of 1951 of the first Class Magistrate's Court at Machakos Entitled Rex v Varma and Another (Miscellaneous Criminal Case No. 7 of 1951)

East African Court of Appeal · [1951] EACA 138 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for certiorari to quash magistrate's order forfeiting liquor licences following acquittal
Decision
Magistrate's order forfeiting liquor licences quashed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Certiorari granted to quash magistrate's order forfeiting liquor licences made after acquittal. Court held that revision is not a lesser remedy than certiorari because revision is entirely discretionary with no right to be heard, and does not constitute a means as of right to seek judicial intervention. Where no right of appeal exists, certiorari is available notwithstanding the theoretical availability of revision.

Outcome

Magistrate's order forfeiting liquor licences quashed

Facts

The applicant was charged with an offence under section 43(1) of Cap. 266 of the Laws of Kenya before the First Class Magistrate's Court at Machakos. He was acquitted of the charge. Notwithstanding the acquittal, the Magistrate made an order forfeiting the applicant's liquor licences. It was admitted by Crown Counsel that the Magistrate had no jurisdiction to make the forfeiture order. The applicant obtained an order nisi for certiorari to remove the case to the Court of Appeal and quash the forfeiture order. Crown Counsel argued that certiorari should not issue because the applicant could have sought revision, which was a lesser remedy.

Issues

  1. Whether certiorari should issue where the applicant had no right of appeal but could have sought revision.
  2. Whether revision constitutes a lesser remedy than certiorari.

Orders

  • Order nisi made absolute.
  • Order of the Magistrate forfeiting the applicant's licences set aside.
  • No costs.

Rules and key headnotes

Judicial Review — Certiorari — Availability Where No Right of Appeal
Certiorari will issue to quash an order made without jurisdiction even where the applicant has no right of appeal, and the theoretical availability of revision does not bar the remedy.
Administrative Law — Revision — Not a Lesser Remedy Than Certiorari
Revision is not a lesser remedy than certiorari because revision is entirely discretionary, there is no right to be heard under section 364 of the Criminal Procedure Code, and it does not constitute a means as of right to seek judicial intervention for preventing, redressing, or compensating for a wrong or violation of a right.
Criminal Law & Procedure — Forfeiture — No Jurisdiction to Order After Acquittal
A magistrate has no jurisdiction to order forfeiture of licences following an acquittal on the underlying charge.

Legislation cited (2)

  • Criminal Procedure Code s.364
  • Cap. 266 s.43(1)

Cases cited (2)

  • Rex v Barnes and Others (1910) 102 LT 860
  • Miscellaneous Criminal Case No. 3 of 1950

Full judgment

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In Re - Application for an Order of Certiorari; In Re - Criminal Case No. 233 of 1951 of the first Class Magistrate's Court at Machakos Entitled Rex v Varma and Another (Miscellaneous Criminal Case No. 7 of 1951) [1951] EACA 138 (1 January
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.