Wakilii

In Re - Criminal Case No. 190 of 1951 in the Supreme Court of Kenya at Nairobi Entitled - Rex v Ramji and Another (Miscellaneous Criminal Application No. 13 of 1951)

East African Court of Appeal · [1950] EACA 140 · 1950 Revision Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Revision application by Attorney General to vacate restitution order made after acquittal in criminal trial
Decision
Restitution order vacated; accused left to civil remedy

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

A superior court has inherent power to vacate its own order for restitution of property during the same sessions if the order was made without jurisdiction. The court had no jurisdiction to order return of Sh. 5,000 to the accused because section 177 of the Criminal Procedure Code applies only where property is taken upon apprehension, not where money was handed over before apprehension. Section 3(3) does not import English Criminal Appeal Rules where the Criminal Procedure Code contains specific provisions on restitution. Consent cannot create jurisdiction. The accused was left to pursue civil remedies.

Outcome

Restitution order vacated; accused left to civil remedy

Facts

Two accused persons were charged with official corruption for paying Sh. 5,000 to a C.I.D. Inspector as an inducement to return account books he had seized. The Inspector was participating in a police trap. The accused were acquitted on the ground that the Inspector had no legal authority to seize the books in the first place, and therefore was under no official duty to retain them. After acquittal, the court ordered the Sh. 5,000 to be returned to the second accused, with consent of Crown Counsel. The payment of the money by the second accused to the Inspector was not challenged in evidence. The money had been handed to the Inspector before the accused were apprehended and was produced as an exhibit by the Superintendent to whom the Inspector had handed it.

Issues

  1. Whether the Court had jurisdiction during the same sessions to vacate its own order for restitution of property made after acquittal.
  2. Whether the Court had statutory jurisdiction under the Criminal Procedure Code to order return of Sh. 5,000 to the accused.
  3. Whether section 177 of the Criminal Procedure Code applied where money was handed over before apprehension.
  4. Whether section 3(3) of the Criminal Procedure Code imported English procedure under the Criminal Appeal Act 1907 to confer jurisdiction.

Orders

  • The order requiring return of Sh. 5,000 to the second accused is vacated and rescinded.
  • Nothing in this order precludes the second accused from instituting civil proceedings for recovery of the money.

Rules and key headnotes

Criminal Procedure — Restitution Orders — Court's Power to Vacate Own Order During Same Sessions
A court of superior jurisdiction has inherent power to alter during the same sessions an order for restoration of property if the order was not made in conformity with the law, just as it has power to alter a sentence passed in error before termination of the assize or sessions.
Administrative Law — Jurisdiction — Consent Cannot Create Jurisdiction
The fact that the Crown agreed to a court order can neither validate the order nor estop the Crown from seeking to have it declared bad, because consent cannot create jurisdiction where none exists.
Criminal Procedure — Restitution Orders — Statutory Basis Required
A court has no inherent jurisdiction apart from statute to make orders affecting possessory titles in a criminal case; jurisdiction to order restitution of property must be conferred by statute.
Statutory Interpretation — Criminal Procedure Code s.177 — 'Upon Apprehension'
Section 177 of the Criminal Procedure Code, which empowers a court to order restitution of property taken from an accused 'upon apprehension', does not apply where money was handed over to a police officer before the accused was apprehended, and therefore confers no jurisdiction to order its return.
Statutory Interpretation — Criminal Procedure Code s.3(3) — Importation of English Procedure
Section 3(3) of the Criminal Procedure Code, which imports English criminal procedure where the Code is inapplicable, does not apply to matters covered by specific provisions of the Code such as sections 177 and 178 dealing with restitution orders, and cannot be used to vary the effect of those provisions by importing English statutory legislation.

Legislation cited (5)

  • Criminal Procedure Code s.177
  • Criminal Procedure Code s.178
  • Criminal Procedure Code s.3(3)
  • Criminal Appeal Act 1907 s.8(a)
  • Penal Code s.93

Cases cited (5)

  • Rex v Price (1805) 102 ER 1310
  • De Haber v Queen of Portugal (1851) 17 QB 171
  • Rex v D'Eyncourt (1888) 21 QBD 109
  • Arnell v Harris (1945) 1 KB 62
  • Elias v Passmore (1934) 2 KB 164

Full judgment

↓ Download PDF

The original judgment as reported. Read the original PDF before relying on any passage.

In Re - Criminal Case No. 190 of 1951 in the Supreme Court of Kenya at Nairobi Entitled - Rex v Ramji and Another (Miscellaneous Criminal Application No. 13 of 1951) [1950] EACA 140 (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.