Wakilii

Khimji v Municipal Board of Mombasa (CriminalAppeal No. 24 of 1946)

East African Court of Appeal · [1946] EACA 71 · 1946 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for contravention of municipal building by-laws
Decision
Conviction upheld; sentence reduced; costs order set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the appeal against conviction, holding that the appellant as owner was bound to comply with the demolition notice under By-law 146 regardless of how the notice was worded. However, the court allowed the appeal against sentence, reducing the fine from Sh. 2,000 to Sh. 500 on the ground that the original fine was excessive and may have been influenced by improper considerations. The court set aside the order for payment of prosecution costs, holding that such orders should only be made in exceptional circumstances and that no such circumstances existed in this case.

Outcome

Conviction upheld; sentence reduced; costs order set aside

Facts

The appellant was convicted of failing to comply with a notice requiring him to demolish an unauthorized erection within the specified time, contrary to By-law 145 of the Mombasa Municipality (Building and Sub-division) By-laws, 1931. The appellant was the owner of premises on which an unauthorized alteration or addition had been made. A notice to demolish was served on him under By-law 146, but he failed to comply with it. The trial magistrate sentenced him to pay a fine of Sh. 2,000 and ordered him to pay the costs of the prosecution. The appellant appealed both conviction and sentence.

Issues

  1. Whether the appellant was bound to comply with a demolition notice that was not served on him expressly 'as owner'.
  2. Whether the fine of Sh. 2,000 was excessive in the circumstances.
  3. Whether an order for payment of prosecution costs was justified in the circumstances.

Orders

  • Appeal against conviction dismissed.
  • Appeal against sentence allowed.
  • Fine reduced from Sh. 2,000 to Sh. 500.
  • Order for payment of costs (excluding disbursements for court fees) set aside.

Rules and key headnotes

Municipal By-laws — Service of Notice — Owner's Obligation
Where a person is in fact the owner of premises on which an unauthorized alteration has been made, and is the only person on whom a notice to demolish can be served under the relevant by-law, that person is bound to comply with the notice regardless of whether it was served on him expressly 'as owner'.
Sentencing — Excessive Sentence — Improper Considerations
A sentence may be set aside as excessive where it is significantly higher than the usual range for similar offences and appears to have been influenced by improper considerations unrelated to the offence itself.
Costs — Order for Payment of Prosecution Costs — Exceptional Circumstances
It is only in exceptional circumstances that an accused person should be ordered to pay the costs of the prosecution as distinct from actual disbursements for court fees, and this principle applies equally to prosecutions under municipal by-laws and to prosecutions by public prosecutors generally.

Legislation cited (3)

  • Mombasa Municipality (Building and Sub-division) By-laws, 1931 By-law 145
  • Mombasa Municipality (Building and Sub-division) By-laws, 1931 By-law 146
  • Criminal Procedure Code s.171

Cases cited (1)

  • Murray v Rex (Criminal Appeal No. 11 of 1945)

Full judgment

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

Khimji v Municipal Board of Mombasa (CriminalAppeal No. 24 of 1946) [1946] EACA 71 (1 January 1946)
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.