Kisiangani v Reginam (Criminal Appeal No. 985 of 1954)
Observed later treatment
No later-treatment classification is recorded for this judgment.
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Holding
The Court of Appeal held that justice must not only be done but be seen to be done. Where the District Commissioner who gave consent to prosecute under delegated authority also tried the case two days later, the conviction could not stand. In giving consent, the magistrate may have considered matters prejudicial to the accused unknown to him, so justice was not seen to be done. The consent form was irregular for failing to state the District Commissioner acted under delegated power, but this alone would not invalidate the conviction.
Outcome
Appellant released
Facts
The appellant was charged with being a member of an unlawful society, the Dini ya Msambwa Society, contrary to section 71(a) of the Penal Code. Section 72(1) required the Governor's consent to prosecute such offences. By Government Notice No. 319 of 1951, the Governor delegated this power to the District Commissioner, Kitale, for prosecutions within his district relating to Dini ya Msambwa. On 25 August 1954, the District Commissioner gave written consent for Chief Inspector Nunn to institute proceedings against the appellant. Two days later, the same District Commissioner, sitting as First Class Magistrate, tried and convicted the appellant. The appellant appealed unsuccessfully to the Supreme Court of Kenya before appealing to the Court of Appeal for Eastern Africa.
Issues
- Whether justice was seen to be done where the District Commissioner who consented to the prosecution also tried and convicted the accused two days later.
- Whether the consent to prosecute was valid when it did not state on its face that the District Commissioner acted under delegated power from the Governor.
Orders
- Appeal allowed.
- Conviction and sentence set aside.
- Appellant ordered released.
Rules and key headnotes
Legislation cited (4)
- Penal Code s.71
- Penal Code s.71(a)
- Penal Code s.72(1)
- Government Notice No. 319 of 1951
Full judgment
The original judgment as reported. Read the original PDF before relying on any passage.