Wakilii

Komen v Rex (Criminal Appeal No. 17 of 1941)

East African Court of Appeal · [1941] EACA 52 · 1940 Conviction Altered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for obstructing a police officer in the execution of his duty
Decision
Appellant convicted of common assault and sentenced to twelve months imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that Rule 29 of the Nandi Pass Rules was ultra vires and that section 4 of the Native Passes Ordinance did not confer power of arrest without warrant. The police constable's arrest was therefore unlawful and he was not acting in the execution of his duty when assaulted. The appellant could not be convicted of obstructing an officer in the execution of his duty, but the evidence proved common assault as the force used exceeded what was necessary to resist unlawful arrest. The conviction was altered to common assault under section 228 of the Penal Code by virtue of section 174 of the Criminal Procedure Code, and the sentence reduced from three years to twelve months imprisonment with hard labour.

Outcome

Appellant convicted of common assault and sentenced to twelve months imprisonment with hard labour

Facts

The appellant was arrested by a police constable for an infringement of the Nandi Pass Rules. While escaping from custody, the appellant and two others viciously assaulted the constable. The constable was overpowered, felled to the ground, and struck on the head with a rungu, rendering him unconscious. The evidence indicated that the appellant struck this blow, though the magistrate found it doubtful which of the three did so, holding all three responsible in law. The magistrate convicted the appellant of obstructing a police officer in the execution of his duty contrary to section 231(b) of the Penal Code and sentenced him to three years imprisonment with hard labour.

Issues

  1. Whether Rule 29 of the Nandi Pass Rules, purporting to give power of arrest without warrant, is ultra vires the rule-making powers of the Governor in Council under section 2 of the Native Passes Ordinance.
  2. Whether section 4 of the Native Passes Ordinance, declaring offences 'cognizable to the police', confers power of arrest without warrant on a police constable.
  3. Whether a police constable arresting without warrant for an offence under the Nandi Pass Rules was acting in the execution of his duty when assaulted.
  4. Whether a conviction for obstructing a police officer in the execution of his duty can be altered to a conviction for common assault under section 174 of the Criminal Procedure Code.

Orders

  • Conviction altered to one of common assault contrary to section 228 of the Penal Code.
  • Sentence reduced to twelve months imprisonment with hard labour to bring it within the jurisdiction.

Rules and key headnotes

Administrative Law — Delegated Legislation — Ultra Vires — Rule-Making Powers
A rule purporting to confer power of arrest without warrant is ultra vires the rule-making authority where the enabling statute does not expressly authorise such a power to be delegated.
Criminal Law & Procedure — Powers of Arrest — Cognizable Offences — Statutory Interpretation
The phrase 'cognizable to the police' in an ordinance, without express provision for arrest without warrant and without definition in the ordinance itself, does not confer power of arrest without warrant where the only definition is in the Criminal Procedure Code and applies only to scheduled offences.
Criminal Law & Procedure — Unlawful Arrest — Resistance — Use of Force
A person is entitled to resist an unlawful arrest but may not use more force than is necessary for that purpose; excessive force in resisting an unlawful arrest constitutes common assault.
Criminal Law & Procedure — Obstructing Police Officer — Execution of Duty — Unlawful Arrest
A police officer making an arrest without lawful authority is not acting in the execution of his duty, and an assault upon him in those circumstances cannot constitute the offence of obstructing a police officer in the execution of his duty.
Criminal Law & Procedure — Conviction — Alternative Verdict — Section 174 Criminal Procedure Code
Where the evidence proves a lesser offence included in the charge, the court may convict of the lesser offence under section 174 of the Criminal Procedure Code even where the accused has denied the act altogether, provided the accused is not prejudiced by the substitution.

Legislation cited (8)

  • Penal Code s.231(b)
  • Penal Code s.228
  • Native Passes Ordinance s.2
  • Native Passes Ordinance s.4
  • Nandi Pass Rules r.29
  • Criminal Procedure Code s.2
  • Criminal Procedure Code s.174
  • Interpretation and General Clauses (Amendment) Ordinance 1941 s.2

Cases cited (1)

  • Regina v Mabel (173 E.R. 918)

Full judgment

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

Komen v Rex (Criminal Appeal No. 17 of 1941) [1940] EACA 52 (1 January 1940)
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.