Wakilii

Rex v Muini (Cr. Rev. Case No. 21 of 1938)

East African Court of Appeal · [1938] EACA 190 · 1938 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal revision application from conviction by Second Class Magistrate, Kiambu
Decision
Convictions relating to two dwellings quashed; conviction relating to butcher's shop upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A Medical Officer of Health has no power under section 119 of the Public Health Ordinance to order demolition of a dwelling house to remove a nuisance; such power is vested exclusively in the Court under section 124. However, the Medical Officer does have power under section 119 to order demolition of buildings other than dwellings. Sections 88(2) and 367 of the Criminal Procedure Code cannot validate proceedings based on wrong premises from the start. Convictions relating to two dwellings set aside; conviction relating to butcher's shop upheld.

Outcome

Convictions relating to two dwellings quashed; conviction relating to butcher's shop upheld

Facts

The applicant owned three buildings at Wangigi Market, Kiambu: a shop with living quarters, a butcher's shop, and a dwelling house. The Medical Officer of Health served three sanitary notices under section 119 of the Public Health Ordinance declaring the existence of nuisances and requiring the applicant to demolish all three premises within one month. The applicant failed to comply. He was charged with three offences under section 120(1), convicted, and sentenced to pay a fine of Sh. 20 on each charge. The magistrate also ordered him to demolish all three buildings within fourteen days. The applicant applied for revision of the convictions and sentences.

Issues

  1. Whether a Medical Officer of Health has power under section 119 of the Public Health Ordinance to order demolition of a dwelling house to remove a nuisance.
  2. Whether a Medical Officer of Health has power under section 119 to order demolition of a building which is not a dwelling house.
  3. Whether sections 88(2) and 367 of the Criminal Procedure Code can validate proceedings based on wrong premises from the start.
  4. Whether costs can be ordered against the Crown in a criminal revision case.

Orders

  • Convictions, sentence and orders in regard to the two dwellings set aside.
  • Conviction, sentence and order in respect of the butcher's shop to stand.
  • No order as to costs against the Crown.

Rules and key headnotes

Public Health — Powers of Medical Officer of Health — Demolition of Dwellings
A local authority or Medical Officer of Health has no power under the Public Health Ordinance to order demolition of a dwelling house in order to secure the removal of a nuisance in respect of such building; such power is vested exclusively in the Court under section 124.
Public Health — Powers of Medical Officer of Health — Demolition of Non-Dwelling Buildings
The powers vested in a Medical Officer of Health under section 119 of the Public Health Ordinance include the power to order the demolition of a building which is not a dwelling house for the purpose of removing a nuisance.
Penal Statutes — Strict Construction — Distinction Between Dwellings and Other Buildings
The Public Health Ordinance being a penal enactment must be construed strictly. Where section 124 provides specific procedure for demolition of dwellings, this by implication deprives a Medical Officer of Health of power to order such demolition under the general provisions of section 119.
Criminal Procedure — Validation of Defective Proceedings — Sections 88(2) and 367
The provisions of sections 88(2) and 367 of the Criminal Procedure Code should not be invoked to validate proceedings based on wrong premises from the start.
Costs — Crown Prosecutions — Common Law Rule
At common law the Crown neither receives nor pays costs. Where no statutory provision creates an exception to this principle, no case can be made out for ordering costs against the Crown in a criminal revision case.

Legislation cited (9)

  • Public Health Ordinance Cap. 124 s.119
  • Public Health Ordinance Cap. 124 s.120
  • Public Health Ordinance Cap. 124 s.120(1)
  • Public Health Ordinance Cap. 124 s.120(2)
  • Public Health Ordinance Cap. 124 s.120(3)
  • Public Health Ordinance Cap. 124 s.124
  • Criminal Procedure Code s.88(2)
  • Criminal Procedure Code s.166(4)
  • Criminal Procedure Code s.367

Full judgment

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

Rex v Muini (Cr. Rev. Case No. 21 of 1938) [1938] EACA 190 (1 January 1938)
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.