Wakilii

Rex v Mwita (Miscellaneous Criminal Case No. 3 of 1950)

East African Court of Appeal · [1950] EACA 113 · 1950 Application Dismissed; Leave to Appeal Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application for a writ of certiorari to quash a magistrate's costs order made under section 171(2) Criminal Procedure Code
Decision
Application for certiorari dismissed but leave to appeal out of time granted

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

An application for certiorari is not the proper procedure to challenge a magistrate's costs order under section 171(2) Criminal Procedure Code. Section 172 specifically gives a right of appeal to the person damnified by the order. The Court will not authorize a high prerogative writ when a lesser remedy by way of appeal is available. The application was discharged but treated as an application for leave to appeal out of time, which was granted given the exceptional circumstances and delays not attributable to the applicant.

Outcome

Application for certiorari dismissed but leave to appeal out of time granted

Facts

A Third Class Magistrate at Nyeri ordered the applicant to pay Sh. 400 to an accused person who had been acquitted of being found in possession of stolen goods, to cover costs and inconvenience under section 171(2) Criminal Procedure Code. The order was made on 25 October 1948. The applicant contended that the magistrate acted in excess of jurisdiction because he was not a private prosecutor but a witness called by the Crown in a public prosecution. Instead of filing an appeal under section 172, the applicant's counsel sought revision, which was refused by a Supreme Court Judge in January 1949. The applicant then applied for a writ of certiorari under section 389 Criminal Procedure Code. The matter had been in and out of court for nearly two years by the time of this hearing on 6 November 1950.

Issues

  1. Whether an application for certiorari is the proper procedure to challenge a magistrate's costs order under section 171(2) Criminal Procedure Code.
  2. Whether the applicant had a right of appeal under section 172 Criminal Procedure Code against the costs order.

Orders

  • Application for a rule nisi calling for a writ of certiorari discharged.
  • Application treated as an application for leave to appeal out of time, which is granted.
  • Applicant given 14 days to file a memorandum of appeal under section 172 Criminal Procedure Code.
  • Appeal to be admitted to hearing before two Judges at the next Criminal Appeal Sessions.
  • Money to remain on deposit with the District Commissioner at Nyeri.

Rules and key headnotes

Criminal Law & Procedure — Costs Orders — Right of Appeal under Section 172
Section 172 Criminal Procedure Code gives a specific right of appeal to the Supreme Court from any order awarding costs made by a Magistrate under section 171, and this right accrues to the person damnified by the order regardless of their status at the time the order was made.
Civil Procedure — Certiorari — Availability When Alternative Remedy Exists
The Court will not authorize the issue of a high prerogative writ of certiorari when a lesser remedy by way of appeal is or was open to the person aggrieved.
Criminal Law & Procedure — Revision — Limitation on Revisional Jurisdiction
A Judge has no jurisdiction to exercise revisional jurisdiction at the instance of a party when an appeal lies against the order complained of, having regard to the provisions of section 363(5) Criminal Procedure Code.
Civil Procedure — Appeals — Extension of Time — Exceptional Circumstances
Where an applicant has been trying for an extended period to have an issue reviewed and determined by the Court and the delays are in no way attributable to any lack of diligence by the applicant but to procedural misconceptions by counsel, the Court may treat an application for certiorari as an application for leave to appeal out of time and grant such leave in exceptional circumstances.

Legislation cited (5)

  • Criminal Procedure Code s.171(2)
  • Criminal Procedure Code s.172
  • Criminal Procedure Code s.389
  • Criminal Procedure Code s.363(5)
  • Criminal Procedure Code s.349

Full judgment

↓ Download PDF

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

Rex v Mwita (Miscellaneous Criminal Case No. 3 of 1950) [1950] EACA 113 (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.