Wakilii

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

East African Court of Appeal · [1950] EACA 11 · 1950 Application Dismissed 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 discharged but applicant granted leave to appeal out of time against the underlying costs order

Observed later treatment

No later-treatment classification is recorded for this judgment.

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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.

Outcome

Application for certiorari discharged but applicant granted leave to appeal out of time against the underlying costs order

Facts

A Third Class Magistrate at Nyeri acquitted Labon Mwita of being found in possession of stolen goods and awarded him Sh. 400 under section 171(2) Criminal Procedure Code to cover costs and inconvenience, to be paid by the applicant Ndegwa s/o Kuria. The applicant contended he was not a private prosecutor but a witness called by the Crown in a public prosecution, and that the magistrate acted in excess of jurisdiction. The magistrate's order was made on 25 October 1948. The applicant's counsel first sought revision in November 1948, which was refused by a Supreme Court judge in January 1949. The applicant then applied for certiorari nearly two years after the original order.

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 rule nisi calling for writ of certiorari discharged.
  • Application treated as application for leave to appeal out of time.
  • Leave to appeal out of time granted.
  • Applicant given 14 days to file memorandum of appeal under section 172 Criminal Procedure Code.
  • Money to remain on deposit with District Commissioner at Nyeri pending appeal.

Rules and key headnotes

Criminal Law & Procedure — Costs Orders — Right of Appeal under Section 172 Criminal Procedure Code
Section 172 Criminal Procedure Code gives a 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 an aggrieved party where an appeal lies against the order complained of, having regard to section 363(5) Criminal Procedure Code.
Civil Procedure — Appeals — Leave to Appeal Out of Time
Where exceptional circumstances exist and delays are not attributable to lack of diligence by the applicant, the court may grant leave to appeal out of time under the proviso to section 349 Criminal Procedure Code.

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

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Rex v Mwita (Miscellaneous Criminal Case No. 3 of 1950) [1950] EACA 11 (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.