Wakilii

Rex v Ramlubhaya (Criminal Appeal No. 1 of 1949)

East African Court of Appeal · [1949] EACA 27 · 1949 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Supreme Court of Kenya dismissing appeal against conviction and binding over order
Decision
Matter remitted to Supreme Court for determination of appeal on merits

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A person convicted by a subordinate court has a right of appeal under section 347(1) of the Criminal Procedure Code even where the magistrate, instead of passing sentence, made an order under section 34 of the Penal Code binding over the convicted person to come up for judgment when called upon. The right of appeal is not dependent upon conviction being followed by a sentence. The appellant was a person convicted on a trial held by a subordinate court and his case did not fall within the restrictive provisions of section 348.

Outcome

Matter remitted to Supreme Court for determination of appeal on merits

Facts

The appellant was convicted of criminal trespass contrary to section 303(1) of the Penal Code in the Resident Magistrate's Court at Nairobi. The magistrate, instead of passing sentence, made an order under section 34 of the Penal Code binding over the appellant in the sum of Sh. 1,000 to come up for judgment when called upon within two years, and ordered him to pay costs of Sh. 400. The appellant appealed to the Supreme Court against conviction and the binding over order. The Supreme Court dismissed the appeal on the ground that no appeal lay because no sentence had been passed. The appellant then appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether section 347(1) of the Criminal Procedure Code confers a right of appeal upon a person convicted where no sentence has been passed but instead an order has been made for security to come up for sentence when called upon under section 34 of the Penal Code.

Orders

  • Order of the Supreme Court dismissing appeal against conviction and order set aside.
  • Case remitted to the Supreme Court for determination of the appeal in accordance with law.

Rules and key headnotes

Criminal Law & Procedure — Right of Appeal — Conviction Without Sentence — Binding Over Order Under Section 34 Penal Code
A person convicted by a subordinate court has a right of appeal under section 347(1) of the Criminal Procedure Code even where the magistrate, instead of passing sentence, makes an order under section 34 of the Penal Code binding over the convicted person to come up for judgment when called upon, provided the case does not fall within the restrictive provisions of section 348.
Statutory Interpretation — Construction of Penal Statutes — Right of Appeal Not to Be Whittled Down
Once a right of appeal is given by statute, the court must be careful to see that the right is not whittled down. Words are not to be read into a statute unless there are adequate grounds within the four corners of the Act itself to justify the inference that the Legislature intended something which it omitted to express.
Criminal Law & Procedure — Interpretation of Section 347(1) — Mandatory Duty to Inform Distinguished from Right of Appeal
The mandatory duty imposed on a magistrate by section 347(1) of the Criminal Procedure Code to inform a convicted person of the right of appeal at the time when sentence is passed does not mean that the right of appeal itself is dependent upon conviction being followed by a sentence. The duty to inform arises only when sentence is passed, but the right of appeal exists for any person convicted on a trial held by a subordinate court, subject only to the restrictions in section 348.
Criminal Law & Procedure — Meaning of 'Order' in Section 349 Criminal Procedure Code
The word 'order' in section 349 of the Criminal Procedure Code, which provides that every appeal shall be entered within thirty days of the date of the order or sentence appealed against, includes and covers an order made under section 34 of the Penal Code binding over a convicted person to come up for judgment when called upon.

Legislation cited (12)

  • Penal Code s.303(1)
  • Penal Code s.34
  • Penal Code s.33
  • Penal Code s.25(8)
  • Criminal Procedure Code s.347(1)
  • Criminal Procedure Code s.348
  • Criminal Procedure Code s.349
  • Criminal Procedure Code s.354(1)
  • Criminal Procedure Code s.171
  • Criminal Procedure Code s.172
  • Criminal Procedure Code s.53(2)
  • Criminal Procedure Code s.132

Cases cited (1)

  • Mayandi Nadar v Paia Kudumban (1935) 58 ILR Mad 517

Full judgment

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

Rex v Ramlubhaya (Criminal Appeal No. 1 of 1949) [1949] EACA 27 (1 January 1949)
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.