Wakilii

Rex v Waithaka (Criminal Appeal No. 84 of 1942)

East African Court of Appeal · [1942] EACA 74 · 1942 Conviction Altered AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for assaulting police officers in the due execution of their duty
Decision
Convictions altered to common assault; appellant and accused No. 9 released forthwith; sentences reduced for all co-accused

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that possession of native intoxicating liquor in a native reserve did not contravene the Native Liquor Ordinance 1930 absent strict proof of a headman's order under section 8(a) of the Native Authority Ordinance 1937 prohibiting such possession. The police were not acting in due execution of their duty. The accused were entitled to resist arrest but not to use more force than necessary. As excessive force was used, convictions altered from assaulting police officers to common assault under section 244 of the Penal Code.

Outcome

Convictions altered to common assault; appellant and accused No. 9 released forthwith; sentences reduced for all co-accused

Facts

The appellant and nine others were convicted of assaulting police officers in the due execution of their duty. Police officers attempted to arrest the accused on the order of a chief for illegal possession of native intoxicating liquor. The incident occurred in a native reserve. The accused resisted arrest and assaulted the constables. No evidence was adduced proving the issue of an order by a headman under section 8(a) of the Native Authority Ordinance 1937 prohibiting possession of such liquor within his jurisdiction. The court found overwhelming evidence that the appellant was present and participated in the assault.

Issues

  1. Whether the police officers were acting in the due execution of their duty when attempting to arrest the accused for possession of native intoxicating liquor.
  2. Whether strict proof of an order issued by a headman under section 8(a) of the Native Authority Ordinance 1937 was required to establish an offence.
  3. Whether the accused were entitled to resist arrest and if so, whether the force used was excessive.

Orders

  • Appeal allowed in part.
  • Conviction of appellant altered to common assault contrary to section 244 of the Penal Code.
  • Sentence reduced to two months imprisonment with hard labour.
  • Appellant ordered to be released forthwith from custody as he has already served two months imprisonment.
  • Convictions of accused Nos. 1, 3, 4, 5, 6, 7, 8, 9 and 10 altered to common assault contrary to section 244 of the Penal Code.
  • Sentences of accused Nos. 1, 8 and 10 reduced to a fine of Sh. 50 each or one month's detention in default.
  • Sentence of accused No. 9 reduced to a fine of Sh. 100 or two months imprisonment with hard labour in default.
  • Sentences of accused Nos. 3, 4, 5, 6 and 7 reduced to a fine of Sh. 40 each or one month's imprisonment with hard labour in default.
  • Any fines paid in excess of the above amounts ordered to be refunded.
  • Accused No. 9, if in custody, ordered to be released forthwith as she would have already served two months imprisonment in default of payment of fine.

Rules and key headnotes

Criminal Law & Procedure — Assault on Police Officers — Due Execution of Duty — Requirement that Police Act Lawfully
For a conviction under section 247(b) of the Penal Code for assaulting police officers in the due execution of their duty, the prosecution must prove that the officers were acting lawfully in the execution of their duty at the material time.
Evidence — Proof of Statutory Orders — Native Authority Ordinance — Strict Proof Required
Strict proof must be adduced of the issue of an order by a headman under section 8(a) of the Native Authority Ordinance 1937 prohibiting possession of native intoxicating liquor within his jurisdiction before an offence can be established; the court cannot presume the existence of such an order from witness statements that accused persons lacked permits.
Criminal Law & Procedure — Resisting Unlawful Arrest — Entitlement and Limits
Where police officers are not acting in the due execution of their duty, accused persons are entitled to resist their arrest and the seizure of property, but are not entitled to use more force than is necessary for that purpose.
Criminal Law & Procedure — Native Liquor Offences — Possession in Native Reserve
Possession of native intoxicating liquor in a native reserve does not contravene the provisions of the Native Liquor Ordinance 1930 unless an order has been issued by a headman under section 8(a) of the Native Authority Ordinance 1937 prohibiting such possession within the local limits of his jurisdiction.

Legislation cited (4)

  • Penal Code s.247(b)
  • Penal Code s.244
  • Native Liquor Ordinance 1930
  • Native Authority Ordinance 1937 s.8(a)

Cases cited (1)

  • Rex v Kiptoro s arap Konzeri (Criminal Appeal No. 17 of 1941)

Full judgment

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

Rex v Waithaka (Criminal Appeal No. 84 of 1942) [1942] EACA 74 (1 January 1942)
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.