Wakilii

Rex v Wako (Criminal Revision Case No. 223 of 1945)

East African Court of Appeal · [1945] EACA 43 · 1945 Revision Allowed — Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal revision application from conviction under municipal by-law
Decision
Conviction quashed and applicant discharged

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A municipal by-law placing the burden of proof on an accused person is repugnant to the Indian Evidence Act and ultra vires in the absence of specific legislative power enabling the Municipal Council to do so. By-law 212 of the Nairobi Municipality (Amendment) By-laws 1944, which required natives to prove employment or obtain a permit to remain in the municipality for more than 36 hours, was held ultra vires on two grounds: it improperly shifted the burden of proof to the accused, and it was manifestly partial and unequal in its operation between different classes of natives.

Outcome

Conviction quashed and applicant discharged

Facts

Awo d/o Wako was convicted by a magistrate of remaining in Nairobi Municipality for more than 36 hours without employment and without a permit, contrary to By-law 212 of the Nairobi Municipality (Amendment) By-laws 1944. She was found at Eastleigh on 17 July 1945 and stated before the magistrate that she had no pass and had been in Nairobi for some time. This statement was accepted as a plea of guilty and she was sentenced to three weeks imprisonment. The matter came before the Court by way of revision because the sentence did not exceed one month.

Issues

  1. Whether a municipal by-law that places the burden of proof on an accused person is repugnant to the Indian Evidence Act and ultra vires.
  2. Whether By-law 212 is unreasonable and ultra vires as being manifestly partial and unequal in its operation between different classes of natives.

Orders

  • Conviction quashed.

Rules and key headnotes

Municipal By-laws — Burden of Proof — Repugnancy to Indian Evidence Act
In the absence of a specific power enabling the Municipal Council to do so, a municipal by-law which places the burden of proof upon a person accused of offending against it is repugnant to the Indian Evidence Act and ultra vires.
Municipal By-laws — Reasonableness — Partial and Unequal Operation
A municipal by-law which is manifestly partial and unequal as between different classes of persons in its operation is unreasonable and ultra vires.
Burden of Proof — Criminal Offences — Legislative Power Required
The burden of proof in criminal offences lies upon the prosecution under the Indian Evidence Act, and any variation of this rule must be made by the Legislature itself, not by subordinate legislation such as municipal by-laws.
Municipal By-laws — Benevolent Interpretation — Limits
While municipal by-laws ought to receive a benevolent interpretation and ought to be supported, the court retains responsibility for inquiring into their validity and determining whether they are manifestly partial and unequal in operation.

Legislation cited (10)

  • Nairobi Municipality (Amendment) By-laws 1944 By-law 212
  • Indian Evidence Act
  • Local Government (Municipalities) Ordinance 1928 s.69
  • Local Government (Municipalities) Ordinance 1928 s.42
  • Employment of Servants Ordinance 1937 s.4
  • Employment of Servants Ordinance 1937 s.5
  • Employment of Servants Ordinance 1937 s.14(a)(2)
  • Employment of Servants Ordinance 1937 s.19
  • Stock and Produce Theft Ordinance 1931
  • Coconut Industry Ordinance

Cases cited (1)

  • Kruse v Johnson (1898) 2 QB 91

Full judgment

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

Rex v Wako (Criminal Revision Case No. 223 of 1945) [1945] EACA 43 (1 January 1945)
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.