Criminal Procedure Code, section 77—Evidence in camera Concurrent sentences of imprisonment in default of fines, and non-cumulative fines, illegal.
Case summary
The first accused was a chief. The magistrate heard evidence (including evidence as to character) and adjourned the case for judgment. The next day, upon the application of counsel for the defence unsupported by affidavit or certificate from the responsible Minister that to give publicity to the evidence would be incompatible with the public safety or other material, the magistrate retired into chambers and there heard evidence in camera from the District Commissioner to enable the Court to assess the sentence on the first accused.
The magistrate then emerged and passed sentence on the first accused of a fine of “Sh. 400 or six months’ imprisonment with hard labour on each count, fines non-cumulative and sentences concurrent”.
The Supreme Court called for the file in revision.
Held (1956):
To impose concurrent sentences of imprisonment in default of payment of fines is contrary to section 38 of the Penal Code and is illegal.
It is irregular to impose non-cumulative fines on several counts.
Apart from section 77 of the Criminal Procedure Code, there is inherent jurisdiction to exclude the public where this becomes necessary to administer justice. However, justice must be seen to be done, and the discretion conferred by the proviso to section 77 and the inherent power are not to be lightly used: they should only be exercised for a most compelling reason.
Exclusion of the public is justified where:
The administration of justice would be rendered impracticable by the presence of the public (e.g., due to potential violence to witnesses or parties).
The case involves a secret process, documents incompatible with public welfare/safety, or evidence harmful to public security.
The burden lies on those seeking to oust ordinary procedure to prove the necessity of a hearing in camera (e.g., via affidavit or ministerial certificate).
The magistrate’s action was procedurally wrong, but no failure of justice resulted.
Convictions upheld. Sentences quashed and legal sentences substituted.
Cases cited: R. v. Lewes Prison (Governor) (1917) 2 K.B. 254; Scott v. Scott (1915) A.C. 417; Norman v. Mathews (1916) 8 L.J.K.B. 857; R. v. Muria (Cr. App. 1051 of 1954); R. v. Ramadhani (Tanganyika Cr. Rev. Case No. 94 of 1948).
