The two accused were originally charged with three offences under sections 143, 149(b), and 149(e) of the Customs Management Act, 1952. These charges were later withdrawn, and six charges of offences contrary to sections 143 and 149 of the Customs Management Act, 1952, were then filed. An objection on behalf of the accused was lodged under section 218 of the Criminal Procedure Code. The trial magistrate upheld the right of the accused to be tried exclusively as Europeans by the Supreme Court and then proceeded to hold a preliminary enquiry into the offences under Part VIII of the Criminal Procedure Code. The Crown stated a case by way of appeal against the trial magistrate’s order. The respondents took a preliminary objection and argued that there had been no “hearing and determination” in the Court below under section 367 of the Code and that, accordingly, a case could not be stated.
Held (9-6-56):
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The preliminary objection must succeed as there had been no “hearing and determination by any subordinate Court of any summons, charge, information or complaint” within section 367 of the Criminal Procedure Code.
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The Magistrate, having refused to hear and determine the charges himself on the basis that one of the accused was a European who claimed his rights as such, was then empowered only to hold a preliminary enquiry and commit to the Supreme Court.
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The Magistrate, having declined to exercise the jurisdiction under section 164(1) of the Customs Management Act, and having declined to dispose of the matter himself, had not made a “hearing and determination” of it.
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Prima facie, “hearing” includes a “determination”—a final disposal. A fortiori where, as in section 367, the words are “hearing and determination”.
Cases cited:
Attorney-General v. Hill, 23 K.R.L. Part I p. 25; Commissioner of Stamps, Straits Settlements v. Oei Tjong Swan and Others; (1933) A.C. 378 (P.C.); Regina v. Justices of West Riding of Yorkshire, (1866) 6 B. & S. 802, 122 E.R. 1389, 1390; Muir v. Hore, (1877) 47 L.J. (M.C.) 17, 37 L.T. 315; Pratt v. A.A. Sites Ltd., (1938) 2 K.B. 459; Wakefield Local Board of Health v. West Riding Railway Co., 30 J.P. 628 and 629; Sheikh Noordin v. Sheikh Bros. Ltd., (1951) E.A.H.C. 42; R. v. Wisbech JJ., (1890) 54 J.P. 743; Ex parte McLeod, 25 J.P. 84; R. v. Kesteven JJ., 114 E.R. 721; R. v. Sutton Coldfield, (1874) 9 Q.B. 153; Reg. v. Economides, Cr. App. No. 108/1956; Foss v. Best, (1906) 2 K.B.D 105; Re Green, S.I.L.J. Q.B. 25.
Referred to:
Halsbury, Laws of England, 2nd edn., Vol. 21, p. 724; Short and Mellor, 2nd edn., 431.
Counsel:
Newbold, Q.C., with Horton for the Crown.
Salter, Q.C., with Wollen for the respondents.
EDITOR’S NOTE:
The Supreme Court, after the review of all the authorities cited above, held that it had jurisdiction to decide the question if an application were to be made for a mandamus to the magistrate directing him to hear and determine according to law, but refrained from expressing an opinion as to whether upon such an application a mandamus would be granted.
Reported by:
A.Q. Malik, Esq., Resident Magistrate, Nairobi.
