Mfalila, J.: I must say this situation is as unusual as it is sad. This is a perfect example A of unjust use of magisterial powers. A witness was remanded in custody and the accused had his bail cancelled because they were smelling of alcohol. This incident happened on 3/10/83. When the learned Senior District Magistrate Mr. Mutaki entered the court B room that morning, he according to the record, perceived the smell of alcohol. I do not feel sufficiently qualified to make an accurate precis of the proceedings, I will therefore reproduce them verbatim:
E.K. Mutaki SDM
P.W.3 Lt. M. Matui, aged 33, Xtian sworn and states: D
Court: Before we proceed, I am feeling smell of liquor in this courtroom and I feel someone either the accused or the witness, the P.P. or the court clerk is smelling liquor. Someone have (sic) took liquor just before he came or late at night. Inspector EWilliam please find out as I cannot conduct a court with drunkards in the courtroom.
Order: All be out of this chamber and the P.P. conduct inquiries outside.
Sgd. E.K. Mutaki SDM F
P.P. I found out that both Lt. Matui the witness and the accused L/Cpl. Magenyi are smell (sic) liquor. G
Lt. M.F. Matui: I took liquor yesterday at 12 noon.
Accused: I took liquor yesterday at 7 p.m.
Court: I do not accept the explanation from both accused and Lt. M.F. Matui the witness. They must have taken alcohol late at Hnight while they knew they were to appear to court this time. I do not say they are drunk but they smell liquor a situation which I cannot tolerate.
Order: Hearing adjourned to 10/10/1983. Accused be remanded in custody as a penalty in coming to court with liquor in his brain. Bail condition cancelled till then. I
The witness Lt. Matui be remanded in court custody till 12 noon and he is warned strongly that A should he repeat this he will be dealt with severely.
Sgd. E.K. Mutaki SDM
Following this order the accused's surety complained to the Senior Resident Magistrate in charge and acting in his capacity as Supervisory Magistrate, he accepted the complaint against this order and suspended its operation pending perusal of the record C by this court. He then forwarded the record here for inspection and necessary orders.
I agree with the learned Supervisory Magistrate that the smell of alcohol per se could not be a ground for cancelling the accused's bail. I think the learned Senior District D Magistrate was being too sanctimonious. It would be better and fair if he learned to take into stride such prevalent human weaknesses as alcohol taking. It would have been different if these people had entered the court room in a drunken state but they were not and this is confirmed by the magistrate's own words in the record. It was not therefore E correct to say as he said in his order that he was cancelling the accused's bail and remanding him in custody "as a penalty in coming to court with liquor in his brain". He had no liquor in his brain, he only had a trace of it in his breath, and in human terms this cannot be sinful.
People wielding any sort of power over others should be careful not to bring in private F and personal idiosyncrasies in public decision making, this would inevitably lead to unjust results as it was in this case. With the hope that the learned Senior District Magistrate will refrain from such actions in future, I quash both his orders he made in respect of Lt. Matui and that cancelling bail of the accused. The bail is restored on its existing G conditions.
H Order accordingly.