Msumi, J.: Appellant was summarily convicted of contempt of court contrary to section 114(1)(b) of the Penal Code. He was sentenced to six months imprisonment.
B What happened is that appellant and three other persons were charged with shopbreaking and stealing contrary to section 296(1) and 265 of the Penal Code. In his defence appellant opted to testify on affirmation. And while he was being cross examined by one of his co-accused, appellant C refused to answer one of the questions put to him contending that the same was irrelevant. It would appear the alleged question concerned a case of which appellant was previously convicted. The learned trial district magistrate overruled the objection and ordered the appellant to answer the question. But appellant stuck to his guns; he refused to answer the question. It was then when the D learned trial magistrate decided to take cognizance of the alleged contemptuous conduct and summarily convicted him under the provisions of section 114(2) of the Penal Code.
The learned defence counsel, Mr. Mchora submitted, as his first ground of appeal, that the alleged E offensive conduct of the appellant did not amount to a contempt of court. This view was emphatically shared by the learned Senior State Attorney on behalf of the Republic. With respect, I am of the contrary opinion. Appellant's conduct clearly contravenes subsection 1(b) of section 114. F It appears both learned counsel have in their minds either subsection 1(a) or 1(i) of section 114. Otherwise it is incomprehensible how the conduct of the appellant can be excluded from being contemptuous under subsection 1(b). Perhaps I may do a great service to the learned counsel if I quote the said subsection:
G "114 (1) Any person who -
(a) ....
(b) having been called upon to give evidence in a judicial proceeding, fails to attend or, having attended refuses to be shown or to make an affirmation, having been sworn or affirmed, refuses without H lawful excuse to answer a questionor to produce a document or other thing, or remains in the room in which such proceedings is being had or taken, after the witnesses have been ordered to leave such room; is guilty of a misdemeanour, and is liable to imprisonment for six months or to a fine not exceeding five I hundred shillings (the emphasis is mine).
It is true that as an accused, appellant was not a compellable witness hence it cannot be said that he A was called to give evidence. But once appellant had opted to testify in the witness box he automatically subjected himself to all rules governing witnesses. For example like other witnesses he was required either to affirm or swear and he was subject to cross examination. In this case when the B appellant refused to comply with the trial magistrate's order that he should answer the question he was clearly contravening the provision of subsection 1(b) of section 114. In Joseph Odhengo s/o Ogongo v.R ((1954) 21 of E.A.C.A. 302 appellant was summarily convicted of contempt of court contrary to section 116(1) (b) of Kenya Penal code which is in pari materia to our section 114 1(b) of C the Penal Code. In principle the Court of Appeal for Eastern Africa agreed with the trial judge that appellant's refusal to answer questions put to him as a witness was contemptuous.
Perhaps one of the questions which may arise at this juncture is whether appellant had lawful excuse D not to answer the question notwithstanding the court's order that he should do so. I am of the view that except where the witness is impaired by physical infirmity or otherwise, in every case once the court rules out that the witness should answer the question then he ought to comply, otherwise E he will be liable for contempt. The trial court's order might be legally wrong; for example where the magistrate allows question which has the effect of extracting some inadmissible evidence such as previous conviction, as in this case. All the same, that order must be obeyed. Any contrary view will F have the undesired effect of creating an impasse in the conduct of the trials. The cardinal aim of creating the offence of contempt of court is to arrest all conducts which are aimed or reasonably feared to be aimed at interfering with proper administration of justice. As pointed out by Lord Donavan in A.G v Butterworth [1963] 1 Q.B. 696 that: G
The question to be decided... in all cases of alleged contempt of court, is whether the action complained of is calculated to interfere with the proper administration of justice. There is more than one way of so interfering". H
No doubt one of the essential conditions for proper administration of justice is that there should prevail discipline in court throughout any trial. This condition will definitely be undermined if any party in the trial was to be allowed with impunity to defy an order of the court on the ground that the I said order is illegal or
A otherwise improper. I don't think that the legislature meant to tolerate such condition when it impliedly exempted a witness, under s.114(1)(b), from answering a question by giving lawful excuse. Any statutory provision which directly or indirectly purports to strip off the courts' inherent power B of maintaining law and order in the course of a trial must be viewed with circumspection.
In his second ground of appeal the learned defence counsel submitted that the trial magistrate ought to have framed a charge which should have contained the gist of the purported contemptuous C conducts. The learned counsel is of the opinion that the trial magistrate failed to do so hence there resulted a failure of justice. Again the learned Senior State Attorney found this argument irresistible. With respect, I am again unfortunate in finding myself holding a different view. I admit that section 114(2) under which courts are allowed to take cognizance of certain contemptuous conducts and D convict a person summarily has been repeatedly interpreted by this court and courts above as requiring the magistrate to frame a charge before a summary conviction is entered. Thus when dealing with a similar provision in the Penal Code of Kenya in Ogongo's case the Court of Appeal said:
E The observation which we wish to make on this is that, when a Court takes cognizance of an offence under the provision of section 116(2) it is in fact assuming and exercising a jurisdiction to deal summarily with the F offence and that in every such case, it is essential that the court should frame and record the substance of a charge, call upon the person accused to show cause why he should not be convicted on that charge, and give him a fair opportunity to reply.
G I am of the opinion that this requirement is sufficiently complied with where a magistrate adopts any procedure which has the practical effect of notifying the accused of the gist of his offensive conduct and afford him an opportunity to reply. Unlike a formal criminal charge, there are no set H rules which a magistrate is required to comply with in drafting such a charge under summary proceeding. In determining whether the provisions of subsection (2) of section 114 have been complied with the question should be whether the court took the necessary step in explaining to the accused the gist of his offensive conduct, the particular provision of the law which contravenes it, I and lastly give him an opportunity to make a reply. There is no magic formula for attaining these ends. Thus in Ogongo's case the Court
of Appeal was of the opinion that these ends have been adequately attained by the trial judge when A he recorded:
A. Charged with refusing without lawful excuse to answer a question contrary to section 115(b) Penal Code. Court takes cognizance of offence under section 116(2) and sentences A, etc. B
Of course in that case the Court of Appeal was also influenced by the fact that the trial court record showed that appellant had been persistently warned by the court to answer questions but in vain. In C the present case, before convicting the appellant the learned trial magistrate recorded:
Court: This accused witness has been repeatedly warned by the court to answer questions put to him by his co-accused but he has deliberately refused to answer. This is, in my view a disrespect to the court and as D such the accused witness has committed the offence of contempt of court contrary to section 114(1)(b) of the Penal Code, Cap. 16.
The accused witness is therefore asked to state his reasons as to why he should not be punished for E contempt of court.
Accused witness states: I have refused to answer the questions put to me by the co-accused (No.3) because they are irrelevant to this instant case except that they are relevant to the previous case (Cr.C. No. 30/81) F which has already been determined by this court on 26/6/1981. I repeat again that I am not going to answer the accused's question in this cross-examination.
And after the appellant's reply, the learned trial magistrate summarily convicted the appellant. With G respect, I am quite convinced that from the court record as quoted above the learned trial magistrate slavishly complied with the provisions of subsection (2) of section 114. The learned defence counsel's argument, which unfortunately was not challenged by the learned Senior State Attorney, as a ground for this appeal is dismissed. H
However, I totally agree with both learned counsel that the sentence of six months' imprisonment imposed against the appellant is illegal. According to section 114(2) under which the summary conviction was entered, the maximum sentence which a court is empowered to impose is a fine of I four hundred shillings or one
A month's imprisonment in default. It is only where accused has been convicted through normal indictment that the court is empowered to impose a maximum sentence of six months or a fine not exceeding five hundred shillings.
B In conclusion appeal against conviction is dismissed. But on the ground of illegality, appeal against sentence is allowed. Hence the sentence of six months' imprisonment is set aside and in substitute appellant is sentenced to imprisonment for one month. This alteration of sentence is of no beneficial value to the appellant as he has already completed serving the said illegal sentence. It is, C however, important for record purposes.
Order accordingly.
D