Mwalusanya, J.: This was an 'inquiry' under s.15(1)(b)(iii) of the Stock Theft Ordinance Cap. 422 H made by the Serengeti District Court to determine as to whether the members of Machochwe village were sheltering cattle thieves or otherwise assisting some cattle thieves. Some 497 head of cattle had been stolen from Nyamburi village in the same District on 5/10/1985 and on following the trail the same disappeared at Machochwe village. At the end of I the day the trial magistrate held that indeed the members of Machochwe village were guilty of sheltering cattle thieves and
A so the seizure of cattle from that village to compensate the complainants from Nyamburi village was justified.
I have already pointed out my qualms in Criminal Appeal No. 107/86 over the manner the trial magistrate conducts these type of 'inquiries', and it leaves much to be desired. First of all the procedure of charging the representatives from the B offending village with the offence of cattle theft is wrong. When you conduct an inquiry you don't charge anybody. All you have to do is give enough opportunity to both sides to be heard. And what is worse is charging them under a non-existent offence. It is absurd and I say so because it is common knowledge that s. 268(1) of the Penal Code Cap. C 16 under which they were partially charged, has been repealed by Economic and Organised Crime Control Act No. 13 of 1984. It is hoped that the trial magistrate will in the future endeavour to appraise himself of the correct manner of holding 'inquiries' under the Stock Theft Ordinance. D
Now the pertinent question is as to whether in spite of all the misgivings I have just raised, the order or decision of the trial magistrate is appealable or not. It is my finding that the decision is not appealable, just as I so held in Stephen s/o Kiberenge and others v R: Crim. Appeal No. 107 of 1986 (unreported). My holding stems from s.15(6) of the Stock E Theft Ordinance Cap. 422 which provides:
'An Order of a magistrate under this section shall be final'.
That is interpreted to mean that an order of the magistrate is not appealable. F
However following the reasoning in the decision of the Court of Appeal in England in Re Ex-parte Gilmore: [1956] 1 G Q.B.574 and that of the High Court of Kenya in Re Marles' Application: [1958] E.A 153 which I adopt, the word 'final' only means 'without appeal' but it does not mean 'without recourse to Certiorari or Mandamus'. And so the order of the trial magistrate may only be challenged in the High Court by means of prerogative orders of certiorari or mandamus. H
In the event the appeal fails and it is dismissed.
Appeal dismissed. I
A