LUTTA

K. A. S. Mwaitebele v. R (1970) HCD 294

Court of Appeal Crim. App. 62-D-70; 11/7/70; Lutta J. A.

The appellant was convicted on seven counts of wrongful confinement in that he did unlawfully arrest and confine people for allegedly refusing to pay local rates at Karagwe. His appeal to the High Court was dismissed but the sentences of twelve months were varied to six months on each count. On appeal to the East African Court of Appeal, the appellant argued: (a) that section 95(4) of the Local Government Ordinance empowered him in his capacity as local rate collector to arrest without warrant any one who he suspected to be a tax defaulter three months after the due date and therefore the learned judge erred in holding that he had no such authority; (b) that the learned judge should have held that the trial magistrate was wrong in sentencing the appellant to a term of twelve months without giving him the option of paying a fine as provided by section 253 of the Penal Code.

            Held: (1) “On a charge of wrongful confinement, all the prosecution has to prove is the confinement; it is then for the accused to show that there was no arrest and confinement or that he was justified in his action and that the confinement was lawful. From the evidence the trial magistrate found as a fact that the arrests and confinement were for non-payment of the 1969 local rates although the same were not yet due …. We are not prepared to disturb that finding fact. [His Lord ship set out s. 95(1) and (4) of the Ordinance and continued] …. To justify the appellant’s action, h must show, firstly, that he was a rate collector appointed under the provisions of section 100 of the said Ordinance; secondly, that the complainants had neglected or failed to pay the 1969 local rates within three months after the same had become due. Section 42(1) of the said Ordinance can only be of assistance to the appellant if the complainants had failed to pay the 1969 local rates within three months of the due date, and after the provisions of section 91 of the said Ordinance have been complied with. In our view the appellant has failed to show on a balance of probabilities that this action was justified and accordingly this ground of appeal fails”. (2)”Where as we agree that the trial magistrate should not have imposed a maximum sentence of imprisonment, we are satisfied that the learned judge set the matter right, and cannot agree that section 253 of the Penal Code confers powers on a convicted person to opt to pay a fine rather than serve a prison sentence. Whether to impose a fine or a sentence of imprisonment, or both, is entirely a matter for the court’s discretion.” (3) There is no reason why a circular letter from his Regional Commissioner which appellant sought to produce should have been held inadmissible….. “However the letter would not materially have helped the appellant’s case”. (4) Section 45(1) of Cap 537 giving to justices of the peace powers of arrest would have been inapplicable to this case. The power of arrest given to justices relates only to cognizable offences which must be interpreted in accordance with section 2 of the Criminal Procedure Code. (5) Appeal dismissed.