Kamau Muchiri v Republic
High Court, at Kisumu April 2, 1990
Khamoni Ag J
Criminal Appeal No 34 of 1990
Criminal Practice and Procedure – charge – procedure in charging an accused person – manner in which an accused person’s plea should be taken – where the charge is defective but the particulars of the offence are stated clearly – whether such a charge is curable under section 382 of the Criminal Procedure Code – what a magistrate needs to satisfy before assuming jurisdiction to try a case for which an accused is charged.
Criminal Practice and Procedure - forfeiture of goods – procedure for forfeiture of goods – lack of provisions for forfeiture under the National Cereals and Produce Board Act – effect of having no provisions on forfeiture under the Act – procedure for forfeiture under section 389A of the Criminal Procedure Code – when such procedure is to be followed.
Plea - plea taking - plea taken on a defective charge.
The appellants had been charged and convicted for transporting maize contrary to the National Cereals and Produced Board Act and its regulations.
The appellants contended that the facts did not support the offence charged hence the conviction was not proper. The plea was also alleged to have been equivocal. Although they purported to plead guilty, the charge was defective in that it did not disclose the enabling provisions of the National Cereals and Produce Board Act. The charge also referred to a non-existent Regulation 173 making it impossible for the appellants to know what type of offence they were faced with. The appellants argued further that the order for forfeiture of 90 bags of maize made by the trial magistrate was not supported by law. Neither the National Cereals and Produce Board Act nor the Regulations made under it contained provisions for such forfeiture.
The state submitted in reply that the charge clearly disclosed to the appellants that the offence they were facing was transporting maize without a permit and any mistake in the charge was therefore curable. It was further argued that the magistrate properly made the order of forfeiture as the owner of the lorry carrying the maize did not claim it.
1. When a person is charged:
a) the charge and the particulars should be read out to him and the magistrate should explain to the accused person all the essential ingredients of the offence charged;
b) if the accused admits all the essential elements, the magistrate should record what the accused has said, as nearly as possible in his own words, and then formally enter a plea of guilty;
c) the magistrate should next ask the prosecutor to state the facts of the alleged offence and when the statement is complete should give the accused an opportunity to dispute or explain the facts or add any relevant facts;
d) if the accused does not deny the alleged facts in any material respect, the magistrate should record a conviction and proceed to hear any further facts relevant to the sentence.
2. Although the charge in this case was itself not framed carefully particulars of that offence were stated fully and clearly without any mistake which could bring a confusion in the mind of the appellant. The mistakes present were curable under section 382 of the Criminal Procedure Code.
3. It is the primary duty of a magistrate to satisfy himself that the section of the Penal Code or any other law, under which an accused is charged is correct before assuming jurisdiction to try the case.
4. The National Cereals and Produce Board Act and its Regulations have no provisions for forfeiture and this is unlike the repealed Maize Marketing Act which provided for forfeiture under section 43.
5. The failure to include provisions on forfeiture in the National Cereals and Produce Board Act means that no forfeiture should be ordered unless there are provisions in the Criminal Procedure Code in section 289A.
6. Section 389A of the Criminal Procedure Code deals with the procedure for forfeiture only. This procedure is to be followed where a written law authorises forfeiture and not otherwise.
7. In the circumstances of this case, section 24(f) of the Penal Code does not provide a way out when the provisions of the National Cereals and
Produced Board Act are silent.
8. However well-intentioned the act of the trial magistrate may have been in undertaking the forfeiture proceedings in this matter, he had no legal basis for doing so and to order forfeiture of the maize was therefore wrong.
Order of forfeiture set aside. Appeal dismissed.
1. Adan v Republic  EA 445
2. Sabur v R  EA 126
3. Avone v Uganda  EA 129
4. Uganda v Opidi  EA 614
1. National Cereals and Produce Board (Movement of Maize, Wheat and Scheduled Agricultural Produce) Regulations 1987 (cap 338 Sub Leg) rule 3(1)
2. Criminal Procedure Code (cap 175) sections 326, 347, 360, 382, 389A
3. Penal Code (cap 63) section 24(f)
4. Criminal Procedure Code [Uganda] section 347
Mr Olago-Aluoch for the Appellants.
Mrs Muindi for the Respondent.