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|Case Number:||Criminal Revision Case 42 of 1982|
|Parties:||Katuya Munyao v Edward Jacob|
|Date Delivered:||25 Oct 1982|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||Zakayo Richard Chesoni|
|Citation:||Katuya Munyao v Edward Jacob eKLR|
|Parties Profile:||Individual v Individual|
Katuva Munyao v Edward Jacob
High Court, at Nairobi
October 25, 1982
Criminal Revision Case No 42 of 1982
Costs - costs in a criminal case - award of - whether taxable-failure to specify sum awarded in judgment - effect of - Penal Code (Cap 63) Section 32 - Criminal Procedure Code (Cap 75) Sections 171(1); 174(1); 364(1).
Katuva Munyao successfully conducted a private prosecution against Edward Jacob for the offences of trespass to private land and the impairment of demarcated boundaries. After the court had read the judgment, an application was made for the complainant to be awarded his costs and the court gave an order stating “costs of this case to the complainant.” The costs were later purported to be taxed by the consent of the parties at Kshs 4,137. The case came to the attention of the revision court through a civil appeal by an objector.
1. Both the Penal Code (Cap 63) and the Criminal Procedure Code (Cap 75) empowered the subordinate courts and the High Court to award costs to a public or private prosecutor or to the accused in a criminal case.
2. There was no provision for taxation of costs awarded in a criminal matter under the Criminal Procedure Code (Cap 75).
3. The court in a criminal case must not only award a sum that to it seems reasonable but it is mandatory by statute to specify the sum awarded on the conviction or order. However, the costs awarded should not be beyond the jurisdiction of the court and the award of such costs will be null and void.
Order awarding costs set aside.
No case referred to.
1. Trespass Act (Cap 294) Section 3(1)
2. Land Adjudication Act (Cap 284) Section 33(d)
3. Penal Code (Cap 63) Section 32
4. Criminal Procedure Code (Cap 75) Section 171(1); 174(1); 364(1)
|Case Outcome:||Order awarding costs set aside.|
|Disclaimer:||The information contained in the above segment is not part of the judicial opinion delivered by the Court. The metadata has been prepared by Kenya Law as a guide in understanding the subject of the judicial opinion. Kenya Law makes no warranties as to the comprehensiveness or accuracy of the information|
REPUBLIC OF KENYA
IN THE HIGH COURT OF KENYA AT NAIROBI
CRIMINAL REVISION CASE NO. 42 OF 1982
This case came to the knowledge of this court through a civil appeal by an objector.
Katuva Munyao successfully prosecuted Edward Jacob privately on two counts. In count one, Edward was charged with and convicted of trespass upon private land contrary to Section 3(1) of the Trespass Act (Cap 294). The particulars of offence read:
“Edward Jacob: On October 6, 1979 at about 8.30 am at Kithulani Village, Kiteta Location within Machakos District of the Eastern Province, without lawful excuse entered on land plot No 309 which is the property of Katuva Munyao without his consent.”
In count two, Edward was charged with impairing features of demarcated boundaries contrary to Section 33(d) of the Land Adjudication Act (Cap 284). The offence was committed on October 6, 1979 too. He was convicted on both counts and fined Kshs 150 on count 1 in default to serve two months imprisonment and Kshs 400 on count 2 and in default of paying the fine to serve three months’ imprisonment. He paid the fines.
After the court had read the judgment, Mr Makau, who conducted the prosecution for the complainant, said:
“I am applying for the complainant to be awarded his costs.”
The following order was made:
“Order Costs of this case to the complainant.” Both the Penal Code (Cap 63) and the Criminal Procedure Code (Cap 75) empower the subordinate courts and the High Court to award costs to a public or private prosecutor or to the accused in a criminal case. Section 32 of the Penal Code (Cap 63) provided as follows: “Subject to the limitations imposed by Section 171 of the Criminal Procedure Code, a court may order any person convicted of an offence to pay the costs of and incidental to the prosecution or any part thereof.”
Such costs are limited by Section 171(1) of the Criminal Procedure Code (Cap 75) which says this:
“A judge of the High Court or a magistrate of a subordinate court of the first, second or third class may order a person convicted before him of an offence to pay to the public or private prosecutor, as the case may be, such reasonable costs as the judge or magistrate may deem fit, in addition to any other penalty imposed: Provided that such costs shall not exceed two thousand shillings in the case of the High Court or five hundred shillings in the case of a subordinate court.”
A subordinate court has powers to award costs not exceeding Kshs 500. In this case where the District Magistrate awarded unspecified costs, they were later purported to be taxed by consent of the parties at Kshs 4,137. There is no provision for taxation of costs awarded in a criminal matter under the Criminal Procedure Code (Cap 75). The District Magistrate awarded costs beyond his jurisdiction. Costs in a criminal case cannot be at large. The court must not only award a sum that to it seems fit but it must specify the sum awarded in the conviction or order. Thus Section 174 of the Criminal Procedure Code (Cap 75) provides as follows:
“(1) Sums allowed for costs awarded under Section 171 shall in all cases be specified in the conviction or order.”
The requirement to specify the sum awarded being statutorily mandatory, failure to specify such a sum in the conviction or order is fatal to the award as it renders the award null, void and of no effect. As the District Magistrate’s order awarding costs did not specify the sum awarded as required by law, it is a nullity and is set aside in exercise of the powers conferred upon the High Court under Section 364(1) of the Criminal Procedure Code (Cap 75).
Dated and delivered at Nairobi this 25th day of October, 1982.