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|Case Number:||Criminal Appeal 1152 of 1988|
|Parties:||Ali v Republic|
|Date Delivered:||02 Oct 1989|
|Court:||High Court at Nairobi (Milimani Law Courts)|
|Judge(s):||David Christopher Porter|
|Citation:||Ali v Republic  eKLR|
|Case History:||(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of the Second Class District Magistrate’s Court at Makadara)|
|History Docket No:||Criminal Case No 2107 of 1987|
Ali v Republic
High Court, at Nairobi
October 2, 1989
Criminal Appeal No 1152 of 1988
(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of the Second Class District Magistrate’s Court at Makadara)
Criminal Practice and Procedure – accused charged with subjecting a tenant to annoyance but section quoted incorrect – whether conviction can be sustained – section 30 Rent Restriction Act (Cap 296).
Section 30 under which the appellant is charged does not create an offence.
The result therefore is that the error in the charge is uncurable.
1. Uganda v Opidi  EA 614
2. Sabur v R  EA 126
Rent Restriction Act (cap 296) sections 29, 30
|History Advocates:||Neither party represented|
|Case Outcome:||Appeal allowed.|
|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
CRIMINAL APPEAL NO 1152 OF 1988
(Appeal from original conviction and sentence in Criminal Case No 2107 of 1987 of the Second Class District
Magistrate’s Court at Makadara)
October 2, 1989, Porter J delivered the following Judgment.
The Appellant was convicted in the court below of Subjecting a tenant to annoyance C/S 30 of the Rent Restriction Act Cap 296 as amended.
The sole point argued on the appeal is that S 30 does not create any offence. Going a little further than that argument, I have perused the record and I agree on my own assessment of it that the Learned Trial Magistrate’s findings of fact are correct and that this is indeed the sole point on the appeal.
S 30, under which the Appellant is charged relates to the jurisdiction of the Tribunal and does not create an offence. Probably the intention was to charge under S 29. As it is the Appellant was charged with a non280 existent offence.
I am able to trace only one authority directly on this point and that is the case of Opidi-v-Rep  EA 614. I am referred also to Sabur-v-R  EA 126 which was considered in Opidi’s case and a distinction drawn as in Sabur’s case the section wrongly quoted was at least an offence.
It is the Opidi argument which applies to this case. Whilst Opidi comes from a neighbouring jurisdiction, the argument in it is very powerful, and I find difficulty in departing from it. The result therefore is that the error in the charge in this case is incurable.
Appeal allowed conviction quashed and sentence set aside.
Dated and Delivered at Nairobi this 2nd October , 1989.