Crim. App. 244-D-68, 21/6/68
Georges
C. J.
Accused, a Divisional Executive
Officer, was convicted of wrongful confinement [P.C. s. 253] and abuse of
office [P.C. s. 96]. Complainant went to accused ’s house to seek a permit to
hold an ngoma. When accused replied that no such permits were available,
complainant apologized for bothering him. At this point accused rebuked
complainant for interrupting a “bwana mkubwa” and ordered a clerk to arrest
complainant. No warrant for the arrest was issued. Complainant was charged with
an offence contrary to section 124 of the Penal Code and was released on bail
after being detained for short period. This charge against complainant was
later dropped. Accused argued that because he was an ex officio justice of the
peace, he was immune from prosecution as a judicial officer under section 16 of
the Penal Code and section 60 of he Magistrates’ Courts Act.
HELD:
(1) The immunity of judicial officers extends only to those actions taken by
the officer in the performance of a judicial function. [Citing Saudi Bakari
Kionywaki v. R., Crim. App. 714-D-67, High Court Digest, Vo, I, case No. 443].
(2) Although the issuance of a warrant of an arrest has been held to be a
judicial function [Citing Saudi Bakari Kionywaki v. R., supra], the arrest of a
person without warrant for an offence allegedly committed within the officer’s
view does not constitute a judicial function. In the first case, the officer is
to make an impartial evaluation of the grounds justifying the warrant; in the
second case he is exercising a function similar to that of countless police
officers. Therefore, there was no immunity and the conviction for wrongful
confinement was proper.
(3) Penal Code section 124 provides for the
disobedience of a lawful order, and since no order has been made by accused
which could be disobeyed, the arrest of complainant was unlawful.
(4) Penal
Code section 96 provides that any officer “who …. Does or directs to be done,
in abuse of the authority of his office, any arbitrary acts prejudicial to the
rights of another, is guilty of misdemeanor.” Accused knew that the arrest was
wrongful, and the arrest was arbitrary and prejudicial to complainant. Sentence
on first count reduced from nine months to three months; appeal otherwise
dismissed.
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