REPUBLIC, THROUGH DEVJI KANJI V. DAVENDRA VALJI HALAI

JUDGMENT

The appellant brought a private prosecution in the Senior Resident Magistrate’s Court, Nairobi, against the respondent. Both parties were represented by counsel and, at the close of the prosecution case, counsel for the respondent took the objection that the private prosecutor had not obtained permission from the Court to prosecute the case, as required by section 88(1) of the Civil Procedure Code. The Senior Resident Magistrate upheld the objection, relying on Mohanlal Karamshi Shah v. Ambalal Chhotabhai Patel (1954) 21 EACA 236, and held the proceedings to be a nullity. He was upheld by the High Court (Sachdeva J) exercising revisional jurisdiction which had been invoked. This appeal is against the High Court decision.

Mr. PN Khanna, who appeared for the appellant, argued that both courts below were wrong on the authority of Kyagonga v. Uganda [1937] EA 486.

In our view, reference was made in Shah’s case to section 88 of the Criminal Procedure Code to the effect that no person…