Long before the Family Protection Act, the District Court had a way of restraining a person who was making threats. Part X still exists and is still used, particularly for disputes between neighbours and clans that fall outside the family protection regime.
The two informations
Where a written information is laid before a Magistrate that a person has (a) threatened to do bodily injury to the complainant, or to his wife or child or a person under his care, or to burn or injure his house, or to commit a breach of the peace towards him or them, or to procure others to do so; or (b) used language indicating an intention to do so, and that the complainant is in fear of the defendant, and the complainant prays that the defendant be required to find sufficient sureties to keep the peace, proceedings may be had under this Part (s 209).
Where a written information on oath is laid that a person is a person of evil fame, and the complainant prays that he be required to find sureties to be of good behaviour, proceedings may be had under this Part (s 210).
Section 209 is the practical one: threats plus fear. Section 210, the “evil fame” information, is a relic of the English justices’ jurisdiction and is rarely invoked. Section 211 allows the magistrate to receive corroborating affidavits from third persons in support of either.
Process and hearing
Under section 212 the magistrate may issue the same process as for a simple offence, that is a summons, or, if the information was on oath, a warrant in the first instance; but if satisfied that the information is laid from malice or for vexation only, the magistrate may refuse to issue process at all. Section 213 applies the procedure and powers of a simple offence hearing, with necessary modifications, so the defendant is entitled to representation, to hear the evidence and to cross-examine, and to give evidence. The complainant must prove the threat and the fear; the Court then decides under section 214.
The order
After hearing the evidence, the Court may (a) dismiss the case; or (b) require the defendant immediately, or at a time specified, to enter into a recognizance, oral or in writing, with or without sureties, in such reasonable amount as the Court thinks fit, to keep the peace or be of good behaviour, for such time as it thinks fit, or in default commit the defendant to a corrective institution or police lock-up for such time as the Court thinks fit, not exceeding six months, unless in the meantime the required recognizance is given.
The Act fixes no maximum period for the recognizance. The commitment in default is not a punishment for the threat; it is the consequence of refusing to give the undertaking, and section 216 requires the magistrate who later takes the recognizance to issue a warrant releasing the defendant. Notice of the recognizance is given to those bound under section 215, and it is entered in the Security Book.
Breach and forfeiture
A Court may declare the recognizance forfeited and order payment of the amount due (a) on application; (b) on proof of a conviction of the principal of an offence which is in law a breach of the condition; and (c) on proof that written notice of the application was personally served on, or left at the abode of, each person bound at least seven days before.
The trigger is a conviction: an assault, a threat under the Summary Offences Act, damage to property. Sureties are liable with the principal, and may recover from him under section 269. Section 273 allows the forfeiture to be mitigated. See good behaviour bonds.
Costs
Section 218 allows costs to be awarded on Part X proceedings in the same manner and to the same extent, and recoverable by the same process, as on an information for a simple offence. A complainant who succeeds may get costs against the defendant; a defendant against whom a vexatious information was laid may get costs against the complainant, subject to section 260A.
Part X and the Family Protection Act
| Part X surety of the peace | Family protection order | |
|---|---|---|
| Who is protected | Anyone: neighbour, business rival, clan member | A family member as defined in the Family Protection Act 2013 |
| What must be shown | Threats and fear | Domestic violence committed or likely, or danger of it for an interim order |
| Form of order | Recognizance with money at stake | Conditions: no contact, stay away from premises, return property, exclusive occupancy, counselling |
| Interim relief | None; the hearing must be held first | Interim order for 30 days, renewable once, without the defendant present |
| Breach | Forfeiture of the recognizance | Offence: K10,000 fine or three years’ imprisonment |
| Fee | Prescribed fees under s 262 | None (s 25) |
For threats within a family the 2013 Act is the stronger tool; see how to get a family protection order. Part X remains the route for everyone else, and its advantage is that a recognizance with sureties puts a clan’s or an employer’s money behind the promise. Where the threat has already become an assault, the answer is a criminal charge, with restriction of movement available on conviction.
The District Courts Act is not on PacLII; it is available on vLex.
Before relying on anything here, read the current text of the District Courts Act (Chapter 40) and check for later amendments. The Act is not on PacLII; the figures and time limits quoted in this series come from the consolidation to No 8 of 2000, and the District Courts (Amendment) Act 2009 changes some of them once it is brought into operation. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.