Cooper v Reginam (Criminal Appeal No. 102 of 1955) [1955] EACA 343 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), DE LESTANG, J. (Kenya) and WINDHAM, J. (Kenya)

## ALAN NORMAN COOPER, Appellant (Original Accused) ν.

REGINAM, Respondent

Criminal Appeal No. 102 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Hooper, J.) Arson-Unlawfulness-Penal Code, section 327-Resident Labourers Ordinance,

section 18—Sentence—Accused not ordinary criminal or incendiarist.

The appellant had authorized two of his African labourers to erect huts on his farm. Later, the land on which the huts were erected passed into the possession of Mr. I., who, after the said Africans were convicted of an offence in connexion with the huts, insisted that the appellant should remove them their belongings and huts from the land. After repeated warnings to the Africans, the appellant removed all their belongings from their huts, and with the authority of Mr. I. burned the huts down. He was convicted and sentenced to pay a fine of £100 on each of two counts for arson.

For the appellant it was argued that it is not unlawful for the owner of a building to burn it down and that in setting fire to the huts in question the appellant was acting as agent of Mr. I. on whose land the huts stood and to whom they must have belonged.

Section 18 of the Resident Labourers Ordinance provides: "Where an African (including a Somali) resides or remains on a farm or Railway land in contravention of the provisions of this Ordinance, the occupier of such farm or Railway land as the case may be, shall report the fact to a magistrate, and the magistrate shall order such African to remove himself together with his family and stock, if any, within 14 days after the date of such order; and if such African fails or neglects to remove himself, together with his family and stock, if any, within such time the magistrate or such other person as he may authorize in that behalf, shall cause such African, together with his family and stock, if any, to be removed and send him to a native area or to such other place as the magistrate may determine."

Section 327 of the Penal Code provides: "Any person who wilfully and unlawfully sets fire to $(a)$ any building or structure whatever ...".

**Held** (13-5-55).—(1) Section 18 aforesaid is mandatory in terms and gives an exclusive remedy<br>providing a special procedure for the eviction of Africans residing or remaining on farm<br>land in contravention of the Ordinance or not, resorting to another means in order to effect the eviction of Africans from a farm<br>is doing something unlawful. It follows that the accused had acted unlawfully and he was thus guilty of arson in burning down the huts.

(2) The accused, not being an ordinary criminal or incendiarist, the penalties inflicted. were, in all the circumstances, manifestly excessive.

Appeal against conviction dismissed. Sentence reduced.

Cases referred to: Ghulàm Rasul and another v. R., 21 E. A. C. A. 299; Ngugi s/o-Gichinga v. R., (1952) 25 (1) K. L. R. 136.

Shaylor for appellant.

O'Beirne for respondent.

JUDGMENT (prepared by de Lestang, J.)—The appellant was convicted by a. jury in the Supreme Court of Kenya on two counts of arson under section 327 of the Penal Code, and was sentenced to pay a fine of £100 on each count or to serve three months' imprisonment in default of payment of each fine. He appeals to this Court on the ground that the learned trial Judge misdirected himself both on the facts and in law in his summing-up to the jury. He also seeks the leaveof this Court to appeal against the sentence.

The facts of this case are not in dispute and may be briefly stated as follows. The appellant has been farming in the Nandi Hills for many years. At some timeprior to 1953 he had authorized two of his employees, Kamoiya arap Tenai and Kibitok arap Murei, to erect huts on his land. Some time in 1953 the land on which those huts were situated passed out of his possession and into the possession of a neighbour, Mr. Iverson. His counsel informed us that there was a short intervening period during which ownership of the land reverted to the Crown. After the appellant had ceased to own the land on which the huts were situated, the two employees mentioned above were fined for an offence in connexion with their occupation of those huts. There is nothing in the evidence to show what that offence was, but Mr. Shaylor has informed us from the Bar that the proceedings were at the instance of the Crown for trespass and not under section 18 of the Resident Labourers Ordinance: Chapter 113 of the Laws of Kenya, 1948. Notwithstanding their conviction, the two employees did not vacate the huts, but continued to house their families and stock in them. They were still being employed by the appellant. Mr. Iverson, however, did not approve of this and insisted that the appellant should remove his employees, their huts and stock from the land in question. Whereupon the appellant, after repeated warnings to his two employees, removed all their belongings from their huts and burned them down. There can be no doubt that he had Mr. Iverson's authority to do so.

We agree that there are a number of misdirections in the summing-up and that it is in some respects confused and open to criticism. But in a case like the present one, where the facts are not in dispute, misdirections will not avail an appellant unless he can show that a jury, properly directed, might have returned a different verdict. In our view on the admitted facts here, no reasonable jury, properly directed, could have returned any other verdict, and whatever misdirections are to be found in the summing-up cannot be said to have deprived the appellant of a chance of acquittal.

Section 327 of the Penal Code, which constitutes the offence of arson, provides that any person who wilfully and unlawfully sets fire to any building or structure whatever whether completed or not, etc., is guilty of a felony. The appellant in the present case admitted that he deliberately and consequently "wilfully" set fire to the two huts, and the only question which the jury had to decide was whether he had done so unlawfully. Time and again in the course of his summing-up the learned Judge reminded the jury that unless they were satisfied that the appellant had acted unlawfully they would have to acquit him. He went on, however, to say this: $-$

"However that may be, the question of ownership or lack of ownership cannot in any way confer upon anybody the right to take the law into their own hands, and, as in this case, burn down houses to obtain the eviction of persons illegally on the land, when there is a machinery provided by the law whereby that object can be lawfully achieved."

Reading that passage in the light of the summing-up as a whole, it is clear that what the learned Judge meant and what the jury must have understood was that since section 18 of the Resident Labourers Ordinance (which was quoted in full to the jury) prescribed as a special procedure for the removal by occupiers of farms of Africans illegally residing or remaining thereon, the act of the appellant in burning down the huts of his two employees who were illegally residing on Mr. Iverson's farm was unlawful. Here, in our view, lies the crux of this case. If this is a correct statement of the law, then quite clearly the appellant was rightly convicted. If, on the other hand, it is incorrect his conviction cannot stand.

Mr. Shaylor, on behalf of the appellant, has strenuously contended that it is not unlawful for the owner of a building to burn it down and that in setting fire to the huts in the present case the appellant was acting as the agent of Mr. Iverson on whose land the huts stood and to whom they must have belonged. He says, moreover, that the remedy given to an occupier of a farm by section 18 of the Resident Labourers Ordinance has no application in the present case because the appellant was not the occupier of the land upon which the huts were. He further submits that even if the section applies it does not prohibit the eviction of an African illegally residing or remaining on the farm by other lawful means. It may very well be-and we are not prepared to disagree with this proposition--that in certain circumstances it may be quite lawful for the owner of a building to burn it down. We are unable, however, to agree with the proposition that section 18 of the Resident Labourers Ordinance has no application in deciding whether the act of burning was lawful or not. As we have already indicated, the appellant, though not the owner of the huts, contended that he was authorized to burn them because he had the permission of the owner to do so. Surely therefore he cannot have a greater right than the owner. possessed, and if the owner had no right to burn or if section 18 of the Resident Labourers Ordinance rendered the burning by him unlawful, then clearly he could not lawfully authorize the appellant to burn at all. The appellant cannot be heard to say, "I derive my right to burn from the owner, but I am not concerned with whether he has such a right or not". Everything in this case therefore turns on the meaning of the word "unlawfully", in section 327 of the Penal Code and on section 18 of the Resident Labourers Ordinance. The word "unlawfully" in section 327 of the Penal Code was considered by this Court in Ghulam Rasul and another v. Reg., 21 E. A. C. A. 229. That was a case where the owner of a house burnt it down with the intention of defrauding the insurance company with whom the house was insured. This Court had no difficulty in holding that he had been rightly convicted of arson. In the course of the judgment the court said this: -

"It would not, we think, be an unduly wide or novel construction to interpret the word as meaning in this particular context 'in furtherence of an unlawful purpose.' If the purpose of the arson is to defraud an insurance company, we think the burning may be said to be done 'unlawfully' within the meaning of the section."

The court then proceeded to give reasons for so holding. That decision is of course binding on us, and we accordingly propose to follow it in deciding this appeal. Section 18 of the Resident Labourers Ordinance reads as follows:-

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"18. Where an African (including a Somali) resides or remains on a farm or Railway land in contravention of the provisions of this Ordinance, the occupier of such farm or Railway land, as the case may be, shall report the fact to a magistrate, and the magistrate shall order such African to remove himself together with his family and stock, if any, within 14 days after the date of such order; and if such African fails or neglects to remove himself, together with his family and stock, if any, within such time the magistrate or such other person as he may authorize in that behalf, shall cause such African, together with his family and stock, if any, to be removed and send him to a native area or to such other place as the magistrate may determine."

It will be noted that this section is mandatory; it does not merely provide a special remedy for the eviction of Africans unlawfully residing or remaining on a farm but it also imposes a duty on the occupier of the farm to report the fact to a magistrate. Moreover this duty cannot be dissociated from the duty imposed on an occupier by section 7 (a) of the Resident Labourers Ordinance, which is not to allow any African to reside or remain on a farm in contravention of the provisions of the Ordinance. A failure to perform either duty would be punishable on conviction with the general penalty prescribed by section 28 of the Ordinance. It seems to us that when an enactment prescribes a specific remedy for a particular mischief and imposes at the same time a duty on any person to exercise that remedy, that person is debarred from exercising, for the purpose of removing that mischief, any other remedy which might otherwise have been open to him. In such a case the remedy given by the enactment becomes an exclusive one, and so we think that it was the clear intention of the legislature in enacting section 18 to give an exclusive remedy and provide a special procedure for the eviction of Africans residing or remaining on farm land in contravention of the Ordinance. That being so, in our view anybody resorting to another means in order to evict Africans from a farm is doing something which is unlawful. Since the appellant in the present case clearly set fire to the huts in order to secure the eviction of the Africans occupying them, his act of burning was in furtherance of an unlawful purpose and therefore unlawful.

We are consequently of the opinion that the learned Judge correctly directed the jury in the passage which we have already quoted. The appeal against conviction is accordingly dismissed.

As regards sentence, we have given leave to the appellant to appeal against his sentence. It is well settled that this Court will not interfere with the sentence passed by a trial court unless it is manifestly excessive or unless in assessing the sentence the court has acted on irrelevant considerations or has taken into consideration matters which it ought not to have considered. At first sight a fine of £200 with a sentence of six months' imprisonment in default of payment of the fine, though in itself severe, does not appear excessive for two offences of arsonbut, as the learned trial Judge correctly pointed out, the appellant cannot be regarded as an ordinary criminal or incendiarist. On the contrary, he is a man of good character and, as far as can be judged, a good employer, having the welfare of his employees at heart. It is in evidence that when his two employees were fined by the magistrate he intervened on their behalf and obtained permission for them to remain on the land until they had reaped their crops; and when eventually he burnt their huts he took care to remove all their belongings from them and there is no suggestion that they suffered any material loss from his action. What influenced the learned Judge a great deal, however, was the fact that the huts were not the property of the appellant. With respect, we think that this fact should not have been considered against the appellant. As we have already pointed out, he had the permission of the owner of the huts, Mr. Iverson, to burn them and therefore it was quite immaterial for the purpose of sentence that the huts did not belong to him. We think that in all the circumstances of this case the sentences were excessive, and we reduce them on each count to a fine of Sh. 200 and one month in default of payment. If the fines imposed by the trial court have been paid, the difference of Sh. 3,600 must be refunded to the appellant.