Crown through Luxford v Waibunya wa Rori (Revision Case No. 60 of 1927) [1927] EACA 23 (1 January 1927)

## CRIMINAL REVISION.

## Before PICKERING, J., and SHERIDAN, J.

### CROWN through MAJOR C. LUXFORD

#### $v$ .

# WAIBUNYA wa RORI.

## Revision Case 60/1927.

## Employment of Natives Ordinance (Cap. 139), section 48 (2)criminal liability for neglect of duty.

$Held:$ —That a sentence of fine, imposed with the sole object of<br>bringing compulsion on the accused person to compensate the<br>complainant for loss, cannot be supported. Further held that<br>before a conviction can be obtained t that the accused refused or omitted to do a lawful act proper and requisite to be done by him for preserving in safety the proper and<br>und further that such refusal or omission was occasioned by wilful<br>breach of duty, neglect of duty or through drunkenness.

In the original case the accused person had been convicted, under section 48 (2) Cap. 139, of a wilful breach of duty causing loss to his employer of property valued at Sh. 900, and sentenced to three months' R. I. and a fine of Sh. 300 or in default to a further one month's R. I.

PICKERING, J.-In this case the Judgment of the Magistrate contains no specific findings of fact upon the matters arising for determination in the course of a prosecution under Cap. 139 section 48 $(2)$ . There is no indication that he has considered what was the act proper and requisite for the preserving of the heifers which the accused refused or omitted to do by reason of wilful breach of duty or by neglect of duty. There is simply a general declaration that "it is obvious accused neglected his work ". The terms of the Criminal Procedure Ordinance, section 296, have not been complied with. The provisions of that section are salutary and necessary; the observance of them enables this Court to perceive whether there has been a fair and proper trial by a Magistrate who has informed himself and considered all the material issues which have arisen for determination in the case. An accused person ought not to be convicted. of having committed an offence until the Magistrate has satisfied himself that the various acts the commission of which together constitute an offence have in fact been committed. This Judgment would indicate that the Magistrate omitted to so satisfy himself in this case but contented himself wih generalizations.

Moreover the penalty clause of Cap. 139, section 48, is quite clear. It enacts that a person convicted of any of the offences defined in the five sub-sections may be either fined with imprisonment in default or imprisoned. Both forms of punishment may not be awarded. In this case the sentence passed imposed both a substantive term of imprisonment and a fine. The fine imposed was double the maximum which in any circumstances could be awarded. The sent-ence then was wholly indefensible in law. Whether substantial punishment was merited or not cannot be ascert,ained from the reeord. The extent of the consequences resulting from an act, do not necessarily afford any indication of the turpitude of the act. I agree with my brother Sheridan that, this conviction cannot stand. Seeing that the accused has suffered three months' R. I. the conviction is set aside and no further order made except that the irregular fine, if paid, must be restored.

SHERIDAX, J.-The accused was convicted by the Resident Commissioner, Humuruti. of an offence under section 48 (2) Cap. 139, Laws of Kenya. The provisions read:-

'' If he shall, by wilful breach of duty or by neglect of duty or through drunkenness, refuse or omit to do miy lawful act proper and requisite to be done by hiln for preserving in safety any property placed by his employer in his charge for delivery to or on account of his employer ".

The Judgment is a short one and reads as follows : -

" A case of the grossest negligence four grade lil'if~rs having had calves and othe\_r being about to calve. It is obvious accused neglected his work and took advantage of his employer's absence. I convict the accused and sentence him to three months' R. I. and a fine of ·sh. 300 in default one month's R. I.; half the fine paid awarded complainant as compensation, Cap. 139, Laws of Kenya, section 48 (2) ".

It is ,manifest that the sentence of fine with imprisonment in default, cannot stand; the sole object of that sentence was to bring compulsion on the accused person to compensate the complainant for loss said to have been caused. The Court has nad occasion to point out in· more than one Judgment that a fine imposed in such circumstances must be set aside. The complainant's remedy for any loss be may consider he has sustained · is by civil action. Incidentally the record of the case contains no material on which the Magistrate could find that damages to the extent of Sh. 300 or any other definite amount had been suffered. We will now proceed to consider the propriety of the conviction. The complainant is a cattle farmer and the accused is a head herdsman; his chief responsibility according to t,he complainant was the care of the grade heifer herd of which he was in sole control during the absence of the complainant in England from March to August, 1926. The complainant's eYidence is the sole evidence in the case and it speaks to the accused having been · given particular instructions to prevent the heifer herd from . going near any of the bulls and to his

discovering during eight months after his return from England from the condition of the heifers that his intructions had not been carried out. The accused on being charged under the subsection referred to, pleaded "not guilty". Now to our minds it is perfectly clear that before a conviction can be obtained under the subsection the prosecution has to establish that the accused refused or omitted to do a lawful act proper and requisite to be done by him for preserving in safety the heifers and further that such refusal or omission was occasioned by wilful breach of duty, neglect of duty or through drunkenness. What was the lawful act and what was the refusal or omission in this case? The charge put to the accused contained no particulars whatever whether as regards time or place or the character of the act. It was framed as a result of a letter stating that the heifers had been found in a particular condition by the complainant subsequent to the discharge of the accused. In effect what was said to the accused by the Magistrate was: "The complainant's heifers have been interfered with during his absence in England and you are called upon to explain satisfactorily the circumstances under penalty." The impropriety of such a method of charging a prisoner, quite apart from specific legislation to which we will refer must be obvious. Section 181, Cap. 7, Laws of Kenya, provides as follows:-

"The charge shall contain such particulars as to the time and place of the alleged offence... or the thing (if any) in respect of which it was committed, as are reasonably sufficient to give the accused notice of the matter with which he is charged."

The charge in this case makes no attempt to comply with this provision. To base a charge on an inference such as happened in this case is improper and where a prisoner denies his guilt a conviction in the circumstances cannot be justified. In the particular case before us there is further no evidence of the terms of the contract and in the absence of such evidence a Magistrate cannot be in a position to say whether the case falls within the provisions of the Employment of Natives Ordinance.

We set aside the conviction in this case and direct the fine. if paid, to be refunded.