Crown v Wambua (Revision Case 24/1927.) [1927] EACA 36 (1 January 1927)

## CRIMINAL REVISION.

## Before PICKERING, J.

## **CROWN**

$\boldsymbol{v}$ .

## NDOLO s/o WAMBUA. Revision Case 24/1927.

Habitual Offenders-Rules under section 446 of the Criminal Procedure Ordinance.

Held: -That the order to report monthly is ultra vires the Ordinance.

The Rules under section 445 Cr. P. O. are published at pages 186 and 187, Volume 1, of the Orders, Proclamations, etc. Rule 9 is the Rule which is held to be ultra vires.

ORDER.—This case is not without difficulty. It would appear from the notes of the evidence that a Fort Hall criminal file 86/1922 was produced. If so, the sentence was duly proved. If the charge was put to the accused that he failed to report his address it was inaccurate but not wholly misleading. Looking at the 1912 Rules it is clear that before leaving gaol he must have notified his address. From the Police Report it would appear that what he really failed to do was to notify a change of residence. The order to report monthly is of no effect, the Rule of 1916 being ultra vircs derived from section 446 (3) Criminal Procedure Ordinance. The sentence of imprisonment in default of payment of the fine is altered from rigorous to simple imprisonment.

Note.—In Criminal Revision Case 21/1927 the Rule of 1916 was held to be ultra vires by Pickering, J, and Sheridan, J.