Din and Another v Haji and Another (Criminal Revision Case No. 288 of 1945) [1946] EACA 54 (1 January 1946)

## APPELLATE CRIMINAL

## Before THACKER and HORNE, JJ.

#### REX, Respondent (Original Prosecutor)

# PURAN SINGH S/O KESAR SINGH, SANTI W/O DHAYA AND JIWAN S/O DHAYA, Appellants (Original Accused)

# Criminal Appeals Nos. 263, 297 and 301 of 1946

Criminal law—Using a building otherwise than for the purposes specified in the original plan-By-law 99, Nairobi Municipality By-laws, 1944-By-laws 6. 80-Meaning of "purposes".

The appellants were individual owners of dwelling houses within the Nairobi Municipality. The original plans described the buildings as "domestic buildings" and specified the intended use of every room in them such as kitchen, store, bedroom and so forth. The appellants permitted the rooms marked kitchens, stores and boys quarters, etc., to be occupied as bedrooms by Asians.

They were convicted of "using a building otherwise than for the purposes specified in the original plan, contrary to By-law 99 of the Nairobi Municipality By-laws, 1944". They appealed.

Held (18-11-46).—That "purposes" in By-law 99 refers not to the detailed use of a building room by room but to its use as a building of a different class from that specified in the original plan. Thus a building is "used otherwise than for the purposes specified or indicated in the original application or plans in respect thereof" where, for example, a<br>building described in the original plan as a "domestic building" is used as a "public building", or a "building of the warehouse class" or vice versa, but not where there is misuse of a building or part thereof as in these cases.

Appeals allowed.

S. R. Kapila for the Appellants.

Lowe, Crown Counsel (Kenya) for the Crown.

JUDGMENT.—There is a decision of this Court (Thacker and de Lestang, JJ.) in Criminal Appeal No. 82 of 1946 where an appeal against a conviction for an offence charged under By-law 99 was dismissed. In that appeal the construction of the By-law adopted by the Building Inspector and accepted by the magistrate was not questioned and that appeal was dealt with on the grounds that the conviction was against the weight of evidence, that the appellant had no opportunity of pleading to the amended charge and that the sentence was excessive. In that case overcrowding was alleged by the owner and it is possible that a charge could have been brought under another By-law, probably By-law 519. As the construction of By-law 99 was not raised in that appeal the judgment does not preclude us from considering the points now raised by Mr. S. R. Kapila.

These points are: $-$

1. That the By-law is uncertain.

2. That the facts proved do not constitute an offence against the By-law.

3. That only the owner of the building or a person standing in the place of the owner can be prosecuted for an offence against the By-law.

In the three appeals now before us, Nos. 263, 297 and 301, the grounds are variously stated, but the above is a resume of them all, except the ground that the By-law is *ultra vires* which has been abandoned.

We shall only deal with the second of these points.

The By-law is in these terms:—

"Where any building has been erected, no person shall alter such building in such a way that the same as altered would, if at first so constructed have contravened any of these By-laws, or shall except with the written permission of the Town Clerk and except upon such terms as he may prescribe use or (being the owner thereof) suffer such building to be used otherwise than for the purposes specified or indicated in the original application and plans in respect thereof."

It is not quite grammatical in that form and we would read it as if the last three lines read:-

"Use such building, or, being the owner thereof, suffer such building to be used, otherwise than for the purposes specified or indicated in the original application and plans in respect thereof".

The offence charged in each case is—

"Using a building otherwise than for the purposes specified in the original plan, contrary to By-law 99."

The facts proved in No. 263 were that the appellant, an Asian, was living in a room which according to the plan was "a native servant's room" and no permission had been given by the Town Clerk. No plan was produced so the Building Inspector's evidence was not admissible until its absence was satisfactorily explained; and in No. 297 and No. 301 the Building Inspector gave evidence that he had visited a kitchen and store on plot $143/1$ and found a bed in each room and saw the accused there. He produced a plan approved by the Municipality on 11th November, 1919. The kitchen is 7 ft. by 6 ft. by 8 ft. 6 in. high, or about 350 cu. ft., that is less than the cubic contents required under By-law 519. In No. 301 the store on the same plot is shown on the plan adjoining the kitchen. and is only 5 ft. by 6 ft. by 8 ft. 6 in. or about 255 cu. ft. In each of the cases it may well be that the owner of the building and/or his sub-tenant are drawing rents for the occupation of these small rooms by the appellants, and in cases 297 and 301 the appellants claim to have resided there several years. No doubt during the existing shortage of accommodation there is much overcrowding but recourse to this By-law will not ease the pressure.

This By-law is not as clearly expressed as it might have been and if it was the intention to control the detailed use of a building, room by room, so that it would become an offence under this By-law to use a room marked library on a plan as a bedroom, the By-law could easily have been so expressed.

In order to ascertain the meaning of the phrase "use otherwise than for the purposes specified or indicated in the original application or plans" we have to consider what "purposes" would be specified in the application or indicated on the plans. By-law 80 dealing with this matter relates to all buildings and provides not for an application but for a notice in the prescribed form and for plans "in which the building shall be so described as to show whether it is intended to be used as a dwelling house or otherwise". "Purposes" therefore in By-law 99 must, we think, be restricted to purposes in the sense that a building is "to be used as a dwelling house or otherwise". If the notice and plans show that the building is to be used as a dwelling house, it will fall within the definition of "domestic building" in By-law 6. If the notice or plans show that the building is to be used otherwise then it must come within one or other of the classes in By-law 6 such as "public building" or "building of the warehouse class". Different methods and standards of construction are applicable to each description. And once the local authority has allowed a building to be erected on the standards prescribed for a dwelling house that building may not be used for other purposes, as for example a public building. Misuse of a dwelling house or part of it such as is exposed in these cases does not amount to using the dwelling house "other-

wise than for the purposes specified or indicated in the original application and plans in respect thereof". They are still being used as dwellings. By over-crowding the building it is being used not less as a dwelling house, but more, and that more may well be too much and be a menace to public health and conflict with the present standards laid down for such building; and such misuse is probably an offence against some other By-law. But "purposes" in this By-law has to be restricted to the meaning we have given to it and all that can be specified or indicated in the original application and plans is that the building will fall within one or other of the classes defined in By-law 6.

Proof therefore that such parts of a dwelling house as a kitchen, store or native quarters are being used for human habitation does not establish that the building is being used otherwise than for the purposes specified or indicated in the original application and plan.

The appeals are allowed, the convictions quashed, fines if paid are to be refunded.