Gathungu v Regina (Criminal Appeal No. 669 of 1952) [1953] EACA 10 (1 January 1953)

# APPELLATE CRIMINAL

#### Before HEARNE, C. J. and BOURKE, J.

## HENRY WAMBUGU s/o GATHUNGU, Appellant

#### $\mathbf{v}$

## REGINA, Respondent

## Criminal Appeal No. 669 of 1952

Criminal Law-Native Authority Ordinance (Cap. 97)-Section 24 (Repealed by<br>Ordinance 12 of 1950)-Resolution No. 1/39 of African District Council empowering headman to give orders on advice of an agricultural officer-Headman giving order without advice—Whether order enforceable.

Section 24 (now repealed) of the Native Authority Ordinance (Cap. 97) empowered local native councils to make and pass certain resolutions for the welfare and good government of the African inhabitants within the council area. The Nyeri African District Council, by Resolution No. 1/39, empowered location headman on the advice of an agricultural officer to give orders to local inhabitants in regard to terracing, but the headman of the Aguthi Location, acting without the advice of an agricultural officer, ordered the accused on 11th September, 1952. to complete certain terracing work. The appellant disobeyed. The appellant was convicted and sentenced. On 27th March, 1950, section 24 had been repealed by section 54 of the African District Councils Ordinance, 1950, with the proviso that all resolutions in force were to continue to have effect until revoked or replaced by by-laws.

Held (23-1-53).—That, as it was not proved that an agricultural officer gave the headman any advice, the headman's order was without force. Conviction and sentence set aside.

Semble.—Although section 54 of the African District Councils Ordinance, 1950, keeps alive resolutions passed under section 24 of the Native Authority Ordinance, the former Ordinance does not provide a penalty for a breach the repealed law.

Appeal allowed.

#### Kapila for appellant.

## Le Gallais, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of failing to carry out the instructions given to him by a headman, to do certain terracing work, which he was empowered to give the appellant by virtue of a Resolution (No. 1/39) of the African District Council, passed under section 24 of Cap. 97 (now repealed). The Resolution empowered the headman to give the order on the advice of an agricultural officer. It was not proved that an agricultural officer in fact gave the headman any advice, and it is, therefore, conceded that the appeal must be allowed. The conviction and sentence are therefore set aside.

It would appear that while section 54, Ordinance No. 12 of 1950 keeps alive resolutions passed under section 24 of Cap. 97 (now repealed) Ordinance 12/50 does not provide a penalty for the breach of resolutions made under the repealed law. This is a matter for the Crown to consider.