Gichimu v Rex (Criminal Appeal No. 106 of 1951) [1951] EACA 311 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and LOCKHART-SMITH, J. of A.

# MATU s/o GICHIMU, Appellant (Original Accused)

REX, Respondent

## Criminal Appeal No. 106 of 1951

(Appeal from decision of H. M. Supreme Court of Kenya—Modera and Connell, JJ.)

Animal Diseases Ordinance—Moving stock—Defective charge—Nullity.

The appellant was convicted of moving stock contra to section $7$ (5) of the Animal Diseases Ordinance (Cap. 213, Laws of Kenya). His appeal to the Supreme Court having been dismissed he appealed to the East African Court of Appeal.

- (1) The offence was alleged to be *contra* to section $7$ (5) of the Ordinance and rule 3 (2) Gazette Notice $60/31$ . It appeared that section 7 of the Ordinance did not create any offence or impose any penalty but conferred powers on the Governor in Council to make rules for prescribed purposes. Government Notice 60/31 refers to the Diseases of Animals Rules, 1931, made in February, 1931, amending the Diseases of Animals Rules (Cap. 157). Rule 3 revoked rule 14 (2) of the Diseases of Animals Rules and substituted a new sub-rule. The Diseases of Animals Rules (Cap. 157) together with all amendments thereto, were revoked by rule 68 of a new set of Diseases of Animals Rules, 1931, made in October, 1931. These rules are still in force and rule 21 (2) thereof is identical with rule $14(2)$ of the repealed rules. - Held (21-12-51).—The above defect in the charge did not render the trial a nullity—the Supreme Court should have made the proper amendment in exercise of its powers under section 354 (1), Criminal Procedure Code. - (2) The appellant and his two co-accused were charged with "jointly, moving 68 sheep and goats ... on to the farm of Mr. Powys' without his consent". On the charges being explained to the accused, they answered "it is true" and the Magistrate recorded pleas of guilty. - *Held.*—After discussing Kirayi Ngila and Others v. Rex, Kenya Criminal Appeals 45, 46 and 80 of 1951, that if the charge discloses no offence in law and cannot be or is not sufficiently amended a conviction thereon will b

Appeal allowed—conviction quashed—order of forfeiture quashed.

#### Kapila for appellant.

$\overline{a}$

#### Todd, Crown Counsel (Kenya), for Crown.

JUDGMENT.—This is a second appeal from a decision of two Judges of the Supreme Court of Kenya dismissing the appellant's appeal from a conviction<br>had in the Court of the First Class Magistrate at Nanyuki for the offence of moving stock in January, 1951, from a Native Reserve on to a farm without a permit.

The first point taken which calls for consideration is that the trial was a nullity in view of the fact that the section specified in the charge does not create an offence. The offence was alleged to be "contrary to section 7 (5) Cap. 213 Laws of Kenya and 3 (2) G. N. 60/31". It would be hardly possible to find a more slovenly or inaccurate manner of drafting a charge. Section 7 of the Animal Diseases Ordinance (Cap. 213 of the Laws of Kenya, 1948) does not create any offence or impose any penalty but merely confers power upon the Governor in Council to make rules for various prescribed purposes which include (in paragraph 5) "prohibiting or regulating the movement of animals". In exercise of these powers the Governor in Council has made rules intituded the Diseases of Animals Rules and has from time to time, made other rules amending them. Government Notice No. 60/31 (reprinted at page 125 of the Proclamations, Rules and Regulations, 1931, Volume X New Series) refers to the "Diseases of Animals Rules, 1931", made by the Governor in Council in February, 1931, which amended the Diseases of Animals Rules (Cap. 157 of the Revised Subsidiary Legislation). Rule 3 of the Rules made in February, 1931, revoked sub-rule (2) of rule 14 of the Diseases of Animals Rules and substituted therefore the following: —

"(2) No cattle, swine, sheep or goats shall be moved from, or on to any farm or from or into any Native Reserve or native area or on to, or over any public road or onto, or over any forest area or onto, or over any unalienated Crown Land without a permit authorizing such movement granted and signed by an issuer of permits."

The Diseases of Animals Rules (Cap. 157 of the Revised Subsidiary Legislation) together with all amendments thereto were revoked by rule 68 of a new set of rules, also intituled the "Diseases of Animals Rules, 1931", made by the Governor in Council in October, 1931. These last-mentioned rules, as subsequently amended from time to time, are still in force (see Government Notice No. 597 of 1931: Proclamations, Rules and Regulations, 1931, Vol X, New Series, page 847 et seq.). Rule 21 (2) of these Rules repeats in identical words the prohibition against moving cattle which was enacted in the repealed Rules as rule $14(2)$ .

(It will be convenient to note here that rule 28 of the Rules now in force provides that "permits shall not be issued to move cattle over land (not being a public road, stock route or right of way) sold by or leased from the Crown except with the consent, in writing, of the owners or occupiers of such land". This clearly imposes a restriction on the discretion of "issuers of permits" who are the officers and other persons prescribed by rule 20 of the same Rules, and is probably the explanation of the mistake made in framing the particulars of the charge to which we shall refer later in this judgment.)

$\mathbf{I}$

It is clear, therefore, that the appellant was charged and convicted under a repealed rule and the first question for consideration is what effect this had on the trial. The learned Judges of the Supreme Court observe in their judgment on this point" the general heading of the charge is correct except that Government Notice 60/31 has been repealed by Government Notice No. 597 of 1931. The wording, however, of both notices is similar and is in fact set out in the heading to the charge: we cannot see any prejudice arising from the failure to quote the repealing rules.

While not disagreeing with this conclusion we would point out, with respect, that the charge was patently defective and so consequently was the conviction based on it and that, if the defect was curable under section 381 of the Criminal Procedure Code of Kenya, the learned Judges should have corrected it by substituting a conviction under the proper rule. It was of course primarily the duty of the Magistrate under section 89 (4) of the Code to draw up the charge and to satisfy himself that it was correct, and, further, under section 212 (1) to amend it before the close of the case for the prosecution if it appeared defective.

We think it well to emphasize that section 212 (1) imposes a duty on Magistrates, as does 271 (2) on Judges, to make such amendments as to them seem necessary and just: see Rex v. Fraser (1924), 94 L. J. R. K. B. 236 (C. C. A.), a case on section 5 of the Indictment Act, 1915, which is practically identical in terms with section 271 (2) of the Code. We think, therefore, that the Supreme Court on appeal should have made the proper amendment in exercise of the powers conferred by section $354(1)$ of the Code.

We are unable to accept the appellant's contention that this defect in the charge rendered the trial a nullity. It is, indeed, obvious that the appellant was in no way prejudiced by the citation of the repealed rule since the prohibition was enacted in identical words in the current rules. In these circumstances we do not doubt that the necessary amendment could properly have been made either at the trial or on appeal, and we are fortified in this view by a consideration and comparison of the two cases of *Rex v. Tom Taylor* (1924), 18 C. A. R. 105 and Rex $\hat{v}$ . Tuttle (1929), 45 T. L. R. 357. In the former case the appellant had been convicted on an indictment alleging an offence under a particular section after the words relevant to that section had been repealed by the Forgery Act. 1913, which provided a simpler way of indicating an accused in such a case. It was argued, unsuccessfully, by the Crown that in spite of the repeal, the repealed words were kept alive by yet another Act. The indictment was held to be bad and, as no amendment had been made, the conviction was quashed on appeal. In Tuttle's case, the indictment originally charged the accused with an offence under section 21 of the Larceny Act, 1916. On the attention of the Court being called to the fact that statute was not yet in force at the time of the commission of the alleged offence, the Court allowed the indictment to be amended by substituting section 80 of the Larceny Act, 1861, which defined the offence in almost precisely similar terms. On appeal to the Court of Criminal Appeal, Avory, J., delivering the judgment of the Court said:

"When it appears, as it does, that the offence under the earlier Act of 1861 was in the same words as the offence under the Consolidation Act of 1916, it is clear that the appellant could not have been prejudiced, and that no injustice could have been done to any defence which he had by this amendment. It is not like the case which was suggested during the argument of an indictment being amended so as to charge a person with an offence different from that for which he has been committed for trial. Here the offence was precisely the same."

These words apply, *mutatis mutandis*, to the case before us. If this objection were the only point in the appeal we would hold that it had failed and would confirm the conviction and make the necessary and proper amendment.

But there is more substance in the objection taken to the particulars of the charge which alleged that the appellant and his two co-accused "jointly moved" 68 sheep and goats from Doroba Reserve Mukogodo on to the farm of Mr. Powys without his consent". Objection is taken to these last three words as not charging any offence in law. This was indeed admitted by the Crown but it was contended that they were mere surplusage and could be disregarded.

The facts material to this issue are that on the date of the alleged offence the appellant was the holder of a valid permit "to move one way with 76 head of S. & G. (scil. sheep and goats) between Mukogoda in the District of Nanyuki and Nyeri in the Nyeri District. Route: By road to Isiolo for dipping, thence by Isiolo-Nanyuki stock route to Nanyuki thence by rail". It is not disputed that this route did not authorize taking the animals across Mr. Powys' land. The learned Magistrate's notes record "3 accused charged-explained-plead". All three accused answered "It is true" and the Magistrate recorded pleas of guilty.

The learned Judges of the Supreme Court on appeal agreed that the words "without his consent" should have read "without a permit granted and signed by an issuer of permits" but they said that, having carefully considered all the circumstances of the case they had come to the conclusion "that the accused fully understood the nature of the charge and that they knew in fact the charge in substance and in fact was crossing Mr. Powys' farm land without a permit". They considered therefore that the accused "were not prejudiced by the fact that the last three words in the body of the charge were inaccurately phrased" and dismissed the appeal against conviction.

We have, however, been referred by Mr. Kapila, advocate for the appellant. to a conflicting judgment on precisely the same point given by three Judges of the Supreme Court of Kenya in Kenya Criminal Appeals No. 45, 46 and 80 of 1951. (Kirayi Ngila and two Others v. Rex.)

The appellants therein had been convicted of the same offence on charges phrased in almost identical terms and the Court was urged by the Crown to invoke its jurisdiction under section 354 (1) (a) (ii) of the Criminal Procedure Code but refused, saying: $\rightarrow$

"The simple truth of the whole matter is that as the appellants were not charged with offences known to the law, the trial was *ab initio* a nullity and in our opinion there cannot possibly emerge from a trial that is a nullity in law, a finding that this Court, even in the exercise of its revisional jurisdiction, could clothe with validity in law."

The appeals were allowed and the convictions quashed, the learned Judges remarking that as the trial was a nullity, it was left to the Crown to take such action as it might be advised to take.

In the course of the judgment in these three appeals the Court, referring to the passage on this point in the judgment in the appeal now before us we have cited above, remarked: —

"Whether or not that was a good ground for dismissing the appeal, it was not argued before us that the appellants in the present appeal knew the true nature of the charge against them, and we are not disposed to assume that they understood any more than the plain meaning of what appeared in the charge sheet which was read to them."

We wish to adopt this last observation and apply it to the appeal now before us, to which it is even more appropriate since the present appellant (unlike the appellants in the other three appeals) was recorded as having pleaded guilty to the charge as framed and explained. We are unable in the circumstances to accept the view that the words complained of "without his consent" were mere<br>surplusage. They must, we think, have led the appellant to think that the substance of the charge against him was that he had taken his cattle on to Mr. Powys' land without having obtained the latter's consent, which may have been the case in fact but was not the offence in law. To that charge as so framed he answered "it is true", and if it seems at all probable (and we think that it is so here) that he was misled as to any ingredient of the offence of which he stood charged, his answer was wrongly recorded as a plea of guilty and the conviction based thereon cannot stand. "No man is to be convicted on a plea which is ambiguous. If there is any ambiguity it is to be taken as a plea of not guilty"-per Reading, L. C. J., in Rex v. Golathan (1915), 11 C. A. R. 79, at page 80.

We were informed by his advocate that the appellant has already served the sentences of imprisonment imposed, as have also his two co-accused (who were his servants), and therefore the only effective order we can make is to allow the appeal and quash the conviction recorded against the appellant.

We wish, however, to guard ourselves against being taken to agree necessarily with the view expressed by the learned Judges of the Supreme Court in Kenya Criminal Appeals No. 45, 46 and 80 that the defect in the charge rendered the proceedings *ab initio* a nullity from which no valid finding could emerge. The authorities to all the cases, which we have consulted in the reports, where the Court of Criminal Appeal in England has quashed or annulled a conviction and ordered a retrial on the ground of nullity, is that there has been a valid indictment but there has been a mistrial or, more correctly, no trial at all<br>because of some defect in the proceedings. Consequently, as Lord Atkinson pointed out in *Crane v. Director of Public Prosecutions* (1921), 2 A. C. 299, at page $321:$

"When the conviction and judgment against (the appellant) had been set aside and annulled as they most properly have been by the Court of Criminal Appeal, the indictment found against him stands, in my view, as if he had never been tried at all."

And Viscount Finlay, in his dissenting judgment, said (at page 319), referring to the order of the Court of Criminal Appeal:-

"Their order proceeds on the basis that the trial was a nullity and that the proceedings should simply be resumed at the point where the mistake was made."

In Crane's case, separate indictments were found against the appellant and another man but they were tried together on the false assumption that the two accused had been jointly indicted. That, of course, was fatal to the conviction and the Court of Criminal Appeal made an order that the appellant should go back to stand his trial on the valid indictment which had never been tried. It was indeed said in Crane's case that the proceedings having been held to be a nullity, the order for retrial was unnecessary: see Lord Finlay at page $320:$

" If the trial was a nullity, the Recorder might forthwith have proceeded to try Crane again without any order from the Court of Criminal Appeal." and Lord Parmoor at page $337:$ —

"I think that the order would be complete if it stopped at the word annulled, but that a convenient and proper form has been adopted in the direction to the appellant (to appear and take his trial according to law). The annulling of the conviction and judgment, would in itself leave the appellant liable to be tried on the separate indictment, but there is no informality in giving a definite direction.

One of the earliest, if not the first, example of such an order is to be found in Rex v. Baker (1912), 7 C. A. R. 217 where the appellant's plea was wrongly entered as a plea of guilty. Darling, J., delivering the judgment of the Court of Criminal Appeal said:-

"There was no plea of guilty and as there was no trial it was impossible to pass sentence. The sentence was informal. The case must go back and the prisoner must be asked to plead again to the indictment and the case must proceed."

Baker's case was followed in Rex v. Ingleson (1914), 11 C. A. R. 21; Rex v. Golathan (1915), ibid. at page 79; Rex v. Lloyd (1923), 17 C. A. R. 184, and Rex v. Hussey (1924), 18 C. A. R. 121; all cases where the answer to the charge was wrongly entered as a plea of guilty.

Other examples are to be found in Rex v. Williams (1925), 19 C. A. R. 67 where the appellant, arraigned on a charge of felony, was denied his right of

challenge without cause to a juror. The proceedings were annulled and a new trial on the indictment ordered. In Rex v. Hancock (1931), 23 C. A. R. 16 the appellant had originally pleaded not guily and was given in charge to the jury. In the course of the trial he made certain admissions which were treated as a plea of guilty and a conviction entered thereon, but no verdict was taken from the jury. It was held that the proceedings were a nullity and a new trial ordered on the indictment.

In Rex v. McDonnell (1928), 20 C. A. R. 163, the trial of the appellant was held to be a mere nullity because he had been tried simultaneously on two indictments. See also Rex v. Wilde (1933), 24 C. A. R. 99.

We have been unable to find any reported case in which a trial had been held to be a nullity and a new trial ordered by reason of a defect in the form or substance of a charge or indictment. Rex v. Gee and Others (1936), L. R. 2 K. B. D. 442 is no exception. In that case the proceedings before the committing Magistrates were so defective that there was no lawful committal for trial and consequently the document purporting to be an indictment was not an indictment and the appellants could not be tried upon it.

Section 272 of the Criminal Procedure Code provides that if any information does not state, and cannot be by any amendment authorized by section 271 be made to state, any offences of which the accused had had notice, it shall be quashed either on a motion made before the accused pleads or on a motion made in arrest of judgment. But, if the objection be not taken the defect may in some cases be cured by the verdict (see Archbold—Criminal Pleading, Practice and Procedure, 32nd Edition, page 142) or, if the objection be made a ground of appeal it will be for the appellate Court to decide whether the defect is curable under section 381 of the Code. If, in fact, the charge or information discloses no offence in law and cannot be or is not sufficiently amended then either it will be quashed by the Court of first instance and an order of acquittal entered or, if a conviction has been recorded, an appellant Court may quash it and substitute an order of acquittal. But it by no means follows that the proceedings had under the defective charge were a nullity and that the prisoner could be tried again upon a fresh charge or information in respect of the same matter.

It remains for us to refer to the appeal against the order of forfeiture. It is not necessary to determine the question whether it was or was not validly made, since the order must fall with the conviction upon which it followed and must be quashed.

If, as we are informed, the sheep and goats affected by the Order have been sold, the proceeds must be paid over to the appellant without any deduction for pound fees.