Gichinga v Regina (Criminal Appeal No. 738 of 1951) [1952] EACA 319 (1 January 1952)

## $336$

## APPELLATE CRIMINAL

## Before DE LESTANG, J. and WINDHAM, J.

NGUGI s/o GICHINGA, Appellant (Original Accused)

v.

REGINA. Respondent (Original Prosecutrix)

Criminal Appeal No. 738 of 1951

(Appeal from decision of the First Class Magistrate's Court at Kiambu D. Brumage, Esq.)

Plea—Arson—Wilfully and unlawfully setting fire.

On being charged with arson *contra* section 327 (a) Penal Code the appellant replied, "yes, I set fire to John's and Peter's house on the night of 11th November, 1951. I burnt it down because they built it on my land without my permission two years ago. I told them to vacate my land and they said they would do so: but they did not move off my land, so I got angry with them and set fire to their house.'

It was conceded that the house burnt down had, by virtue of being attached to the soil became the property of the appellant.

Held (26-2-52.)—(1) A man who burns down his own house is not necessarily doing so unlawfully for the purpose of section 327 though his act would be unlawful if it endangered the personal safety of another.

(2) The plea was not unequivocal. Appeal allowed, conviction quashed, sentence set aside and retrial ordered.

Case referred to: King v. Mchota s/o Ndumdo, Cr. Rev. Case No. 262 of 1948.

A. R. Kapila for appellant.

Pearson. Crown Counsel. for Crown.

JUDGMENT.—The point for determination in this appeal is whether the words used by the appellant in pleading to a charge of arson amounted to an unequivocal plea of guilty, which plea the learned Magistrate recorded against him and upon which he was convicted. The particulars of the charge alleged that, at about 11 p.m., the appellant wilfully and unlawfully set fire to the house of John Wagichi s/o Ngatara and Peter Ngatara. The words used by the appellant in answering it were: "Yes, I set fire to John's and Peter's house on the night of 11th November, 1951. I burnt it down because they built it on my land without my permission two years ago. I told them to vacate my land, and they said they would do so; but they did not move off my land, so I got angry with them and set fire to their house".

Now under section 327 (a) of the Penal Code the offence of arson in respect of a building or structure is committed by "any person who wilfully and unlawfully sets fire to any building or structure whatever, whether completed on not". Thus it is an essential element of the offence that the burning down shall have been unlawful. It is conceded by the learned Crown Counsel for the purpose of this appeal the house burnt down had, by virtue of being attached to the soil. become the property of the appellant who was the soil owner. Learned Crown Counsel also concedes in law that a man who burns down his own house is not necessarily doing so "unlawfully" for the purpose of section 327, though his

act would be unlawful if it endangered the personal safety of another person. That point was decided by the Supreme Court of Tanganyika in $King$ v. Mchota s/o Ndundo, Criminal Revision Case 262/48, in construing section 319 (a) of the Penal Code of Tanganyika, which is worded identically with section 327 (a) of the Penal Code of Kenya, and with that decision we respectfully agree. We are further of the opinion that a burning down of one's own house would be unlawful if it entailed the burning of chattels of another person known to be in that house.

It is urged by learned Crown Counsel that it is apparent from the wording of the charge and the appellant's reply to it, that he must have known that the occupiers of the house, and their chattels, were in the house when he set fire to it, so that his act would have been unlawful as constituting an offence against section 238 (c) of the Penal Code, namely a reckless and dangerous act in relation to fire. We cannot agree with this proposition. It may well be in fact that the appellant was aware that the occupiers were in the house when he set fire to it, but this is not admitted in his words in answer to the charge. It is quite consistent with those words that he may, before burning down the house, have ensured that the occupants had vacated it with their chattels, while at the same time they may have remained upon the land on which it was built. If so, then his act would not necessarily have been unlawful.

On the ground, therefore, that the plea was not unequivocal in regard to the unlawfulness of the act, we hold that the learned Magistrate wrongly convicted the appellant as upon a plea of guilty. The conviction is quashed and the sentence set aside, and there will be a re-trial.

In deciding whether or not the plea was equivocal we have of course disregarded the evidence of one of the occupants of the house as to the value of what was destroyed in the fire, since that evidence was given after conviction. But in the course of that evidence the witness stated that he woke up in his house to find it on fire and had to run out without even having time to rescue his chatels which were also inside. This evidence, if true, might well form the basis for a charge even more grave than arson, namely attempted murder, and no doubt the Attorney General will consider whether an additional charge on that count ought not to be preferred against the appellant upon his re-trial.