Ikandi v Rex (Criminal Appeal No. 174 of 1941) [1940] EACA 63 (1 January 1940)

# APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J. and BARTLEY, J.

## TUTU D/O IKANDI, Appellant

# REX. Respondent

# Criminal Appeal No. 174 of 1941

Native Spirituous Liquor—Undistilled Nubian Gin (Muna)—Section 4 Native Liquor Amendment Ordinance, 1941, Section 2 Native Liquor Ordinance, 1930.

Held (15-12-41).—That undistilled Nubian Gin (Muna) was not native spirituous liquor within the meaning of the term as defined by section 2 of the Native Liquor Ordinance, 1930.

## Appellant in person.

## Stacey, Crown Counsel, for the Crown.

JUDGMENT.—The appellant with another accused person was charged in the following terms: -

## (1st count)

"Being in possession of Native Spirituous Liquor contra section 4 (1) of Ordinance 6 of 1941 and section 4 (2) of Ordinance 6 of 1941. That at about 9 p.m. on the night of the 11th November, 1941, in the Ngong Forest, Kilimani, in the Central Province, you were found in possession of about 360 gallons of undistilled Nubian Gin 'Muna' (Native Spirituous Liquor)

### $(2nd count)$

and apparatus for distilling Nubian Gin, all of these articles being used for the manufacture of Nubian Gin, to wit 3 'stills', 12 lb. jaggery."

In connexion with the first count we have been exercised as to whether possession of "undistilled Nubian Gin 'Muna' (Native Spirituous Liquor)" can be said to be possession of "native spirituous liquor" as defined by section 2 of the Native Liquor Ordinance, 1930, as amended by Ordinance No. 6 of 1941. The definition reads:-

"'native spirituous liquor' means Nubian gin and all other liquors such as are prepared or manufactured by natives by any process of distillation."

Crown Counsel has argued that Nubian gin different from the other liquors covered by the definition is something which need not have undergone the process of distillation. That argument does not appeal to us. The very term which is being defined "native spirituous liquor" implies distillation and so negatives the soundness of the argument. Webster's Dictionary defines gin as a "strong alcoholic liquor extensively manufactured in Holland by distilling a grain mash in pot stills with juniper berries". We cannot see that there is any reason for giving an artificial meaning to the term Nubian gin by holding that it is something which has not been prepared or manufactured by a process of distillation. The use of the word gin connotes that the liquor is something which has resulted from a process of distillation, and the use of the word Nubian in all probability indicates that the manufacture of the liquor originated with Nubians. The use of the word "undistilled" in the charge is in our opinion fatal to a conviction of being in possession of Nubian gin.

*Editorial Note.*—The appeal on the first count was allowed.