Ishmael v Regina (Criminal Appeal No. .51 of 1952) [1952] EACA 320 (1 January 1952)

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## APPELLATE CRIMINAL

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

#### OMARI s/o ISHMAEL, Appellant (Original Accused)

$\mathbf{v}$

# REGINA, Respondent (Original Prosecutrix)

#### Criminal Appeal No. 51 of 1952

## (Appeal from decision of the First Class Magistrate's Court at Nairobi, A. E. Errington, Esq.)

Voluntarily unemployed person—Unequivocal plea—Definition of adult male— Voluntarily Unemployed Persons Ordinance, 1949-Somali-Meaning of-Cap. 53.

The appellant, having been convicted by the First Class Magistrate, Nairobi, on the first count of being an unemployed person contra to section 6 (2) of the Voluntarily Unemployed Persons Ordinance, 1949, and on the second count of being in Nairobi without a written permit authorising him to leave his reserve, contra section 10 (3) of Cap. 53, appealed.

Held (22-2-52).-(1) The plea of the accused on the first count was not an unequivocal plea of guilty since there was no admission that the accused was an unemployed person.

(2) Section 10 (3) cap. 53 applied to a Somali who belonged to any tribe residing in Kenya and does not apply to a Somali belonging to British Somaliland. Trial on<br>on first count declared nullity. Conviction on second count quashed and set aside.

Appellant absent.

Pearson, Crown Counsel, for Crown.

JUDGMENT.—The plea of the accused on the first count is not an unequivocal plea of guilty to the charge since there is no admission therein that the accused was an "unemployed person" within the meaning of that expression in section 2 of the Ordinance having regard especially to the definition of "adult male".

The trial as regards the first count is accordingly declared a nullity, the conviction quashed and the sentence set aside.

As regards the second count the charge was obviously misconceived. Section 10 (3) of cap. 53 Laws of Kenya only applies to "any Somali or Native of the Colony" and it is clear from the general tenor of the section that "Somali" must mean a Somali who belong to any tribe residing in Kenya. The section does not and cannot apply to a Somali belonging to British Somaliland. The second count accordingly does not disclose any offence by this appellant. The conviction on this count is quashed and the sentence set aside.

Appellant will be released forthwith.