Kibai v Reginam (Criminal Appeal No. 191 of 1956) [1950] EACA 604 (1 January 1950)

# H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR RONALD SINCLAIR (Acting President), BRIGGS (Acting Vice-President) and BACON, Justice of Appeal

## SHEDRACK KIBAI, Appellant (Original Accused)

### ν.

# REGINAM, Respondent

### Criminal Appeal No. 191 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J., and Connell, J.)

Defence (Control of Maize) Regulations, 1944—Interpretation—Whether breach of regulation an offence-Kenya Interpretation and General Clauses Ordinance—Kenya Penal Code, sections 27 (3), 29 (1) (i) and 125—Kenya Criminal Procedure Code, section 381—Emergency Power (Defence) Act, 1939, section 1—Kenya Defence (Control of Maize) Regulations, 1944—Emergency Powers (Colonial Defence) Order in Council, 1939—Supplies and Services (Transitional Powers) Act, 1945—Supplies and Services (Transitional Powers) (Colonies, etc.) Order in Council, 1946-Kenya Movement of Maize (No. 2) Order, 1953-Kenya Supplies and Services (Transitional Powers No. 2) Order, 1946—Interpretation Act, 1890.

The appellant had been charged with "moving maize more than five bags, contrary to regulation 18 of Defence Control of Maize as read with Government Notice 1451 of 1953". He was convicted of an attempt to commit the offence. His appeal to the Supreme Court was dismissed and on the second appeal it was submitted, inter alia, that the charge disclosed no offence known to the law.

Held (23-11-56).—The offence of which the appellant was convicted was a breach of the<br>Movement of Maize (No. 2) Order, 1953, made by the Maize Controller under the<br>Defence (Control of Maize) Regulations, 1944. The word "re an order made under a regulation and no offence was disclosed by the charge. Appeal allowed.

Cases referred to: R. v. Hall, (1891) 2 Q. B. 747; R. v. Smith, 169 E. R. 1333.

## D. V. Kapila for appellant.

Webber and Charters for respondent.

JUDGMENT (prepared by BRIGGS, Acting Vice-President).—The appellant was charged in the Court of the First Class Magistrate at Kandungo in the district of Machakos with "moving maize more than five bags contrary to regulation 18 of Defence Control of Maize as read with Government Notice No. 1451 of 1953". He pleaded not guilty, was tried and convicted of an attempt to commit the offence charged, and was sentenced to forfeiture of 60 bags of maize which were referred to in the particulars of the charge. On appeal to the Supreme Court it was held that as regards 35 of the 60 bags no overt act which could properly be regarded as an "attempt" had been proved and the facts indicated nothing more than preparation to commit an offence. The forfeiture of these 35 bags was therefore set aside, but the Court held that as regards 25 the attempt was proved, so the conviction was upheld and the Court varied the sentence by imposing a fine of Sh. 500 in addition to the forefeiture of the 25 bags. On appeal to this Court the appellant contended, inter alia, that the charge disclosed no offence known to the law.

The simple words of the charge conceal a situation of unexpected complexity. The Emergency Powers (Defence) Act, 1939, provided by section 1 for the making of Defence Regulations, which may make provision for punishment of offences against the Regulations and may authorize persons to make orders, rules and by-laws for any of the purposes of the regulations (section 2). By section 4 the operation of the Act could be extended by Order in Council to colonial territories, and by the Emergency Powers (Colonial Defence) Order in Council, 1939, it was so extended to Kenya. General Defence Regulations were made in Kenya in 1939 and many other sets of Defence Regulations on specific subjects and having distinctive titles, were made in the years following. Among these were the Defence (Control of Maize) Regulations, 1944. It appears that there is no provision that different sets of Defence Regulations shall be read together, so that provisions of the general Defence Regulations do not apply to the Defence (Control of Maize) Regulations, 1944. These provide, *inter alia*, for the appointment of a Maize Controller, and by regulation 18 give him the following powers:-

"18. The Controller may, by order and subject to such conditions as he may specify, prohibit or direct the movement of maize or maizemeal or maize products generally within the Colony or from any place or area. The order may prohibit the movement of all maize or maizemeal or may permit the movement of such quantities under such conditions as the Controller may specify."

After the war the Supplies and Services (Transitional Powers) Act, 1945, made provision for the continuation in force of certain Defence Regulations in the United Kingdom, and again power was given by an extremely complex piece of legislation by reference, which we need not explain in detail, by Order in Council to extend its application to colonial territories. This was done by the Supplies and Services (Transitional Powers) (Colonies, etc.) Order in Council, 1946, which applies to Kenya. Under this the Governor may by order continue local Defence Regulations in force and may amend or revoke them. By the Supplies and Services (Transitional Powers No. 2) Order, 1946, he so continued in force the Defence (Control of Maize) Regulations, 1944. Under these the Maize Controller issued the Movement of Maize (No. 2) Order, 1953, of which paragraphs 2 and 5 provide as follows: $-$

"2. Subject to the provisions of regulation 5 of the aforesaid regulations and of paragraph 4 of this Order, no maize, maizemeal, or maize products shall be moved by head load, pack animal, transport, road vehicle, railway rolling stock or vessel or otherwise from one place to another except under a permit issued by the Maize Controller or by some person authorized by him in writing for the purpose."

"5. The provisions of paragraph 2 of this Order shall not apply—

$(a)$ to the movement of maize, maizemeal or maize products grown and produced by an African and accompanied by an African owner. within the boundaries of any one province of the Colony in quantities not exceeding five bags:

Provided that nothing in this sub-paragraph contained shall be deemed to permit any such maize, maizemeal or maize products, exceeding a total of five bags, being transported in a road vehicle unless such maize, maizemeal or maize products are accompanied by a permit issued under the provisions of paragraph 2 of this Order:

(b) in the case of maize grown or maizemeal and maize products produced by a non-African producer, to the movement of such maize. maizemeal and maize products within the boundaries of the land upon which it was so grown or produced."

It is for an alleged offence against the provisions of paragraph 2 that the appellant was prosecuted.

It must first be observed that no part of the order provides that a breach of its provisions shall be an offence. The Crown relies first on regulation 20 of the Defence (Control of Maize) Regulations, 1944, the relevant part of which is as follows:-

20. (1) Any person who ... commits a breach of any of these regulations or who fails to comply with the terms and conditions of any permit granted or order given to him by the Controller . . . shall be guilty of an offence and shall be liable on conviction" (to specified penalties).

It is submitted that "order" here includes the Movement of Maize (No. 2) Order. 1953, which is an order given by the Controller to the population of Kenya at large and therefore to the appellant. We cannot accept this, The Controller has power under the regulations to grant permits and to issue orders to individuals for specific purposes. See, for example, regulations 14 and and 17. It is clearly orders of this kind to which regulation 20 refers. Where an order such as the Movement of Maize (No. 2) Order, 1953, is to be brought into force, it is "made", not "given". Regulation 20 does not assist the Crown.

The Crown, however, has other resources. It says that to do any act forbidden by statute is automatically criminal in Kenya. This proposition was argued on general principle and on that basis we think there is little to be said for it; but section 125 of the Penal Code seems to be very much in point, though it was not referred to in argument. It provides: -

"125. Everyone who wilfully disobeys any statute or Ordinance by doing any act which it forbids, or by omitting to do any act which it requires to be done, and which concerns the public or any part of the public, is guilty of misdemeanour, and is liable, unless it appears from the statute or Ordinance that it was the intention of the legislature to provide some other penalty for such disobedience, to imprisonment for two years."

Was this then a statute or Ordinance? We quote from section $5:$ —

"Statute' means an Act of the Imperial Parliament or an Act of the Indian Legislature, and includes any orders, rules, regulations, by-laws or other subsidiary legislation made or passed under the authority of any statute."

"'Ordinance' includes any orders or rules or regulations made under the authority of any Ordinance."

The Defence (Control of Maize) Regulations, 1944, are themselves clearly a "statute" for this purpose; but is the Movement of Maize (No. 2) Order, 1953, similarly a "statute"? We think it must be. It is an "order", made and passed under the authority, albeit the delegated authority, conferred by the Acts of Parliament to which we have referred, as applied to Kenya, We conceive that the definitions of "Statute" and "Ordinance" in the Penal Code are designed to cover between them the whole of the written law of the country, including all legislation under delegated powers. The rule in England appears to be somewhat narrower. See Russell on Crime, 10th ed. p. 7. But we think that section 125 was probably based on the decision in R. v. Hall, (1891). 2 Q. B. 747. There is no doubt that the movement of maize is a matter believed by Government to concern the public, and we think it must be assumed that it does concern the public. The important part of the section for present purposes is that which renders the disobedience to statute a misdemeanour. Since imprisonment could have been inflicted under section 125, a fine could be imposed under section 27 (3) of the Penal Code, and it cannot be said that the amount was "excessive" under section 29 (1) (i). We think therefore that a breach of statute by moving maize could constitute an offence and, if it had been charged and duly proved, a sentence to a fine of Sh. 500 would have been lawful.

We pause here to remark that the existence of section 125 seems to support our view that the Crown's contention, that any act forbidden by statute is automatically criminal, must be wrong. If the contention were right and a prosecution could be based on the act as such, section 125 would be completely otiose.

There is, however, some difficulty about applying section 125 to this case. An offence under that section should be charged as, "Disobedience of statutory duty contrary to section 125 of the Penal Code", or "Breach of statutory prohibi-<br>tion contrary, etc.", and the particulars must allege the statutory prohibition (or duty imposed) and the nature of the breach. The offence is not an offence against the statute infringed. None of this was done in the present case and we are by no means sure that the error in the charge was merely formal or curable under section 381 of the Criminal Procedure Code. The facts indicate that there was no completed act of moving maize in disobedience to the statute, but only an attempt so to move it. It is not at all clear that an attempt to disobey a statute is an attempt to commit an offence against section 125. We think it is at least doubtful whether the nature of section 125 is such that an attempt to infringe it could be an offence. For all these reasons we should decline to support this conviction on the basis that section 125 can be prayed in aid.

Counsel for the Crown at first submitted to us that the Defence (Penalties) Regulations, 1940, as amended in 1946, had the effect of making it an offence to move maize in contravention of the order. Regulation 2 of those regulations is as follows: $-$

"2. Where, after the coming into force of these Regulations, any person is charged with the offence of failure to comply with, or of having acted in contravention of, the provisions of any regulations which have been continued in force, by the Governor, under powers conferred upon him by His Majesty, by an Order in Council made under the provisions of the Supplies and Services (Transitional Powers) Act, 1945, or of any order or direction given under the provisions of such regulations, and no penalty is prescribed in such regulations or in any Ordinance expressly amended by such regulations for such failure or such contravention, such person shall be liable, on conviction before any Magistrate and notwithstanding the provisions of the Criminal Procedure Code, to a fine not exceeding £500 or to imprisonment for a term not exceeding two years or to both such fine and such imprisonment.'

This contention is, we think, met by the same answer as the argument based on regulation 20 to which we have referred. The order is not itself a regulation, and the words "order or direction given under the provisions" of ... regulations" refer, we think, to a special order or direction given to an individual, and not to an order having direct statutory force. There is a further difficulty arising from regulation 21 of the Defence (Control of Maize) Regulations, 1944, which is as follows: $\rightarrow$

'21. Where any person is convicted of an offence of purchasing or moving maize or maizemeal in contravention of the provisions of these regulations or of any order made thereunder, the Court may order that such maize or maizemeal shall be forfeited to the Crown and where any such order has been made, such maize or maizemeal shall be handed over to the Controller who may dispose of it in such a manner as he shall think fit and, after deducting the costs of and incidental to such disposal, the balance of the proceeds therefrom shall be paid by the Controller into the general revenues of the Colony."

It is now conceded by the Crown, and we think rightly, that forfeiture is a<br>"penalty". See Words & Phrases, s.vv., "penalty" and "forfeiture", Stroud, 3rd ed. 2159, and R. v. Smith, 169, E. R. 1333, 1337. So if an offence arises in the circumstances a "penalty is prescribed" for that offence within the meaning of regulation 2 of the Defence (Penalties) Regulations, 1940, while if no offence arises those regulations cannot apply at all. In either event they cannot apply to this case.

We have sought with some care in the Act of Parliament, the Orders in Council, and elsewhere for any indication that the word "Regulation" can include an order made under a regulation, but we can find nothing which helps the Crown. The Interpretation Act, 1890, applies to the Orders in Council, but not to the Governor's Order made under it, nor to Defence Regulations or Orders made under them. The general Defence Regulations provide that the Interpretation and Generad Clauses Ordinance shall apply to the interpretation of those regulations and any orders or rules made thereunder as if they were Ordinancec; but, as we have said, these provisions are not extended by reference to cover other Defence Regulations such as the Defence (Control of Maize) Regulations, 1944. The Interpretation and General Clauses Ordinance does not in any event directly assist, for "Regulation" is not defined, though "'Rule' includes by-law and regulation".

We conclude that there is a lacuna in the regulations. Regulation 20 should have been enacted in terms similar to those of regulation 94 of the general Defence Regulations which covers contravention not only of the regulations but also of "any order or rule made under any of these regulations, or any direction given or requirement imposed under any of these regulations". As it is, we are of opinion that no offence was disclosed by the charge. The appeal must be allowed and the original conviction and sentence, and also the order of the Supreme Court, must be set aside.