Kibungi and Another v Reginam (Criminal Appeal No. 198 of 1956) [1950] EACA 590 (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

## (1) MALINDA MUVUA and (2) MUINDI s/o KIBUNGI, Appellants (Original Accused Nos. 1 and 2)

## REGINAM. Respondent

## Criminal Appeal No. 198 of 1956

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

Movement of cattle—Rule 21 of the Animal Diseases Rules—Pleas improperly taken as guilty.

The accused were convicted of an offence under sub-rule (2) of rule 21 of the Animal Diseases Rules. The charges were that the accused moved cattle "from Mwea in the Embu District to Yatta in the Machakos District without a permit". There was no statement of offence followed by particulars and no date was mentioned. The accused when charged each stated they had moved cattle "through the Yatta" without a permit and these statements were entered as pleas of guilty by the Magistrate. Their appeals to the Supreme Court were dismissed.

Held $(10-11-56)$ .—(1) Neither charge disclosed any particular one of the several possible offences envisaged by sub-rule $(2)$ of rule 21.

(2) In each case the admission was not a plea of guilty to a charge of moving animals "from Mwea to Yatta" and the plea of guilty was a nullity.

Appeal allowed.

No cases.

A. R. Kapila for appellants.

Webber for respondents.

JUDGMENT (prepared by BACON, J. A.).—This was a second appeal from a judgment of the Supreme Court of Kenya dismissing the present appellants' appeal against the conviction of each of them by a Magistrate's Court for an offence under sub-rule (2) of rule 21 of the Animal Diseases Rules (misdescribed in the charges as "Section 21 (2) (a) Animal Diseases Ordinance Rules"). There were originally two prosecutions, each resulting in a conviction on a plea which was accepted as a plea of guilty. On each appellant appealing to the Supreme Court their appeals were consolidated. The second appeal to us was also in that form.

The sub-rule under which the charges were made reads as follows: -

"No cattle, swine, sheep or goats shall be moved from or on to any farm or from or into the native lands or any native area, or on to or over any public road, or on to or over any forest area, or on to or over any unalienated Crown land not being within the native lands or a native area, without a permit authorizing such movement granted and signed by an issuer of permits:

Provided that-

(c) it shall be lawful to move any cattle, swine, sheep or goats on to or over any forest area, or on to or over any public road when such area or public road is within the native lands or a native area."

"Moving 22 head of cattle from Mwea in the Embu District to Yatta in Machakos District without a permit contrary to section 21 (2) (a). Animal Diseases Ordinance Rules."

The charge against the second appellant was in similar terms except that it related to other animals. It was as follows: -

"Moving 57 head of cattle, 17 calves and 33 sheep and goats from Mwea in the Embu District to Yatta in Machakos District without a permit contra section 21 (2) (a) Animal Diseases Ordinance Rules."

It thus appears that in each case there was no statement of offence followed by particulars, no date of the alleged offence was mentioned and no specific reference was made to any particular part of the sub-rule the infringement of which was alleged to constitute the offence. The first two alone of those three defects were brought to the notice of the Supreme Court on first appeal, and it was held that neither caused prejudice to either appellant. The third defect was argued at the outset of the appeal to this Court, when it was submitted by Mr. A. R. Kapila for the appellants that neither charge disclosed an offence against sub-rule (2) of rule 21 and that in each case the plea and the subsequent proceedings at the trial were a nullity.

The first appellant's plea was this: $-$

"I moved the animals through the Yatta without a permit. The D. C. Embu was making us sell some of our stock and I did not want to do so."

The second appellant's plea was this: —

"I admit that I moved the animals through the Yatta without a permit. I know it was wrong, but I knew I should not get a permit if I asked."

In each case the plea was immediately accepted as one of "guilty" and the learned Magistrate recorded its entry as such. After the entry of the plea, in each case the prosecution gave an outline of the facts for the purpose of sentence, the material parts whereof were recorded as follows:-

In the first appellant's case:—

"These animals were caught trying to cross the Athi River to the Locations, in Northern Area, Machakos, in the region of Kabaa.... The animals had no Yatta brands on them. ... The owner appeared to-day and had no permit to move the animals. This is a serious matter, as the area into which the stock was moving is grossly overstocked."

In the second appellant's case: $--$

"All these animals were caught in one herd in the Yatta Area on the north side of the Kabaa Crossing.... The animals did not carry the Yatta brand... This is an extremely serious case of trying, illegally, to move unwanted stock into an already grossly overstocked and overgrazed Reserve."

Immediately after the facts had thus been stated, in each case the appellant is recorded as saying, "Nothing to add to plea", and the learned Magistrate then recorded a conviction on the plea.

In those circumstances the case for the appellants may be summarized thus: not only did neither charge disclose any particular one of the several possible offences envisaged by sub-rule (2) of rule 21, but the plea in each case was merely "I moved the animals through the Yatta", which admission might or might not involve an admission of having committed some unspecified offence; in any event that admission did not constitute a plea of guilty to a charge of moving animals from Mwea to Yatta; and, so far from clarifying the charges or linking the pleas with them, the prosecutor's statement in each case served only to indicate his view that the accused concerned was "trying" to drive the animals to a place where, if he succeeded in so doing, they would be enhancing the already overstocked condition of that place.

In our view those considerations should prevail. There was nothing to show with what offence the appellants were really charged, and neither plea could possibly be said to be an unequivocal admission of any particular offence under the sub-rule. The sub-rule is concerned with moving animals from or on to a farm, or from or into the native lands or any native area, and so on, subject to the proviso. Moreover, Mr. Webber for the Crown-respondent admitted that that for present purposes there is no legal definition of "native area", and, further, that there is nothing in the record to show that the alleged movement of animals was or could have been an offence in the case of either appellant. He conceded that, so far as each charge was concerned, there was no indication on the face of it that the alleged movement was not within or across a "native area" or "native lands". And he declined to produce maps or other material, of which we might have taken judicial notice, so as to show that some contravention of the sub-rule must have occurred. Indeed, whatever material had been produced it would seen difficult to imagine that either plea was unequivocal.

Accordingly we held that the plea of guilty in each case was a nullity. and that so also were the conviction and sentence. We allowed the appeal, set aside the conviction and sentence and ordered that the animals forfeited be returned, or, if already sold, that the proceeds be paid to each appellant respectively.