Makau v The Queen (Criminal Appeal No. 293 of 1956) [1956] EACA 17 (1 January 1956)

## APPELLATE CRIMINAL

## Before SIR KENNETH O'CONNOR, C. J., and PELLY MURPHY, J.

## MAKAU s/o NYAMU Appellant

$\mathbf{v}$ . **THE QUEEN Respondent**

## Criminal Appeal No. 293 of 1956

Outlying Districts Ordinance (Cap. 44) S.7—Contents of charge.

The appellant was charged with the offence of remaining in a closed district after withdrawal of his licence contrary to section 7 of the Outlying Districts Ordinance (Cap. 44). He pleaded "It is true I had no pass" and was convicted There was nothing to show that the area in which the accused was found was a closed district or that he was a person who required a licence to be in it.

Held (29-12-56).—It is a necessary ingredient of the offence of remaining in a closed district<br>after withdrawal of a licence, that the area referred to is a closed district and that the accused is a person who requires a licence to remain in it. These averments must be<br>charged and explained to the accused. This was not done; and the plea was not, therefore, an unequivocal plea of guilty.

Cases considered: R. v. Yonanasi, 9 E. A. C. A. 65; Byarafu v. R., (1950) 17 E. A. C. A. 125; Makinda Muvua and another v. The Queen, Cr. App. 198 of 1956 (E. A. C. A.). $\mathcal{L} = \mathcal{L}$

JUDGMENT.—On the 18th December we allowed this appeal and quashed conviction and sentence. The following were our reasons: -

The appellant was charged as follows: —

"Charge.—Remaining in a closed district without a valid pass contra section 7, Cap. 44, of the Outlying Districts Ordinance, 1948.

Particulars of Offence.—Makau s/o Nyamu. In that on the 12th day of September, 1956, at about 7 a.m. at Matathia Ngong area of Kajiado District you were found remaining in a closed district after the withdrawal of your licence".

The appellant was tried summarily under section 197 of the Criminal Procedure Code. His plea was "It is true I had no pass". This plea was taken as a plea of guilty.

The appellant was "fined Sh. 500 or two months Detention Camp in default of distress".

Section 7 of the Outlying Districts Ordinance, so far as material, reads: —

"7. Any person entering or being in a closed distirct without a licence or remaining in a closed district after withdrawal of a licence shall be guilty of an offence ..."

Under section 10, offences under the Ordinance are punishable with a fine not exceeding Sh. 2,000 or imprisonment not exceeding two months or both.

It will be observed that on a literal construction of section 7 every person whether a native of the District or not who was in a closed District would be committing an offence unless he had a licence. That this is not the intention is, however, shown from section 4 of the Ordinance which excepts from the prohibition not only persons holding a licence but also natives of the district and Government officers. While, under section 137 (b) (ii) of the Criminal Procedure Code it is not necessary in a count charging an offence constituted by an enactment, to negative any exception or exemption from, or qualification to, the operation of the enactment creating the offence, we are of opinion that it is a necessary ingredient of the offence of remaining in a closed district after withdrawal of a licence which must be averred in the charge, that the accused is a person who requires a licence. It is the duty of a magistrate to explain to an accused person every ingredient of the charge and to record the answer of the accused "in a form which will satisfy an appeal court that he fully understood the charge and pleaded to every element of it unequivocally". ( $R. v. Y$ onanasi 9 E. A. C. A. 65; Byarafu v. R. 17 E. A. C. A. 125; Circular to Magistrates No. 20 of 1955 paragraph 7).

The charge was, in our opinion, defective and there is nothing on the record which satisfies us as an appeal Court that every ingredient of the offence was explained to the accused and that he pleaded to every element of it unequivocally.

Again there is nothing on the Record to show that "Matathia Ngong area of Kajiado District" is a closed District. By the Ordinance the Governor may by order declare any district or part of a district to be a closed district. We have examined such Proclamations and Orders issued under this section as we have been able to find. The whole of the Masai Extra Provincial District is gazetted as a closed District; but there appears to be no reference to the Kajiado District. No particulars are given in the charge as to the Proclamation or Order made under section 4 which was relied on; and learned Crown Counsel was not able to tell us which Proclamation Order or part thereof was alleged to be relevant. No maps were produced of which judicial notice could be taken for the purpose of showing that the area named in the charge was, or was within, a closed District.

In the absence of such evidence, it is not sufficient, if the charge does not necessarily disclose an offence, that the Magistrate has sufficient acquaintance with the locality to know that an offence against the statute has in fact been committed, and that the accused acknowledges that he has done what he knew to be wrong. (See the decision of the Court of Appeal for Eastern Africa in Criminal Appeal No. 198 of 1956 Malinda Mukua and another v. The Queen.

For these reasons the learned Crown Counsel could not support the conviction of the appellant and we had no option but to allow the appeal.

It would clearly be unjust that the second accused should be punished for an identical offence, if the first accused escaped. We, accordingly, set aside the conviction and sentence of the second accused also.