Malinda and Another v The Queen (Criminal Appeal No. 143 of 1956; Criminal Appeal No. 144 of 1956) [1956] EACA 18 (1 January 1956)

### APPELLATE CRIMINAL

### Before O'CONNOR, C. J., CONNELL AND EDMONDS, J. J.

#### MALINDA s/o MUVUA AND ANOTHER, Appellants

## THE QUEEN, Respondent

# Criminal Appeals Nos. 143 and 144 of 1956

Animal Diseases, rules 21 and 67—Animal Diseases Ordinance, section 21— Interpretation and General Clauses Ordinance, sections 2 and 15 $(b)$ — Whether breach of a rule is an offence against the Ordinance under which the rule is made—Forfeiture.

The appellants were convicted by a magistrate of moving cattle contrary to rule 21 (2) of the Animal Diseases Rules and forfeiture of the cattle was ordered. Rule 67 of the Rules provides a penalty of up to Sh. 2,000 or to imprisonment not exceeding two months or to imprisonment not exceeding two months or to both, for contravention of a rule; but does not provide for forfeiture. Section 21 of the Animal Diseases Ordinance (under which Ordinance the Rules were made) permits the Court convicting any person of "an offence against this Ordinance" to order forfeiture of the animals concerned.

The appellants appealed against their conviction on the ground (amongst other grounds) that there was no power to order a forfeiture for contravention of a Rule, as distinct from contravention of the Ordinance.

Held (9-8-56).-(1) A breach of rule 21 of the Animal Diseases Rules is "an offence against this Ordinance" within section 21 of the Animal Diseases Ordinance and that animals in respect of which such offence has been committed are liable to forfeiture.

(2) Where an Ordinance provides general penalties for offences against the Ordinance and neither by the Ordinance nor by a rule made under it is a penalty provided for offences against the rules, the penalties provided for offences against the Ordinance apply also to offences against the rules.

(3) Where, however, an Ordinance provides penalties for offences against the Ordinance, and rules validly made under the Ordinance provide a penalty under section 15 (b) of the Interpretation Ordinance and within the maxim breach of a rule, the penalty provided by the rule prevails as regards breaches of the rules.

(4) Where an additional penalty of a particular kind (e.g. forfeiture) is provided by<br>the Ordinance for offences generally against the Ordinance, that penalty, in the absence of any express provision to the contrary or inconsistency in the context, will apply to an offence against a rule.

Cases cited: R. v. Ledama s/o Chebotani, (1934) 16 K. L. R. 63; R. v. Wawahi s/o Njiri, (1947) 22 K. L. R. Pt. II 61; R. v. Hussein Nasser, (1951) 18 E. A. C. A. 143; Goga s/o Onyaki v. Reg., (1953) 20 E. A. C. A. 333; Willingale v. Norris, (1909) I. K. B. 355;<br>R. v. Walker, (1875) L. R. 10 Q. B. 355; Wicks v. Director of Public Prosecutions, (1947) A. C. 362.

S. R. Kapila for the appellant.

Brookes, Crown Counsel, for the respondent.

The judgment of the Court (O'Connor, C. J., and Connell and Edmonds, J. J.), was delivered by O'Connor, C. J.

**JUDGMENT.—These appeals were consolidated and heard together.** The first appellant was charged on 11th May, 1956, as follows: --

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

The charge against the second appellant was similar in form, but referred to a different quantity of stock. Each of the appellants was found guilty on his

$\mathbf{v}$

own plea and, *in lieu* of any other punishment, the magistrate ordered the stock mentioned in the charge to be forfeited under section 21 (I) of the Animal Diseases Ordinance (Cap. 213).

The charges are not in the proper form in that they do not contain separate statements of the offence with which each appellant was charged, followed by particulars of the offence. They also contain no date upon which the offence is alleged to have been committed and "section 21 (2) (a)" should be "rule 21 (2)". It is the duty of magistrates to examine charges submitted to them and to put them in order before the accused is required to plead to them. The attention of the magistrate is drawn to section 134 of the Criminal Procedure Code and to the specimen charges in the Second Schedule to that Code and to Circular to Magistrates No. 2 of 1955, paragraphs 3 and 4.

One of the grounds of appeal argued before us was that the charges were defective as mentioned above. We think, however, that, though irregular in form, the charges did contain sufficient particulars to inform each accused of the offence charged against each, and their pleas made it plain that they were fully aware of the case each bad to answer. Accordingly, these irregularities have not, in fact, occasioned a failure of justice. Section 381 of the Criminal Procedure Code applies and this ground of appeal fails.

It was next argued that ·the pleas were not unequivocal pleas of guilty. It seemed to us that they clearly were. Neither were we able to agree with another argument of counsel for the appellants that the magistrate had no power to order a forfeiture by reason merely of the fact that he was a second-class magistrate.

· The substantial ground of appeal was that the sentences were illegal. Ground 2 reads:-

"The sentence of forfeiture of the animals which belonged to the accused was not warranted in this case by the provisions of the Diseases of Animals Ordinance in that : -

- (a) The accused was convicted of an offence against the Rules made under the Diseases of Animals Ordinance whereas he was wrongly sentenced under the Ordinance itself. - (b) There is a special rule 67 prescribing a penalty for any offence committed against the said Rules, which does not at all provide for forfeiture of the animals."

Rule 21 (2) of the Rules (Subsidiary Legislation, Vol. VII, page 2934) reads as follows : -

"21 . . . (2). 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 ov~r 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:"

Rule 67 reads as follows : -

"67. Any person who contravenes or fails to comply with any of the provisions of these Rules shall be liable on conviction for every such offence to a penalty not exceeding two thousand shillings or to a term of imprisonment not exceeding two months, or to both such fine and such imprisonment."

Section 21 (I) of the Animal Diseases Ordinance provides:-

"21. (1) Whenever any person shall have been convicted of · an offence against this Ordinance the Court convicting such person may in addition to

or in lieu of imposing any other punishment authorized by law order that the animal, or all or any of the animals in respect of which such offence or breach has been committed, shall be forfeited."

The Animal Diseases Ordinance is concerned with the prevention and control of disease among animals and with measures to control the spread of contagion or infection.· Various obligations are placed upon persons having the care or control of diseased animals and restrictions are imposed on the movement of stock. Several sections of the Ordinance contain provisions that any person who fails to comply with or contravenes the requirements of that section "shall be guilty of an offence against the Ordinance". Section 16 of the Ordinance provides that "any person guilty of an offence under this Ordinance" shall be liable to a fine not exceeding five thousand shillings or to imprisonment not exceeding six months or to both. Section 21 (I), as already mentioned, permits a forfeiture of the animals concerned whenever any person shall have been convicted of "an offence against tliis Ordinance". The power to order forfeiture is not in terms made applicable to offences against the Rules unless, by virtue of the definition of "Ordinance" in section 2 of the Interpretation and General Clauses Ordinance, the word "Ordinance" is to be read as including the Rules. We will return to this point later. Under section 7 of the Ordinance the Minister is empowered to make rules for, *inter alia,* prohibiting or regulating the movement of animals. This power was formerly exercisable and exercised by the Governor in Council and it was for contravention of a rule made by the Governor in Council under this section that the appellants were prosecuted.

Mr. Kapila argues that an offence against a rule is not the same thing as an "offence against this Ordinance", that section 21 does not apply to an offence against a rule and that there is no power to order confiscation in the case of an offence against a rule.

**Mr.** Brookes argues: -

(1) The definition of "Ordinance" in section 2 of the Interpretation and General Clauses Ordinance provides that "Ordinance" shall include any rule made under the authority of an Ordinance and in force: and that provision is mandatory.

(2) Section 15 (b) of the Interpretation and General Clauses Ordinance provides that where an Ordinance confers power on any authority to make subsidiary legislation, there may be annexed to the breach of any subsidiary legislation a penalty not exceeding Sh. 2,000 or a term of imprisonment not exceeding two months. That is a discretionary power.

(3) Where a penalty or imprisonment is annexed to the breach of a rule, that special penalty (or imprisonment) so far as it goes and no further, must override a penalty or imprisonment for breach of any of the rules which may be imported by virtue of the facts that under section 2 of the Interpretation Ordinance "Ordinance" includes "rule" and that the Animal Diseases Ordinance provides punishment for offences against the Ordinance.

(4) Forfeiture is a penalty which is not provided for by any penalty provision in the Rules but the words "offence against this Ordinance" in section 21 of the Animal Diseases Ordinance coupled with the definition of the word "Ordinance" in section 2 of the Interpretation Ordinance apply the penalty of forfeiture to a conviction for an offence against a rule.

It is implicit jn Mr. Brooke's argument that if Rules made under an Ordinance provide no punishment for breach of them, then any punishment provided by the Ordinance for an offence against the Ordinance may be imposed for an offence against the Rules. It would follow that where, as is usual, fines and imprisonment in excess of Sh. 2,000 and two months are provided for offences

against an Ordinance, the rule making authority, by merely refraining from inserting any penalty provision in Rules made under the Ordinance, could ensure that punishments could be given for breaches of the Rules in excess of those indicated by section I *5* (b) of the Interpretation Ordinance as the maxima for which Rules should provide.

The matter is difficult and is not rendered easier by the fact that there are two decisions of this Court on the point which appear to be diametrically opposed and that there have been frequent changes in the legislation.

In *Rex v. Ledama s/o Chebotani,* (1934) 16 **K. L. R.** 63, Lucie-Smith, **Ag. C. J.,** and Horne, **J.,** held that one of the Rules, made under the then Diseases of Animals Ordinance, which purported to permit a fine and imprisonment in excess of the limits permitted by the Interpretation Ordinance to be imposed for breach of a rule, was *ultra vires* the rule-making power. It was also held that confiscation of stock could not be ordered in respect of a contravention of the Rules. An argument to the effect that an offence against the Animal Diseases Ordinance included a breach of the Rules and that a breach of the Rules was subject to the same penalty as an offence against the Ordinance was rejected.

However, in *Rex v. Wawahi s/o Njiri,* (1947) 22 **K. L. R.,** Part II 61, Nihill, C. J., and Coffey, Ag. **J** ., held that an order for confiscation of stock for a breach of rule 21 (2) of the Diseases of Animals Rules was legal. An extract from the judgment reads: -

"As regards the order for confiscation it has been urged that as the penalty rule in the rules provides no such penalty such an order cannot be made for an offence against the rule. Under section 21 (I) of the Diseases of Animals Ordinance, however, it is laid down whenever a person has been convicted for an offence against the Ordinance the Court convicting may, in addition to imposing any other punishment authorized by law, order that any animals in respect of which an offence has been committed shall be forfeited, and by section 2, subsection 26, of the Interpretation and General Clauses Ordinance an Ordinance is defined as including any rule or regulation made under the authority of an Ordinance.

It is thus clear that the magistrate, although in his judgment he misquoted his authority, had in fact the power to order confiscation."

*Ledama's* case *(supra)* does not appear to have been mentioned to the learned Judges who decided *Wawahi's* case.

It is usual in Kenya Ordinances to provide for penalties for offences against the Ordinance either in the section creating the offence or in a general section; and to give power to make rules or regulations without specifying in the Ordinance a penalty for breach of the rules. The rules or regulations themselves commonly contain a penalty provision similar to rule 67 of the Diseases of Animals Rules, such penalty provision being inserted either under a power contained in the Ordinance or, much more commonly, under the power conferred by section 15 (b) of the Interpretation Ordinance.

In *Rex v. Hussein Naser,* (1951) 18 E. A. C. A. 143, Naser had been convicted by a magistrate of moving cattle and goats without a permit contrary to rule 21 (I) and (2) of the Diseases of Animals Rules. He had appealed to the Supreme Court and had succeeded, on the ground that no offence had been committed, since the Diseases of Animals Ordinance from which the rules were derived contained only one section (section 15) specifically creating an offence against the Ordinance and lacked an omnibus section declaring that any contravention of the provisions of the Ordinance was an offence against the Ordinance. This decision of the Supreme Court in the face of section 15 (b) of the Interpretation Ordinance and rule 67 was a remarkable decision and one which, if it had stood, would have had a far-reaching effect. If not corrected, it would have stultified section I 5 (b) of the Interpretation Ordinance and various general penalty clauses in rules which depend on that section. From that decision the Crown appealed. The Court of Appeal· for Eastern Africa allowed the appeal and held that by reason of section I *5* of the Interpretation and General Clauses Ordinance, penalties could be imposed under the rules notwithstanding the lack of an omnibus section in the Ordinance, and that this was not (as the Supreme Court had held) inconsistent with the provisions of the Ordinance.

The legislature, meanwhile (no doubt alarmed at the implications of the decision of the Supreme Court in *Hussein Naser's* case and having regard to the contrary dec-isions in the cases of *Ledama* and *Wawahi (supra))* took occasion to resolve doubts and settle the law by legislation. By the Animal Diseases (Amendment) Ordinance, 1950 (Ordinance 51 of 1950), provisions were inserted in four other sections of the Animal Diseases Ordinance stating that contravention of them was an offence against the Ordinance and, by section 8, it was provided *inter a/ia* that the Governor in Council had power to annex a penalty, not exceeding Sh. 2,000 or two months' imprisonment or both, to the breach of a rule made for any of the purposes mentioned in section 7 of the Animal Diseases Ordinance and that rule 21 of the Animal Diseases Rules was valid and that the moving of cattle, swine, sheep or goats contrary to it was an offence rendering the owner and the person in charge of the stock liable to a penalty or fine not exceeding £100 (Sh. 2,000) or two months' imprisonment or both. The penalties mentioned in section 8 are the maximum penalties allowed for breach of a rule by section 15 (b) of the Interpretation Ordinance and are less than the maximum penalties allowed by section 16 of the Animal Diseases Ordinance for offences against that Ordinance. The legislature thus, in 1950, evinced a clear intention that a breach of a rule made under section 21 should be punishable to the extent mentioned in section 15 (b) of the Interpretation Ordinance and no more.

The interpretation of rule 21 of the Animal Diseases Rules came before the Court of Appeal for Eastern Africa again in I 953 in *Goga s Io Onyaki v. Reg.,* (1953) 20 E. A. C. A. 333. In that case the appellant had been convicted of an offence against rule 21 (2) of the Animal Diseases Rules and the magistrate had ordered a forfeiture of 22 head of cattle under section 21 (I) of the Animal Diseases Ordinance. The Court quoted *in extenso* section 8 of the Animal Diseases (Amendment) Ordinance, 1950 (referred to above) and held:-

(1) The word "Ordinance" in section 16 of the Animal Diseases Ordinance means Ordinance only and no longer includes rules.

(2) Section 21 (1) now (that is in 1950) applies only to offences under the Ordinance.

(3) Offences under the Animal Diseases Rules are minor in character to those under the Ordinance.

(4) The definition of Ordinance in section 2 of the Interpretation Ordinance does not apply to section 21 of the Animal Diseases Ordinance.

The forfeiture was set aside and the case remitted to the magistrate to impose sentence under rule 67 of the Animal Diseases Rules.

In their judgment the Court of Appeal, after tracing the history of the legislation and mentioning the authorities, continued: -

The important point which emerges from the legislation is ~hat the principal legislature has now specifically departed from the original intention expressed in section I 6 of the Ordinance. The word "Ordinance" in section 16 now clearly means Ordinance only and does not include rules. This section in the latest Revised Edition, viz. that of 1948, reads as follows: -

"16. Any person guilty of an offence under this Ordinance shall be liable to a fine not exceeding three thousand shillings or to imprisonment not exceeding six months or to both."

Ordinance $51/1950$ does not specifically enact that section 16 does not apply to rules but the inference is clear, for the legislature now enacts that the penalties set out in section 15 (formerly section 9) of the Interpretation Ordinance apply. These penalties are lighter than the ones set out in section 16 of the Animal Diseases Ordinance (now Cap. 213). The maximum fine is Sh. 2,000 as compared with Sh. 3,000 and the maximum imprisonment is two months as compared with six months. Thus, offences against the Rules which in the 1906 legislation were on the same level of gravity as offences against the Ordinance are now placed on a lower level and become lesser offences. It should also be noted in this connexion that Ordinance 51/1950 makes new offences under the Ordinance. Whereas formerly there was only one offence under the Ordinance, viz. under section 15, there are now five, viz. under sections 3, 5, 6, 14 and 15. These new offences have been created by merely adding in each case a new subsection to the original section making a contravention of it an offence. Thus as regards offences and penalties it is apparent that the legislature has basically altered its original intention.

The only question which now remains is whether or not that alteration applies to section 21 (1) of Cap. 213, which reads as follows:-

"21. (1) Whenever any person shall have been convicted of an offence against this Ordinance the Court convicting such person may in addition to or in lieu of imposing any other punishment authorized by law order that the animal, or all or any of the animals in respect of which such offence or breach has been committed shall be forfeited."

(Here again the words "or breach" are, as in the 1926 Revision, wrongly included.)

In the light of Ordinance 51/1950 and the inferences drawn from it, Mr. Malik's contention that section 21 (1) of Cap. 213 now only applies to offences against the Ordinance is sound. The word "Ordinance" in section 16 no longer includes rules, and offences under the rules are now of a minor character, compared with offences under the Ordinance. It follows that the definition of "Ordinance" in section 2 of the Interpretation Ordinance (Cap. 1) does not now apply to section 21 of Cap. 213 for there is in the subject and context of the latter Ordinance matter inconsistent with such a construction. Section 21 accordingly now applies only to offences under the Ordinance.

Thus the law, which had caused doubts and difficulties for nearly 20 years, was settled in 1950 by section 8 of the 1950 Ordinance applied by the Court of Appeal in *Goga's* case. In 1954, however, by the Animal Diseases (Amendment) Ordinance, 1954 (Ordinance 47 of 1954), the legislature repealed section 8 of the Animal Diseases (Amendment) Ordinance, 1950, and with it went the basis of the decision of the Court of Appeal in Goga's case. The matter is now in the melting pot again. We do not know why the legislature effected this repeal, and it would be dangerous to attribute to it an intention which may be incorrect. It seems clear that, but for section 8 of the 1950 Ordinance, the Court of Appeal for Eastern Africa in Goga's case would have held that "an offence under (or against) this Ordinance" in sections 16 or 21 of the Animal Diseases Ordinance<br>included a breach of one of the Animal Diseases Rules. They say, e.g., "The important point which emerges from the legislation is that the principal legislature has now departed from the original intention expressed in section 16 of the

Ordinance"; and "In the light of Ordinance 51/50 and the inferences drawn from it, Mr. Malik's contention that section 21 (1) of Cap. 213 now only applies to offences against the Ordinance is sound. The word 'Ordinance' in section 16 no longer includes rules. ... "It is clear that the Court was of opinion that before the passage of Ordinance 51/50 "Ordinance" in section 21 (1) and section 16 of Cap. 213 did include "rule".

In Willingale v. Norris, (1909) 1 K. B. 57 (C. A.) it was held that where a statute gives power to an authority to make regulations, a breach of the regulations so made is an offence against the provisions of the statute.

Lord Alverstone, L. C. J., said at page 64: -

"If it be said that a regulation is not a provision of an Act, I am of opinion that Rex'v. Walker, (1875) L. R. 10 Q. B. 355 is an authority against that proposition. I should certainly have been prepared to hold apart from authority that, where a statute enables an authority to make regulations, a regulation made under the Act becomes for the purpose of obedience or disobedience a provision of the Act. The regulation is only the machinery by which Parliament has determined whether certain things shall or shall not be done."

Bigham, J., said at page $66:$ —

"By section 19 of the Act of 1853 it is provided that 'for every offence against the provisions of this Act for which no special penalty is hereinbefore appointed the offender shall be liable to a penalty not exceeding forty shillings.' How are the words 'against the provisions of this Act' to be read? The two statutes are to be construed as one. In my opinion, to break the regulations made under the authority of a statute is to break the statute<br>itself, and, therefore, section 19 of the London Hackney Carriage Act, 1853,<br>must be read thus: 'For every offence against the regulations promulgat under these two Acts, which are to be read as one, a penalty not exceeding forty shillings may be imposed'."

### Walton, J., said at page $67:$ —

"That section gives power to make regulations, and I think there is involved in this that regulations so made must be obeyed, and if so it follows that a breach of such regulations is a breach of the law contained in that section. Section 4 of the Act of 1850 is made a provision of the Act of 1853, and therefore I think that the alleged offence was one 'against the provisions of this Act' within the meaning of section 19 of the Act of 1853. My difficulty has been—and I had considerable doubt about it at first—as to whether the words 'provisions of this Act' can be read as meaning or including 'regulations made under this Act', assuming that the regulations were made under this Act, i.e. under the Act of 1853; whether there is not a distinction between provisions of the Act and regulations made under the Act; and whether one can read section 19 of the Act of 1853 as if the words were 'for every offence against the provisions of this Act, or regulations made under this Act'. The doubt largely arises from the fact that in the Act of 1853 there is a series of provisions, e.g. in sections 14, 15 and 16, which are express provisions of the Act, and to which directly and naturally, the words of section 19 apply. My doubt is whether section 19 was intended to apply to anything beyond offences against express provisions contained in the Act of 1853. However, on the whole I have come to the conclusion that it applies to any breach of what must be construed as being a provision of the Act of 1853. In my judgment an offence against section 4 of the Act of 1850 is an offence within the meaning of section 19 of the Act of 1853."

In Wicks v. Director of Public Prosecutions, (1947) A. C. 362, Wicks had been convicted of an offence against a Defence Regulation which was in operation when the offence was committed but which had expired before he was tried. Lord Simon, L. C., said at page 365:—

"There is, of course, no doubt that when a statute like the Emergency Powers (Defence) Act, 1939, enables an authority to make regulations, a regulation which is validly made under the Act, i.e. which is *intra vires* of the regulation making authority, should be regarded as though it were itself an enactment. As the Court of Criminal Appeal in its judgment has pointed out, that was decided in *Willingale v. Norris*, (1909) 1 K. B. 57 and it appears to me that that authority is perfectly correct. Consequently, the charge against the appellant here was that he had committed crimes defined or contained in the Act of Parliament."

Willingale v. Norris (supra) was noticed with approval by the Court of Appeal for Eastern Africa in Rex v. Hussein Naser (supra).

In view of these authorites and the repeal of section 8 of the Animal Diseases (Amendment) Ordinance, 1950, we hold that a breach of rule 21 of the Animal Diseases Rules is "an offence against this Ordinance" within section 21 of the Animal Diseases Ordinance, and that animals in respect of which such offence has been committed are liable to forfeiture

It is unnecessary for the decision of the instant case for us to decide whether the penalties of fine not exceeding Sh. 5,000 and imprisonment not exceeding six months which are applied to offences against the Animal Diseases Ordinance by section 16 of that Ordinance would be applicable to breaches of the rules: but it may be of use if we express an opinion on this point. In *Willingale* $v$ . *Norris (supra)* there was no penalty clause in the regulations, so that no question arose of a conflict between maximum penalties provided by the Act for offences against the Act and maximum penalties provided by the regulations for offences against the regulations. If, as stated by Lord Simon in Wick's case (supra), a regulation validly made under a statute should be regarded as though it were itself an enactment, then rule 67 of the Animal Diseases Rules must be regarded as itself an enactment, and if there is a conflict between this and section 16 of the Ordinance, this must be resolved by the application of ordinary canons of construction and the provisions must be reconciled if possible. It would appear that the only way of giving effect to both these provisions would be to hold that the effect of the enactment of a special penalty applicable to offences against the rules is to limit the application of section 16 to offences against the Ordinance. "Ordinance" under section 2 of the Interpretation Ordinance only includes "rule" if there is nothing in the context inconsistent with that construction or if it is not otherwise expressly provided.

The position is different as regards section 21 of the Ordinance, for there, there is no conflicting rule.

The position, therefore, appears to be: $-$

Where an Ordinance provides general penalties for offences against the Ordinance and neither by the Ordinance nor by a rule made under it is a penalty provided for offences against the rules, the penalties provided for offences against the Ordinance apply also to offences against the rules.

Where, however, an Ordinance provides penalties for offences against the Ordinance, and rules validly made under the Ordinance provide a penalty under section 15 $(b)$ of the Interpretation Ordinance and within the maxima laid down by that section for a breach of a rule, the penalty provided by the rule prevails as regards breaches of the rules.

Where an additional penalty of a particular kind (e.g. forfeiture) is provided by the Ordinance for offences generally against the Ordinance, that penalty, in the absence of any express provision to the contrary or inconsistency in the context, will apply to an offence against a rule.

In the result, the appeals against conviction and legality of the sentences must be dismissed.

As to the sentences: All the animals mentioned in the charge against each appellant were forfeited, i.e. Malinda had 22 head of cattle forfeited and Muinda had 57 head of cattle, 17 calves· and 33 sheep and goats forfeited. No enquiry was made by the magistrate as to the means of the appellants or whether these forfeitures would, or would not, reduce the appellants or either of them to penury. In the absence of such enquiry, we can only guess at the proper penalties and, in order to be on the safe side, we propose to reduce them by half.

The forfeiture orders are, accordingly, set aside and, in lieu thereof, we • impose forfeiture orders as follows: -

Malinda 11 head of cattle.

Muinda 28 head of cattle, 8 calves and 17 sheep and goats.

The balance of the animals (or their proceeds if sold) must be returned to each appellant respectively.