Mbiu v Rex (Criminal Appeal No. 406 of 1951) [1951] EACA 130 (1 January 1951)

## APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J., and BOURKE, J.

KOINANGE MBIU, Appellant (Original Accused)

REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 406 of 1951

(Appeal from decision of 1st Class Magistrate's Court at Kiambu-

## D. O. Brumage, Esq.)

African-grown Coffee Rules, 1949 (G. N. 1172/49), Rule 3 (1)-Whether ultra *vires*—Crop Production and Livestock Ordinance, section 4 (Cap. 205)—. Interpretation (Definition of African and Native) Ordinance (55 of 1934)-Royal Instructions, 1934, article 34—Coffee Industry Ordinance, section 13 (Cap. 201)—Coffee (Marketing) Ordinance (Cap. 202).

The Agricultural Officer, Kiambu, swore and signed a complaint containing full particulars of the offence alleged but a formal charge was not drawn up: the complaint alleged that Koinange Mbiu grew coffee or coffee seedlings outside "Schedule A" without permission contra rule 3 (1), African-grown Coffee Rules (G. N. $1172/49$ ) and under 4 (d) and 5 of the Crop Production and Livestock Ordinance (Cap. 205 of the Laws of Kenya). The appellant pleaded "I admit the offence" and was fined Sh. 100 and the seedlings confiscated.

It was urged that rule 3 (1) exceeds the power to make rules given to the Governor in Council under section 4, Cap. 205. Section 3 (1) states "No coffee shall be grown by an African except on a plantation approved by the Director and situated in one of the areas set out in ... Schedule A to these rules".

Held $(1-10-51)$ .—(1) The irregularity in failure to frame a charge can hardly be said to have occasioned a failure of justice.

(2) Though an accused may admit an offence that factor still left it open for decision whether the act complained of amounted to an offence.

(3) Rules and by-laws made under statutory powers must be not unreasonable, nor<br>in excess of statutory power nor repugnant to that statute or to the general principles of law.

(4) Section 4 of Cap. 205 clearly enables the Governor in Council by subsidiary legislation to fix by name area or areas to which rules for controlling and improving crop production and marketing as particularly set forth in the section shall be applicable.

(5) There is nothing in the section enabling rules to be made limited in their application to a particular race or class in the community.

(6) By rule 3 (1) an African is placed under a restriction inapplicable to a European or Asian for though an African (like a European or Asian) may plant coffee on land to which section 13 (Cap. 201) applies provided he is in possession of a coffee licence under<br>section 13 of the Coffee Industry Ordinance (Cap. 201) yet his right to do so is taken<br>away by rule 3 (1) African-Grown Coffee Rule

(7) Section 4 of the Crop Production Ordinance (Cap. 205) provides that the Governor in Council may make rules which *shall be applicable* to such area or areas as may be named therein for purposes set out such as declaring the kind of crop affected, improving the cultural conditions and methods of production specifying any particular kind of crop that may or may not be grown, etc.

(8) Section 3 (1) comes under the heading "Growing of Coffee" and sub-heading "Areas to be defined in which Coffee may be Grown" and is apparently devised for purposes provided by section 4 $(d)$ (Cap. 205). The rule is no from growing coffee anywhere outside the said named areas.

(9) Though the powers granted by the legislation only enables rules to be made which shall be applicable to such area or areas as may be named therein, here is a rule which is made applicable to an area which is not named in the rules, i.e. the whole area of<br>the Colony less the areas named in Schedule A; further the rules purports to impose a restriction upon particular persons, viz., Africans, though there is nothing in section 4 either expressly or impliedly empowering the making of such a distinction.

(10) In the result the rule was declared ultra vires.

Cases referred to: Gray v. R. 2 L. R. E. A. (1907) 40; R. v. Timotheo Walganjo Wa<br>Muni & Another 6 C. A. E. A. (1939) 79; Commissioner for Local Government, Lands and Settlement v. Kaderbhai 12 K. L. R. (1930) 12; Fielding v. Rex 26 Cr. A. R. 211.

Chanan Singh for appellant.

Boyle, Crown Counsel, for Crown.

JUDGMENT.—The proceedings out of which this appeal arises were instituted by the making of a sworn complaint in writing by an Agricultural Officer to the Magistrate holding the subordinate Court of the first class at Kiambu. The complaint was signed by the complainant and the Magistrate in accordance with the provisions of section 89 (3) of the Criminal Procedure Code but there was a failure to draw up and sign a' formal charge as required by the succeeding sub-section. It appears that the complaint, which contains full particulars of the offence alleged, was treated as a formal charge and that the appellant was required to plead thereto. The irregularity has not been entered as a ground of appeal upon the petition of appeal, and though an attempt was made to introduce such ground in the course of the hearing it was abandoned upon the objection being taken by Crown Counsel, who referred to the case of Gray v. R., 2 L. R. E. A. (1907) 40 in which it was held that it was not open to an appellant to argue on a ground of appeal not specifically set out in the petition of appeal. It can be said, however, that there is no doubt that the appellant was made fully aware of the provisions of the law against which he was alleged to have offended and the particulars of the offence being charged; he is accordingly hardly in a position to suggest with any force that having regard to section 381 of the Criminal Procedure Code, the irregularity has in fact occasioned a failure of justice.

The complaint reads as follows: —

"That, on July 3rd, 1951, a nursery of some 10,000 coffee seedlings was located upon the land of one Koinange Mbiu at Kiambaa in Kiambu District of the Kikuyu Land Unit. That the said Koinange Mbiu is an African as defined under the African Grown Coffee Rules, G. N. 1172/49. That the Coffee in question is *not* being grown on a plantation approved by the Director of Agriculture and situated in an area set out in Schedule A of the Rules; and that the said Koinange Mbiu is therefore guilty of growing coffee without permission contra Rule 3 (1) of the African Grown Coffee Rules G. N. $1172/49$ and under sections 4 (d) and 5 of the Crop Production and Livestock Ordinance (Cap. 205) L. of K."

In answer thereto the appellant said: "I admit the offence"; he was convicted upon his plea and sentenced to pay a fine of Sh. 100, an order of confiscation of the coffee seedlings being made.

The sole ground of appeal against the conviction is that the offence of which the appellant has been convicted is no offence in law since rule 3 (1) of the African-grown Coffee Rules, 1949, exceeds the powers to make rules given to the Governor in Council under section 4 of the Crop Production and Livestock Ordinance (Cap. 205).

At the outset objection to the appeal was taken by Crown Counsel on the ground that since the appellant had been convicted on a plea of guilty, he could under section 348 (1) of the Criminal Procedure Code only appeal as to the extent and legality of the sentence. That submission, which strangely enough was but faintly contested, was acknowledged to be without foundation upon the Court bringing to the notice of learned Counsel the case of R. v. Timotheo Waiganjo wa Muni and Another, 6 C. A. E. A. (1939), 79, which affords the clearest authority against the proposition. In that case it was held that in saying "I admit the offence" each appellant pleaded unequivocally that he had committed the act complained of, but that left it open for decision on the appeal as to whether that act amounted to an offence, which it did not for the reason that the order alleged to be infringed was *ultra vires*.

Section 4 of the Crop Production and Livestock Ordinance (Cap. 205) reads:-

"The Governor in Council may from time to time make rules which shall be applicable to such area or areas as may be named therein for the following purposes—

- (a) declaring the kind of crop or agricultural produce which shall come under the operation of this Ordinance; - $(b)$ improving the cultural conditions of any crop, also the methods of its production, and the prevention of its destruction or waste; - (c) improving the quality of any agricultural produce; - (d) specifying any particular kind of crop, tree, or plant or variety thereof, as the kind or kinds which may or may not be grown or which may or may not be destroyed; - (e) the destruction of any diseased crop or agricultural produce with $\acute{o}$ r without compensation to owner or owners thereof; - $(f)$ assisting and if necessary, controlling transportation, grading, preparation for market and marketing of any crop or agricultural produce; - $(g)$ the inspection of any crop or agricultural produce; - $(h)$ the regulation, licensing and control of trading in any agricultural produce or crop; - (i) for defining or limiting the number, kind, ages and sexes of the livestock to be carried on any area; - (j) for promoting the improvement of the quality of the livestock in any $(j)$ area and preventing losses from disease or other cause; - $(k)$ for the disposal of surplus and undesirable livestock; - (1) for fixing and collecting fees and charges in connexion with the operations of this Ordinance; - $(m)$ generally for carrying out the provisions of this Ordinance."

The African-grown Coffee Rules, 1949, purport to be made in exercise of the powers conferred by that section and it is provided by rule 1 that they "shall, subject only to the specific provisions of these rules apply to all coffee grown by Africans in any place in the Colony". For the purpose of the rules the word "African" has under Rule 2 the meaning assigned to it by section 2 of the Interpretation (Definition of African and Native) Ordinance (No. 55 of 1934). Rule 3 (1), the infringement of which by the appellant is alleged to have amounted to an offence, is preceded by the sub-heading "Areas to be Defined in which Coffee may be grown" and is as follows: $-$

"3. (1) No coffee shall be grown by any African except on a plantation approved by the Director and situated in one of the areas set out in the $\mathcal{M}_{\mathcal{A}} = \mathcal{A} \oplus \mathcal{A} \oplus \mathcal{A}$ first column of Schedule A to these rules."

... The proviso to the sub-rule need not detain us. Rule 3 (2) provides that no African shall in any of the same Scheduled areas grow any variety of coffee other than that specified in the Schedule, namely "Coffee Arabica". By rule 6 an African is prohibited from growing coffee unless he is in possession of a permit and a licence and the four rules following impose restrictions upon the African as to the growing of coffee in a "nursery", the disposal of coffee for seed purposes, the way in which he may grow coffee and the importation of coffee seed or seedlings into the Colony.

It is argued for the appellant that rule 3 (1) exceeds the rule-making powers conferred by section 4 of the Ordinance and that its validity is further to be impugned on the ground that it is repugnant to and in disregard of a provision of one of the constitutional Instruments of the Colony, namely, article 34 of the Royal Instructions of 1934. That article provides that: —

"The Governor shall not (except in the cases hereunder mentioned) assent in Our name to any Bill of any of the following classes....

9. Any Bill whereby persons not of European birth or descent may be subjected or made liable to any disabilities or restrictions to which persons of European birth or descent are not also subjected or made liable. ...

unless the Governor shall previously have obtained our instructions upon such Bill through one of our Principal Secretaries of State, or unless such Bill shall contain a clause suspending the operation of such Bill until the signification of our pleasure thereupon, or unless the Governor shall have satisfied himself that an urgent necessity exists requiring that such Bill be brought into immediate operation, in which case he is authorized to assent in Our name to such Bill, unless the same shall be inconsistent with any obligations imposed upon Us by Treaty. But he is to transmit to Us, by the earliest opportunity, the Bill so assented to, together with his reasons for assenting thereto."

The general principle is well known but may be restated—"Rules and bylaws made under statutory powers enforceable by penalties are construed like other provisions encroaching on the ordinary rights of persons. They must on pain of invalidity, be not unreasonable, nor in excess of the statutory power authorising them, nor repugnant to that statute or to the general principles of law" (Maxwell, 8th Edn., p. 260).

Now section 4 of the Ordinance clearly enables the Governor in Council by subsidiary legislation to fix by name an area or areas in the Colony to which rules for the purposes of controlling and improving crop production and livestock and the marketing thereof, as more particularly set forth in the section, shall be applicable. There is nothing however in the words of the section expressly or in terms enabling rules to be made limited in their application to a particular race or class of persons in the community. That much is not and could not be disputed. But it is submitted that though the rule in question may give the appearance of legislation directed towards restricting the rights of a particular race in effect this is not so or at least is only an indirect consequence of a rule that is within the rule-making powers. The argument is that in accordance with the powers conferred areas have been named under the rule and are described in Schedule A. These areas, it is said, constitute parts of the "native lands" locations or reserves given over solely to Africans for residence and cultivation; consequently in fixing such areas, a perfectly legal thing to do, and in promulgating a restrictive provision applicable to such areas, the fact that only Africans would be affected thereby is incidental and there is no excess in the exercise of legislative power. In other words because Africans only occupy the areas named, a restrictive provision that "No African" shall do this or that in such areas is simply tantamount to enjoining that "No person shall do this or that in such areas" and accordingly the rule is not open to objection as being ultra vires. This contention does not take note of those restrictions in the rules, with which the Court is not now directly concerned, evidently affecting Africans who do not reside inside the areas named. But granting for the purpose of the argument that the areas named in Schedule A form part of "the native lands" and are occupied only by Africans, it seems quite apparent that the submission, though it might avail to uphold rule 3 (2) with which we are not concerned, really goes to avoid the whole question, Rule 3 $(1)$ read with section 5 of the Ordinance purports to make it an offence for any African to grow coffee in any area that is not situated within one of the areas named in Schedule A. The appellant as an African is charged under the rule with growing coffee *outside* the scheduled areas; so by rule 3 (1) he is placed under a restriction inapplicable to the European or Asian who may plant and maintain a coffee plantation outside the native lands, provided he is in possession of a licence issued by the Coffee Board under section 13 of the Coffee Industry Ordinance (Cap. 201) which has been brought to the notice of the Court by Crown Counsel together with the Coffee (Marketing) Ordinance (Cap. 202) as being the only other enactments affecting the cultivation and disposal of coffee. Let it be recognized that section 13 of the Coffee Industry Ordinance by virtue of sub-section 5 thereof does not apply to any coffee plantation in "the native lands". What then is the effect of this section? It is that any person may plant or maintain any coffee plantation provided he is in possession of a licence; the sole qualification for the planting of a coffee plantation would seem plainly to be the possession of a licence issued in its discretion by the Coffee Board in respect of such plantation—and see the definition in section 2 of "Coffee planter" (referred to in sub-section 4) and also of "coffee plantation" (referred to in sub-section 1). There is nothing $\mathbf{in}$ this Ordinance to exclude the planting of coffee by by an African, all he need do is to obtain a licence, though in practice it may well be that he would not obtain a licence. Two consequences appear to flow from this— (1) If an African planted a coffee plantation outside "the native lands" and was not in possession of the necessary licence, he would have committed an offence *contra* section 13 (1) of the Ordinance, punishable under section 21 and, (2) though an African may plant coffee on land to which section 13 applies provided he is in possession of the required licence, the right to do so is taken away by rule 3 (1) of the African-grown Coffee Rules, 1949, which is thus seen to come into apparent conflict with the Ordinance (Cap. 201).

Two further arguments, which may be briefly dealt with, are put forward in support of the validity of the rule. First it is said that the Court is being asked to concern itself with a question of policy—how legal powers shall be exercised—rather than with a bare question of law. In support reference has been made to the decision of Their Lordships of the Privy Council in The Commissioner for Local Government, Lands and Settlement v. Kaderbhai, 12 K. L. R. (1930) 12. In that case an Asian moved by *mandamus* to compel the Commissioner to allow him to bid for and purchase at an auction sale town plots of land being Crown property, the Commissioner having given notice that only Europeans were to be allowed to bid and purchase. It was held that the applicant was not entitled to a granting of the rule for prima facie the Crown and the servants of the Crown exercising the right of disposing of Crown property have at least the rights of private owners of making the disposition in any way that appears to them to be in the best interests of the Crown. The words "sell by auction" in section 18 of the Crown Lands Ordinance are not confined to selling without restriction, but do involve the power to sell by restricted auction. The Court was concerned only with the bare question of law, viz., the powers of the Commissioner under the Ordinance, and not with any question of policy, or, in other words, how the legal powers shall be exercised.

But in the instant case the Court concerns itself solely with the bare and familiar question of law as to whether a rule is legally made as being within the rule-making powers conferred by the Legislature, in short, whether or not it is *ultra vires*. Manifestly a decision upon the ground of appeal raised involves no consideration of policy and still less any pronouncement or expression of opinion as to how the legal powers should be exercised. It is difficult to appreciate how learned Counsel for the Crown could see fit to put forward the submission, which is as surprising as the proposition advanced that the ground of appeal, as stated in the petition of appeal, is open to objection as being vague and unsatisfactory in that it gives insufficient indication as to the ground in law for alleging that the rule is *ultra vires*: reference was made in support to the wholly irrelevant case of *Fielding v. Rex*, 26 Cr. A. R. 211, reported for the observations made by the Court on the necessity for particulars of alleged misdirection or non-direction to a jury appearing in grounds of appeal. It is alleged in the petition that there is no offence in law as the rule under which the conviction was entered is invalid as being in excess of the powers given to the Governor in Council by section 4 of the Crop Production and Livestock Ordinance. We cannot see what more the appellant could reasonably be asked to set down in order to give a fair indication of the lines of his argument.

Finally, there is the robust assertion that the powers conferred by section 4 of the Ordinance enable the Governor in Council by rule to allow or prohibit the growing of coffee in any area by any particular section of the community— African, Asian or European; accordingly, as we are made to understand it, rule 3 (1) is intra vires as allowing Africans to grow coffee inside the areas named in Schedule A and prohibiting them from so doing in the remaining outside area. It is necessary to examine the section. It is provided that the Governor in Council may from time to time make rules which shall be applicable to such area or areas as may be named therein for the purposes set out in the paragraphs that follow, such as declaring the kind of crop affected, improving the cultural conditions and methods of production, specifying any particular kind of crop or variety of crop that may or may not be grown and so on. Now what is it that rule 3 (1) purports to do? It comes under the heading "Growing of Coffee" and the sub-heading "Areas to be defined in which Coffee may be Grown", and is apparently devised for the purpose provided for by section 4 $(d)$ of the Ordinance. The rule is not merely declaratory of a right to grow coffee (on an approved plantation) within the areas named under the rules, but it prohibits under penalty (see section 5 of the Ordinance) any African from growing coffee anywhere outside the said named areas. So though the powers granted by the Legislature only enable rules to be made which *shall be applicable* to such area or areas as may be named therein, here is a rule which is made applicable to an area which is not named in the rules, that is to say, the whole area of the Colony less the areas named in Schedule A; and further than that the rule purports to impose a restriction upon particular persons, viz., Africans, though there is nothing in section 4 either expressly or impliedly empowering the making of such a distinction. In the opinion of this Court the rule is clearly invalid as being ultra vires section 4 of the Ordinance and we so hold. Having come to that conclusion it is unnecessary to deal with the further submission based upon article 34 of the Royal Instructions of 1934.

The appeal is allowed and the conviction and sentence set aside.