Mohamed v Rex (Criminal Appeal No. 512 of 1949) [1950] EACA 98 (1 January 1950)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J., and MODERA, J.

### ISMAIL MOHAMED, Appellant (Original Accused)

v.

# REX, Respondent (Original Prosecutor) Criminal Appeal No. 512 of 1949

# (Appeal from the decision of the First Class Magistrate's Court at Nairobi-R. C. Laming, Esq.)

## Criminal libel—English law and Penal Code distinguished—Section 190, 191, 193 Penal Code interpreted—Elements of offence discussed.

The appellant, a priest of Kibera, published in Arabic a notice containing allegations that the Sudanese Association was corrupting Muslim youths by starting activities contrary to Mohamedan law such as drinking and dancing. He was found guilty by the Lower Court of publishing a libel under section 190.

Held $(6-11-50)$ .-(1) There is a fundamental difference between the English law and Indian (now the Kenya) Penal Code regarding libel. Under the former law the gist of the offence was its tendency to provoke a breach of the peace, under the latter its essence was to lies<br>so as to cause pain; under the former there is the element of "falsely", "maliciously" or<br>"knowledge" thereof, on the part of the

(2) The document contained matter likely to expose the association to hatred, contempt or ridicule.

(3) An association was a person within the interpretation and General Clauses Ordinance.

(4) Though nowhere in the Code is there provision for a plea of "justification" yet the Court proceeded on a finding that the statements were untrue.

(5) Nowhere in the trial did the Lower Court deal with the question of "intent to defame" and no finding on that ingredient was recorded; there was merely an argument that lack of bona fides was the equivalent of intent to defame.

(6) It was unsafe to allow the conviction to stand.

#### Madan for appellant.

A. R. Kapila for respondent.

JUDGMENT.—The appellant, the Iman or Priest of Kibera, was charged in the First Class Magistrate's Court at Nairobi with the publication of defamatory matter concerning the Sudanese Association of Kibera contra section 189 (now 190) Penal Code: he was convicted and sentenced to pay a fine or in default of payment to a term of imprisonment with hard labour and in addition was ordered to pay costs to the Prosecutor.

Our first observation is that no former charge appears to have been drawn up or signed, the Magistrate contenting himself with an endorsement on the affidavit of the complainant to the effect that a summons was to be issued to the accused to answer a charge against him under section 189 Penal Code.

At the hearing the learned Magistrate recorded these words: —

"The information on oath of the complainant Ramathan Marjan is read to the accused and the charge is fully explained to him by the Court."

Bearing in mind sections 90 (2) and 205 (1) C. P. C. it would seem that we are left to presume that the Magistrate explained to the accused section 189 (now 190) Penal Code. No argument was however addressed to us on this aspect of the case which in our view will assume importance in view of what we have to say hereafter.

Against his conviction the appellant has lodged this appeal and his learned advocate has crystallized the grounds enumerated in the memorandum into three headings.

- Firstly.—Was there a libel at all and does the document complained of (exhibit 1) come within the provisions of section 190 (now 191) Penal Code? - Secondly.—Is the Sudanese Association of Kibera capable of being libelled? Is the Association a person within the meaning of section 5 Penal Code? - *Thirdly.*—If the Association is a "Person" was the occasion privileged within the meaning of section 194 (now 195) of the Penal Code?

Before dealing with the grounds of appeal *seriatim* we would draw attention to the important fact that the law of Criminal Libel, applicable in this Colony is comprised in Chapter XVIII of the Penal Code: in that chapter are eight sections all of which call for a careful study before an accused person is to be convicted of criminal defamation.

An analysis of the chapter we have just quoted reveals that the Legislature has adopted much that was incorporated in the Indian Penal Code which was in force in this Colony prior to the Penal Code and which ceased to be applied upon the introduction to the Colony of the latter code. It is important to bear in mind that there was and is a fundamental difference in the standpoints of English and Indian law on this subject, for whereas under English law the gist of the offence of defamatory libel is said to lie in its tendency to provoke breach of the peace, the Indian code regards its essence to lie in its tendency to cause that description of pain which is felt by a person who knows himself to be the object of the favourable sentiments of his fellow creatures and those inconveniences to which a person who is the object of such unfavourable sentiments is exposed.

We have said enough we hope to intimate that it is the provisions of the Penal Code as applicable here which are in point and should have been present to the mind of the learned Magistrate in the Lower Court, and to the learned Advocates engaged in the case.

Section 190 (formerly 189) Penal Code reads as follows: -

"Any person who, by print, writing, painting, effigy, or by any means otherwise than solely by gestures, spoken words, or other sounds, unlawfully publishes any defamatory matter concerning another person, with intent to *defame* that other person, is guilty of the misdemeanour termed 'libel'."

We would observe that there is in that section no reference to "falsely" or to "maliciously" or to the "knowledge on the part of the publisher of the falsity or otherwise of his statements", all of which are ingredients of the charge of defamation in the United Kingdom. There is however the significant phrase "with" intent to defame".

The next sections which require specific attention and which we do not propose to set out in extenso are section 191 (formerly 190) defining "defamatory matter" and section 193 (formerly 192) defining "unlawful publication". Our comment in regard to these two sections is that section 191 makes no reference to the likelihood of causing a breach of the peace and whilst it would seem to us that the onus of establishing alternative $(a)$ or alternative $(b)$ is upon an accused, nowhere is there any provision such as exists in English law for the filing of a plea of justification.

We are of the opinion that a conviction for criminal defamation is not warranted under the Penal Code unless the Crown establishes: —

$\sqrt{a}$ ) That the matter is defamatory within the meaning of section 191.

(b) That such defamatory matter has been published (section 192). $($

(c) That publication was with intent to defame.

If a prima facie case of $(a)$ , $(b)$ and $(c)$ is established the publication may be proved to be lawful by proof of both or either of the alternatives mentioned in section 193.

Now turning to the three heads of appeal in this case we have no doubt that the document, the subject matter of the complaint (exhibit 1) was defamatory: the learned Magistrate so found and we would only add that in our view it contained matter likely to impair the reputation of the Association by exposing the Association to hatred, contempt or ridicule.

As to the second heading we think that the Association is a person by virtue of the definition of Person contained in the Interpretation and General Clauses Ordinance, 1948. We would however add that we think the learned Magistrate was wrong in holding the view that person was adequately defined for the purpose of Chapter XVIII of the Penal Code in section 5 of that Code.

As the third ground of appeal the learned Magistrate has found that the occasion of any privilege that might exist has been defeated by the lack of bona fides in the appellant. In arriving at this decision he has come to the conclusion that facts of the statement published by the appellant were untrue and that the gravamen of the libel lay in the assertion that the Association had "started" the objectionable practices amongst the youth of Kibera whereas such an assertion was quite untrue.

We feel constrained to remark here that the defence of truth associated with a publication of the truth for public benefit though being open to the appellant at the outset and throughout the trial was disavowed by appellants' advocate at the commencement of the hearing, and yet abundant evidence was adduced in justification of the statements made.

Never throughout the trial in the Lower Court does the mind of either Magistrate or advocate appear to us to have been focused on one of the ingredients of the charge, namely "the intent to defame". No finding on this ingredient was asked for or recorded. The most that could possibly have been said or advanced in argument is that the lack of bona fides is the equivalent of the intent to defame: we hold the view that it would be entirely wrong to interpret those two expressions against an accused person by characterizing them as synonymous: we do not think the terms are synonymous.

In the result we are of the opinion that this trial throughout was permeated by an atmosphere of confusion of thought in regard to the law of criminal defamation in this Colony and it is for that reason amongst others that we have ventured in this judgment to give some appreciation of the subject.

We do not think that in all the circumstances it would be safe to allow this conviction to stand. The appeal is allowed, the conviction is quashed and the sentence and order of the Lower Court are set aside.