Mombasa Municipal Board v Amarshi (Criminal Appeal No. 521 of 1951) [1952] EACA 325 (1 January 1952)

## APPELLATE CRIMINAL

### Before WINDHAM, J. and CONNELL, J.

#### THE MOMBASA MUNICIPAL BOARD, Appellant (Original Prosecutor)

#### v.

# SHAHBUDIN HASHAM AMARSHI, Respondent (Original Accused) Criminal Appeal No. 521 of 1951

(Appeal from the decision of the 3rd Class Magistrate's Court at Mombasa-G. G. Hill, $Esq.$ )

Waste matter—Mombasa Municipal By-law 137 (a).

The respondent was charged with contravening Mombasa Municipal By-law 137 (a) by allowing waste water to pass into or flow upon a street or open space. $\cdot$

The Magistrate held that the respondent had not so contravened the section. The prosecution asked for a case stated.

For the respondent it was argued that in the by-law in question "waste matter" must be construed ejusdem generis with the expression "refuse" and refuse is by definition limited to solid matter.

Held (28-1-52).—Waste matter includes waste water. The respondent was contravening the By-laws by allowing waste water to pass into or flow upon a street or open space. Case<br>remitted to Magistrate.

Mackie-Robertson for Crown.

A. R. Kapila for respondent.

JUDGMENT.—The point for decision on this case stated is whether, upon the close of the prosecution case, the learned trial Magistrate erred in law in holding that, by allowing waste water to pass into or flow upon a street or open space, the accused was not contravening the Mombasa Municipal By-laws, in particular by-law 137 (a) under which he was charged.

By-law 137 (a) reads as follows: $-$

"137 (a) No person himself or by members of his family or by his servant shall throw, deposit or allow to pass into or upon a street or open space any refuse or waste matter of any description."

Under by-law 130, "refuse" is defined as follows: -

"refuse" includes garbage, tins, bottles, ashes, sweepings from dwellings, offices and shops, and all other forms of non-liquid domestic refuse, but does not include refuse from gardens or stables nor waste products from factories or workshops.

The terms "matter" or "waste matter" are not defined in the by-laws.

Now at first sight it would seem clear that waste water would fall within the expression "waste matter of any description" in by-law 137 (a), since water is a form of matter. But it is argued by Mr. Kapila for the accused that the expression "waste matter" must be construed ejusdem generis with the expression "refuse" immediately preceding it, which expression is by definition limited to solid matter and would thus exclude water. We can, however, see no reason

for applying the ejusdem generis rule in this case. If it were so applied, then the expression "waste matter of any description" would be redundant, for it would import nothing that was not already covered by the expression "refuse". The words must be presumed to have been inserted for some purpose beyond mere duplication, and, applying the ordinary rules of construction, we must see whether, if given a meaning which is at the same time their dictionary meaning and a reasonable interpretation in their context, they would cover waste water. So far as the dictionary meaning is concerned, "waste matter" would certainly include waste water, since matter includes liquids as well as solids. So far as concerns the question whether this is a reaonable interpretation in the context of by-law 137 (a), we think it undoubtedly is. Such an interpretation would include, while the interpretation urged by Mr. Kapila would exclude, the throwing of slops into the street. That would appear to be an act which it is reasonable to suppose that by-law $137$ (a) was designed to prevent.

For these reasons we hold that the Magistrate erred in law in holding that upon a proper reading of the Mombasa Municipality By-laws the accused was not contravening those By-laws by allowing waste water to pass into or flow upon a street or open space.

At the same time we direct the learned Magistrate, to whom we remit the case for completion, that before calling upon the accused-respondent to answer the charge he must satisfy himself that the prosecution have proved all other elements essential to the commission of the offence, and in particular, (a) that the liquid waste matter was discharged by the accused (or by members of his family or by his servant), and (b) that is was deposited or passed into or upon a street or open space.