Regina v Ngaruya and Others (Criminal Appeal No. 121 of 1952) [1953] EACA 30 (1 January 1953)

# APPELLATE CRIMINAL

## Before HEARNE, C. J. and BOURKE, J.

#### REGINA, Appellant

v

## PETER KAMAU s/o NGARUYA AND OTHERS, Respondents

## Criminal Appeal by Case Stated No. 121 of 1952

Criminal Law—Police Ordinance, 1948, section 32 (a)—Convening an unlawful assembly—Section 30 (2)—Definition of "place of public resort"—Relevance of English case law-Whether place must be one of public resort before invitations issued.

The four accused persons were charged with "taking part in and convening," collecting or directing an unlawful assembly at Nyaga School contra section 32 (a) of the Police Ordinance, 1948". The magistrate held that the evidence adduced by the prosecution in support of the charge as framed, did not disclose any offence under the section and acquitted the accused. The Crown by the Attorney-General appealed by case stated. Nowhere in the case stated was it found that the four accused had called or attended at the meeting. On appeal, it was argued on behalf of the Crown that the expression "place of public resort" in section 30 (2) of the Police Ordinance should be given the meaning it has been given in England in the interpretation of Acts of Parliament.

Held (23-5-52).—(1) The definition of "place of public resort" contained in English cases was irrelevant, since the court had to construe section 30 (2) of the Police Ordinance, 1948. The persons who issued invitations to was already a place of public resort. It was clear from the case stated that the school did not have that character at that time or at any time. The prosecution under section 32 $(a)$ was misconceived and the order made by the magistrate a proper one.

Appeal dismissed.

Cases cited: Queen v. Wellard, (1884) 14 Q. B. D. 63; Sewell v. Taylor, (1860) 29<br>L. J. M. C. 50; 141 E. R. 776.

Somerhough, Deputy Public Prosecutor, for the Crown.

Chanan Singh, for the respondents.

JUDGMENT.—In Criminal Case No. 651/1951 of the First Class Magistrate's Court at Kiambu four accused persons were charged with "taking part in and convening, collecting or directing an unlawful assembly contra section 32 (a) of Ordinance 79/48" but, holding that "the evidence adduced by the prosecution in support of the charge as framed did not disclose any offence *contra* section 32 (a) of the Police Ordinance" the magistrate dismissed the case and acquitted the the accused under section 208 of the Criminal Procedure Code.

It appears in the case stated at the instance of the Attorney-General that a meeting was called at Nyaga School on 26th December, 1951, "by some people connected with Nyaga School committee", that they issued "invitations to all and sundry to come to the meeting" and that the meeting was attended "by persons other than those connected with the affairs of the school". Nowhere in the case stated is it said that "the people" who called the meeting were found to be the four accused (here the respondents) or that "the persons" who attended the meeting included the respondents.

Section 32 (a) of the Police Ordinance No. $79/48$ provides that—

"any assembly, without a licence, issued under the provisions of subsection (2) of section 30 of this Ordinance shall be deemed to be an unlawful assembly, meeting or procession and, in the case of an assembly, meeting or procession for which no licence has been issued, all persons taking part in convening, collecting or directing such assembly, meeting or procession, shall be guilty of an offence and on conviction therefor shall be liable to imprisonment for a term not exceeding one year".

Section 30 $(2)$ reads:

"Any person who is desirous of convening or collecting any assembly, meeting, or of forming any procession, in any public road or street, or at any place of public resort, in any area, shall first make application for a licence in that behalf to the nearest superior officer or inspector in charge of any part of the force or, where there is no such superior officer or inspector in charge, to the administrative officer having jurisdiction in such area and if such superior police officer, inspector, or administrative officer, as the case may be, is satisfied that the assembly, meeting or procession is not likely to cause a breach of the peace, he shall issue a licence, in such form as may be prescribed by the Commissioner, specifying the name of the licensee, and defining conditions upon which such assembly, meeting or procession is permitted".

At the trial it was submitted by the prosecution that the definition of "public place" contained in section 5 of the Penal Code should be applied to the expression "place of public resort" in section 30 of the Police Ordinance. Before us it was argued by the learned Deputy Public Prosecutor that the expression "place of public resort" should be given the meaning it has been given in England in the interpretation of Acts of Parliament in which the expression "place of public resort" or "public place" occurs. We were referred to the case of the Queen $v$ . Wellard, 14 Q. B. D. 63 in which Grove, J. held, in interpreting section 29 of 14 and 15 Vic. c. 100, that "a public place is one where the public go no matter whether they have a right or not". We were also referred to the case of Sewell $v$ . Taylor, 141 E. R. 776, in which it was held that if a private house is used for a public auction by a person who, as is clear from the report, has invited the public to attend an auction in his private house, and if "a suspected person or reputed thief" goes to the private house where a public auction is being held with intent to commit felony, he would properly be convicted of an offence under the Vagrancy Act 5 G. IV, c. 83, s. 4, for the reason that a private house being used for a public auction is for that occasion "a place of public resort".

It is difficult to see the relevance of these cases to the problem before us. "The people" who issued invitations to attend a meeting at Nyaga School could have been convicted of convening the meeting under section 32 $(a)$ , only if they issued the invitations without a licence and if, at the time the invitations were issued, the school was already "a place of public resort". It was therefore necessary to prove that the school was a "place of public resort" at that time, *before* members of the public attended the meeting: and it is clear from the case stated that it did not have that character at that time or at any time.

It does not, however, follow from what we have said that "the people" who issued the invitation to the public to attend a meeting at Nyaga School, committed no offence or that the members of the public who attended it, having regard in particular to the intent with which they did so, did not constitute an unlawful assembly independently of the provisions of the Police Ordinance, but a prosecution under section 32 $(a)$ was misconceived and the order made by the magistrate was a proper one. The appeal is dismissed.