Rex v Chege (Confirmation Case No. 450 of 1944) [1944] EACA 2 (1 January 1944)

## CRIMINAL CONFIRMATION

## Refore SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

## REX. Prosecutor

$\mathbf{v}^{\perp}$

## SAMUEL MACHERIA 8/0 CHEGE. Accused Confirmation Case No. 450 of 1944

Nairobi Municipal By-laws, 1929 (By-law 549)-Construction-Native carrying arm without licence—Military askari.

Held (29-9-44).—That on the frue construction of By-law 549 a military askari is not per-<br>mitted to carry within the municipality any arm which does not form part of his ëduibment.

Spurling. Crown Counsel, for the Crown.

ORDER.—It is provided by By-law 549 of the Nairobi Municipality By-laws, $1929 -$

"Any Asiatics or Afficans other than Government police, troops or other duly authorized persons found within the limits of the Municipality armed in any manner and without carrying the necessary licence will be liable to arrest and may be proceeded against for a breach of this By-law."

The accused, a military askari, was discovered at 11.30 p.m. armed with a panga, which we consider to be a large knife in the Nairobi township. Two members of the Kenya Police attempted to arrest him for the offence of being armed contrary to the provisions of the by-law. He resisted and assaulted the police but was overcome.

The first question is what is the correct construction of the by-law. Was the accused, being a military askari, authorized to carry a panga without a licence? In our opinion he was not, our view being that the intention of the framers of the by-law and the meaning of it are in consonance. The intention as we read it is that members of the military forces armed with the equipment which they afé required to carry should subject to any military restrictions be allowed to<br>go to and fro without a licence and without interruption. The language used in the by-law in our opinion gives effect to that intention.

In the present case the accused was carrying a panga, which is no part of his equipment. At least it is nowhere alleged that it was part of his equipment. The Police in proceeding to arrest him were presumably acting under the authority of Section 117 of the Local Government (Municipalities) Ordinance, 1928, which in so far as it is material reads: $\rightarrow$

"Any police officer may arrest without warrant any person who commits any offence against this Ordinance or any by-law in force within any municipality. $\cdot$ .

Provided that no person shall be arrested or detained without warrant unless reasonable grounds exist for believing that, except by the arrest of the person offending, he could not be found of made answerable to justice without delay, trouble of expense."

The Police were consequently making an arrest in the due execution of their duties in the course of which they were assaulted by the accused.

We confirm the conviction and sentences.