Rex v Gikuri and Another (CRIMINAL APPEALS Nos. 135 AND 136 OF 1938) [1939] EACA 79 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND SIR LLEWELYN DALTON, C. J. (TANGANYIKA)

> REX, Respondent (Original Prosecutor) versus

TIMOTHEO WAIGANJO WA MUNI AND STEPHANO GIKURI, Appellants (Original Accused)

CRIMINAL APPEALS NOS. 135 AND 136 OF 1938

(Appeals from decision of H. M. Supreme Court of Kenya

Criminal law—Collections from natives—Native Authority Ordinance (Kenya), 1937, sec. 8 (n)—Powers of headman—"Regulating"— Plea of guilty.

The appellants were convicted of an offence against the provisions of an order issued under section 8 $(n)$ of the Native Authority Ordinance, 1937, which provides that any headman may from time to time issue orders to be obeyed by the natives residing or being within the local limits of his jurisdiction for the purpose of regulating the collection or receipt of money or property from natives.

Criminal proceedings were instituted against the appellants by a headman on a complaint which set out that the appellants were in his location as also was Mariaini school; that there was a standing order in his location that no collections were to be made from natives without the permission of the District Commissioner and the Chief; that the appellants never had such permission and that he was informed that they were collecting for a school.

The magistrate made the following note of the charge: -

"Accused is charged with collecting money from natives without authority during the months of July to November, 1937, for the purpose of erecting a school at Mariaini on the Church Missionary Society plot without the permission of the Church Missionary Society or other lawful authority contra order under section 8 (n) Ordinance $2/37$ Laws of Kenya."

To this charge both appellants pleaded "I admit the offence", and were convicted on such pleas. The appellants' appeals to the Supreme Court of Kenya were dismissed on the ground that they had unequivocally pleaded guilty. Appellants further appealed.

Held (6-2-39).—(1) That an order that no collections are to be made from natives without the permission of the District Commissioner and the chief is ultra vires the powers of a headman under section 8 $(n)$ of the Native Authority Ordinance, 1937, and is unreasonable.

(2) That what the appellants pleaded was that they had committed the act complained of. That act did not amount to an offence. (Appeals allowed.)

Burke for the appellants.—The standing order if it existed was invalid. Collecting without lawful authority is not an offence. Power to regulate does not mean power to prohibit. He referred to Münicipal Corporation of City of Toronto v. Virgo (1896 A. C. 88), Scott v. Pilliner (1904 2 K. B. 855) and Parker v. The Mayor etc. of Bournemouth $(18$ T. L. R. 372).

Phillips, Crown Counsel (Kenya), for the Crown.—Regulation may imply a partial or conditional prohibition. There would be a remedy against improper exercise of discretion.

SIR JOSEPH SHERIDAN: With this appeal there has been consolidated Cr. App. No. 136 of 1938 as the one point falling for consideration is common to both appeals. The point is sufficiently stated as being "Whether under section 8 $(n)$ of the Native Authority Ordinance, 1937, there is power to issue an order that no collections are to be made from natives without the permission of the District Commissioner and the Chief". The section provides that "Any headman may from time to time issue orders to be obeyed by the natives residing or being within the local limits of the jurisdiction for any of the purposes following: $\ldots$ (n) regulating the collection or receipt of money or property from natives." Mr. Burke for the appellant has relied on the case of *Municipal Corporation of Toronto v. Virgo* (1896 A. C. 88) and particularly on the passage in the judgment of the Judicial Committee at page 93 reading "But their Lordships think there is a marked distinction to be drawn between the prohibition or prevention of a trade and the regulation or governance of it, and indeed a power to regulate and govern seems to imply the continued existence of that which is to be regulated or governed. An examination of other sections of the Act confirms their Lordships' view, for it shows that when the Legislature intended to give power to prevent or prohibit it did so by expressed words". The Supreme Court did not have the advantage of having this case brought to its notice. In the case before us an examination of the other sub-sections of section 8 will similarly show that the Legislature when it intended to give power to prohibit it did so by expressed words. If one were to construe "regulating" in the sub-sections under consideration as meaning that a headman's permission must be obtained for the collection or receipt of money or property from natives it would involve the headman having an unfettered power to refuse his permission in any and every case. However innocent or laudable the purpose the authorization of a collection might depend on the whim of the particular headman. Against any argument that the headman would act reasonably there is authority for saying that the possibility of his acting unreasonably is sufficient to invalidate the order. The case of Parker v. The Mayor &c of Bournemouth (18 T. L. R. 372) is in point where it was held by Lord Alverstone, C. J., Darling and Channell concurring that "the by-law was unreasonable and bad because it gave the Corporation the power to make any agreement they pleased, and reserved to them the right of refusing any particular person". Again in Scott v. Pilliner (1904 2 K. B. 855 at 858) Lord Alverstone, C. J., said "I think that this Court ought not to interfere with a bye-law made by a local authority if it can be supported on reasonable grounds, but I also think that it is desirable for the good government of a locality that bye-laws should be clear and definite and free from ambiguity, and also that such bye-laws should not make unlawful things which are otherwise innocent" and the learned Chief Justice later added that the by-law in question was "too wide". In the judgment of the Supreme Court it was stressed that the appellants had unequivocally pleaded guilty. What the appellants pleaded<br>unequivocally was that they had committed the act complained of but that leaves it open for decision as to whether that act amounted

to an offence. In my opinion it did not for the reason that the order in question was ultra vires. The appeals are allowed, the convictions quashed and the fines, if paid, directed to be refunded.

WHITLEY, C. J.: I have had the advantage of reading the judgment of the learned President of the Court with which I agree. The appeals turn on the question whether section 8 $(n)$ of Kenya Native Authority Ordinance, 1937, which gives power to a headman to issue orders regulating the collection of money from natives, goes so far as to entitle him to forbid any collection which has not received the prior permission of the District Commissioner and the Chief. It seems to me idle to contend that an order requiring prior permission to be obtained is not in effect tantamount to giving to the authority, whose prior permission is thus made a condition precedent to the making of the collection, the power to prevent the collection altogether. The order under consideration is stated in the information to have been "that no collections are to be made from natives" without the permission of the District Commissioner and "the Chief". That must surely mean that these two authorities could stop any collection the object of which they disapproved. Whether it is desirable or not that that should be the position is beside the point. All we have to consider is whether the sub-section goes so far as to give the headman the power to make such an order. I do not think that it does. He could make an order "regulating" collections. Any order going beyond that would be ultra vires and, by reason of the punishment which might follow upon any disobedience of the order, the section is clearly a penal one which must be interpreted strictly in favour of the subject.

The word "regulating" seems to imply and presuppose the existence of something to regulate. As their Lordships of the Privy Council observed in The City of Toronto case, referred to by the learned President, the regulation of a trade may involve the imposition of restrictions on its exercise both as to time and place but that does not mean that the trade may be prohibited or prevented. If the order which we are considering merely required that a certain proposed collection should not be made on Sundays or in churches or that written receipts must be given for all contributions or that moneys collected must be paid into the District Commissioner's office at the end of each day it would clearly be intra vires. Such restrictions would come within the ordinary and obvious meaning of the word "regulating". Can it be said that the requirement that prior permission be obtained is merely another such method of regulating? The effect of such a requirement is to say "If we do not like the object for which you wish to make a collection you may not collect at all." That is assuming the power to prohibit as well as to regulate and it must be taken that when the Legislature omitted the word prohibit from this sub-section whilst inserting it in so many others they did so deliberately and advisedly. If it is desired so to limit the liberty of the subject the intention must be expressed in clear and unambiguous terms.

I agree that the appeal should be allowed.

SIR LLEWELYN DALTON, C. J.: It is not necessary for me to restate the facts.

It is clear from the decision in *Municipal Corporation of Toronto* v. Virgo (1896 A. C. 88) that the regulation and governance of a trade may involve the imposition of restrictions on its exercise both as to time and place. The regulation of collections may therefore involve the prohibition of collections subject to reasonable conditions. "Regulating" however in section 8 $(n)$ of Native Authority Ordinance, 1937, means amongst other things making certain safeguards and not making any arbitrary order which might in effect prohibit collections.

It is the decision in *Parker v. Mayor of Bournemouth* (18 T. L. R. 372) which, to my mind, is most in point here. As in that case, so here if the order made under section 8 $(n)$ stands, it withdraws altogether from those who have to consider the matter, whether the "permission" referred to in the order was reasonably granted or refused. The order apparently gives to the authority mentioned therein power to grant or withhold the permission arbitrarily. The order is for that reason unreasonable. It is therefore ultra vires and the convictions cannot stand.

I agree that the appeals must be allowed and the convictions quashed.