Rex v Gitebi and Others (Criminal-Appeals Nos. 178, 179, 180 and 181 of 1948, Consolidated) [1949] EACA 25 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), THACKER, J. (Kenya), BARTLEY, J. (Kenya), and BOURKE, J. (Kenya)

## REX. Respondent (Original Prosecutor) v.

SAMUEL KOINA GITEBI. (2) HIRAM MWANZA KINYARIRO. $(1)$ (3) MBUGWA MUTHANGO, and (4) MBUCHI MBUGWA, Appellants (Original Accused)

Criminal Appeals Nos, 178, 179, 180 and 181 of 1948, Consolidated (Appeals from decision of H. M. Supreme Court of Kenya)

Criminal Procedure and Practice—Trial of minor offence—Charge of neglecting to obey order of Provincial Commissioner, Native Authority Ordinance, 1937. section 12—Penalty: Fine or imprisonment and forfeiture of hut and crops— Whether triable as minor offence under section 197, Criminal Procedure Code -Whether "forfeiture" part of sentence.

The four appellants were charged individually in the Resident Magistrate's Court, Nakuru, with neglecting, without lawful excuse, to obey an order issued by the Provincial Commissioner, contrary to section 12 (2) of the Native Authority Ordinance, 1937. At the trial of appellant No. 1 the evidence led was fully recorded but at the respective trials of appellants 2, 3 and 4 the Magistrate followed the procedure laid down by section 197 of the Criminal Procedure Code, recording no evidence but wrote a brief judgment embodying the substance of the evidence given. On conviction each appellant was ordered to pay a fine of Sh. 120 or to serve two months' imprisonment in default and it was further ordered that the hut and crops on the plot in respect of which the offence had been committed were to be forfeited to the Government, and a stay of forfeiture for 30 days was granted.

On a second appeal to the Court of Appeal for Eastern Africa it was argued, inter alia, on behalf of appellants Nos. 2, 3 and 4 that an offence under section 12 of the Native Authority Ordinance, 1937, was not a minor offence triable under section 197 of the Criminal Procedure Code because whereas the trial of offences under the latter section was restricted to those where the maximum penalty did not exceed six months' imprisonment or a fine of £50, the penalty under section 12 (2) of the Native Authority Ordinance carried with it a forfeiture of hut and crops of an indefinite value and therefore a convicted person, by reason of forfeiture, might be mulcted in more than £50 in money.

Held (19-2-49).—(1) That the procedure laid down for "minor offences", though making no difference in procedure at the trial, does to a considerable extent make a difference where a convicted person wishes to appeal against conviction because the lack of a full record<br>of evidence handicaps an appellant in putting his case before the Appeal Court and since the Legislature has seen fit to restrict the classes of cases in which the procedure since the beginned of the Stocket has been as $\frac{1}{2}$ of the Criminal Procedure Code may be used, in construing sub-section 2 (a) thereof the Court must be careful not to extend it to cover a case not intended by the Legislature to be covered.

(2) That the proper method of approach in considering the construction of section<br>197 (2) (a) of the Criminal Procedure Code is to say that throughout the Code the<br>Legislature, recognizing that offences are generally punis accepted as a kind of fair and convenient measure of the seriousness of any offence the maximum period of imprisonment and the maximum amount of the fine which the<br>Legislature had considered adequate to the particular offence, ignoring any further or other punishments which conviction of such offence might involve, and therefore an offence under section 12 of the Native Authority Ordinance, 1937, is within the description specified in section 197 (2) ( $a$ ) of the Criminal Procedure Code.

R. v. Motibhai Patel, 18 K. L. R. 47 discussed and adopted.

(3) That the statutory forfeiture enacted by section 12 (2) of the Native Authority Ordinance, 1937, does not form part of the sentence for an offence under that section. the position being that the forfeiture follows the conviction automatically and immediately, the forfeited hut and crops becoming the property of the Government, and the only<br>concern of the trial Magistrate is to direct how this Government property is to be disposed of.

R. v. Nganga Kiboko and others, 15 E. A. C. A. 118 reversed.

The Empress v. Baidanath Das (1878), 3 I. L. R. Cal. 366 referred to.

Appeals dismissed. Orders of the Magistrate in so far as they order forfeiture or stay of forfeiture set aside.

D. V. Kapila for the Appellants. $P$

Todd, Crown Counsel (Kenya) for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).-These four appeals came before this Court sitting with a Bench of three Judges, and the appeals were consolidated. As it appeared from the arguments adduced that the decision of these appeals might involve reconsideration of a previous decision of this Court, the Court was reconstructed with five Judges and the appeal heard de novo.

The only important point of law raised in these appeals is that contained in the last ground of appeal in each of appeals Nos. 179, 180 and 181. That ground is as follows:-

"That the offence under section 12 of the Native Authority Ordinance is not a minor offence and the trial of the appellant was illegal."

The decision upon this ground of appeal depends upon the construction of section 197 of the Criminal Procedure Code, and particularly sub-section (2) (a) of that section, which is in the following terms:-

"(2) The offences referred to in the preceding sub-section are as follows:-

(a) Offences punishable with imprisonment for a term not exceeding six months or a fine not exceeding fifty pounds."

The offences in question in these appeals were offences under section 12 (2) of the Native Authority Ordinance which is in the following terms:-

"(2) Any native who, without lawful excuse, neglects to obey an order issued under this section shall be guilty of an offence, and on conviction before a magistrate shall be liable to a fine not exceeding one hundred and fifty shillings and in default of payment to imprisonment for a period not exceeding two months, and any hut or crops belonging to such native on the land from which he has been ordered to remove shall be forfeited to the Government and may be destroyed or otherwise dealt with as the magistrate in his discretion may direct."

In considering this question of construction there seems to be two possible methods of approach and it has been a matter of some difficulty to decide which of the two is correct.

There is no doubt that the procedure laid down for "minor offences", though it makes no difference in procedure at the trial, does to a considerable extent make a difference where a convicted person desires to appeal against the conviction. The lack of a full record of the evidence undoubtedly handicaps the appellant in putting his case before the Appeal Court. That being so, the Legislature has thought fit to restrict the classes of cases in which this procedure may be used, and in construing sub-section $(2)$ (a) we must of course be careful not to extend it to cover a case not by the Legislature intended to be covered. One method of approach—and the one for which appellants' advocate contends—is to say that the Legislature by laying down the limit of "imprisonment for a term not exceeding six months or a fine not exceeding £50", meant than an offence which would or might involve that a person convicted would be mulcted in more<br>than £50 could not be tried by the "minor offence" procedure and that therefore the offence in question under section 12 (2) of the Native Authority Ordinance which may involve "a fine not exceeding one hundred and fifty shillings

and in default of payment imprisonment for a period not exceeding two months" plus forfeiture of hut and crops of an indefinite value might mean that the convicted person, by reason of the forfeiture, would be mulcted in more than £50 in money's worth and that therefore the offence was not triable as a minor offence.

The other method of approach is to say that throughout the Criminal Procedure Code the Legislature, recognizing that offences generally are punishable by imprisonment or fine, accepted as a kind of fair and convenient measure of the seriousness of any offence the maximum period of the imprisonment and the maximum amount of the fine which the Legislature had considered adequate to the particular offence, ignoring any further or other punishments which conviction of such offence might involve. If that is the correct method of approach then clearly the offence in question is within the description specified in section 197 sub-section $(2)$ $(a)$ .

This latter method of approach was adopted by the Supreme Court of Kenya in the case of R. v. Motibhai Patel, 18 K. L. R. p. 47. In that case the question arose in connexion with the jurisdiction of a third class magistrate to try a charge under the Native Produce and Inspectors' Rules, 1936, the punishment for which was imprisonment for a term not exceeding six months or a fine not exceeding Sh. 500 or to both. The convicted person was in addition liable to confiscation of any crops or livestock in respect of which the offence was committed. The term of imprisonment and the amount of fine were within the jurisdiction of a third class magistrate, but the third class magistrate before whom the case came held that as the jurisdiction section did not include confiscation he had no jurisdiction to try the case. The Supreme Court on Revision held that the magistrate was wrong and that in fixing a maximum sentence of imprisonment for a third class magistrate the Legislature was merely providing a definite standard by which to determine which Court had jurisdiction to try the case.

That decision is not of course binding on this Court but we have come to the conclusion, on a review of the Penal Code and the Criminal Procedure Code, that it was right and that we must adopt the same approach in the question of construction now before us. We have come to that conclusion partly on the reasoning contained in the judgment in *Motibhai's* case but mainly, or more definitely because any other approach would reduce section 197 (2) and other important points of the Criminal Procedure Code to absurdity. By section 25 of the Penal Code payment of compensation is one of the punishments which may be inflicted by a court. Section 31 of the Penal Code enacts as follows:

"Any person who is convicted of an offence may be adjudged to make compensation to any person injured by his offence. Any such compensation may be in addition to or in substitution for any other punishment."

If we accept the argument for the appellant in this appeal we would have to hold that any offence coming within the description in sub-section (2) (a) of section 197, however petty it might be, could not be tried by minor offence procedure for the reason that it might be punishable by payment of compensation in addition to or in substitution for the sentence of imprisonment not exceeding six months or a fine not exceeding £50. In the same way, unless we accept the doctrine of Motibhai's case, sections 7, 8 and 9 of the Criminal Procedure Code, which define the jurisdiction of the different classes of subordinate courts, would be reduced to sheer nonsense. Every case in which compensation might be ordered would have to go to the Supreme Court. We are satisfied that such could not have been the intention of the Legislature and this convinces us that the method of approach adopted in *Motibhai's* case is the correct one.

Against this view we have been referred to the recent decision of this Court in the case of R. v. Nganga Kiboko and others, 15 E. A. C. A. p. 118. That case had reference to a conviction and sentence under the same section as is involved in the present appeals, section 12 (2) of the Native Authority Ordinance, but the question for decision in that case was a different one, namely, whether the forfeiture of huts and crops took a conviction under section $12$ (2) and a sentence of a fine of twenty shillings out of the ban of section 348 (2) of the Criminal Procedure Code which is in the following terms:-

"No appeal shall be allowed in cases in which a subordinate court has passed a sentence of imprisonment not exceeding one month only, or of a fine not exceeding five pounds only, or of corporal punishment only.

This Court in that case held that the statutory forfeiture enacted by section 12 (2) formed part of the sentence, and that therefore the case was taken out of the ban on appeal contained in section 348 (2). We have had much fuller argument in the present appeal than was put before the Court in Nganga's case and in the result we are unable to agree that the forfeiture in Nganga's case which was statutorily automatic could be regarded as part of the sentence of a magistrate who had no jurisdiction or power to order such forfeiture. The position is that the forfeiture follows the conviction automatically and immediately. The huts and crops by virtue of the statutory forfeiture immediately on conviction became the property of the Government and the only concern of the magistrate in regard to the huts and crops is to direct how this Government property was to be disposed of.

We have also been referred to an Indian case of interest (3 l. L. R. Calcutta, p. 366). That was a decision of a full Bench of five Judges. It is not a decision binding on this Court but it is of course deserving of respect. That decision was under a section which provided for confiscation of property in addition to other punishment for the offence in question and the court held as follows: "The confiscation which is provided for by section 49 is merely a consequence of the conviction and does not form part of the punishment for the offence". That of course is only a conclusion and unfortunately the Court did not give the reasoning by which it arrived at that conclusion. The conclusion however is not without interest in the present appeal.

For the reasons given we find that the appellants in Appeals Nos. 179 (Kinyariro), 180 (Muthango) and 181 (Mbugwa) were rightly tried by the "minor offence" procedure.

The other grounds of appeal filed on behalf of these three appellants may be quite shortly disposed of. In so far as there is any substance in them they raise questions of fact in regard to which it is enough to say that this Court, on a second appeal, cannot interfere with the concurrent findings of fact of the two courts below. The same applies to the Grounds of Appeal filed on behalf of Gitebi who was not tried under the "minor offence" procedure.

The appeals are dismissed but the orders of the magistrate in so far as they order forfeitures or stay of forfeitures are set aside. He had no jurisdiction to order or to stay forfeiture which followed by statutory enactment automatically upon the conviction. By reason of the statutory forfeiture on conviction the huts and crops became Government property and all the jurisdiction the magistrate was given in regard to that property was to direct in his discretion whether the huts and crops were to be destroyed or otherwise dealt with, on the basis, of course, that they had become Government property on the convictions.

We are much indebted to the Attorney General and Mr. Kapila for the very full arguments they have put before us.

(NOTE.—This judgment was signed by Sir G. Graham Paul, C. J., Edwards, C. J., Bartley, J. and Bourke, J.—*Editor.*)