Rex v Kangara and Others (Cr. Apps. Nos. 152-3-4 of 1938) [1938] EACA 194 (1 January 1938)

### APPELLATE CRIMINAL

#### BEFORE LUCIE-SMITH AND THACKER, JJ.

#### **REX, Respondent (Original Prosecutor)**

# PARMENAS KANGARA, EVANSON GATHENGE AND MBOGWA s/o NGUGI, Appellants (Original Accused)

## Cr. Apps. Nos. 152-3-4 of 1938

Criminal Law—African private school—Closure order—Education Ordinance, 1931, sec. 34—Service of closure order—Alteration of premises.

On $21-11-37$ a notice signed by the Director of Education was served by the District Commissioner on the appellant Parmenas and three members of the Mukui school committee ordering that the Karinga Independent School at Mukui be closed, on the grounds that the building was not suitable; the curriculum as required by section 33 (1) (c) of the Ordinance was not being effectively applied; the school was not properly conducted in that there were no certificated teachers and that the District Education Board had recommended closure.

On 13-6-38 the school was open and the appellants were teaching therein. Between 21-11-37 and 13-6-38 the school premises had been rebuilt at least in part.

The appellants Evanson and Mbogwa had not been served with the closure order.

Held (22-11-38).—(1) That the word "premises" in section 34 (1) (b) of the Education Ordinance is interchangeable with the word "school".

(2) That there is no duty on the Director of Education to serve notice<br>on every actual or potential teacher in the school but that it is sufficient<br>if notice is given to a responsible official.

Appeals from convictions dismissed with reduction of sentence in case of appellants Nos. 2 and 3.

Ross for the appellants.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—In considering these three Criminal Appeals, Nos. 152-3-4, which for the purposes of argument and decision have been consolidated by this Court, it should be remembered that one of the appellants Parmenas Kangara was on the 28th January, 1938, convicted of an offence exactly similar to that from the conviction for which he is now appealing. Furthermore that he appealed to the Supreme Court on the 19th February, 1938, the conviction and sentence being upheld. From that appellate decision he appealed to the Court of Appeal for Eastern Africa which again upheld the conviction but reduced the fine inflicted from Sh. 500 to Sh. 100. In June, 1938, notwithstanding the decision of the Supreme Court in March, 1938, this appellant Parmenas was still carrying on the school. The facts so far as he is concerned upon which he was convicted on 4th July, 1938, are similar to the facts existing in November last when the closing order dated 11th November, 1937, was served on him, except that according to him the school premises have been rebuilt, at least in part.

The only new ground before this Court which was not before the Court of Appeal for Eastern Africa is that new premises have been built since November, 1937, and that the closing order cannot therefore refer to the present premises. There is nothing in this argument. We agree with the Crown Counsel when he says that the word "premises" in the relevant section 34 (1) (b) of the Education Ordinance, 1931, is interchangeable with the word "school". Moreover, the objection to the school is not merely to the physical structure of the premises but also as the Court of Appeal for Eastern Africa pointed out to the curriculum not being effectively applied and the improper conduct of the school.

As to the other grounds of appeal, this Court is bound, the facts being the same, by the decision of the Court of Appeal for Eastern Africa on these points and there is no need to go over them again. They are set out and dealt with clearly in that Court's judgment: Rex v. Parmenas (5 E. A. C. A.).

As to the sentence on the appellant Parmenas, it is obvious, as the learned Chief Justice said in his Judgment in April, that he is defiant. He has had one lesson which he refuses to profit by and we see no reason to make any alteration in the sentence inflicted.

As to the point taken that the other two appellants were not served with the notice, it is sufficient if one notice is given to a responsible official and that there is no duty on the Director of Education to serve notices on every actual or potential teacher in the school.

With regard to the sentences on these two appellants, following the decision of the Court of Appeal for Eastern Africa, we feel constrained to reduce these to a penalty of a fine of Sh. 100 in each case, in default one month imprisonment in the Detention Camp. Except as to the reduction of these fines the three appeals are dismissed.