Rex v Kavango (Cr. R. 80/1931.) [1931] EACA 33 (1 January 1931)

Before SIR JACOB BARTH, C. J., and THOMAS and LUCIE-SMITH, $J. J.$

> REX (Respondent) (Original Prosecutor) $\mathbf{1}$

KIKONI KAVANGO (Applicant) (Original Accused).

Cr. R. 80/1931.

- Diseases of Animals Ordinance, Cap. 157, section 18-Obstruction of Police Officer in execution of his duty under this Ordinance. - Held (23-12-31): That under section 20 of the Diseases of Animals Ordinance, Cap. 157 of the Revised Laws, a police officer is empowered to seize cattle which have strayed from a farm or to a native reserve.

Held further: -- That arguing with a police officer instead of conforming to his instructions is constructive obstruction.

Malik for Applicant.

Bruce, Solicitor-General, for Crown.

The accused was convicted in the Second Class Magistrate's Court at Kiambu of an offence under section 18 of the Diseases of Animals Ordinance, Cap. 157 of the Revised Laws.

His application for revision was made on the grounds (1) that the conviction was bad in law, and (2) that the prosecution evidence did not disclose that the offence charged or any other offence had been committed by the accused.

Malik submitted that there was no evidence of obstruction and that the officer had no power to seize the cattle.

Bruce submitted that the conviction be upheld as Police had power to seize and they were constructively prevented from so doing.

The judgment of the Court was delivered by Thomas, J., on 23rd December, 1931, in the following terms:-

JUDGMENT.—The appellant Kikoni Kavango appeals from a conviction on the charge of obstructing a police officer in the course of his duty contrary to section 18 of Chapter 157 Laws of Kenya.

The evidence showed that one Griffiths, a European Police Officer, visited certain natives in a Native Reserve and told them to hand over to him six head of cattle belonging to a Mr. Grist. There was no suggestion that the cattle had been removed feloniously or otherwise by the natives. The natives

demanded a receipt. Griffiths wrote out a receipt and said that he would give it as soon as he got the cattle. Subsequently the natives refused to hand over the cattle because they alleged that they would be cheated. The appellant was amongst those natives and was their leader and spokesman. Griffiths was informed that the cattle had been driven further into the Reserve.

Another witness, one A. Tonskill, says that he saw the cattle about fifteen yards in the Native Reserve and asked the natives to return them. The natives refused to hand over the cattle and instead drove them further in.

The Diseases of Animals Ordinance, Cap. 157, authorizes the Governor in Council to make Rules for among other matters the "prohibiting or regulating the movement of animals" (section 7 (5)). Rules have been made accordingly (Vol. II Laws of Kenya, Rules, etc., p. 1363). Rule 14 has been amended and now includes the following: $-(1)$ It shall be the duty of the owner of cattle to prevent any such animal from straying or being moved contrary to these Rules . . . (2) No cattle shall be moved from . . . any farm . . . into any Native Reserve . . . without a permit . . . (3) Any cattle . . . found strayed shall be deemed to have been moved by the owner and by the person actually in charge of such cattle . . . (4) The owner and the person actually in charge of any cattle . . . which shall have been moved contrary to the provisions of this Rule shall on conviction be liable to the penalties prescribed by law for breach of these Rules.

These Rules were in force at the date of the conviction. Tt. may, however, be noted here that these Rules were revoked and other Rules substituted therefor on the 5th of October, 1931. (See Government Notice No. 597 at p. 847 of Kenya Proclamations, Rules, etc., 1931; see also Interpretation and General Clauses Ordinance, Cap. 1, Laws of Kenya, section 7 and 9.)

By section 20 of Cap. 157... a police officer may seize any animal in respect of which he may have reason to suspect that an offence against this Ordinance is being committed and may remove such animal to any pound...

It is clear from the evidence that the police officer had ample reason to suspect that an offence had been committed in respect of these six head of cattle. They had either strayed or had been moved from Mr. Grist's farm on to the Reserve. He was therefore authorized to seize them. It is hardly to be expected that one European constable aided possibly by a few boys should risk a conflict with the natives of a Reserve. He demanded the surrender of the cattle. This was refused and meanwhile the cattle were driven further away.

The action of the appellant in raising obstacles to prevent the police officer from performing a duty he was empowered to do is in our opinion clearly an obstruction. If a police officer had to stop and argue every point with members of the public he would never be able to get through his duties. And this remark has greater force in a country where the number of police officers is remarkably small in comparison with the population and areas under their charge. It has been held that persons waiting outside the residence of the Prime Minister to present a petition and refusing to go away when requested by the police were held rightly convicted of obstruction of a police officer. (See Stone's Justices Manual, 62nd Edition,<br>p. 349, referring to Despard v. Wilcox, 74 J. P. 115; and Pankhurst v. Jarvis, 74 J. P. 64.)

Under section 18 of the Diseases of Animals Ordinance, Cap. 157: "If any person obstructs or impedes or assists in obstructing or impeding a ... police officer in the execution of his duty under the Ordinance, a . . . police officer may without warrant apprehend the offender and such offender shall on conviction be liable to imprisonment of either description . . . or to a fine not exceeding one hundred and fifty pounds or both."

We are of the opinion that as far as the case for the prosecution is concerned the charge is amply made out.

The appellant stated before the Magistrate that he wanted a chit to be given to him to show to his chief and also to. the District Commissioner; and that there was no permission for cattle to go into the Reserve and for this reason they had taken possession of the cattle; he had refused to return the cattle because he did not get a receipt; they had taken the cattle into the Reserve further because Mr. Grist and witness wanted to take the cattle back.

The requirement of a chit was merely another form of arguing with the police officer. The appellant does not suggest that the cattle had been detained under Rule 33, and there is no suggestion that the cattle were being moved without a permit across the Reserve which would entitle them to be<br>detained under Rule 33. Even if such had been the case a detained under Rule 33. police officer is exempted from the persons who may not remove such cattle. (Rule $35.$ )

The defence does not appear to amount to anything more than a plea for leniency with regard to sentence and ample consideration has been given thereto by the very lenient sentence passed by the Magistrate.

In our opinion the conviction and sentence should be con- $\quad \textbf{firmed.}$