Rex v Kimemia (Cr. App. No. 32/38) [1938] EACA 200 (1 January 1938)

# **APPELLATE CRIMINAL**

#### BEFORE SIR JOSEPH SHERIDAN, C. J.

#### REX, Respondent (Original Prosecutor)

## THOMAS MWANIKI s/o KIMEMIA, Appellant (Original Accused)

### Cr. App. No. $32/38$

Criminal Procedure Code, section 331—Police Supervision—Criminal Procedure (Police Supervision) Rules, 1931, r. 7.

The accused appealed from a conviction of an offence contra section 331 of the Criminal Procedure Code. The facts appear sufficiently from the judgment.

Held (10-3-38).—That Rule 7 of the Criminal Procedure (Police Supervision) Rules, 1931, is in too rigid terms having regard to the provisions of section<br>331 of the Criminal Procedure Code which contemplates cases where it may not reasonably be possible for a released convict to report in person for reasons other than illness.

Appellant in person.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.-I think if the full facts of this case had been appreciated by the Police authorities, there would have been no prosecution. If the accused has committed an offence it is only a technical one. Apparently on his release from prison he had to report to Eastleigh Police Station, which he did. Shortly after his release from prison, he was re-engaged by a former employer, this fact he reported to Eastleigh Police Station and was given a letter to the Police authorities at Kilimani, presumably containing a notification of his change of address. This letter he gave to his employer to deliver and seemingly there was some little delay in delivering the As a result of this the accused was arrested and convicted letter. of failing to report at the Kilimani Police Station. An aspect of the case which was not brought to the learned magistrate's notice was the question whether in the circumstances of the case, the accused could not be said to have done his best to act in conformity with the law (sec. 331 Criminal Procedure Code). Rule 7 of the Criminal Procedure (Police Supervision) Rules, 1931, appears to me to be in too rigid terms having regard to the provisions of section 331. The section contemplates cases where it may not be reasonably possible for a released convict to report in person for reasons other than illness. If the facts of the case had been considered in the light of this section, I think it is most probable that no prosecution would have been taken and had the learned magistrate's attention been invited to its provisions, I think he would have taken a different view of the case. In my view, the accused acted as one would wish every released convict would act by taking steps to report his change of address and the steps he took to have the letter delivered go to show his anxiety to have his whereabouts made known to the police in charge of the area in which he resided. The appeal is allowed and the conviction and sentence are quashed.