Rex v Kinyua (Criminal Appeal No. 499 of 1947) [1947] EACA 64 (1 January 1947)

### APPELLATE CRIMINAL

# Before NIHILL, C. J., and COFFEY, Ag. J.

### REX, Respondent (Original Prosecutor)

# KWIRICHIA S/O KINYUA, Appellant (Original Accused) Criminal Appeal No. 499 of 1947

Criminal law-Diseases of Animals Rules, 1931-Maximum penalties— Section 29 (2); Penal Code.

The appellant was convicted under Rule 21 (2) of the Diseases of Animals Rules, 1931. He was fined Sh. 2,400 or five months' imprisonment with hard labour in default. He appealed, inter alia, against the sentence on the ground that as the substantive sentence of imprisonment could not exceed two months, imprisonment in default of payment of fine could not exceed that period.

Held $(4-12-47)$ .—(1) That Sh. 2,000 was the maximum fine for the offence and sentence reduced to that amount.

(2) Imprisonment for non-payment of fine is not a substantive sentence of imprisonment but a sanction imposed by law where a fine cannot be recovered.

#### Nene for the Appellant.

#### Modera for the Crown.

JUDGMENT.—The appellant was convicted on his own plea of moving a number of sheep and goats on to a farm without a permit in violation of section 21 (2) of the Diseases of Animals Rules, 1931.

The offence is a very serious one because the animals in question came from an area in which an animal disease known as east coast fever is prevalent, and in consequence therefore of the appellant's action Mr. Leake, the owner of the farm, had subsequently to abandon grazing over a very large area. Counsel for the appellant has abandoned that part of his memorandum of appeal, under which it was submitted that the rule under which the appellant was convicted was ultra vires under the Diseases of Animals Ordinance, and he has confined the appeal to one against sentence only. The fine of Sh. 2,400 imposed by the Magistrate did in fact exceed by Sh. 400, the maximum imposable for offences against these rules, and is therefore illegal. It is evident that the Magistrate overlooked the fact that rule 67 of the Diseases of Animals Rules, 1931, was amended in 1935 (see G. N. No. 281 at page 131 of 1935 volume, rules and regulations). The effect of that amendment was to reduce the maximum penalties by £50 in the case of a fine and by four months in the case of imprisonment.

Mr. Nene has taken a further point when he contends that because under the penalty rule, a substantive sentence of imprisonment cannot exceed two months, the Magistrate has therefore no power with ordering imprisonment in default of non-payment of fine to exceed that period. We consider, however, that this submission is untenable. Imprisonment for non-payment of a fine is not a substantive sentence of imprisonment, but a sanction imposed by law in cases where a fine cannot be recovered, and that matter is governed by the provision of section 29 (2) of the Penal Code.

It has been further argued for the appellant that in any case the imposition of the maximum sentence allowed by law for these offences is in all the circumstances of this case excessive. Again we cannot agree, for it is clear from the appellant's plea that his offence was a most deliberate one, and the consequences both to the owner of the farm and to the cattle stock industry generally are calculated to be most serious.

We accordingly substitute for the sentence imposed by the Magistrate a fine of Sh. 2,000 only, of which we order Sh. 1,600 to be paid to the complainant, that is, the owner of the farm, Mr. Leake. In the event of non-payment five months' imprisonment in default.