Rex v Majengo (Cr: Rev. Case No. 30/38) [1938] EACA 191 (1 January 1938)

## CRIMINAL REVISION

# BEFORE THACKER, J. AND LANE, Ag. J.

### REX. Prosecutor

#### $\nu$ .

# KIMANI s/o MAJENGO, Accused

## Cr. Rev. Case No. 30/38

By-law-Ultra vires-Local Government (Municipalities) Ordinance, 1928, sections 67 and 74-Nairobi Municipality By-laws 1929, 557 (3) $(d)$ —Repatriation.

Accused was convicted and sentenced under By-law 557 (3) (a) of the Nairobi Municipality By-laws, 1929, to pay a fine of Sh. 40 or in default to one month's imprisonment with hard labour and he was ordered to return to his reserve.

Held (26-4-38).—That the provisions of by-law 557 (3) (d) of the Nairobi<br>Municipality By-laws, 1929, are ultra vires in so far as they purport to enact that a native convicted under the by-law may be ordered to return to his reserve or proper place of residence and shall be liable to imprisonment in case of disobedience.

Accused, absent, unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The short point here is whether there is authority vested in the Municipal Council of Nairobi to make in By-law 557 (3) (d) of the Nairobi Municipality By-laws 1929 (pp. 788 and 789 of Vol. I, Subsidiary Legislation) the following enactment: -

"In addition to such punishment aforesaid the Court may order such native to return to his reserve or proper place of residence and if such native disobeys such order he shall be liable to a further term of imprisonment of either kind not exceeding three months".

Section 69 of the Local Government (Municipalities) Ordinance (No. 19/28) confers on the Municipal Council power to make bylaws for various purposes. Section 74 of the Ordinance enacts what penalties the Council may prescribe for breaches of such by-laws: these penalties may be enacted by by-law. The penalties which may be imposed under this section do not include the power on the part of the Municipal Council or of the Court trying an offence of a breach of a by-law, to order a native to return to his reserve or place or residence or to order imprisonment in cases of disobedience. We consider, therefore, that the provision in question in By-law 557 (3) (d) is *ultra vires* and the order made by the magistrate in this case that the accused should return to his reserve is set aside.