Rex v Masago (Cr. App. No. 159/38) [1938] EACA 195 (1 January 1938)

## APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J. AND LUCIE-SMITH, J.

REX, Respondent (Original Prosecutor)

MWENZI s/o MASAGO, Appellant (Original Accused) Cr. App. No. 159/38

Vagrancy—Juveniles—Cap. 63, secs. 14 (1) and (2)—Subsequent offence—Penalty.

Held (15-10-38).—That in the absence of any specific or general penalty clause the Court is unable to punish an offender contra section 14 (2) of the Vagrants Ordinance save by ordering his return to the custody of his parent or guardian.

Cr. Conf. Case No. 550/27 Rex v. Obongo s/o Odoro (unreported) referred to. The facts appear from the judgment.

Appellant, absent, unrepresented.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—This is an appeal against *inter alia* the Order of the Acting Resident Magistrate, Nairobi, sentencing the appellant to be detained at an Approved School for a period of three years.

The appellant was charged on two counts: $(1)$ being a vagrant contra section 14 (1) Cap. 63 Laws of Kenya, and (2) leaving the custody of his parents contra section 14 (2) Cap. 63, Laws of Kenya.

Appellant was convicted on both counts.

It is to be noted that no formal plea was taken on the first count and no evidence recorded.

The appellant's answer to the charge, coupled with the fact that it appears from the record that he is a juvenile, may perhaps be sufficient to justify the magistrate in finding him guilty of an offence under section 14 (1) but not, we think, of the offence of vagrancy as according to his (appellant's) statement he had money with his<br>brother at the Catholic Mission, vide the definition of "vagrant" contained in the Ordinance. It is, however, to be noted that a charge under section 14 (2) must of itself exclude a charge under 14 (1). In other words section 14 (1) is for a first offender while section 14 (2) is for a second or subsequent offender. For this reason we are of opinion that the conviction on the first count must be quashed.

As to the second count the appellant pleaded guilty to an offence contra section 14 (2) which reads: "Should any person be again found wandering about without employment, having left such custody, he shall be deemed to have committed an offence; and if a male may in lieu of other punishment be punished with whipping not exceeding six strokes with a light cane".

In the absence of any general penalty clause in the Ordinance and in the absence of any specific penalty for breach of the provisions of section 14 (2) the magistrate has had recourse to section 13, and as that section lays down imprisonment as a punishment for a second conviction for vagrancy he has called in aid the proviso to section 16 of the Juveniles Ordinance 1934 and ordered the appellant to be detained at an Approved School.

In our opinion there being no specific penalty for a contravention of section 14 $(2)$ and section 13 being inapplicable the order made has to be quashed. As against any argument that whipping not exceeding six strokes could be awarded for the contravention of section 14 (2) the words "in lieu of other punishment" must be read as meaning other prescribed punishment and as no other punishment has been prescribed the conclusion is that the offence carries no' punishment. A similar state of affairs was disclosed in the case of Rex v. Obongo s/o Odoro, Confirmation Case No. 550 of 1927 (unreported), where it was held by Pickering and Sheridan JJ. that the penalties awarded in the case had no legislative authority and the sentences had to be quashed.

In the result the appeal is allowed as regards Count 1, and as regards Count 2 as in the case of Obongo (supra) we quash the order committing the accused to an Approved School it having been made without legislative authority. His release is directed.