Rex v Mubeyo (Cr. Revision Case No. 90/35.) [1935] EACA 135 (1 January 1935)

# CRIMINAL REVISION.

# Before WEBE, J. and GAMBLE, Ag. J.

### REX, Prosecutor

#### $\bullet$

### MAHINDO MUBEYO, Accused.

#### Cr. Revision Case No. 690/35.

Penal Code, section 306 (2)—Interpretation of "wilfully and unlawfully".

Admission of an act does not ipso facto prove intent-Levy of distress-Restriction of to cover amount of compensation.

- Held (10-4-35).—The law presumes a man to intend the natural consequences of his acts, which can only mean his conscious acts, not of his mistakes. - $Held$ Further.—When distress is made to satisfy a fine or order for compensation, only so much of the accused's property should be sold as is necessary to realize the amount of such fine or compensation.

Order of the Court delivered by GAMBLE, Ag. J.

Accused absent, unrepresented.

Dennison, Crown Counsel, for Crown.—Accused must have been aware of the natural consequences of his act. There is a presumption of mens rea.

ORDER.—The accused has been convicted under section 306 (2) of wilfully and unlawfully setting fire to grass so situated that saplings in the vicinity were likely to catch fire.

The only evidence in any way associating the accused with the fire is that of Famba s/o Masibo, a child aged seven years, and in our opinion it would have been proper for the magistrate to have discharged the accused, the Crown not having made out $a$ case.

However the magistrate called upon the accused to enter on his defence and the accused said, "I admit lighting the fire. I went to get honey and after I left the fire fell down and burnt the grass".

The magistrate has treated this statement as an unequivocal plea of guilty to wilfully and unlawfully setting fire to grass, which in our opinion is incorrect.

Chapter XXXIII of the Penal Code which embraces section 306 (2) is headed "Malicious Injury to Property" and a perusal of the various sections contained in this chapter leaves no doubt in our minds but that what is envisaged is a malicious intent wilfully and unlawfully to cause harm to the property of another.

As a general rule every man is taken to intend the natural and probable consequences of his own acts but this presumption does not extend to accidental acts. "The law presumes a man to intend the natural consequences of his acts, which can only mean of his conscious acts not of his mistakes." $R$ , $v$ . Davis (8) Cr. App. R. 211). We would also point out that under the Malicious Damage Act, 1861 (24 and 25 Vict. Cap. 97) which includes most of the offences enumerated in Chapter XXXIII of the Penal Code, an intent to injure had to be specifically laid in the Indictment.

For the above reasons, we are of opinion that the statement of the accused as recorded does not amount to a plea of guilty to an offence under section 306 Penal Code.

The magistrate has ruled out the possibility of a conviction under Chapter 76 Laws of Kenya. In our opinion this chapter was the correct one under which to proceed and the accused's plea might well have been construed as one of guilty under section 2 or 3 of Cap. 76.

The conviction is quashed and as the accused has already served the sentence of six weeks detention no order is made for retrial.

In addition to a substantive sentence of six weeks detention the accused was ordered to pay Sh. 300 compensation and Sh. 15 costs. The manner in which this amount was levied calls for comment.

Sixteen head of cattle were seized under a distress warrant and these sixteen head were sent to an auctioneer with a direction from the District Commissioner that they be all sold. This is entirely incorrect: only so much of an accused person's property should be sold as is required to satisfy the amount of fine imposed or compensation awarded. It is obvious that at a forced sale such as this good prices may not be realized and therefore considerable hardship may be inflicted when unnecessary property is sold as in this instance.

Here the sixteen head of cattle realized Sh. 367, i.e. Sh. 52 more than was necessary to satisfy the award of compensation and costs.

In view of the fact that the conviction has been set aside. the gross amount realized by the sale of these cattle, Sh. 367, -must be refunded to the accused.