Rex v Ndelete and Others (Criminal Revision Cases Nos. 86 and 87 of 1934.) [1934] EACA 10 (1 January 1934)

## CRIMINAL REVISION.

## Before LUCIE-SMITH Ag. C. J. and HORNE J.

## $REX$ (Original Prosecutor) $\mathcal{V}$

## LEDAMA S/O CHEBOTANI ALIAS ARALATAMA S/O LATEMA AND NINYERE S/O NDELETE (Accused).

Criminal Revision Cases Nos. 86 and 87 of 1934.

- The Diseases of Animals Ordinance, Cap. 157—Diseases of Animals Rules 1931—Interpretation and General Clauses Ordinance Cap. 1—Confiscation of Stock—Method of levying Fines. Distress—Sale by private treaty—Consent of owner necessary. - Held.-(1) That Rule 67 is ultra vires the rule-making authority and penalties under this rule must be limited to those prescribed' by section 9 of the Interpretation Ordinance.

(2) That confiscation of stock cannot be orderd in respect of a contravention of the Rules.

(3) The levy of a fine by private sale of the offender's chattelswithout the written consent of the offender is illegal.

Bruce, Solicitor-General, for Crown.

$\rm\thinspace confidence\quad not\quad given$ $\rm to$ 1. Power $\mathbf{b}\mathbf{y}$ $Diseases of$ Animals Rules—but see section 21 (1) Diseases of Animals Order- $157.$ Interpretation Order section 9 $(b)$ .

2. Offence charged should be under Government Notice 149and r. 15, Diseases of Animals Regulations. In Case $87$ , a distress warrant was issued and the cattle seized were sold by private treaty.

JUDGMENT.—In these two cases the accused persons pleaded guilty to a charge described in the charge sheet as "illegal move-"<br>ment of stock contrary to section 15 of the Diseases of Animals." Rules 1931".

Rule 15 is as follows: $\rightarrow$

"The importation of animals from Tanganyika Territory" and Uganda may be allowed, subject to such conditions asthe Chief Veterinary Officer may direct".

Accordingly the Rule alone does not create an offence. The directions of the Chief Veterinary Officer must be looked to. These are found in Proclamations, Rules and Regulations, 1932. p. 106, Government Notice No. 149, in which the Chief Veterinary-Officer has directed that "No cattle other than breeding cattleshall be imported. In the case of female breeding cattle, such.

cattle shall be certified by a Government Veterinary Officer to be free from contagious and infectious diseases, to have been drawn from an area free from tsetse flies, and to show no symptom of disease". Further by Rule 4 importation of any animal from Uganda is prohibited except through Kisumu, no other place having as yet been approved by the Chief Veterinary Officer and notified in the Official Gazette. If, therefore, cattle, other than female breeding cattle are imported; or if female breeding cattle are imported without the requisite certificate; and, even though there is a certificate in respect of the cattle, but the importation takes place contrary to Rule 4, a contraven. tion of the Rules is committed in either case. Rule 67 provides. for a penalty of a fine not exceeding £150 or of imprisonment not exceeding six months or both for a contravention of the This penalty is the same penalty as that provided under Rules. section 16 of Chapter 157 (Diseases of Animals Ordinance) Revised Edition of the Laws of Kenva. Section 7 of that Ordinance gives the Governor-in-Council power to make Rules but is silent as to the imposition of penalties for breaches of such Consequently one must look to section 9 of Chapter 1 Rules. (The Interpretation and General Clauses Ordinance) as to what penalties may be imposed by the Rule-making authority.

Section 9 says that: "Where an Ordinance confers power on any authority to make Orders or Rules or to issue Proclamations or Notices the following provisions shall, unless the contrary intention appear, have effect with reference to the making. issue and operation of such Orders, Rules, Proclamations and Notices". Among the provisions is provision $(b)$ : "There may be annexed to the breach of any Order or Rule such penalty not exceeding one hundred pounds or such term of imprisonment of. either description not exceeding two months or both, as the Order or Rule-making authority think fit, subject to disallowance by His Majesty''. Rule 67, however, annexes a penalty of £150 $\pm$ or six months' imprisonment and "unless the contrary intention". appear" is ultra vires.

The argument addressed to us by the learned Solicitor General is that Rule 67 is redundant; that section 16 of the Ordinance imposes a penalty of £150 or six months or both upon "any person guilty of an offence under this Ordinance"; that section 21 empowers a Court to order forfeiture of the animals in respect of which "a person shall have been convicted of an offence against this Ordinance"; and that an offence against or under this Ordinance includes a breach of a Rule made under the Ordinance. This last limb of his argument he supports by reference to definition (26) in section 2 of the Interpretation Ordinance, which says that: "In this Ordinance and in every law (other than an Imperial Statute or applied Indian Act) whether enacted before or after this Ordinance the following expressions shall, unless the contrary intention appear, have the

meaning hereby respectively assigned to them, namely: (26) 'Ordinance' shall include any Order, Proclamation, Rule or. Regulation made under the authority of and having the force and effect of an Ordinance".

The effect of the construction submitted by the learned Solicitor-General would make section 9 a complete nullity. It is not merely a question of defining the word 'Ordinance' but of ascertaining whether there appears in sections 7, 16 or 21, or in Chapter 157 read as a whole, any intention to give the Rulemaking authority any greater power of imposing penalties than that given in section 9 of the Interpretation and General Clauses Ordinance. Such greater power must appear either in the form of an express provision or by necessary implication from the words used by the Legislature. An express provision is the usual form in which the intention of the Legislature appears. Such a provision may be found in the same volume in Chapters 148, 150, 154 and 155. There is no express provision in Chapter 157 and on its wording we are unable necessarily to imply from it that such power was given. There is nothing in the Chapter from which a Court can legitimately infer that it was intended that breaches of Rules should be subject to the same penalties as offences against or under the Ordinance.

The Revised Edition of the Laws Ordinance, 1921, under which the Revision was compiled prevents us from applying the original Ordinances on which this Chapter is based in order to interpret such Chapter. Section 7 (2) thereof provided that on proclamation "the new edition shall become and be, without any question in all Courts of justice and for all purposes whatsoever the sole authenticated edition of the Statute Law of the Colony in force on the 31st day of December, 1923". We must, however, point out that the original Ordinances did provide for the penalties set out in section 16 and 21 of Chapter 157 to be imposed for a breach of the Rules. We cannot, however, question Chapter 157 and must interpret it as it stands. Consequently we must hold Rule 67 to be ultra vires the Rule-making authority.

In Criminal Revision Case No. 86 the magistrate imposed a fine of Sh. 600 and confiscation of the 37 head of cattle subject of the charge. The order as to confiscation must therefore be quashed.

In Criminal Revision Case No. 87 the subject of the charge was 34 head of cattle. The magistrate ordered $(1)$ a fine of Sh. 600, and (2) the issue of a distress warrant to the police to seize the movable property of the defendant. This warrant is endorsed on the back to the effect that 34 head have been seized by the magistrate himself on the 1st June and that five days later 17 of them were sold by private treaty and the remainder released and handed over to the defendant on receipt of a permit from the Chief Veterinary Officer.

With regard to the 17 sold by private treaty, that sale, unless the consent of the owner was given to a private sale, is illegal. The Criminal Procedure Code, section 318 (1) says, "the money may be levied on the moveable property of the person ordered to pay the same by distress and sale under the warrant". In the absence of any express direction that private sale is permitted the expression "distress and sale under the warrant" must be construed in accordance with English Law and practice by virtue of Article IV of the Kenya Order-in-Council, 1921. Section 43 of the Summary Jurisdiction Act 1879 is therefore applicable and sub-section 2 thereof requires the consent in writing of the owner to a private sale.

The only remaining question for us to consider is the question of punishment in the two cases which both involve the removal of cattle from Bukwa Reserve to the farm of Mr. Von There is a stretch of boundary about thirty miles or Maltitz. so of the Trans Nzoia Province bordering on the Bukwa Reserve in Uganda. No doubt it is quite easy to import cattle illegally across this border. But the Regulations (Reg. 4) make it clear that the place of entry is Kisumu, which means a long and perhaps an impracticable journey, certainly a costly one. Aп adequate penalty is necessary in order to inform people that importation by any illegal route is forbidden; but as these defendants are squatters engaged and brought into the Colony by one of the European farmers, who must be held to have a knowledge of the law, the fault lies as much upon him as upon the Uganda natives concerned. He has already been fined Sh. 600 for an offence arising out of these transactions. We therefore think the penalties imposed on the two natives may be reduced and order in Criminal Revision Case No. 86 that the fine be reduced to Sh. 300, and in Criminal Revision Case No. 87, we also reduce the fine to Sh. 300 and the balance of the fines of Sh. 600 already levied to be returned to the defendant.

Whether the balance of the cattle illegally imported and remaining after the fine has been levied are to remain in the country or not is a matter for the Chief Veterinary Officer to deal We can only point out that to give permits for the with. removal of the cattle (except for the purpose of returning them to Bukwa which is stated to be a quarantine area) and to sell such cattle in levying a fine except for slaughter appears to us to stultify the regulations prohibiting their importation.