Rex v Njiri (Criminal Appeal No. 500 of 1947) [1947] EACA 62 (1 January 1947)

## APPELLATE CRIMINAL

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

# **REX, Respondent (Original Prosecutor)**

# WAWAHI S/O NJIRI, Appellant (Original Accused)

## Criminal Appeal No. 500 of 1947

# Criminal law—Diseases of Animals Rules, 1931—Confiscation.

The appellant was convicted under section 21 (2) of the Diseases of Animals Rules and was fined Sh. 2,000. In addition, it was ordered that 30 of his cattle be confiscated. He appealed against the sentence as excessive and on the ground that the order of confiscation was illegal.

Held (5-12-47).—That under section 21 (1) of the Diseases of Animals Ordinance such an order of confiscation was legal.

Nene for the Appellant.

### Modera for the Crown.

JUDGMENT.—The appellant was convicted for the unlawful movement of stock, contrary to rule 21 (2) of the Diseases of Animals Rules, 1931. As in the other connected cases which come before us at this sitting, the offence was a deliberate one, and the consequences are most serious. Mr. Nene, for the appellant, hastaken two points, the first that the fine imposed was excessive, and secondly that the order of confiscation was illegal. On the first point, we are of the opinion that this was a case in which the Magistrate was fully justified in imposing the maximum fine. As regards the order for confiscation it has been urged that as the penalty rule in the rules provides no such penalty such an order cannot be made for an offence against the rule. Under section 21 (1) of the Diseases of Animals Ordinance, however, it is laid down whenever a person has been convicted for an offence against the Ordinance the Court convicting may, in addition to imposing any other punishment authorized by law, order that any animals in respect of which an offence has been committed shall be forfeited, and by section 2, sub-section 26, of the Interpretation and General Clauses Ordinance an Ordinance is defined as including any rule or regulation made under the authority of an Ordinance.

It is thus clear that the Magistrate, although in his judgment he misquoted his authority, had in fact the power to order confiscation. Lastly, it has been urged on behalf of the appellant that the effect of a heavy fine, coupled with the order for confiscation, imposes a penalty upon the appellant which is altogether beyond his capacity to pay. There is no evidence before us as to what is the appellant's capacity to pay, but we can well believe that the confiscation of 30 head of cattle, plus a fine of Sh. 2,000, is a most serious matter for him. Although the appellant has brought his misfortune upon himself, we have come to the conclusion that some mitigation of the confiscation order should be made. We have no wish to impose undue hardship on his family, or perhaps be the means of inducing him to refurnish his stock by illegal means. We confirm the fine imposed by the Magistrate, together with his order with regard to the amount to be paid to the complainant and his order regarding imprisonment in default of payment, but direct that of the 30 head of cattle ordered to be forfeited to the Crown, 15 shall be returned to the appellant.

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