Rex v Njooki (Criminal Appeal No. 65 of 1946) [1946] EACA 36 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

## NJOOKI s/o MULANDU, Appellant (Original Accused) Criminal Appeal No. 65 of 1946

## (Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Abduction—Section 135 Penal Code—Meaning of "detaining".

Three women were walking along a path when the appellant stopped them and asked them to accompany him into the bush and have sexual intercourse. They refused. One of the women said she was pregnant, another that she was nursing a child, so the appellant concentrated his attention on the third whom he told to lie down. When she refused he struck at her with $a$ club. The other two women ran away and the appellant stood in front of the third holding her by the hand and preventing her from following them. He then cut her wrist with a knife and ran away when he saw it bleed.

The appellant was convicted of detaining a woman against her will with intent to carnally know her.

Held (18-5-46).—That the word "detain" must be given its ordinary meaning and that on the facts proved the appellant was rightly convicted.

Appeal dismissed.

Appellant absent, unrepresented.

W. Aubrey. Solicitor General (Uganda), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The appellant was convicted on two counts on charges of (1) detaining a woman against her will with intent to carnally know her and (2) assault causing actual bodily harm. There is ample evidence to support the finding of the learned trial Judge that the appellant stopped the complainant with a view to having sexual intercourse and when she refused wounded her on the wrist with his knife. The conviction on the second count presents no difficulty but as regards the first count the learned trial Judge felt some hesitation. Having considered the matter he came to the conclusion that the facts proved brought the case within the section and although we, too, at first felt some doubts we have upon consideration come to the same conclusion. Section 135 of the Penal Code reads as follows: $-$

"Any person who, with intent to marry or carnally know a woman of any age, or cause her to be married or carnally known by any other person, takes her away, or detains her, against her will, is guilty of a felony, and is liable to imprisonment for seven years."

The heading of the Chapter is "Offences against Morality" and the marginal note is "Abduction".

The evidence of the woman Nedoker, accepted by the learned Judge and the assessors was shortly as follows: -

"She was walking along a path with two other women when accused stopped them and asked them to accompany him into the bush and have sexual intercourse. They did not agree. One of the other women said she was pregnant. The other was nursing a child so appellant concentrated his attention on Nedoker whom he told to lie down. When she refused he got hold of her and struck at her with his rungu. She cried out. He said 'keep quiet'. She said 'I will not'. The other two women had by now run away but the appellant stood in front of Nedoker holding her by the hand and preventing her from following them. He then cut her wrist with his knife and when it bled he apparently became afraid and ran away. The cut has affected the movement of her fingers."

It is now necessary to consider the wording of the section in relation to those accepted facts. The marginal note "Abduction" suggests the idea of carrying away and is apposite to the first part of the section which deals with "taking" away". It might be argued that in view of the marginal note the Ejusdem generis principle should be applied so as to narrow down the meaning of the words in the second part of the section but upon consideration we are of opinion that the wide word "detain" without any qualification must be taken to have been used by the Legislature advisedly. In assessing the meaning of that word Stroud and Wharton are of no assistance. One of the meanings given in Webster's New International Dictionary is "To restrain from proceeding; to stay or to stop". That is precisely what the appellant did to the complainant Nedoker and since his intent in so detaining her was carnally to know her we can see no reason for differing from the decision of the learned Judge that he committed the offence contemplated by the second part of the section. Wrongful restraint and wrongful confinement are criminal offences covered by a number of sections in the Indian Penal Code and although there would seem to be no precisely analogous offence in the Criminal Law of England it would seem only right and proper that a man who forcibly detains a woman against her will for however short a time with a view to forcing her to have sexual intercourse with him should be liable to punishment with a substantial period of imprisonment. Whether he abducts by leading her away to another place or detains her forcibly in the place where she already is, should not logically affect the question of his culpability provided that the intent is one of those prescribed in the section.

The sentences on the two counts are not excessive.

The appeal is dismissed.