Rex v Nono (Cr. App. No. 95/1936) [1936] EACA 138 (1 January 1936)

## APPELLATE CRIMINAL

## Before HORNE, J., and LANE, AG. J.

## 📏 REX, Respondent $\nu$ .

## NGANGA WA NONO, Appellant (Original Accused) Cr. App. No. 95/1936

Vagrancy Ordinance—Charge of leaving reserve without licence— Order returning native to reserve—No charge of vagrancy—Omission of formal judgment—Laws of Kenya, Cap. 63, section 11 (1) (3)—Criminal Procedure Code, ss. 164 & 195.

The appellant had been previously convicted of vagrancy and ordered to be returned to his reserve, under section 11 (1) of Cap. 63. He was subsequently arrested in Nairobi and charged under section 11 (3) with leaving his reserve without a licence after having been repatriated. He pleaded guilty. No formal conviction was recorded, but, after evidence of the previous conviction had been given, he was sentenced to four months imprisonment with hard labour and to be returned to his reserve.

Held $(18-11-36)$ .—(1) That where a person is charged only with leaving his reservewithout a licence, after having been repatriated, under section 11 (3) of Cap. 63, there is no power to make an Order returning him to his reserve unless -there is added a charge and finding of vagrancy, under section 11 (1).

(2) That in all cases section 164 of the Criminal Procedure Code must -be complied with:

Appellant in person.

· Phillips, Acting Crown Counsel, for Crown.

JUDGMENT.—The appellant has appealed against a sentence of four months imprisonment with hard labour, and an order returning him to his reserve.

On 22nd September, the appellant was arrested by the police, upon what ground is not stated, and upon being arrested was unable to show, "his required authority to leave his reserve." Whether he was arrested under section 3 of Cap. 63 as being "apparently a vagrant", or upon some other ground is not clear upon the record. He is charged, "that having been repatriated, he was unable to show any authority to leave his reserve." That is under section 11 (3) an offence, which does not appear to be a cognizable offence. He was not, as far as the record shows, brought before the Magistrate charged with being apparently a vagrant. The charge sheet does not make any allegation of vagrancy.

On the record there is no judgment or conviction as required by sections 164 and 195 of the Criminal Proceduré Code, nor is there any finding of the fact of vagrancy as required by section 11 $(1)$ of the Vagrancy Ordinance (Cap. 63). The words of the plea recorded may be a confession of guilt in that he left the reserve without a barua, but that does not justify the learned Resident Magistrate in omitting all the formalities laid down. There is no foundation for the order to be returned to the reserve in the absence of a finding of fact of vagrancy and there is strictly speaking no foundation for the sentence in the absence of a judgment. We quash the repatriation order and under section 367 order the omission of the formal judgment to be repaired by amending the record and entering therein a conviction in proper form and confirm the sentence.