Rex v Shah (Cr. App. 10/1932.) [1932] EACA 19 (1 January 1932)

## APPELLATE CRIMINAL.

Before LUCIE-SMITH, J. and GAMBLE, Acting J.

### **REX**

## $(Respondent)$

#### $\boldsymbol{v}$ .

# MEGHJI HIRJI SHAH $(Appellant)$ .

# Cr. App. $10/1932$ .

# The Penal Code, section 117-Disobedience of lawful orders-Notice not an "order" as intended in section 117-Jurisdiction of Second Class Court.

$Held$ (2-6-32):-(1) A Second Class Court has no jurisdiction to try a non-native for an offence under section 117, Penal Code.

(2) A notice threatening consequences of disobedience is not an Order as contemplated by section 117.

Bruce, Acting Attorney General, for Crown.

Schwartze for Appellant.

Schwartze.-A notice calling upon a person to demolish buildings and threatening proceedings in default is not an order as intended by the section (117 Penal Code).

Prosecution would have more properly been under section 25 of the Townships Ordinance, 1930.

$Bruce$ —Section 117 is alternative to prosecution under Township Rules, section 22 of the Interpretation and General Clauses Ordinance (Cap. 1).

The judgment of the Court was delivered by Mr. Acting ... Justice Gamble as follows:-

JUDGMENT.—This is an appeal against the conviction in the Second Class Court at Thika for an offence contra section 117 of the Penal Code.

The grounds of appeal are (1) that the Magistrate had no power to try a case against a non-native for an offence contra section 117 of the Penal Code and, (2) that the Magistrate erred in holding that the letter, exhibit 3, amounted to a lawful order within the meaning of section 117 of the Penal Code.

The first ground of appeal is directly covered by a judgment of the Supreme Court in Criminal Appeal No. 41 of 1931. It was there held that a Third Class Magistrate has no jurisdiction to try a non-native for an offence contra section 217 of the

A reference to the schedule to the Criminal Penal Code. Procedure Code shows that an offence contra section 117 of the Penal Code can only be tried by a First Class Magistrate when the accused is a non-native.

The conviction is accordingly quashed and the fine, if paid, must be refunded.

We consider it desirable to consider the second ground of appeal in case an application for a re-trial should be contemplated. In our view the letter, exhibit 3, is not an order to demolish: it is merely a warning with an intimation that if the warning is not obeyed a prosecution will be instituted presumably under Rule 60 (Cap. 82) of the Laws of Kenya. Such a warning is not a lawful order within the meaning of section 117 of the Penal Code and non-compliance therewith is in itself no offence.