Rex v Shah (Criminal Appeal No. 67 of 1942) [1942] EACA 73 (1 January 1942)

# APPELLATE CRIMINAL

## BEFORE SIR JOSEPH SHERIDAN, C. J., AND BARTLEY, J.

### REX. Respondent

#### $\mathbf{v}$ .

# MAKSUD ALI S/O HAKIM SHAH, Appellant

### Criminal Appeal No. 67 of 1942

Official Corruption—Person employed in the public service—Captain in charge Military Salvage Dump, Nairobi-Persons belonging to the Military forces of the Colony—Penal Code, sections 93 and 5.

Held (18-7-42).—That the words "persons belonging to the military forces of the Colony" in the definition of the phrase "persons employed in the public service" in section 5 of the Penal Code include persons belonging to whatever military forces are employed in Kenya at the present time.

Figgis, K. C., for Appellant.

Spurling. Crown Counsel, for the Crown.

JUDGMENT.—The question exercising us in this case is that raised in the first ground of appeal, 'The learned Magistrate erred in holding that Captain Brabin was a person employed in the public service, as contemplated in section 93 (2) of the Penal Code'. If this question is answered in the affirmative the appeal must succeed.

In his evidence Captain Brabin described himself as a Captain in Charge of the Military Salvage Dump, Nairobi. One would think at first sight this description was sufficient to establish that Capt. Brabin was a person employed in the public service, but Mr. Figgis has correctly submitted that there is a definition of 'person employed in the public service' in the Penal Code and argued that unless Captain Brabin is a person within the provisions of that definition the appeal must succeed.

The definition in so far as it is material reads 'person employed in the public service' means any person holding any of the following offices in performing the duty thereof whether as a deputy or otherwise, namely (and here follows a list of offices with which this case is not concerned), . . . and the said term further includes ... (iv) all persons belonging to the military forces of the Colony.

The argument pressed upon us is that the evidence does not disclose that Captain Brabin is a member of the local forces such as the King's African Rifle's and that consequently he is not a person contemplated by the definition. Mr. Figgis instanced the case of a member of the famous English Regiment, The Buffs, and argued that he would not be a person within the meaning of the definition. Having given due consideration to the question we can perceive no good reason for giving this limited meaning to the words of the definition. It seems to us that the relevant words are sufficient to include and should be construed so as to include persons belonging to whatever military forces are employed in Kenya at the present time. Supposing we were not at war and that a battalion of the Buffs were sent overseas to serve in Kenya, as happens in the case of other British Dependencies, would it not be correct to say that they constituted in part the military forces of the Colony? We think it would and so we agree with the learned Magistrate's decision that Captain Brabin is a person employed in the public service.

The judgment then proceeded to deal with questions of fact.