Rex v Wako (Criminal Revision Case No. 223 of 1945) [1945] EACA 43 (1 January 1945)

# CRIMINAL REVISION

### BEFORE LUCIE-SMITH AND HORNE, J. J.

#### REX. Prosecutor

$\mathbf{v}^{(1)}_{\mathbf{v}} \sim \mathbf{v}^{(1)}$

## AWO $D/O$ WAKO. Accused

#### Criminal Revision Case No. 223 of 1945

Criminal law—The Nairobi Municipality (Amendment) By-laws 1944—By-law 212—Remaining in the Municipality for more than 36 hours without employment or permit—Burden of proof on accused—By-law repugnant to the Indian Evidence Act-Unreasonable and ultra vires.

The facts appear fully from the order.

Held $(18-9-45)$ .—(1) That in the absence of a specific power enabling the Municipal Council so to do, a Municipal By-law which places the burden of proof upon a person accused<br>of offending against it is repugnant to the Indian Evidence Act and *ultra vires*.

(2) That as in its present form By-law 212 is manifestly partial and unequal as between different classes of natives in its operation it is unreasonable and ultra vires.

Dennison, Crown Counsel, for the Crown,

Madan (for Khanna) for the Accused.

ORDER.—This is an application in revision by Awo d/o Wako who was convicted of the offence created by Municipal by-law 212 of remaining over 36 hours within the municipality without a permit. The by-law is in these terms: —

In this By-law "employment" means employment on a ticket contract of service, a special contract of service, a monthly contract of service or an apprenticeship contract as defined in sections 4, 5, 14 $(a)$ (2) and 19 of the Employment of Servants Ordinance, 1937. No native shall remain in the municipality for more than thirty-six hours, excluding Sundays and public holidays, without employment, the onus of the proof whereof lies on such native, unless he shall have obtained from the Town Clerk or other person authorized on his behalf a Resident's or Visitor's permit in the form set out in Schedules II and III to these By-laws, and no native shall remain in the municipality after the expiry of such permit. A Resident's permit shall be revocable after seven days' notice given to the holder in writing.

The charge made thereunder is as follows: $-$

Remaining in the Municipality for a longer period than 36 hours without employment, and without having a permit from the Town Clerk, contrary to section 212 in Nairobi Municipality By-laws, 1944:

That on the 17.7.45 at about 4.45 p.m. you yere found at Naveri Eastleigh, in the Central Province, and that it is alleged you are unemployed, and have been in the Nairobi Municipality for more than 36 hours without having a Visitor's Permit.

On being brought before the Magistrate and being charged the applicant stated:-

"I have not got a pass and have been in Nairobi some time."

This statement was accepted as a plea of guilty to the charge and the applicant was forthwith convicted and sentenced to three weeks imprisonment. As the sentence does not exceed one month, the matter is brought before the Court by way of revision.

A number of submissions are made on behalf of the applicant by Mr. Madan: The first of these is that the statement of the accused does not amount to an unequivocal plea of guilty in that the words "I have been in Nairobi some time" do not necessarily imply more than 36 hours. As to this submission, the words of the Charge are "a longer period than 36 hours" and in the Particulars the words are "for more than 36 hours". Had the applicant intended not to admit these allegations as to time we would have expected her to use some expression indicating a recent arrival in Nairobi. Also the applicant's admission as to the time she had been here is coupled with her admission that she has no pass (permit). And assuming that it is right to put the burden of proof as to employment upon the accused, she does not deny the allegation that she is unemployed, and her words were therefore rightly construed as a plea of guilty.

It is, however, submitted by Mr. Dennison that the Municipal Council cannot in creating an offence by by-law place any part of the burden of proof of the offence upon the offender, and by so doing they have made a by-law which is repugnant to the provisions of a law which is in force in the Municipality, that is, repugnant to the Indian Evidence Act under which the burden of proof of any criminal offence is upon the prosecution; and that the Legislature has not empowered the Council under the Local Government (Municipalities) Ordinance, 1928, to vary the law in this manner; and he points out that such a variation of the ordinary rule as to the burden of proof is, when made at all, made by the Legislature itself, and he cites various Ordinances where this has been done, of which the Stock and Produce Theft Ordinance of 1933 and the Coconut Industry Ordinance are examples. This submission opens up a matter of more grave import than whether the plea can be accepted as a plea of guilty.

In addition it is submitted by Mr. Madan that the by-law is in other respects invalid as it is in its terms too wide and therefore unreasonable. His argument is that the expression "No native" does not include natives of both sexes, and if it can be he'd to include females, then as it applies to the wives of natives who are themselves lawfully resident or present in the Municipality it is too wide and oppressive. According to section 69 of the Local Government (Municipalities) Ordinance, 1928, the Council may make by-laws in respect of all such matters as are necessary and desirable for the maintenance of the health, safety and wellbeing of the inhabitants or for the good rule and government of the municipality, and more especially for the various purposes that are then set out in the section, and among these purposes is-

$(65)$ For regulating the issue of passes to and the carrying of passes by natives within the municipality."

Section 42 of the Ordinance sets out the powers of the Council and among them is the power—

"(46) To do all things necessary for the carrying out all the purposes for and in regard to which the council is empowered from time to time to make by-laws and for carrying all such by-laws into effect."

There is nothing here which would empower the Council by means of a by-law to place the burden of proof upon a person accused of offending against one of its by-laws and it is therefore repugnant to the Indian Evidence Act.

Whether the by-law in question is too wide and unreasonable is a matter which requires careful consideration. Those general considerations which have to be borne in mind in considering by-laws of a local government authority have been laid down in the judgment of Lord Russell of Killowen in the case of Kruse v. Johnson (1898) 2 Q. B. 91. The principles there established have been consistently

followed ever since, and this case establishes that a hy-law of a municipality ought to receive a "benevolent" interpretation and ought to be supported, unless it is manifestly partial and unequal in its operation between different classes ... The present by-law was made under the safeguards provided by the Ordinance, but as Lord Russell says these safeguards in no way relieve the Court of "the responsibility of inquiring into the validity of by-laws where they are brought in question, or any way affects the authority of the court in the determination of their validity or invalidity".

Obviously the by-law provides that any unemployed native being within the Municipality shall have a permit to be there, and if no permit, may be punished. and there is no reason for saying that the word "native" is to be restricted to made natives. By the interpretation given by the by-law to "employment", it would appear that only those females who are actually in employment as so defined would be free from prosecution for having no permit. The wife of a native lawfully resident (by the Town Clerk's permission) in a municipal native location, not being in employment as defined in the by-law is also required to have a permit. She ho doubt would be given one on application, while the known prostitute would not be so given. But it must be pointed out that it is entirely at the discretion of the Town Clerk whether he gives a permit or not and for period of time he gives it. The by-law contains no direction on these points. Further the definition of "employment" limiting its meaning to employment under four specific forms of engagement under the Employment of Servants Ordinance produces the unfortunate result that those natives who are excluded from the operation of that Ordinance by Government Notice No. 766 of 1938 (as amended by Government Notice No. 1050 of 1943) become, if they are in the municipality, unemployed natives and liable to prosecution if they have no permit. All members of the African Clerical Service are excluded by this Government Notice from the operation of the Ordinance and so are all natives earning more than Sh, 100 per mensem, so that the contracts of service of these natives are not governed by the Ordinance but by the ordinary law of contract or by Civil Service Regulations.

The by-law is, no doubt, an honest attempt to fill the gap between unemployment on the one hand and vagrancy and destitution on the other. It is no doubt dangerous to have large numbers of unemployed natives of either sex within the municipality, but in the form it is at present the by-law is manifestly partial and unequal as between different classes of natives in its operation. So for that reason as well as for the ground submitted by Mr. Dennison we hold it is *ultra vires* the Council and quash the conviction.