Rex v Wanyee (Criminal Appeal No. 15 of 146) [1946] EACA 57 (1 January 1946)

## APPELLATE CRIMINAL

## Before THACKER, J. and DE LESTANG, Ag. J.

## RÉX, Respondent

ν,

## STEPHANO WANYEE, Appellant Criminal Appeal No. 153 of 1946

Criminal law—Keeping a brothel—Section 149—Penal Code—"Keeps".

The appellant was the owner of a building which he let out in rooms to prostitutes well knowing that they were prostitutes and that they would use the rooms for the purpose of prostitution. He did not himself reside on the premises nor did he take any part in its management being only concerned with receiving the rent. He was convicted of keeping a brothel and appealed.

**Held** (30-7-46).—That on the facts proved the appellant was not keeping a brothel.

Appeal allowed.

Cases referred to: R. v. Barrett 9 Cox 255; R. v. Stannard 9 L. T. 428.

C. H. Patel for the Appellant.

Dennison, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of keeping a brothel contrary to section 149 P. C. and sentenced to pay a fine of £100 with six months' imprisonmentwith hard labour in default and to execute a bond for £200 with one surety to be of good behaviour for one year.

Against his conviction and sentence he has appealed.

The facts which the Magistrate found proved were briefly that the appellant was the owner of a building which he let out in rooms to prostitutes well knowing that they were prostitutes and that they would use the rooms for the purpose of prostitution. He did not, however, reside on the premises nor did he take any part whatsoever in its management, being only concerned in the matter of rent.

There was abundant evidence to support the Magistrate's finding of fact and the only question which arises for decision in this appeal is whether he was right in holding that the appellant was "keeping" a brothel within the meaning of the section. In dealing with this point the Magistrate said in paragraph 14 of his judgment: -

"Normally 'keeps' would mean taking some part in the management of brothel: obtaining the women, collecting their earnings, supplying them with clothes and food, obtaining 'visitors' and giving them some of the earnings while keeping some himself. In this sense there is no evidence against him. But the word has not been defined in the Ordinance, and I have not had the advantage of hearing counsel on either side. There is no Kenya case law to help: I am told there has been no such case in court before. I have therefore to consider the matter in a commonsense way."

He then continued in paragraph $15:$ —

"If, therefore, as seems to be the case, the accused has set aside these premises of his for *this* class of tenants, and *nobody else* and if he has made no attempt in spite of warnings to obtain a better class of tenant, then he is making good rent by letting to women and men of this objectionable class, and he is 'keeping' (and keeping apart) the premises for prostitution, and offends against the law set out in section 149 P. C. and is convicted."

While, in our view, the Magistrate correctly interpreted the word "keep" in paragraph 14 of his judgment it seems to us that he strained the meaning of that word in the succeeding paragraph.

The offence contained in section 149 P. C. is not materially different from the common law offence of keeping a bawdy-house in England and in order to sustain a conviction for the common law offence it must be proved that the accused took part in the care, government and management of the premises in question (vide Archbold, 31st Ed. p. 1340).

In particular it was held in R. v. Barrett, 9 Cox 255, that a landlord cannot be convicted of keeping a brothel merely because, having notice of the nature of the occupation, he does not give the tenant notice to quit and in $R$ . $v$ . Stannard, 9 L. T. 428, that a landlord is not liable to be convicted even if at the time he let the house he knew that it was to be used for purposes of prostitution and, by reason of its occupation as such, received additional rent.

It was probably for this reason that provision was made in the Criminal Law Amendment Act, 1885, section 13 (3), making it an offence for the lessor or landlord of premises to let them with the knowledge that they were to be used as a brothel. $\mathcal{L} = \mathcal{L} \times \mathcal{L}$

We can see no reason on the plain meaning of the word "keep" and on authority to read that word as meaning "suffering" as we were asked to do by the learned Crown Counsel.

In the result we must reluctantly hold that the evidence did not establish that the appellant was "keeping" a brothel as charged.

We allow the appeal, set aside the conviction and sentence and order the fine, if paid, to be refunded.