Rex v Warumbe (Revision Case No.42 of 1943) [1943] EACA 66 (1 January 1943)

## CRIMINAL REVISION

BEFORE SIR JOSEPH SHERIDAN, C. J., LUCIE-SMITH, J., AND HAYDEN, J.

## REX. Prosecutor

## $\nu$ . 7806 CPL. WARUMBE. Accused

## Revision Case No. 42 of 1943

Traffic Ordinance, 1928—Traffic (Motor Omnibus) Rules, 1940—Rule 6 (a) Ultra vires.

Accused absent, unrepresented.

Stacey, Crown Counsel, for the Crown.

ORDER (22-4-43).—The accused was convicted of an offence *contra* Rule 6 (a) of the Traffic (Motor Omnibus) Rules, 1940, and sentenced to pay a fine of Sh. 14 or undergo detention for two weeks.

The Rule reads as follows:—

"6. No passenger shall—

(a) use obscene or offensive language or conduct himself in a riotous or disorderly manner;"

It purports to have been made under section 49 of the Traffic Ordinance, 1928. That section empowers the Governor in Council to make rules for a variety of purposes. It is clear that no power to make such a rule as that under review is conferred by section 49 ( $a$ to $y$ ), for the purposes there referred to relate to motor omnibus attendants and vehicles as distinct from passengers using them. It remains for us to consider whether the offence falls under section 49 $(z)$ , which $reads: -$

"(z) Generally restricting or regulating the use of vehicles in such manner as circumstances may appear to him to require and for the further, better or more convenient carrying out of any of the provisions of this Ordinance."

Our view is that the fair interpretation of this provision is that it refers to what has gone before, namely the manner and use of vehicles on roads by those permitted to ply them and their servants as distinct from their use by passengers.

The rule in question we accordingly declare to be *ultra*, vires and we quash the conviction and sentence and order the refund of the fine, if paid.