Rex v Waweru (Criminal Appeal No. 489 of 1948) [1948] EACA 85 (1 January 1948)

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J.

## REX, Respondent (Original Prosecutor) v.

## DANIEL WAWERU, Appellant (Original Accused) Criminal Appeal No. 489 of 1948

Criminal Law—Conviction for erecting a building without approval of District Commissioner—Townships General Rules, Cap. 82, Laws of Kenya, rule 39 -Order to demolish by Third Class Magistrate-Competency of order-Subsequent conviction for disobedience of lawful order—Penal Code, section 126—Legality.

The appellant was charged before and convicted by a Third Class Magistrate for erecting a building in Thika Township without the approval of the District Commissioner contrary to rule 39 of the Townships General Rules. He was fined Sh. 60 and ordered to demolish the building within 30 days which he failed to do. He was then charged before a Second Class Magistrate and convicted of failing to obey the lawful order of the Third Class Magistrate under section 126 of the Penal Code.

The appellant appealed from this second conviction.

Held $(6-10-48)$ .—(1) That the Third Class Magistrate had no power to make the order for demolition.

(2) That section 60 of the Townships General Rules provides that in case of failure to comply with the rules concerning the erection of buildings, the District Commissioner may, whether proceedings have been taken against the offending person or not, serve<br>a demolition notice and that failure to comply with any order contained in such notice would constitute an offence against section 25 of the Townships Ordinance, 1930.

(3) That the term "District Commissioner" as defined by the rules does not include an officer possessing Third Class Magisterial powers.

(4) That the order should have been given by the District Commissioner and failure to comply therewith would have constituted a fresh offence against section 25 of the Townships Ordinance and not an offence under section 126 of the Penal Code.

(5) That section 126 of the Penal Code is not applicable in case of breaches of the provisions of the Townships Ordinance and rules.

Appeal allowed.

Tank for the Appellant.

Modi for the Crown.

JUDGMENT.—In this case the appellant was convicted in the Second Class Magistrate's Court at Thika of an offence against section 126 of the Penal Code in that it was alleged that he had failed to obey a lawful order given by the Third Class Magistrate at Thika in Criminal Case No. 259 of 1948. The appellant who was unrepresented at the hearing admitted that he had failed to comply with the order and he was sentenced to 6 months' imprisonment with hard labour. He now appeals both against his conviction and sentence on the ground that the charge against him was bad in law.

From the record in Criminal Case No. 259 of 1948 which this Court has had before it, it appears that the appellant was charged with erecting a building in the township without the approval of the District Commissioner contrary to rule 39 of the Townships General Rules (Cap. 82, Laws of Kenya, Vol. I, Rules and Regulations, p. 393). This rule postulates that no person shall begin to erect any building or make any addition, alteration or repairs to a building until he has given notice of intention to the District Commissioner and obtained his approval. The appellant's plea was entered by the Third Class Magistrate as one of guilty and he was fined Sh. 60. An order was also made by the Magistrate requiring the appellant to demolish the building within 30 days.

The sole point that arises for determination on this appeal is whether the Third Class Magistrate at Thika had power to make any such order. If it was not an order within the Court's jurisdiction to make, the appellant has committed no offence in disregarding it and the charge against him for an offence against section 126 of the Penal Code was misconceived.

The appellant's offence in Criminal Case No. 259 of 1948 was his failure to comply with the requirements of rule 39 of the Townships General Rules. These rules were made under the authority of a repealed Ordinance (Cap. 82 of the Laws of Kenya) but since they have not themselves been repealed they continue to be of full force and effect under the proviso to section 35 of the Townships Ordinance, 1930 (Ordinance 63 of 1930). The penalty for a breach of rule 39 of the Townships General Rules is provided for by rule 60 of the same rules and this rule further provides that in the case of a failure to comply with the rules with regard to the erection or alteration of buildings, the District Commissioner may, whether proceedings have been taken against the offending person or not, serve a removal or demolition notice. Failure to comply with any order contained in such notice would constitute an offence against section 25 of Ordinance 63 of 1930, and the offender would be liable to the general penalty provided by section 22 of the same Ordinance. The term "District Commissioner" is defined by the rules as including the Administrative Officer having charge of a town. It does not include an officer who may happen to possess Third Class Magisterial powers. In short the rule makes no provision for a Court order for demolition. The order should have been given by the District Commissioner and failure to comply would have constituted a fresh offence not against section 126 of the Penal Code but against section 25 of Ordinance 63 of 1930. What has happened in this case is that there has been confusion between the judicial and ministerial functions of an Administrative Officer-it is essential that they should be kept distinct. Furthermore the penalty of imprisonment given by section 126 of the Penal Code is expressly excluded where "any other penalty or mode of proceeding is expressly prescribed". Penalties are expressly prescribed for breaches of the provisions of the Townships Ordinance and any rules made thereunder so that this section of the Penal Code is inapplicable to any such offences or defaults.

The charge which is the subject matter of the appeal should never have been brought and the conviction entered on it cannot be sustained.

The appeal is allowed and the appellant if in custody must be liberated forthwith.