Velji v Regina (Criminal Appeal No. 294 of 1953) [1953] EACA 6 (1 January 1953)

## APPELLATE CRIMINAL

## Before HEARNE, C. J.

## FAZAL s/o VELJI, Appellant $\mathbf{v}$

## REGINA, Respondent Criminal Appeal No. 294 of 1953

Criminal Law—Traffic Rules, 1929—Rule 40—Failing to keep a motor lorry in good mechanical repair—Whether rule 40 ultra vires power conferred by section 57, Traffic Ordinance (Cap. 232)—Interpretation of Rules.

The accused was convicted of a breach of rule 40 of the Traffic Rules, 1929, with failing to keep a lorry in good mechanical repair and permitting its use on the highway, in Nairobi. The accused appealed, principally, on the ground that rule 40 was ultra vires of the Governor in Council, as defined in section 57 of the Traffic Ordinance (Cap. 232). On appeal, the Crown admitted that section 57 did not enable the Governor in Council to make a rule requiring a motor lorry to be kept in good mechanical repair "at all times" which would include a time when it was not in use on a road, but argued that these words must be taken to mean "at all times when in use upon a road" for the reason that the whole scope and purpose of the empowering Ordinance was the control of traffic upon the roads.

Held (23-6-53)—(1) A rule, other than (perhaps) one which must be taken to be incorporated in the empowering Act, cannot be limited in the interpretation placed upon it by the purpose of the empowering Act. If the purpose of a rule is repugnant to the Act, its meaning cannot be whittled down so as to bring it into conformity with the Act. It must be adjudged invalid.

(2) In the interpretation of rules, words appearing in the rules must be understood<br>as having been used with reference to the subject matter of the rules and to be limited by it. "Traffic" means, with reference to the subject matter of the rules and to be minded<br>by it. "Traffic" means, with reference to vehicles, "vehicles using a thoroughfare or road".<br>The Traffic Rules, as a whole, refer t of the Ordinance refers to a motor lorry as a unit of traffic on a road, and is valid.

The appeal, on this and other grounds, was dismissed.

A. R. Kapila for appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of a breach of rule 40 of the Traffic Rules, 1929. Two points of law were raised on appeal. The first was that "rule 40 of the Traffic Rules is ultra vires the power of the Governor in Council as defined in section 57 of the Traffic Ordinance, Cap. 232 of the Laws of Kenya". It was argued that section 57 did not enable the Governor in Council to make a rule requiring a motor lorry to be kept in good mechanical repair "at all times" which would include a time when it was not in use on a road. Crown Counsel admitted that section 57 did not enable the Governor in Council so to do, but he argued that the words "at all times" must be taken to mean "at all times when in use on a road", for the reason that the whole scope of<br>purpose of the empowering Ordinance, the Traffic Ordinance, was the control of traffic on roads. It will, however, be seen from decided cases that a rule, other than (perhaps) one which must be taken "to be incorported in an empowering Act", cannot be limited in the interpretation placed upon it by the purpose of the empowering Act. If the purpose of a rule is repugnant to the Act, its meaning cannot be whittled down so as to bring it into conformity with the Act. It must be adjudged to be invalid. On the other hand, in the interpretation of rules (as in the interpretation of an Act) words appearing in the rules must be understood as having been used "with reference to the subject matter of the rules and limited by it". Rule 40 appears in the "Traffic Rules". Traffic means, with reference to vehicles, "vehicles using a thoroughfare or road": the "Traffic Rules" as a whole refer to vehicles on roads even where it is not expressly so stated, as for instance in rule $(6 (a))$ which reads "no motor omnibus ... shall be loaded so that the load exceeds a greater height than twelve feet from the ground": and it is clear that rule 40, considered in itself and independently of the Ordinance, refers to a motor lorry, not for instance in a garage, but as a unit of traffic on a road. The word "driver" in rule 40 reinforces this view.

The other point of law that was argued was that the effect of the word "of" in line 4 of section 51 of the Traffic Ordinance before the words "any rules" is to make an act in contravention of a rule, but not a failure to comply with a rule, punishable. There is no substance in the argument. Section 51, so far as it is relevant, enacts that "any person who shall fail to comply with... any of the provisions of this Ordinance... or of any rules...shall be liable, etc."

The second ground of appeal was that rule 40 was vague but this was not argued and Crown Counsel did not therefore, deal with it. Its alleged unreasonableness does not now arise.

It was also argued, somewhat perfunctorily, that the second defence witness should not have been asked whether he had pleaded guilty to driving the lorry of the appellant when not in good mechanical repair. Even if the answer to the question had been wrongly admitted it would not be possible for me, within the authorities relating to the misreception of evidence, to quash the conviction.

There is no appeal against sentence which was not excessive. The appeal is dismissed.