[1984] KEHC 29 (KLR)

REPUBLIC OF KENYA

IN THE HIGH COURT OF KENYA AT NAIROBI

crim case 845 of 84

SEMPOLO OLE NAENI ……………………………………………APPELLANT

V e r s u s

REPUBLIC …………………………………………………………...RESPONDENT

CORAM : ALUOCH (MRS) J,

M N Mbaya for Appellant,

A K Nyairo (State Counsel) for Respondent.

J U D G M E N T

The appellant, Sempolo Ole Naeni, together with four others, who have not lodged any appeal were convicted on their own pleas of guilty, by the learned second class magistrate, Kajiado, of the offence of “Moving Animals without a permit, contrary to Rule 29(1) of the Animal and Disease Rules, Cap 364, Laws of Kenya.

The appellant, together with 4 others, were each sentenced to pay a fine of Ksh.2,000/- in default, 3 months imprisonment. A further order was made forfeiting the 33 herd of cattle to the Government.

The appellant’s appeal before me was against both conviction and sentence, and the order of forfeiture.

When the hearing of this appeal started before me, Mr. Nairo, State Counsel, conceded on the ground that the section under which appellant was charged, did not exist, as Rule 29(1) of Cap 364, was the rule dealing with “Notification of infected areas,” not a penalty section for “Moving animals without a permit.” Mr. Nyairo relied on the case of UGANDA versus KENERI OPIDI reported in 1965 E.A.L.R. page 614. I have gone through the case and I would say, it provides a useful guide. I find that the appellant suffered a miscarriage of justice in having been convicted under Rule 29 of Cap 364, Laws of Kenya.

The miscarriage of justice suffered, cannot be cured under section 382 Criminal Procedure Code, because it goes to the root of the matter, in that, the offence created under these Rules is, “Movement of Animals with restricted areas without a permit. The intention of the legislature was to restrict movements of animals in restricted areas, not just movement of animals generally. This is why this defect cannot be cured by section 382 Criminal Produce Code. I also find that the provision to section 382, cr;iminal produce code cannot apply in this case either, because the appellant and the others who were unrepresented in the lower court, could not have been expected to know that they were charged under a non-existent section.

Because of the foregoing, I am left with no alternative, but to allow the appeal, quash conviction and set aside the sentence imposed on the appellant. Because of the nature of the conviction imposed on the appellant, plus the other co-accused who have not appealed, these are:-

Lekenye ole Noonkiyos

Kuya ole Loikitasae

Nkilasi ole Siaponi

Ntoyiau ole Moreru

I feel inclined to exercise my reversionary powers under section 364(1) of the Criminal Procedure Code, and order that they all be acquitted and released forthwith, unless otherwise lawfully held. If any fine had been paid by the appellant, Sempolo ole Naeni, or any of the other accused persons charged together with him in the lower court, I order that such monies be refunded back to them.

Finally, I rescind the trial magistrate’s order for the forfeiture of 33 herd of cattle, and order that the heard of cattle be restored to the owners. Orders accordingly.

Dated at Nairobi, this 10th Day of December, 1984.

J. ALUOCH (MRS)

JUDGE