[1950] EACA 104

## APPELLATE CRIMINAL

## Before THACKER, J., and MODERA, J.

## THE ATTORNEY GENERAL, Appellant (Original Prosecutor)

# W. LOGAN HOOK, Respondent (Original Accused)

#### Criminal Appeal No. 468 of 1950 (Case Stated)

## (Appeal from the decision of the Resident Magistrate's Court at Nyeri-A. C. Harrison, Esq.)

Section 238 P. C.—Degree of negligence in manslaughter and other charges.

The accused was charged under section 238 of the Kenya Penal Code with omitting to take precautions against probable danger from fire in his hotel. He was acquitted on the ground that his conduct fell short of criminal negligence.

$Held$ (21-12-50).—That the degree of rashness or negligence required to prove this charge was not that high degree required in cases of manslaughter and the case must be remitted to the Resident Magistrate for reconsideration.

Case referred to: R. v. Vishawanath Vishnu Dabholkar, XI E. A. C. A. (1944) p. 102

Somerhough, Deputy Public Prosecutor, for the Crown.

## Gledhill for the respondent.

JUDGMENT.—This is an appeal by the Attorney General by way of case stated against an acquittal of Commander Logan Hook by the Resident Magistrate, Nyeri, on a charge of: $-$

"Committing a negligent act contrary to section 238 $(c)$ of the Penal Code. W. Logan Hook between the 15th August, 1949, and the 30th September, 1949, in the Central Province at Nanyuki being the owner and sole proprietor of the Silverbeck Hotel, Nanyuki, omitted to take precautions against probable danger from fire to the said hotel in a manner so negligent as to be likely to cause harm to other persons."

The opinion of this Court is required by the Attorney General upon the following question of law: $-$

"Was the Magistrate correct in determining that upon a charge of omitting to take precautions against a probable danger from fire in a manner so negligent as to be likely to cause harm to other persons, contra section 238 (c) of the Penal Code, 'reckless', 'gross' or 'culpable' conduct must be established to prove criminal negligence, and that the references thereto on page 903 of Archbold's Criminal Pleading Evidence and Practice, 30th Edition (1938) were in point, in view of the decision of the Court of Appeal for Eastern Africa in the case of Rex v. Vishawanath Vishnu Dabholkar (Criminal Appeal No. 150 of 1944) XI E. A. C. A. (1944) 102?"

In our opinion, the references to Archbold are not pertinent to the question which the Magistrate had to decide, namely whether Commander Hook was rash or negligent. The references to Archbold which so influenced the Magistrate's mind are concerned only with manslaughter cases.

The case of Rex v. Vishawanath Vishnu Dabholkar, XI E. A. C. A. (1944) at page 102, is directly in point and sets out the law which the learned Magistrate should have applied to the facts of the case. The words in section 238 are "rash" or "negligent" and the meaning of the word "negligent" may be ascertained by one test, i.e. the meaning of the word "rash".

It is sufficient, in our opinion, if proof is adduced and not contradicted, of actual carelessness or an illegal omission from which rashness or negligence can be inferred. (Mi On S. J. L. B. 134, Nga Sein 189, S. J. L. B. 569 referred to in Ratanlal on Crimes, 11th Edition, at page 609.)

The degree of rashness or negligence required in the instant case was not that high degree of negligence required in manslaughter cases, as explained in Archbold, but something less, amounting to rashness or negligence by some actor omission which endangers life (see section 238 P. C.) or is likely to cause harm.

This opinion is to be remitted to the learned Resident Magistrate, Nyeri, with directions that he reconsider his decision in the light of the above opinion. We are not called upon to comment upon the learned Resident Magistrate's findings of fact.