[1927] EACA 27

## CRIMINAL REVISION.

Before PICKERING, J., and SHERIDAN, J.

CROWN through LABOUR INSPECTOR

## $\overline{v}$ . V. TURNER.

## Revision Case 114/1927.

The Resident Native Labourers' Ordinance (Ordinance No. 5 of 1925), section 10—movement and branding of resident natives' cattle.

**Held**:—That a native can bring onto the farm any number of stock<br>under any number of agreements with the occupier with a Magis-<br>trate's approval. Further held that if the native fails to obtain the approval of a magistrate the occupier is not guilty of an offence.

The Judgment of the lower Court (in case No. 674 of 1927) in the Second Class Court. Kisumu-Londiani) reads as follows: ------------------------------------

"The accused admits clearly that he has no idea of the number of native-owned cattle on the farm he manages. Nor apparently has he checked his Stock Register during the past eleven months.

Equally, too, he is uncertain whether or not the farm brand was accessible to the natives on the farm.

It is not disputed that there are surplus cattle over and above the number allowed by agreement, section 10 $(1)$ , on the farm and that these are branded with the farm brand.

These cattle are present in contravention of section 10 $(1)$ and the accused has acquiesced in that breach. He has therefore allowed natives to reside in contravention of one of the provisions of the Ordinance, and thereby renders himself liable to a penalty under section 17 applied to section 5 (1) Resident Native Labourers' Ordinance, 5/1925.

I find accused guilty, section 5 $(1)$ read with section 10 $(1)$ Resident Native Labourers' Ordinance, 5/1925.

As this is by way of being a Test Case, at least so far as this District is concerned, I do not propose to inflict a heavy penalty

I sentence accused to pay a fine of Sh. 50, section 17 of the same Ordinance."

PICKERING, J.—The applicant in this revision case was convicted under section 5 (1) of the Resident Native Labourers Ordinance, 1925, of allowing natives to reside on his farm in

contravention of the provisions of that Ordinance. By section 3 of the Ordinance it is enacted that no native shall reside on a farm unless he possesses one of the five qualifications set out in the section. The second qualification is that of having entered into a contract drawn, signed and attested in the form set out in section 4. There is evidence that each of the various squatters on the applicant's farm had entered into the necessary agreement and was a native who could be rightly allowed by him as occupier to reside on his farm. It was suggested by the prosecution that although the residence was lawful at its inception it had become unlawful because during residence one or more of the native residents had committed an offence against one of the provisions contained in the Ordinance. I am unable to follow the train of reasoning. Each occupier of a farm cannot be taken to have guaranteed the good conduct of all his squatters; and should he allow a squatter to reside after misconduct it cannot in my opinion be said that he allows the native to reside in contravention of the provisions of the Ordinance. I cannot find in the Ordinance any provision that misconduct by a squatter invalidates the contract which makes his residence lawful. $On$ the contrary the Ordinance contains a provision for the recission of the contract by a Magistrate.

The Labour Inspector's evidence is interesting. He says: "I found large excesses of stock over the number allowed by agreement ". By the word agreement I understand him to refer to the various contracts entered into in compliance with sections 3 and 4. In those written contracts the only relevant term in the statutory form is an undertaking by the occupier to provide grazing for a specified number of stock. I cannot believe that this clause of the contract is referred to in section 10 (1), where it is provided that a native lawfully residing on a farm (as these squatters were) may with the consent of the occupier and upon such conditions as to numbers or otherwise as may be agreed by the occupier, take on to the farm any stock which is his property, provided that the approval of a Magistrate is obtained. These words cannot refer solely to the clause under which the occupier merely undertakes to provide grazing. $\mathbf{A}$ native can, in my opinion, bring on any number of stock under any number of agreements with the occupier with a Magistrate's The Ordinance is silent as to the consequence of approval. bringing cattle on to a farm without the approval of a Magistrate, and I am unable to find any authority for reading in an Ordinance such as this, the words: "You may bring cattle on to a farm with approval " as equivalent to a provision: " Anyone bringing on cattle without approval commits an offence". It is unusual for enactments to create offences by inference. Offences should be created in clear and unequivocal language. In the case before us it would seem that such animals as were brought on the form were brought by the natives after agreement

with the occupier. I am unable to agree that, if the native failed to obtain the approval of a Magistrate, the occupier would be guilty of an offence. There is, in fact, no evidence as to whether a Magistrate's approval was or was not obtained. Incidentally the section does not actually direct that the approval must be obtained before the agreement is acted upon. I would also add that these proceedings are invalid. The particulars show that the applicant was charged with having allowed the unlawful residence of an indefinite number of squatters: The occupier should be called upon to make his defence in respect of the residence of each native. To charge an occupier at one time with a number of offences in respect of the residence of a number of natives is manifestly improper.

SHERIDAN. J.—As this case has come before the Revision Court as a Test Case I think I had better express my view in my own words. The accused in a European Farm manager and has been convicted of allowing natives to reside on a farm in contravention of the provisions of Ordinance $V/1925$ . The particular contravention alleged against the natives is that they have on the farm stock in excess of the number stated on their Before the manager can be held responsible agreements. obviously it has to be shown that the natives in having such excess stock on the farm are committing an offence under the Ordinance. According to section 10 of the Ordinance: "Any native lawfully residing on a farm by virtue of a permit or contract under sections 3 and 4 of this Ordinance may with the consent of the occupier thereof take on such farm any stock which is his property on such conditions as to numbers or otherwise as may be agreed by the occupier thereof and such native with the approval of a Magistrate". This provision is permissive in its character and on my reading of it enables the squatter to take on to the farm at any time during the currency of his lawful residence such stock and on such conditions as in the first place the occupier agrees to and in the second place a Magistrate approves of. The section proceeds to enact the legal obligation cast upon the occupier—the only legal obligation in the section-where it enacts that every head of cattle over the age of six months so taken on such farm and all increase thereof over the age of six months shall be branded by such occupier with his brand together with the letter "S". Nothing is said in the section about stock taken on the tarm without the consent of the occupier or the approval of a Magistrate. In fact throughout the length and breadth of the Ordinance there will not be found any prohibition against taking on stock. The only reference to the taking on of stock is, as I have said, permissive. That the legislature was careful in its language when it intended to prohibit a particular act or impose a particular duty is clear. For instance in section 3 it is enacted:

"No native shall reside on a farm unless he is... (e) the holder of a permit in that behalf given by the occupier with the written consent of a Magistrate " and again in section 8: " Every occupier shall keep a register... as the Governor may prescribe.' These are two examples, one of a prohibited act, the other of a particular duty—the first definitely enacting that a certain act shall not be done, the second that a certain duty shall be per-The breach of either is punishable under section 17 of formed. the Ordinance which reads: "Any person committing a breach of the provisions of this Ordinance for which no specific penalty is provided shall be liable on conviction to a fine not exceeding fifty pounds, or to a term of imprisonment of either description not exceeding two months or to both ". I will say in general that there are two classes of breaches with quite different results in connexion with this Ordinance. The first class is contained in the body of the Ordinance and consists of breaches entailing penal consequences. I have given two examples of this class. The second class consists of breaches entailing the civil consequence of rescission of the contract under section 13. $An$ example of the latter to my mind is the condition in the statutory agreement: "That the occupier shall provide good and sufficient building material for the erection of huts for the accommodation of the native and his family ". Had it been the intention of the legislature to have punished such a breach with fine or imprisonment or both, such intention would or should have been expressed in section 16 of the Ordinance relating to specific acts or omissions of occupiers punishable with fine or imprisonment or both. I regret to think that during the life of this Ordinance this case is the first of its kind to come under consideration by this Court, for it is only too true that many convictions have been recorded against persons who on a correct interpretation of the law had committed no offence. For this I place no blame on the Magistrates who have had to interpret an Ordinance which in my opinion is not expressed in such terms as to render its meaning at all times clear. I would set aside the conviction and direct the fine to be refunded.