[1952] EACA 303
Section 5(1) of the Immigration Control Ordinance is declaratory, identifying classes of prohibited immigrants but not creating a substantive offence. The appellant, not possessing a valid passport or entry permit, was a prohibited immigrant and his entry was unlawful under section 6. However, conviction under...
Source-derived case information.
- Citation
- [1952] EACA 303
- Parties
- Appellant: Galgalo s/o Dajisa; Respondent: Regina
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 215 of 1952
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- Conviction and sentence under section 5(1)(j) set aside; conviction and sentence under section 6 upheld; appeal dismissed as to section 6.
- Judges
- Bourke J, Hearne CJ
- Legal Topics
- Immigration Offences, Prohibited Immigrants, Entry Permit Requirements
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Galgalo s/o Dajisa
Appellant
Regina
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether section 5(1)(j) of the Immigration Control Ordinance creates a substantive offence or is merely declaratory.
- 2 Whether the appellant could be convicted under both section 5(1)(j) and section 6 for the same unlawful entry.
Ratio Decidendi
Section 5(1) of the Immigration Control Ordinance is declaratory, identifying classes of prohibited immigrants but not creating a substantive offence. The appellant, not possessing a valid passport or entry permit, was a prohibited immigrant and his entry was unlawful under section 6. However, conviction under section 5(1)(j) was improper, as it does not itself create an offence but merely defines prohibited immigrants. Therefore, the conviction and sentence under section 5(1)(j) were set aside, while the conviction and sentence under section 6 were upheld.
Court Disposition
Conviction and sentence under section 5(1)(j) set aside; conviction and sentence under section 6 upheld; appeal dismissed as to section 6.
Orders
- Conviction and sentence of four months imprisonment under section 5(1)(j) set aside.
- Conviction and sentence of four months imprisonment with hard labour under section 6 upheld.
Full Case Text
Judgment text and source record
15 paragraphs
## APPELLATE CRIMINAL
Before SIR HECTOR HEARNE, C. J. and BOURKE, J.
GALGALO s/o DAJISA, Appellant (Original Accused)
$\cdot \cdot$
REGINA, Respondent (Original Prosecutrix)
Criminal Appeal No. 215 of 1952
(Appeal from the decision of the First Class Magistrate's Court at Nairobi, R. C. Laming, Esq.)
Immigration Control Ordinance—Section 5 (1) (i)—Declaratory only.
The appellant was convicted under section 5 (1) (j) of the Immigration Control Ordinance of entering the Colony without a valid passport. He was also convicted under section 6 of unlawfully entering the Colony without a valid entry permit.
Held (30-6-52).—Section 5 (1) is a declaratory section specifying the various classes of persons referred to therein to be regarded as falling within the category of prohibited immigrants. Conviction under section $5(1)(j)$ set aside.
Appellant absent, unrepresented.
Todd, Crown Counsel, for Crown.
JUDGMENT.—The appellant entered the Colony and Protectorate of Kenya not being in possession of a valid entry permit or pass and not being in possession of a valid passport or document of identity. He was "a person, other than a permanent resident, who was not in possession of a passport". By virtue of section 5 (1) (i) of the Immigration (Control) Ordinance he was a prohibited immigrant and his entry was unlawful unless he was in possession of a valid entry or pass referred to in the proviso to section $5$ (1). As he was not in possession of either he was a person to whom section 6 applied and he was rightly convicted of an offence in contravention of the provisions of that section. But he was also convicted under sub-section $(j)$ of section 5 (1) as his entry was without a passport. In our opinion section $5$ (1) is merely a declaratory section. The lettered sub-sections of section 5 (1) declare that the various classes of persons referred to therein are to be regarded as falling within the category of prohibited immigrants. As such they are subject to all the provisions of the Ordinance relating to prohibited immigrants. A prohibited immigrant may therefore be convicted because his entry without a valid permit or pass is unlawful (section 6) but he cannot also be convicted in respect of the same entry because by reason of a certain disqualification he was a prohibited immigrant to whom a permit or pass had not been issued. The conviction of the appellant under section 5 (1) (j) and the sentence of four months imprisonment are set aside, but the appeal of the appellant from the conviction under section 6 and the sentence of four months imprisonment with hard labour passed thereunder is dismissed. This sentence of four months imprisonment will follow the expiration of one months' imprisonment which the appellant is serving.
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