[1952] EACA 302

#### 155

## APPELLATE CRIMINAL

## Before Sir HECTOR HEARNE, C. J. and BOURKE, J.

## **THE HON.** THE ATTORNEY GENERAL. Appellant (Original Prosecutors)

$\overline{\mathbf{v}}$

# KIPSOI ARAP CHEMORORE, Respondent (Original Accused)

Criminal Appeal No. 149 of 1952 (Case Stated)

(Appeal from the decision of the First Class Magistrate's Court at Kisumu.

#### H. G. Sherrin, Esq.)

Native Authority Ordinance, section 13 (2)—Lawful excuse—Judgment in previous case.

The Attorney General appealed by way of case stated against the decision of a Magistrate dismissing a charge under section 13 (2) of the Native Authority Ordinance of neglecting to obey an order issued by the Provincial Commissioner. Nyanza Province, under section 13 (1) of the Ordinance.

It appeared that the respondent was charged with the same offence in respect of the same order relating to the same land in Kericho, R. M. Criminal Case 461/1951, and acquitted. The Resident Magistrate in that case had held that the respondent had produced such evidence of a lawful title to his occupation of crown land that in default of rebuttal the Provincial Commissioner's order of removal was beyond his powers under section 13 (1) of the Ordinance.

The Magistrate in the present case disagreed with the view of the Kericho Resident Magistrate and held that the respondent had no title to the land but dismissed the charge under section 208 Criminal Procedure Code as he considered the respondent had lawful excuse in relying on the judgment in the previous case and neglecting to obey the Provincial Commissioner's order.

Held (2-7-52).—The judgment of the Magistrate in the first case holding that the Provincial<br>Commissioner's order made beyond his powers was a lawful excuse for the respondent<br>neglecting to obey the Provincial Commissioner'

Appeal dismissed.

Cases sited: Roberts v. Inverness, 27 Sc. L. R. 198, Harvey, L. R. 1 C. C. R. 284.

Todd. Crown Counsel, for appellant.

Respondent absent, unrepresented.

JUDGMENT.—This is an appeal by the Attorney General by case stated. The respondent was charged with an offence under section 13 (2) of the Native Authority Ordinance in that, without lawful excuse, he had neglected to obey an order issued by the Provincial Commissioner, Nyanza Province, under section 13 (1) of the said Ordinance. The Magistrate found that the respondent had been ordered in writing "to remove within seven days from land occupied by him on to the Lumbwa Native Land Unit, being land reserved for the use and enjoyment of the tribe to which the respondent belonged" and that the respondent had neglected to obey the order, but at the close of the case of the prosecution he dismissed the charge against the respondent, for reasons that will appear later, under section 208 Criminal Procedure Code.

Reference was made in the case stated to Criminal Case No. 461 of 1951 of the Court of the Resident Magistrate of Kericho (Mr. A. E. E. Reade) in which the respondent was charged with the same offence in respect of the same order relating to the same land and in which he was acquitted. It does not appear from the case stated whether a plea of autrefois acquit was raised. $Mr$ . Reade's judgment, a portion of which appears in the case stated, was brought to the notice of the Magistrate in the instant case by the respondent. It contains what appear to be undisputed facts which emerged at the trial before Mr. Reade that in 1947 the then District Commissioner, Mr. Gregory Smith, authorized the respondent to build a mill at "Kaptingen" in which he had sunk Sh. 13,000, that the respondent held a receipt dated 9th June, 1951, for a licence signed on behalf of the District Commissioner for the mill at "Kimulot" and that although the Local Native Council, now as we are informed called the African District Council, raised "an objection to the mill" it was later withdrawn. The only new factor since the prosecution of the respondent in Criminal Case No. 461. of 1951 was that the African District Council informed the respondent that "the permission granted" in respect of the mill "was null and void". In his judgment Mr. Reade said that "the respondent had produced such evidence of a lawful title to his occupation of Crown Land that, in default of the slightest attempt at rebuttal by the prosecution in cross-examination or otherwise, the Provincial Commissioner's order of removal was beyond his powers under section 13 (1) of the Native Authority Ordinance".

The Magistrate in the instant case, unlike Mr. Reade, took the view or appeared to take the view that the respondent had no title to the land of which he was in occupation, for he told him that if proceedings were taken against him in the proper way he would be evicted, but he dismissed the charge under section 208 Criminal Procedure Code for the reason, as is clear from the case stated, that the respondent in relying as he did upon the judgment of Mr. Reade had "lawful excuse" in neglecting to obey the order which had been given to him in writing by the Provincial Commissioner; and the determination of this appeal depends upon the answer to the question submitted on behalf of the appellant: "Is the fact that in the previous case against the respondent for<br>disobeying an order to leave this land, the Court informed him that the Provincial Commissioner's order of removal was beyond his powers under section 13 (1) of the Native Authority Ordinance a lawful excuse for the respondent to neglect obeying an (? another) order under the section?"

It is to be noted that the crucial words we have to construe are not legal excuse but "lawful excuse". No authorities were cited to us. There can be no doubt as to the meaning of the word "legal". It means something that the Courts will recognize and enforce and legal excuse connotes lawful authority. But the phrase "lawful excuse" does not mean the same thing as "lawful authority". "Excuse" as Willes, J. said in the case of Harvey L. R. 1 C. C. R. 284 (286) "in either an authority or a reasonable belief in authority". In Roberts v. Inverneus 27 Sc. L. R. 198 it was held that it was a lawful excuse for the removal of a cow without a license in contravention of a regulation, that the offender had been previously informed by the local inspector that a licence was no longer necessary. We agree with Mr. Reade when he said in effect that where an African strays from his reserve and without any colour of right settles on land outside his reserve, it is in conformity with the spirit of the law and within its purpose to deal with him peremptorily under section 13 (1). But where as in this case the appellant, described as a man of irreproachable character, on the basis of facts proved and indeed undisputed by the Crown, is told by a Court that the Provincial Commissioner made an order beyond his powers and is again served with a similar order, we think the Magistrate was right in holding that he had "lawful excuse" in neglecting to obey the subsequent order. If he had convicted him of a criminal offence in these circumstances it would not, we think, have been good sense or good law.

We answer the question to which we have referred in the affirmative and dismiss the appeal.