[1940] EACA 52

# APPELLATE CRIMINAL

## Before Sir Joseph Sheridan, C. J. and BARTLEY, J.

## **KIPTOROS ARAP KOMEN, Appellant**

# REX, Respondent

# Criminal Appeal No. 17 of 1941

Obstructing a police officer in the execution of his duty-Powers of arrest-Whether a police constable is empowered to arrest without warrant persons infringing the Nandi Pass Rules—Rule 29 of the Nandi Pass Rules ultra vires the rule-making powers of the Governor in Council under section 2 of the Native Passes Ordinance—Section 4 of the Native Passes Ordinance merely labels Nandi Pass Rules offences as "cognizable to the police"-No definition of that phrase except that contained in section 2 of the Criminal Procedure Code which deals only with certain scheduled offences—Whether conviction of obstructing a police officer in the execution of his duty can be altered to a conviction for common assault by virtue of section 174 of the Criminal Procedure Code.

Appellant appealed from a conviction of obstructing a police officer in the execution of his duty *contra* section 231 (b) of the Penal Code.

The facts are, appellant was arrested by a police constable for an infringement of the Nandi Pass Rules. In escaping from this custody the appellant and others viciously assaulted the constable, using force in excess of that necessary to effect the escape. The further facts appear from the judgment reported.

Rule 29 of the Nandi Pass Rules purports to give a power of arrest without warrant. The Native Passes Ordinance asserts that all offences against the Rules are "cognizable to the police" but does not expressly provide powers of arrest without warrant.

Held (25-3-41).-(1) Rule 29 of the Nandi Pass Rules is ultra vires.

(2) Section 4 of the Native Passes Ordinance does not expressly give power of arrest, without warrant to a police constable.

\*(3) The offence in question not being an offence prescribed for by the schedule of Criminal Procedure Code, the words "cognizable to the police" are without importance.

\*(4) The arrest of the offender without a warrant was unlawful, and the police officer was not acting in the due execution of his duty when he was assaulted by the appellant.

(5) In view of the foregoing, the appellant was not rightly convicted of the offence<br>with which he was charged, but he could be properly convicted of common assault on the facts proved by virtue of section 174 of the Criminal Procedure Code.

(6) Conviction changed to one of common assault contra section 228 of the Penal Code.

Regina v. Mabel (173 E. R. 918) approved.

Conviction altered to one of common assault and the original sentence of three years imprisonment with hard labour reduced to twelve months imprisonment with hard labour to bring it within the jurisdiction.

\* Since this decision the legislature has provided powers of arrest without warrant in respect of offences cognizable to the Police. This has been effected by the Interpretation and General Clauses (Amendment) Ordinance, 1941, section 2, which came into force on 28th April, 1941, and provides that "cognizable to the Police" used with reference to an offence shall mean that any police officer may arrest without warrant any person whom he suspects upon reasonable grounds of having committed that offence.

## Appellant in verson.

## Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The assault on the police constable was sufficiently proved, but the constable legally speaking was not acting in the execution of his duty at the relevant time for reasons which we will state. The appellant was arrested for a contravention of the Nandi Pass Rules (Cap. 138 of the Laws of Kenya Orders Proclamation, etc., Vol. II). Rule 29 of those Rules purports to give a power of arrest, but in so far as it does, it is *ultra vires* the rule-making power of the Governor in Council under section 2 of the Native Passes Ordinance. Section 4 of the Ordinance enacts that all offences against any rules under the Ordinance are "cognizable to the police", but inasmuch as the term "cognizable to the police" has not yet been defined except in section 2 of the Criminal Procedure Code, and by that definition the power to arrest without a warrant under other laws than the Penal Code is governed by the first schedule to the former Code, there was no power of arrest without a warrant vested in the police constable. The position therefore was that the accused was entitled to resist his apprehension by the constable but in doing so he was not entitled to use more force than was necessary for the purpose. According to the evidence the police constable was overpowered by the accused and two other prisoners, one of whom had felled him to the ground before he was struck on the head with a rungu and rendered unconscious. The evidence indicates that it was the accused who struck this blow, but the learned magistrate was content to find that it was doubtful which of the three did, holding that all three were responsible in law. This is not an unreasonable finding.

The evidence in our view proves that the violence used by the accused was more than was necessary to achieve his purpose. This being so the accused could properly have been convicted of common assault contrary to section 228 of the Penal Code by virtue of section 174 of the Criminal Procedure Code. The accused having denied that he was present when the constable was assaulted cannot be prejudiced by our finding him guilty of the lesser offence. As to the propriety of a conviction for common assault on a charge of assaulting a police officer in the execution of his duty we respectfully agree with the summing up of Parke, B. in Regina v. Mabel (173 E. R. 918).

We alter the conviction to one of common assault contrary to section 228 of the Penal Code and reduce the sentence to 12 months imprisonment with hard labour to bring it within the jurisdiction.