[1951] EACA 121

## APPELLATE CRIMINAL

Before Sir HECTOR HEARNE, C. J., BOURKE, J., and CONNELL, Ag. J.

(1) KIRAYI NGILA, (2) MURAGE MITANGI, (3) LESANI BARDERO, Appellants (Original Accused)

ν.

REX, Respondent (Original Prosecutor)

## Criminal Appeals Nos. 45, 46 and 80 of 1951

(Appeal from the decision of the First Class Magistrate's Court at Nanyuki— J. LOCKHART, Esq.) $\cdot \cdot$ $\mathcal{A}(\mathcal{A},\mathcal{A})$ $\mathcal{L}^{\mathcal{A}}(\mathcal{A})\subset \mathcal{L}^{\mathcal{A}}(\mathcal{A})$

Moving stock—Diseases of Animals Ordinance—Charge under section 7 (5): The appellants were charged with moving stock contra to section 7 (5) of the Diseases of Animals Ordinance and convicted.

Section 7 (5) empowers the Governor-in-Council to make Rules for prohibiting or regulating the movement of animals. The Rules applying in G. N. $60/31$ had been revoked at time when offences were alleged to have been committed. The provisions of Rule 3 (2) in G. N. $60/31$ had been re-enacted by Rule 21 (2) in G. N. 597/31. $\tau_{\rm{c}}=0$ $\sim$

Held (22-6-51).—That the appellants had been charged on facts which did not constitute an $\frac{1}{1}$ offence at law and the trial was accordingly a nullity. $\mathcal{L}_{\mathcal{A}} = \mathcal{L}_{\mathcal{A}} \mathcal{D} \cup \mathcal{L}_{\mathcal{A}}$

Appeal allowed. $\{x_{i,j}\}_{i=1}^{n}$

$\epsilon_{\pm 1}$

$\mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\subseteq \mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\subset \mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\subset \mathcal{M}^{\mathcal{A}}_{\mathcal{A}}\subset \mathcal{M}^{\mathcal{A}}_{\mathcal{A}}$

**Kapila for Appellants.**

Pearson, Crown Counsel (Kenya), for Crown.

**JUDGMENT.**—The appellants in criminal appeals numbered 45, 46 and 80 of 1951 were charged with "moving stock from Native Reserve on to a farm without permit contra section 7 (5) Cap. 213 of the Laws of Kenya, 1948, and Diseases of Animals Ordinance Government Notice 60/31 R. (3) (2)", the particulars of the alleged offence being that "on 2nd January, 1951, the appellants at Ngare Ndare Nanyuki jointly moved 51 head of sheep and goats from Mukogodo Reserve on to the farm of Mr. Powys and Mr. Sherrard without the consent of the complainant, Mr. Powys, or the consent of Mr. Sherrard". On conviction each of the appellants was sentenced "to three months' imprisonment with hard labour and fined Sh. 200 (or a further three months with hard labour in default of distress) out of which, if paid, the sum of Sh. 200 was ordered to be paid to Mr. Powys". It was also ordered that the 51 head of sheep and goats be forfeited to the Crown. $\mathcal{A}_{\mathcal{X}}(z)$

The appellants in appeals numbered 46 and 80 of 1951 did not appear, while the appellant in appeal numbered 45 of 1951, hereinafter referred to as the first appellant, was represented by advocate.

Sub-section (5) of section 7 of Cap. 213 merely empowers the Governor-in-Council to make rules for the purpose of prohibiting or regulating the movement of animals, and the Rules made under the Diseases of Animals Ordinance appearing in Government Notice $60/31$ had been revoked at the time the offences were alleged to have been committed. The provisions of Rule 3 (2) in Government Notice 60/31 had, however, been re-enacted by Rule 21 (2) in Government Notice $597/31$ . The relevant portion of Rule 21 (2) reads: —

"No cattle, swine, sheep or goats shall be moved from or on to any farm or from or into any Native Reserve or Native area or on to or over any public road, or on to or over any forest area, or on to or over any unalignated Crown land not being within a Native Reserve or Native area, without a is permit authorizing such movement granted and signed by an issuer of permits." かんようおもの 流れる感

It was established by evidence which the trial Magistrate accepted that a Veterinary Officer had issued a permit (Exhibit 2) to the first appellant to move 65 head of sheep and goats and that that permit, by virtue of which the appellants claimed to have moved the 51 head of sheep and goats, did not authorize them to move sheep and goats on to the farm of Mr. Powys and Mr. Sherrard which, as the Magistrate held, they did.

It would, therefore, appear that had the appellants been charged with a breach of Rule 21 (2) in Government Notice 597/31 they could properly have been convicted and punished under the provisions of Rule 67 in the said Government Notice 597/31. In effect this was conceded by advocate for the first appellant whose main submission was that the convictions could not be sustained as "the particulars of offence in the Charge Sheet disclosed no offence in law", while Crown Counsel, who appeared for the Crown, invited us under the powers conferred on this Court by section 354 (1) (a) (ii) Criminal Procedure Code to alter the finding of the Magistrate into a finding of guilt, against all the appellants, contra Rule 21 (2) in Government Notice 597/31.

In a similar appeal (No. 54 of 1951) which was dismissed it was held by two Judges that the appellants knew that "the charge in substance and in fact was crossing with sheep and goats over the farm of the complainant without a permit, and not without the consent of the complainant, the owner of the farm". Whether or not that was a good ground for dismissing the appeal, it was not argued before us that the appellants in the present appeal knew the true nature of the charge against them and we are not disposed to assume that they understood any more than the plain meaning of what appeared in the charge sheet which was read to them.

We do not propose to state the various circumstances in which, in our opinion, the provisions of section 354 (1) (a) (ii) could properly be revoked, but it appears to us that where an accused person has pleaded to a charge on the basis of certain alleged facts which in law do constitute an offence, and the Magistrate through a misapplication of the law has convicted him of another offence, this Court could substitute for the offence of which he was found guilty a cognate offence of which on the basis of the alleged facts, if proved, he could have been found guilty, assuming the latter was one which the Magistrate was competent to try. But where the facts to which the appellants pleaded do not, as in the present case, constitute an offence in law at all, it would be most oppressive to accept the Magistrate's findings of fact to which the appellants did not plead and then to hold that they were guilty of offences with which they were not charged.

The simple truth of the whole matter is that as the appellants were not charged with offences known to the Law, the trial was ab initio a nullity, and in our opinion there cannot possibly emerge from a trial that is a nullity in law, a finding that this Court, even in the exercise of its revisional jurisdiction, could clothe with validity in law.

For the reasons we have given we allow the appeals and quash the convictions of the appellants and the sentences passed on them as well as the order of forfeiture.

We would add that in the view we have taken it has not become necessary to decide whether a Magistrate is competent to order the forfeiture of animals involved in the commission of an offence contra Rule 21 (2) in Government Notice $597/31.$

As the trial was a nullity it is left to the Crown to take such action as it may be advised to take.