[1942] EACA 87

## CRIMINAL REVISION

### BEFORE HAYDEN AND BARTLEY, JJ.

#### REX, Prosecutor

### $\mathbf{v}$

# 1. WASHUKO D/O KAGIA, 2. GINA D/O YERA, 3. NJOROGE S/O KIMANI, Accused

### Revision Cases Nos. 133, 134 and 135 of 1942

# Cruelty to animals—Cruelly overloading a donkey—Meaning of cruelly—Cruelty to Animals Ordinance, Cap. 160, section 3 (1), Laws of Kenya-Procedure-Section 197, Criminal Procedure Code.

**Held** (5-9-42)—(1) That to bring a person within the operation of section 3 (1) (a) of the Prevention of Cruelty to Animals Ordinance he must be proved to have cruelly committed the act charged.

(2) That whether or not a donkey is cruelly overloaded depends largely on the size and condition of the donkey.

(3) That as offences against section 3 (1) of the Cruelty to Animals Ordinance are punishable with nine months imprisonment and fine they cannot be tried under the procedure for trial of minor offences. $\cdot$ $\mathcal{A} = \mathcal{A}$

# Accused absent, unrepresented,

Stacey, Crown Counsel, for the Crown.

ORDER.-In each of these cases the accused was charged with cruelly overloading a donkey. In each case the particulars of the offence set out the weight of the load. The weights were 167 lb. in Revision Case 133, 190 lb. in Case 134 and 188 lb. in Case 135. The pleas to the offence were, "My'donkey was overloaded", "Yes the weight 190 lb. is correct", Yes the weight is correct but I did not know it was too much". These pleas were all accepted as pleas of guilty to the charges. None of these pleas is an unequivocal plea of guilty to the offence of cruelly overloading a donkey. The word "cruelly" in section 3 (1) (a) of the Prevention of Cruelty to Animals Ordinance governs all the following words in the first two lines of the section and "to bring a person within the operation of that section he must be proved to have cruelly committed the act charged" (Ford $v$ . Wiley (1889) 23 Q. B. D. 203). As to what is the meaning of the expression "cruelly" we quote from the judgment of Hawkins, J., in the above-quoted case, a judgment in which Lord Coleridge expressed his entire concurrence: -

"Now what is the meaning of the expression 'cruelly'? In Budge v. Parsons Wightman, J., said, 'the cruelty intended by the statute is the unnecessary abuse of the animal'. In Swan v. Saunders Grove, J., says it means unnecessary ill-usage by which the animal substantially suffers. In Webster's Dictionary it is defined to be 'an act which causes extreme suffering without good reason'. To my mind it is immaterial for the purposes of the present case which of these definitions is adopted—either is sufficient to dispose of it. To support a conviction then, two things must be proved, first that pain or suffering has been inflicted in fact; secondly that it was inflicted cruelly. that is, without necessity, or, in other words, without good reason."

It should be noted however that the charge in that case was having illtreated, abused and tortured oxen.

The Special Magistrate who tried these cases has informed the Court that he has been told that the police have instructions to prosecute when loads exceed 120 lb. and the Magistrate expressed the view that this is definitely wrong. With that view we agree. Whether or not a donkey is cruelly overloaded obviously depends largely on the size and condition of the donkey. Circumstances governing the journey being made at the time of the overloading might also affect the question of cruelty.

In these three cases Criminal Form No. 124 was used thereby showing that the procedure laid down for the trial of a minor offence under section 197 of the Criminal Procedure Code was adopted. As offences under section 3 (1) of the Prevention of Cruelty to Animals Ordinance are punishable with nine months' imprisonment and a fine they cannot be tried under the procedure for trial of minor offences.

For the reasons given we set aside the convictions and sentences. The fines, if paid, should be refunded.