[1946] EACA 70

## APPELLATE CRIMINAL

## Before SIR JOSEPH SHERIDAN, C. J., and DE LESTANG, Ag. J.

## REX, Respondent ν.

## -MACHARIA S/O KABACHIA, KARIGU S/O NGUNU, WANGONDU S/O GICHARA, MUCHOKI S/O KANGETHE, NGANGA KANGETHE, GACHU S/O GACHERA, NJOROGE THITA, JOEILE S/O KARAKIA, HOSEAH S/O KAMIRO, JUSIA S/O KAMAU

Criminal Appeals Nos. 226, 227, 228, 229, 230, 231, 232, 241, 242 and 243 of 1945 Consolidated

Criminal law-Marketing of Native Produce Ordinance, 1935, S. 4 (b)-Charge of "Purchasing eggs in a declared area without a valid licence"-Omission to state origin of eggs in charge—That "eggs" meant eggs of poultry kept by natives was obvious from all the circumstances-No failure of justice occasioned thereby—Sentence.

By the Marketing of Native Produce Ordinance, 1935, it is an offence to purchase in a declared area eggs being the produce of poultry kept by natives. The accused were charged with "Purchasing eggs in a declared area without a valid licence *contra* S. 4 (b) of the Marketing of Native Produce Ordinance, 1935, and Government Notice No. 426/1945". They pleaded guilty and were convicted and sentenced to fines varying between Sh. 100 and Sh. 400.

They appealed.

**Held** (22-3-46)—(1) That reading the charges with a little bit of common sense there can be<br>no reasonable doubt that the word "eggs" in them were intended to mean and were<br>understood by the several accuseds to mean "eggs the charges were not defective.

(2) That although the sentences were severe they were not excessive in the circumstances. $\cdot$

Appeals dismissed.

Nene for Appellants.

Todd, Crown Counsel, for the Crown.

JUDGMENT.—The same points arising for decision in consolidated appeals 226–228, 241–243 and in consolidated appeals 229–232 this judgment applies to both sets of appeals.

The appellants were convicted by the First Class Magistrate, Fort Hall, of purchasing various quantities of eggs in a declared area, to wit Fort Hall, without a valid licence *contra* section 4 (b) Ordinance 28/35 and G₁N. $426/45$ and sentenced to fines varying between Sh. 100 and Sh. 400.

The first ground of appeal is that the charges do not disclose any offence because they refer to eggs generally and not, as they ought to, to eggs being the produce of poultry kept by natives. Admittedly the only eggs the purchase of which is controlled by licence are those of poultry kept by natives and it would have been more accurate if the charges had described them as such. However, the charges must be read with a little bit of common sense, and considering that the purchases occurred in a district which is almost exclusively native and

that the section of the Ordinance quoted in the charges makes it quite clear that they relate to "native eggs" we think that there can be no reasonable doubt that the word "eggs" in the charges were intended to mean and were understood by the several appellants to mean "eggs of poultry kept by natives". There is no suggestion that they could be eggs of a different origin and it is only fair to learned Advocate to record that this point was not pursued, and rightly so in our view.

The next point in the appeals is the question of sentences which it is contended are excessive. We realise that the sentences are severe, but whether they are so severe as to be unreasonable or such as to occasion a miscarriage of justice-in which event only would we be justified in interfering-is a different matter.

Having considered all the circumstances of the cases we think that the learned Magistrate who tried the cases, being on the spot and having probably a great deal more information than we have on the matter, was in a much better position than we are to determine the appropriate penalty in each case. We feel that in the circumstances any interference with the sentences imposed would be purely arbitrary and wrong.

We dismiss all the appeals both against conviction and sentence.