[1945] EACA 57

## APPELLATE CRIMINAL

Before SIR JOSEPH SHERIDAN, C. J., and BARTLEY, J.

## REX, Respondent (Original Accused)

## COLONEL H. A. MURRAY, Appellant (Original Prosecutor) Criminal Appeal No. 11 of 1945

Criminal law-Malicious damage to property-Kenya Penal Code, S. 332 (1)-Admission of inadmissible evidence-No failure of justice-Criminal Procedure Code, S. 381—Claim of right—Sentence.

The facts appear fully from the judgment.

Held (27-3-45)—(1) There is no failure of justice within the meaning of section 381 Criminal Procedure Code by the wrongful admission of inadmissible evidence when it is quite clear that on the admissible evidence alone, only a verdict of guilty would have resulted.

(2) Where the defence to a charge of malicious damage is that the acts complained of were done in the exercise of a claim of right it will fail unless the accused can show<br>that he acted in a bona fide exercise of a supposed right and did no more damage than he could reasonably have supposed to be necessary for its assertion.

(3) It is only in exceptional circumstances that an accused person is ordered to pay costs to the Public Prosecutor.

Appeal dismissed—Orders as to costs and compensation set aside.

Rex v. Haddy (1944) 1 K. B. 442; Rex v. Clemens (1898) 1 Q B. 556 referred to.

Appellant in person.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—The history of this case is that as the result of a preliminary inquiry the appellant was on the 18th May, 1944, committed for trial to the Supreme Court by Mr. Warren Wright, the acting Resident Magistrate, Nakuru. An Information was filed by the Attorney General charging the appellant on two counts: (1) Arson, contrary to section 325 of the Penal Code and (2) Malicious damage, contrary to section 332 (1) of the Penal Code. The trial was listed to be holden at Nakuru on the 9th August, 1944. Owing to a mistake of the Court Clerk at Nakuru the witnesses for the Crown were not available when the case was called and the trial Judge adjourned the hearing to the next sessions.

On the 31st August, 1944, the Attorney General filed a nolle prosequi in respect of those proceedings and on the 1st September the accused was duly discharged in respect of the charges in the Information. That discharge, of course, completely terminated the proceedings to date.

On the same day on which the learned Attorney General entered the nolle prosequi he notified the Commissioner of Police that it had been decided that the accused "shall be recharged before the Resident Magistrate, Nairobi, with the lesser offence of malicious damage contrary to section 332 (1) of the Penal Code." On the 12th December, 1944, the accused duly appeared before Mr. Roberts, an acting Resident Magistrate, Nairobi, who, evidently acting on the representations of appellant's advocate that there was no objection to the court acting on the evidence recorded at the preliminary inquiry held by Mr. Wright at Nakuru, proceeded to act on that evidence. Four of the nine prosecution witnesses who gave evidence at the Nakuru inquiry were however recalled for further crossexamination and after their evidence had been taken and the appellant having

elected to be tried by the subordinate-court he was duly charged and having pleaded not guilty was put on his defence. The learned acting Resident Magistrate's action in incorporating the evidence taken at the preliminary inquiry held at Nakuru in the Nairobi trial was ultra vires. The mistake evidently arose through the Magistrate being under the mistaken impression that the learned Attorney General had acted under section 249 of the Procedure Code and had returned the depositions with a view to summary trial. That was not the case. The accused had, as we have already stated, been discharged in respect of the previous proceedings against him and it of course followed from this that those proceedings were closed and that evidence taken in them was not admissible evidence in the new proceedings.

For the purpose of this appeal we have therefore to confine ourselves to the evidence taken by Mr. Roberts at Nairobi and we have to decide whether the wrongful admission of the evidence taken at the preliminary inquiry at Nakuru has occasioned a failure of justice (section 381 Criminal Procedure Code).

The decision in *Rex v. Haddy* (1944) 1 K. B. 442, may well be cited in this connexion. In that case the Court of Criminal Appeal was considering the provision to section 4, sub-section (1) of the Criminal Appeal Act (1907) which reads: -

"Provided that the Court may, notwithstanding that they are of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if they consider that no substantial miscarriage of justice has actually occurred."

The decision of the Court as set out in the head note reads:—

"There is no substantial miscarriage of justice within the meaning of section 4, sub-section 1 of the Criminal Appeal Act (1907) if the court comes to the conclusion that, on the whole of the facts and with a correct direction. the only reasonable and proper verdict would be one of guilty."

In our view in this case on the whole of the facts and with a proper direction the only reasonable and proper verdict would be one of guilty.

The appellant in his own evidence at Nairobi admitted that he went to Ngoshi's huts to order him off his land and that when he got there finding the houses all open and no one there he had one hut cleared and ordered it to be fired and this act resulted in other huts catching fire. The appellant's defence was that he was justified in his act as Ngoshi was a trespasser on his land or at least was in illegal residence on the farm under the Resident Labourers Ordinance and further that the huts were constructed from materials belonging to the appellant.

It might be that Ngoshi could have been successfully prosecuted for being on the farm under the Resident Labourers Ordinance, 1937, as his residence was not covered by any of the provisions of section 4 of that Ordinance. It is however worth notice that the alleged offence was committed on Friday, 18th February, 1944, and that arrangements had been made before that date for a Labour Officer to visit the farm on Monday, 21st February, to sign on the appellant's labour (vide appellant's evidence) and to quote the headman Njuguna's evidence, "A few days after the fire a Government officer visited the farm and gave out all Resident Labourers' contracts". It would appear from the evidence that the legal position with regard to other squatters on the appellant's farm was far from satisfactory. With regard to Ngoshi's relationship to the appellant, the headman Njuguna testified to the fact that Ngoshi had been on the farm for six years as Ngoshi himself claimed. The evidence is that Ngoshi had three wives, two daughters (one of whom was married) and two grown-up sons and that one son and two of the females worked for the appellant. The appellant in a statement

to the police stated, "Ngoshi had been residing on my farm for some years with I think my permission at first for one year." In his evidence, however, the appellant stated that he did not remember stating that he had ever given permission. The statement to the police was, however, signed by the appellant. In his evidence the appellant said, "Ngoshi's family first started to work for me in 1940, according to my books kept by my clerk", thus confirming Ngoshi's evidence that one of his sons and two of his womenfolk worked for accused.

From all the evidence we must conclude that Ngoshi was not a mere trespasser vis-à-vis the appellant and that he was therefore entitled to notice to quit. Ngoshi denies that he ever received any notice to quit and the appellant produced no evidence to prove such notice and admitted that he could not say if Ngoshi ever got notice.

Where the defence to a charge of malicious damage is that the acts complained of were done in the exercise of a claim of right it will fail unless the accused can show that he acted in a bona fide exercise of a supposed right and did no more damage than he could reasonably have supposed to be necessary for its assertion (Rex v. Clemens (1898) I Q. B. 556). That being the law there can be no question that more damage was done in this case than the appellant could reasonably have supposed to be necessary for the assertion of his claim.

We are satisfied from the admissible evidence taken at the Nairobi trial that the offence alleged was proved and that had the evidence taken at the preliminary inquiry been excluded the Magistrate could have come to no other conclusion than the one arrived at.

On the question of sentence and the order for compensation, however, a difficulty arises. There was no admissible evidence as to the damage caused by the fire except the evidence of Njuguna that "labour to build one of the huts for Ngoshi would be about Sh. 6" and that he "would charge about Sh. 10 to build one of the huts like Ngoshi's big one", if the appellant supplied the material.

As the evidence on which the Magistrate based his order for compensation was inadmissible that order must be set aside leaving it open to the persons or person who suffered loss to take such civil action as may lie.

With regard to the fine imposed we consider that it should stand as it is only natural that the act of the accused caused very considerable damage and the offence is punishable by imprisonment for two years. The order as to costs, however, is set aside as it must be in very exceptional circumstances that an accused person is ordered to pay costs to the Public Prosecutor and they certainly do not exist in this case.

We accordingly dismiss the appeal against the conviction and fine imposed but set aside the orders as to costs and compensation.