[1947] EACA 77

## APPELLATE CRIMINAL

## Before THACKER and BOURKE, JJ.

## REX, Respondent (Original Prosecutor)

ν.

## HARBANS SINGH, Appellant (Original Accused)

Criminal Appeal No. 379 of 1946

Criminal law—Erecting a building—By-law 106, Nairobi Municipality By-laws, 1944—Ambulance body used as a shed—New building erected.

The appellant brought upon a plot of land occupied by him in the municipal area the body of a motor ambulance which had been made into a usable shed by removing the back. He had no permission to do so from the Municipal Council. He was convicted of erecting a building before giving notice of his intention to do so to the Town Clerk contra By-law 106, Nairobi Municipality By-laws, 1944. He appealed.

Held (13-2-47).—That the placing of the ambulance body on the plot in the circumstances constituted the erection of a building within the meaning of the by-law.

Appeal dismissed.

Cases referred to: James v. Wyvill 51 L. T. 237; Moir v. Williams (1892) 1 Q. B. 264; London County Council v. Pearce (1892) 2 Q. B. 111; Hanrahan v. Leigh-on-Sea Urban District Council (1909) 2 K. B. 257.

Gautama for the Appellant.

Todd, Crown Counsel, for the Respondent.

JUDGMENT.—The appellant was charged with erecting a building contrary to By-law 106 of the Nairobi Municipality By-laws, 1944. The building was alleged to be a shed approximately ten feet by seven feet by six feet high constructed out of a disused military ambulance. The facts are that the appellant put upon a plot of land, of which he is the tenant, a motor ambulance body without wheels. The evidence of Mr. Watkins, the Building Inspector of the Municipality, which was plainly accepted by the magistrate, was to the effect that the ambulance body had been made into a usable shed by taking out the back. It was held by the learned magistrate that the appellant had erected a building within the meaning of the by-law: the question that now arises is whether he was correct. The argument before this Court has unfortunately proceeded little beyond negative and affirmative assertions. Turning to the definition of the words "to erect a building" in by-law 6 (9) it arises for decision whether the appellant can validly be said to have erected a "new building". What is a "new building" is chiefly a question<br>of fact; James v. Wyvill, 51 L. T. 237; and what is building must always be a question of degree and circumstances, Moir v. Williams, 1892, 1 Q. B. 264. No special meaning can be given to the word "structure or erection" as something distinct from a "building" (see per Pollock B), London County Council v. Pearce, 1892, 2 Q. B. 111. In Hanrahan v. Leigh-on-Sea Urban District Council, 1909, 2 K. B. 257, the owner of an old railway carriage, which stood upon a plot of land belonging to him, converted it by making sundry alterations such as removing the seats and making an opening into a partition inside into a dwelling. It was held that there had been an erection of a new building and that this building was not in conformity with a particular by-law. In the instant case it is not a matter of conversion of a structure to serve as a dwelling and of course the by-laws under reference are not limited in their scope to the control of buildings erected for human habitation. The body of the vehicle was put by the appellant upon his plot within the municipal area. The wheels had been taken off and the back taken out so that it would serve, as the evidence goes to show, for use as a shed. In his evidence the appellant made no attempt to deny that it was intended for use as a shed or shelter or to explain what was the purpose of having it on his land. We have then a structure with three sides, a floor and a roof, and in our opinion it is reasonable to hold that the appellant has erected a "new building" and has infringed the by-law; we think the magistrate has come to a correct conclusion in fact and law. As to sentence, we are not satisfied that it is in any way excessive. The appeal is dismissed.