[1942] EACA 74

## APPELLATE CRIMINAL

### BEFORE HAYDEN AND BARTLEY, JJ.

### REX, Respondent

#### v.

# WAKABA S/O. WAITHAKA, Appellant

## Criminal Appeal No. 84 of 1942

Assaulting police officers in the due execution of their duty—Penal Code section 247 (b)—Possession of native intoxicating liquor—Native Liquor Ordinance, 1930—Conviction altered to one for common assault contrary to section 244 of the Penal Code—Strict proof should be adduced of the issue of an order by a headman under section 8 (a) of the Native Authority Ordinance, 1937.

The appellant appealed from a conviction of assaulting police officers in the due execution of their duty. Evidence was given that the appellant together with nine other persons assaulted police officers who were attempting to arrest them on the order of a chief for the illegal possession of native intoxicating liquor. The place in which the appellant and the others were found in possession of the liquor was in the native reserve. No evidence had been adduced proving the issue of an order by the headman prohibiting possession of such liquor within the local limits of his jurisdiction under section 8 $(a)$ of Ordinance No. 2 of 1937.

Held (1-9-42).—That as the place in which the native intoxicating liquor was found was in the Native Reserve its possession by the accused persons did not contravene the provisions of the Native Liquor Ordinance, 1930. Further that in order for an offence to have been created strict proof should have been given of the previous issue of an order by a headman under section 8 (a) of the Native Authority Ordinance, 1937, prohibiting the posses-<br>sion of such liquor. That as such proof had not been adduced the constables were not acting in the due execution of their duty in attempting to arrest the accused persons who were therefore entitled to resist their arrest and the seizure of the liquor, but in doing so were not entitled to use more force than was necessary for the purpose. That as the force used was more than necessary to achieve their purpose the convictions of the appellant and his co-accused were altered to ones for common assault contrary to section 244 of the Penal Code.

Appellant in person.

Spurling, Crown Counsel, for the Crown.

JUDGMENT.—The appellant together with nine other persons was charged with and convicted of assaulting police officers in the due execution of their duty and persons acting in aid of same contrary to section 247 $(b)$ of the Penal Code. He has appealed on the ground that he was not present when the incident took place. There is overwhelming evidence to prove that he was present and did take part in the assault on the constables. A question, however, arises which has not been made a ground of appeal but which this Court has to consider and that is whether at the material time the police were acting in due execution of their duty. The place in which the native intoxicating liquor was found was in the native reserve and therefore its possession by the accused persons did not contravene the provisions of the Native Liquor Ordinance, 1930. In order for an offence to have been caused an order would have had to be previously issued by the headman pursuant to section $8(a)$ of the Native Authority Ordinance, 1937, prohibiting the natives residing or being within the local limits of his jurisdiction from possessing such liquor. No evidence was adduced that such an order had been issued. Learned Crown Counsel in supporting the conviction submitted that as several of the prosecution witnesses, including the Chief, had stated that the accused persons had not a permit to possess such liquor that therefore the Court

should presume that an order had been issued under section 8 (a) prohibiting its possession. With this submission we are not in agreement and consider that strict proof should have been given of the promulgation of such an order. We therefore hold that the constables were not acting in the due execution of their duty and that accordingly the accused were entitled to resist their arrest and the seizure of the liquor by the constables but in doing so were not entitled to use more force than was necessary for the purpose.

Owing to the number of persons who took part in the assault upon the constables and the nature of the weapons used we are of the opinion that the violence used by the accused persons was more than necessary to achieve their purpose.

We therefore following the decision in Rex v. Kiptoros arap Komeri, Criminal Appeal No. 17 of 1941, alter the conviction of the appellant to one for common assault contrary to section 244 of the Penal Code and reduce the sentence to two months imprisonment with hard labour and order that he be released forthwith from custody in respect of this offence as he has already served two months imprisonment.

By virtue of our revisional powers we alter the convictions of accused No. 1. Gicharu s/o Waithaka; No. 3, Tata d/o Waithaka; No. 4, Felesi Gathoni d/o Mburai; No. 5, Njemina Warigia d/o Muiruri; No. 6, Nyakanini d/o Waithaka; No. 7, Njambi d/o Waithaka; No. 8, Nduiga s/o Gisohi; No. 9, Nyakangu w/o Waithaka: and No. 10. Waihiyo s/o Waithaka to ones of common assault contrary to section 244 of the Penal Code and reduce the sentences passed upon accused Nos. 1. 8 and 10 to a fine of Sh. 50 each or one month's detention in default of payment and reduce the sentence passed upon accused No. 9 to a fine of Sh. 100 or two months' imprisonment with hard labour in default of payment and reduce the sentences passed upon accused Nos. 3, 4, 5, 6 and 7 to a fine of Sh. 40 each or one month's imprisonment with hard labour in default of payment. Any of the fines, if paid in excess of the above amounts are ordered to be refunded to the respective accused who have paid same. Accused No. 9, if in custody, is ordered to be released forthwith in respect of this offence as she would have already served two months' imprisonment in default of payment of fine.