Criminal Appeal No. 143 of 1956
;
Criminal Appeal No. 144 of 1956
Judges
Edmonds J,
O'Connor CJ
Judgment date
1 January 1956
Language
English
Type
Judgment
Flynote
Animal Diseases, rules 21 and 67-Animal Diseases Ordinance, section 21- Interpretation and General Clauses Ordinance, sections 2 and 15 (b) Whether breach of a rule is an offence against the Ordinance under which the rule is made-Forfeiture.
Case summary
The appellants were convicted by a magistrate of moving cattle contrary to rule 21(2) of the Animal Diseases Rules, and forfeiture of the cattle was ordered. Rule 67 of the Rules provides a penalty of up to Sh. 2,000 or imprisonment not exceeding two months, or both, for contravention of a rule but does not provide for forfeiture.
Section 21 of the Animal Diseases Ordinance (under which the Rules were made) permits the Court convicting any person of “an offence against this Ordinance” to order forfeiture of the animals concerned.
The appellants appealed against their conviction on the ground (amongst other grounds) that there was no power to order forfeiture for contravention of a Rule, as distinct from contravention of the Ordinance.
Held (9th August 1956):
A breach of rule 21 of the Animal Diseases Rules is “an offence against this Ordinance” within section 21 of the Animal Diseases Ordinance, and animals in respect of which such offence has been committed are liable to forfeiture.
Where an Ordinance provides general penalties for offences against the Ordinance and neither the Ordinance nor a rule made under it prescribes a penalty for offences against the rules, the penalties for offences against the Ordinance apply to breaches of the rules.
However, if rules validly made under the Ordinance provide a penalty under section 15(b) of the Interpretation Ordinance (within the maxima laid down by that section), the penalty specified in the rule prevails for breaches of the rules.
Where the Ordinance provides an additional penalty (e.g., forfeiture) for offences against the Ordinance generally, that penalty applies to offences against the rules unless expressly excluded or inconsistent with the context.
Cases cited: R. v. Ledama s/o Chebotani (1934) 16 K.L.R. 63; R. v. Wawahi s/o Njiri (1947) 22 K.L.R. Pt. II 61; R. v. Hussein Nasser (1951) 18 E.A.C.A. 143; Goga s/o Onyaki v. Reg. (1953) 20 E.A.C.A. 333; Willingale v. Norris (1909) I.K.B. 355; R. v. Walker (1875) L.R. 10 Q.B. 355; Wicks v. Director of Public Prosecutions (1947) A.C. 362.
Counsel:
S. R. Kapila for the appellants.
Brookes, Crown Counsel, for the respondent.
Judgment of the Court (O’Connor, C.J., and Connell and Edmonds, JJ.) delivered by O’Connor, C.J.
