Wakilii

Kibai v Reginam (Criminal Appeal No. 191 of 1956)

East African Court of Appeal · [1956] EACA 604 · 1950 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Second appeal from conviction by First Class Magistrate, following dismissal of first appeal by Supreme Court of Kenya
Decision
Appellant's conviction and sentence quashed; acquitted

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that the charge disclosed no offence known to law. The word 'regulation' in regulation 20 of the Defence (Control of Maize) Regulations, 1944, cannot include an order made under a regulation. The Movement of Maize (No. 2) Order, 1953, was an order made by the Maize Controller under regulation 18, not a regulation itself. There was a lacuna in the regulations: regulation 20 should have expressly covered contraventions of orders made under the regulations, as regulation 94 of the general Defence Regulations did. The appeal was allowed and the conviction set aside.

Outcome

Appellant's conviction and sentence quashed; acquitted

Facts

The appellant was charged with moving more than five bags of maize contrary to regulation 18 of the Defence (Control of Maize) Regulations, 1944, as read with Government Notice No. 1451 of 1953. He pleaded not guilty and was convicted of attempting to commit the offence. The magistrate ordered forfeiture of 60 bags of maize. On first appeal to the Supreme Court, the forfeiture was reduced to 25 bags and a fine of Sh. 500 was imposed, on the basis that an attempt was proved as regards 25 bags but not the remaining 35. The appellant appealed to the Court of Appeal for Eastern Africa, contending that the charge disclosed no offence known to law. The alleged offence was a breach of the Movement of Maize (No. 2) Order, 1953, issued by the Maize Controller under regulation 18 of the Defence (Control of Maize) Regulations, 1944.

Issues

  1. Whether the charge of 'moving maize more than five bags contrary to regulation 18 of Defence Control of Maize as read with Government Notice 1451 of 1953' disclosed an offence known to law.
  2. Whether an order made by the Maize Controller under regulation 18 of the Defence (Control of Maize) Regulations, 1944, constitutes a 'regulation' for the purposes of creating a criminal offence.
  3. Whether a breach of the Movement of Maize (No. 2) Order, 1953, could constitute an offence under section 125 of the Penal Code or regulation 20 of the Defence (Control of Maize) Regulations, 1944.

Orders

  • Appeal allowed.
  • Original conviction and sentence set aside.
  • Order of the Supreme Court set aside.

Rules and key headnotes

Statutory Interpretation — Delegated Legislation — Distinction Between Regulations and Orders
The word 'regulation' in a statutory provision creating an offence for breach of regulations does not include an order made under a regulation, unless the statute expressly provides otherwise.
Criminal Law & Procedure — Elements of Offence — Requirement for Express Provision
Where delegated legislation confers power on an official to make orders, a breach of such an order does not constitute a criminal offence unless the parent legislation expressly provides that contravention of orders made under the regulations shall be an offence.
Statutory Interpretation — Lacunae in Legislation — Judicial Approach
Where there is a lacuna in delegated legislation such that an order made under a regulation is not expressly covered by the offence-creating provision, the court cannot supply the omission by interpretation. The proper remedy is legislative amendment.
Criminal Law & Procedure — Penal Code Section 125 — Disobedience of Statute
Section 125 of the Penal Code, which makes wilful disobedience of any statute or ordinance a misdemeanour, creates a distinct offence that must be charged as 'disobedience of statutory duty contrary to section 125', not as an offence against the statute itself.

Legislation cited (19)

  • Defence (Control of Maize) Regulations, 1944 reg.18
  • Defence (Control of Maize) Regulations, 1944 reg.20
  • Defence (Control of Maize) Regulations, 1944 reg.21
  • Kenya Interpretation and General Clauses Ordinance
  • Kenya Penal Code s.27(3)
  • Kenya Penal Code s.29(1)(i)
  • Kenya Penal Code s.125
  • Kenya Criminal Procedure Code s.381
  • Emergency Power (Defence) Act, 1939 s.1
  • Emergency Power (Defence) Act, 1939 s.2
  • Emergency Power (Defence) Act, 1939 s.4
  • Emergency Powers (Colonial Defence) Order in Council, 1939
  • Supplies and Services (Transitional Powers) Act, 1945
  • Supplies and Services (Transitional Powers) (Colonies, etc.) Order in Council, 1946
  • Kenya Movement of Maize (No. 2) Order, 1953 para.2
  • Kenya Movement of Maize (No. 2) Order, 1953 para.5
  • Kenya Supplies and Services (Transitional Powers No. 2) Order, 1946
  • Interpretation Act, 1890
  • Defence (Penalties) Regulations, 1940 reg.2

Cases cited (2)

  • R v Hall (1891) 2 QB 747
  • R v Smith (169 ER 1333)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kibai v Reginam (Criminal Appeal No. 191 of 1956) [1950] EACA 604 (1 January 1950)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.