Wakilii

Rex v Naser (Criminal Appeal No. 198 of 1950)

East African Court of Appeal · [1951] EACA 143 · 1951 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Crown appeal from Supreme Court of Kenya decision quashing conviction for moving cattle without permit
Decision
Conviction restored in principle; case remitted to Supreme Court to consider remaining grounds of appeal and correct default imprisonment term

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that section 15(b) of the Interpretation and General Clauses Ordinance empowered the Governor in Council to annex penalties to breaches of subsidiary legislation, including rules made under the Diseases of Animals Ordinance. The absence of an express omnibus clause in the parent Ordinance did not render the penalty provisions in the rules inconsistent with the Ordinance. A rule properly made under statutory authority is not inconsistent with the parent statute merely because the statute does not expressly authorize penalties; inconsistency requires actual conflict, not mere silence. The appeal was allowed and the case remitted.

Outcome

Conviction restored in principle; case remitted to Supreme Court to consider remaining grounds of appeal and correct default imprisonment term

Facts

The respondent was convicted by a First Class Magistrate at Garissa of moving cattle and goats from a native area without a permit, contrary to section 21(1) and (2) of the Diseases of Animals Rules, 1931. He was sentenced to a fine of Sh. 1,000 or six months' imprisonment with hard labour in default. On appeal to the Supreme Court of Kenya, the Court decided as a preliminary matter to hear argument on whether the conviction was bad in law because no offence had been created by statute. The Supreme Court upheld this ground, holding that the Diseases of Animals Ordinance lacked an omnibus section declaring contraventions to be offences, and therefore the rules could not create offences. The conviction was quashed without consideration of other grounds. The Crown appealed to the Court of Appeal for Eastern Africa.

Issues

  1. Whether the Governor in Council had power under section 15(b) of the Interpretation and General Clauses Ordinance to annex penalties to breaches of rules made under the Diseases of Animals Ordinance in the absence of an express omnibus clause in that Ordinance creating offences for breach of rules.
  2. Whether rules prescribing penalties for breach were inconsistent with the Diseases of Animals Ordinance within the meaning of section 15(c) of the Interpretation and General Clauses Ordinance.

Orders

  • Appeal allowed.
  • Judgment of the Supreme Court of Kenya set aside on the point considered by that Court.
  • Case remitted to the Supreme Court to deal with other points on the basis that rules 21 and 67 of the Animal Diseases Rules, 1931, were validly made under section 7(5) of the Animal Diseases Ordinance.
  • Court noted that the sentence of six months' imprisonment in default appeared wrong as the maximum under rule 67 as amended was two months, to be corrected by the Supreme Court on remit.

Rules and key headnotes

Statutory Interpretation — Interpretation Ordinances — Effect of General Provisions on Subsidiary Legislation
Section 15(b) of the Interpretation and General Clauses Ordinance empowers the rule-making authority to annex penalties to breaches of subsidiary legislation without the need for an express provision in the parent Ordinance authorizing such penalties.
Statutory Interpretation — Inconsistency Between Subsidiary Legislation and Parent Statute
Subsidiary legislation is not inconsistent with a parent Ordinance merely because the Ordinance is silent on a matter addressed by the subsidiary legislation. Inconsistency requires actual conflict such that the machinery of the parent Act would not work if the subsidiary legislation were applied.
Administrative Law — Delegated Legislation — Power to Prescribe Penalties
Where a statute gives power to an authority to make regulations, a breach of the regulations so made is an offence against the provisions of the statute. The regulation is the machinery by which the legislature determines whether certain things shall or shall not be done.
Statutory Interpretation — Purpose of Interpretation Ordinances
One of the objects of an Interpretation Ordinance is to simplify and shorten legislative enactments by providing general provisions that apply across all legislation unless expressly excluded.

Legislation cited (9)

  • Diseases of Animals Ordinance (Cap. 213) s.7(5)
  • Diseases of Animals Rules, 1931 r.21(1)
  • Diseases of Animals Rules, 1931 r.21(2)
  • Diseases of Animals Rules, 1931 r.67
  • Interpretation and General Clauses Ordinance (Cap. 1) s.15
  • Interpretation and General Clauses Ordinance (Cap. 1) s.15(b)
  • Interpretation and General Clauses Ordinance (Cap. 1) s.15(c)
  • Criminal Procedure Ordinance s.134
  • Ordinance 51 of 1950

Cases cited (2)

  • John Knight v Tabernacle Permanent Building Society (60 L.J. 633)
  • Willingale v Norris [1909] 1 KB 57

Full judgment

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

Rex v Naser (Criminal Appeal No. 198 of 1950) [1951] EACA 143 (1 January 1951)
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.