Dajisa v Regina (Criminal Appeal No. 215 of 1952) [1952] EACA 303 (1 January 1952)

APPELLATE CRIMINAL

Before SIR HECTOR HEARNE, C. J. and BOURKE, J.

GALGALO s/o DAJISA, Appellant (Original Accused)

$\cdot \cdot$

REGINA, Respondent (Original Prosecutrix)

Criminal Appeal No. 215 of 1952

(Appeal from the decision of the First Class Magistrate's Court at Nairobi, R. C. Laming, Esq.)

Immigration Control Ordinance—Section 5 (1) (i)—Declaratory only.

The appellant was convicted under section 5 (1) (j) of the Immigration Control Ordinance of entering the Colony without a valid passport. He was also convicted under section 6 of unlawfully entering the Colony without a valid entry permit.

Held (30-6-52).—Section 5 (1) is a declaratory section specifying the various classes of persons referred to therein to be regarded as falling within the category of prohibited immigrants. Conviction under section $5(1)(j)$ set aside.

Appellant absent, unrepresented.

Todd, Crown Counsel, for Crown.

JUDGMENT.—The appellant entered the Colony and Protectorate of Kenya not being in possession of a valid entry permit or pass and not being in possession of a valid passport or document of identity. He was "a person, other than a permanent resident, who was not in possession of a passport". By virtue of section 5 (1) (i) of the Immigration (Control) Ordinance he was a prohibited immigrant and his entry was unlawful unless he was in possession of a valid entry or pass referred to in the proviso to section $5$ (1). As he was not in possession of either he was a person to whom section 6 applied and he was rightly convicted of an offence in contravention of the provisions of that section. But he was also convicted under sub-section $(j)$ of section 5 (1) as his entry was without a passport. In our opinion section $5$ (1) is merely a declaratory section. The lettered sub-sections of section 5 (1) declare that the various classes of persons referred to therein are to be regarded as falling within the category of prohibited immigrants. As such they are subject to all the provisions of the Ordinance relating to prohibited immigrants. A prohibited immigrant may therefore be convicted because his entry without a valid permit or pass is unlawful (section 6) but he cannot also be convicted in respect of the same entry because by reason of a certain disqualification he was a prohibited

immigrant to whom a permit or pass had not been issued. The conviction of the appellant under section 5 (1) (j) and the sentence of four months imprisonment are set aside, but the appeal of the appellant from the conviction under section 6 and the sentence of four months imprisonment with hard labour passed thereunder is dismissed. This sentence of four months imprisonment will follow the expiration of one months' imprisonment which the appellant is serving.

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