Rex v Kaninu (Criminal Revision Case No. 114 of 1949) [1950] EACA 108 (1 January 1950)

$108^-$

CRIMINAL REVISION

Before MODERA, J.

REX. Respondent

$\mathbf{v}$

MUTWE s/o KANINU. Applicant

Criminal Revision Case No. 114 of 1949

Revision—Forfeiture order under section 8 (b) (1) Sugar Ordinance Cap. 134 Laws of Kenya-Whether forfeiture by operation of law or dependent upon order of Court.

The Magistrate ordered that a lorry be forfeited to His Majesty under section 8 (b) Sugar Ordinance (Cap. 134 Laws of Kenya). A letter was then written by the owner of the lorry who was not one of the accused.

Held $(30-9-49)$ .—(1) The forfeiture was by operation of law and not dependent upon an order of the Court.

(2) The order of the Magistrate was set aside and it remained for the Crown to decide whether the forfeiture is to be maintained.

Morgan for applicant.

Templeton, Crown Counsel (Kenya), for respondent.

JUDGMENT.—On the 22nd July, 1949, four accused persons were found guilty by the First Class Magistrate at Machakos of jointly being in possession of sugar in a prohibited area without permit in writing from the Controller *contra* section 5 of Cap. 134 Laws of Kenya.

In the course of his judgment the learned Magistrate found that it was clear that the accused had during the commission of their offence made use of lorry No. H 3368 and after he had sentenced the accused under section 8 of the Sugar Ordinance the following appears from the record "Under section 8 (b) (1) of the Sugar Ordinance I order that the lorry No. H 3368 shall be forfeited to His-Majesty". On the 22nd August, 1949, the Registrar of this Court received a letter from Mr. Mervyn Morgan who had represented the four accused in the Magistrate's Court, written on behalf of his client Mutwe s/o Kaninu who claimed the ownership in the lorry and who was not one of the accused before the Magistrate. As a result of the letter in question this application has been entertained by this Court in its Revisional Jurisdiction.

It has been argued by Mr. Morgan that the order made in pursuance of any provision of law and Crown Counsel has conceded that there was not reposed in the Magistrate any power to make such order. My attention has been drawn to Criminal Revision Case No. 430 of 1948 in which though the matter was for consideration under the provisions of the Penal Code the decision was based on reasoning similar to that urged before me in the case now under review.

I am of the opinion that the contentions of Mr. Morgan are right inasmuch as section 8 (b) (1) by virtue of which the Magistrate purported to act, declares that the consequence of certain findings by a Court shall be a forfeiture. The forfeiture is by operation of law and is not dependent upon an order of the Court. Consequently the order of the Magistrate in regard to forfeiture of the lorry is set aside.

As in Criminal Revision Case No. 430 of 1948 so in this case there still remains the finding of the learned Magistrate that the applicant's lorry was used during the commission of the offence of which the four accused were found guilty. In regard to this aspect of the case I feel bound to draw attention to the

phraseology of the proviso to section 8 (b) (1 and 2) of the Sugar Ordinance for the reason that I am at a loss to understand what is meant by the words "such owner" which appear in the seventh line of that proviso. Whether the word "such" is a typographical error or whether it has been the intention of the legislature to amend that little word as has been done in the case of the same word in the proviso to section 304 $(a)$ of the Penal Code I do not know. The fact remains that it might well have been necessary to interpret this proviso as it stands and without amendment because much argument was addressed to me upon the question of what the Court in this case had found in regard to ownership and consent of the owner. In the event however and in view of my finding as to the legality of the learned Magistrate's order, it has not been necessary for me to express an opinion upon the interpretation of a proviso to which I have drawn attention merely for the purpose stated above.

The order of the learned Magistrate having been set aside it remains for the Crown to decide whether the forfeiture is to be maintained in the light of the findings of the Magistrate.