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8/30/1953 - Kenyatta et al. Court of Appeal for Eastern Africa by David E. Reed

INSTITUTE OF CURRENT XORLD AFFAIRS DER Barclays Bank Kenyatta ueensway Court Appeal Eastern Africa airobi Kenya August Mr Walter S Roers Institute Current World Affairs Fifth Avenue New York New York Dear Mr Rogers A large detachment European African policemen guarded entrance Nairobi Law Courts Building morning Monday August Africans entering buildin searched carefully weapons Several Europeans Africans I reco6nized policemen patrolled corridors plain clothes mingled crowd waiting doors Lw Court No The Crown appeal Jomo Kenyatta about begin before three Judges Court Appeal Eastern Africa BritlS East Africa highest court The doors opened press credential checked carefully ranking policemen In addition reporters East African Stndard Nairob daily there report London Indian apers Reuter correspondent A Africans representing local African papers attended irregularly throughout trial The courtroom pamelled about square domed ceiling The bench occupied Judges about flo6r Directly front slightly lower small bench occupied Court Registrar European Asian assistants Two African messengers dressed khaki shorts short sleeved shirts posted either Reistrar bench ready carry books documents counsel Judges The press section Judges right Across similar rapidly filling Asian European spectators Facing Judges table counsel arrlvin6 They John Whyatt Q C Kenya Attorney General E N Griffith Jone Solicitor General Mr A G Somerhough Deputy Public Prosecutor These three would represent Crown For respondents there D N Pritt Q C flown England A R K Indian lawyer Nairobi assist Mr Pritt Counsel traditional black robes white O CO ei10z Directly behind counsel occupied spectators plain clothes policemen Behind filled spectators Kenyatta others would court Crown appeal There galleries filled chiefly Asians includlna bearded Sikhs wearin turbans other almost entirely filled Africans Of total about spectators there about Asians Europeans Africans Roughly balance continued throughout hearing Askari__S rifles uarded galleries The Registrar rapped order everyone three Judges Sir Barclay Nihill president court Sir Newnham Worley president Sir Enoch Jenkins entered behind bench The Judges white scarlet robes They bowed Counsel spectators returned The Registrar called In Her Majestys Court Aopeal Eastern Africa Nairobi Crmlnal Appeal No Regina versus Jomo Kenyatta Fred Kubai Richard Achien Oneko Bildad M Kaggla Paul Ngel Kunu Karumba The hearin began Mr Whyatt present arguments First recounted background On November Governor Sir Evelyn Baring appointed Mr Ransley Samuel Thacker Q C execute duties office resident magistrate colony The appointment under provisions Article XVII Letters Patent Colony Kenya In G azette where 8overnment publishes official notices following appeared November Government Notice No The Courts Ordinance Cap Appointment DER In exercise powers conferred Section Courts Ordirance I Eve Baring Knight Commander Most Distinguished Order Saint Michael Saint George Knight Commander Royal Victorian Order Governor Commander Chlef Colony Protectorate Kenya hereby assign Ransley Samuel Thacker Esq Q C Acting Resident Magistrate Northern Province exercise Jurisdiction Province Given under Nairobi November E Baring Governor There other events Warrants issued arrest Jomo Kenyatta president Kenya African Union other officers KAU Mr F Wilson District Commissioner remote West District Rift Valley Province The warrants issued Kapenguri where Mr Wilson headqu arters He empowered issue warrants special appointment first class magistrate Later three accused Were brought Kapenguria placed under arrest charged The followir remaining three brought Kapenguria arrested charged All ndtentlon Emergency power granted Attorney General since Emergency declared month previously The bearded Kenyatta about student B Malinowski London School Economics awarded doctorate philosophy anthropology charged managing unlawful society August until October detained being member unlawful society The society question Mau Mau which proscribed dangerous 6overnment Kenya Order Governor Council August Mr Kenyatta Kikuyu The other defendant charged I assistin6 management unlaTul society being members unlawful ociety Mr Kubai Kikuyu chairman Nairobl banch member KAU executive committee Mr Oneko Luo general secretary KAU Mr Kasgla Kikuyu secretary Nalrobi branch member KAU executive committee Mr Ngel Mkamb assistant enerl secretary KAU executive committee member Mr Karumba KiknAyu chairman Chura Divisional Branch All remanded custody November Mr Wilson following order Under provisions Section A Criminal Procedure Code I transfer Mrs R S Thacker Q C being magistrate Jurisdiction F Wilson First Class Magistrate Mr Thicker arrived Kapenurl accused formally pleaded guilty before The continued Dec The defendan lodged Jail In signing remand order Mr Thacker described himself Acting R M Northern Province On Nov Mr Kapila filed motion before Supreme Court Kenya Nalrobl seekin change venue Nairobl other convenient place CentralProvince He charged Mr Thacker prejudiced against Mr Kubai The motion refused Trial besan Kapenguria Dec continued total court March The Court Aopeal Judgment rendered several later recited background there several delays durin trial The Court added There break quite another reason nature which happily examine The trial interrupted while Crown sought Mr Pritt punished contempt court because remarks The Crown successful Judgment delivered April Mr Thacker found defendants uilty arged sentenced seven years imprisonment labor charge sentences concurrently DER Appeals loded Supreme Court Kenya April hearing appeals July I Sixty grounds appeal cited Kenyatta For defendants total rounds The question Jurisdiction raised On June months after start trial Kapenguria following notice appeared aZett_e_ Government Notice No The Courts Ordinance In p_Uac provisions Section Courts Ordinance assignment Mr R S Thacker Q C actin resident magistrate Rift Valley Province appointment resident magistrate hereby notified Dated June E Barir Governor Mr Whyatt Court Appeal Judges Three weeks before July trial attention prosecution quite accident West Suk District transferred Rift Valley Province Mr Thacker assignment Northern Province The transfer West Suk taken place June Mr Pritt appeal before Supreme Court heard Kitale Thedefendants court On second Mr Whyatt related My learned friend developin argument referred Kapenguria being Northern Province Mr Stevenson special prosecutor England corrected On Mr Pritt interrupted argument round appeal Mr Pritt attacked validity trial resultir convictions grounds Mr Thacker assigned Northern Povince Jurisdiction Rift Valley Province It agreed consideration other points would Jurisdictional matter would dealt separately Mr Steven argued provides magistrates appointed colony DER Hnce specific assignment Rift Valley Provinc necessary confer Jurisdiction Mr Thacker Mr Stevenson argued He legally anywhere colony Section Courts Ordinance which Governor invoked assignment Mr Thacker Northern Province merely administrative device which affect Jurisdiction conferred appointment Mr Stevenson The Judem Mr G B Rudd Mr Henry May refused accept argument In appointment makes magistrate eligible assignment virtue assignment local Jurlsdition arises agreeing Mr Pritt Mr St venson contended secondly Mr Thacker appointed special magistrate under different provision Ordinance Section In assignment under Section would ncessary To Judges replied Governor notification appointment Gazett November mention Section Whee appointment action taken pursuant would xpect ordinary appointment under Letters Patent consider special appointment under Section should presumed Judges Mr Stevenson third point intention government always ssign Mr Thacker whatever province which Kapenguria situated assignment Northern Province merely nomenclature Th judges In instrument assignment construed accordance principles construction applicable other written instrument therefore effect xpressed intention instrument without seeking enquire motive which execution Section The Governor assign Magistrate subordinate court first second third class respectively provinc district shall think every magistrate shall forthwith exercise Jurisdiction province district without further appointment notification provided notification appointment shsll subsequently published Gazette There remained point raised Mr Stevenson He defect Jurisdiction could cured Section Criminal Procedure Code The Judges declared Section appllcabl Mr Thacker authority Kapenuria because Northern Province assignment authority Northern Province because defendants arrested charged Rift Valley Province hence tried there We accept Mr Pritt contention place proper place before court therefore Section Criminal Procedure Code cannot applied defect Judges The Judgment concluded For these reasons regretfully opinion transfer learned Trial Magistrate trial consequently convictions sentences nullities quash accordingly order retrial appellants We think unfortunate appeal nature should decided error Jurisdiction without decision question which merits whether The decision handed July white Kenya roundhouse right Opinion voiced private Attorney General Colonial Office appointee should eplaced The still pending stifled public criticism although veiled criticism Attorney General voiced Legislative Council European ected members While there prospect Mr Kenyatta others would freed could always Emergency detention Europeans while trying sandbag levee someone blasted elsewhere Europeans various opinions seemingly people agree everything individualistic Kenya thought against defendants Kapenguria Nevertheless convinced Mr Kenyatta runnln Mau Mau whether weakor satisfied convictions Section No finding sentence order criminal court shall aside merely ground inquiry trial other proceeding course which arrived assed place wrong province district other local unless appears error ccasioned failure Justice DER Asians Africans I talked almost unanimously opinion 6overnment Kapenguria They convictions aside 6rounds Jurisdiction should matter Justice Asians generally opinion Mr Kenyatta guilty nevertheless Some Africans maintained innocent Europeans complained African fails understand legalisms British Justice reversal would ap_oear Africans result weakness indecision European The decision would undermine position loyal Africans embolden Mau Mau terrorists these Europeans When government appeal opened August before Court Appeal Eastern Africa cross appeal filed Mr Pritt He asked retrial aside His clients would under current legal action government could charges agalnst For appeal government rolled heavy artillery person Attorney General himself Mr Somerhough handled Kapensuria trial assisting Mr Stevenson England Having concluded recital backound present hearing Mr Whyatt Judges would present three arguments second being alternative first third alternative The arguments developed contradictory other designed considered separately without reference other This Sir Newnham comment We young being pursued three beaus Mr Whyatt would appeal Jud6es accepted arguments The first argument reiteration Mr Stevenson points DER4 Mr Thacker appointed instrument under Letters Patent resident magistrate whole colony Kenya consequently virtue provisions ection Courts Ordinance Mr Thacker entitled assume tryin6 within competance first class magistrate anywhere colony assignment necessary enable Kapenguria Without assignment whatsoever Sir Enoch Jenkins asked Yes matter strict Lord Mr Whyatt replied Mr Whyatt challenges branch Supreme Court declaration appointment makes magistrate eligible assignment assignment Jurisdiction hlnge He cited analogy provincial commissioner appointed provlnce officio becomes first class magistrate without assignment under Section Take appointed resident magistrate Coast Province I keepin6 muddled competent court Coast Province provincial commissioner without assignment under Section Mr Whyatt SCion contains phrase subject rovislons Section T Mr Why pointed It plain straightforward Neither Section magistrate powerless unless assignment under Section Mr Wnyatt What purpose Section asked Answering surplusge It designed provide machinery directln6 changlng maglstrate between Jurisdictions without fresh appointment Mr Whyatt continued Having appointed required another Jurisdiction Section Section apply initial appointment Yet another reason Section could apply initial appointment talks about without further appointment Section section Every resident magistrate administrative officer shall deemed appointed within province district subordinate court correepondin6 appointment DER When resident magistrate appointed colony Mr Whyatt appointed Coast Province Central Province Southern Province every other province Every province province He quoted legal authority person Judicial offices But still where magistrate exercises Jurisdiction magistrate court place He properly called magistrate Nairobi Kapengurla other place Why Mr Thacker assigned Northern Provinc Mr Whyatt asked There necessity sometimes advisable publicity division Judicial duties It speroatlon It doesn doesn Mr Whratt With concluded first rgument luncheon recess declared As United State reporters departed mutterln about legal nonsense Unlike U S reporters shorthand quotes least little accurate There court stenographer employed Attorney General offlce attempting transcript While waiting start afternoon session talked W W W Awori African member Leglsative Council North Nyanza acting president Kenya African Union proscription He attendin hearing capacity editor Habari Z_a Duni____a Swahill language newspaper I asked Africans gallery understood proceedings He understood Just watch Mr Whyatt began submission second argument ThepropositionsofSectionT hesaid directory imperative consequently substantial compliance provisions Section distinct stralght absolute literal complianc sufficient substantial compliance assign magistrate provnce without specifyin Section designed enable Governor direct magistrates local areas where needed minimum trouble enable local citizens where executive officer assigned Judges appointment province Mr Whyatt Was Mr Thicker assigned place Kapengurla Mr Whyatt asked The learned magistrate signed Acting M6istrate Northern Province difference That evidence Sent Kapenguria It evidence thought Northern Province alone belief The spectators chuckled Anyway Mr Whyatt Mr Pritt Mr Kapila provided evidence Mr Thacker Kapenguria demanded change venue there In Nr Whyatt there doubt trial place Kapenguria Mr Pritt iuterrupted I protest because Supreme Court Judges correct trial Laughter spectators Judges Summarizing Mr Whyatt Section directive Substantial compliance provision requiring assignment province enough assignment place province enoth Mr Thacker assigne Kapenguria assigned province which situated assigned Rift Valley Province That concluded first session Money press riding Mr Pritt Bar experts opined night Crown doomed Mr Whatt began third argument court convened Tuesday morning Taking another points raised Mr Stevenson before Supreme Court Mr Whyatt Section overrides technical objections Jurisdiction based 6eo6raphical error failure Justice occured result Y Whyatt would agree argument Mr Thacker magistrat Northern Province other We concerned properly constituted Northern Province Court which inadvertently sitting outside territorial limits Jurisdiction Mr Whyatt The Supreme Court Kenya added dealt point startling brrrevlty Mr Whyatt rolled their Lordships repeat DER If statutory provision proclaims objective rooftops Its prevent frustration administration justice technicalities Mr Whyatt Section eight crucial critical words trial place wrong province Mr Thacker offside wearing right Jersey Mr Whyatt declared The Supreme Court Mr Thacker right field earing wrong Jersey The court apply because court beir5 wrong province court convening proper place presided wrong Judge Section would apply Mr Thacker competent Jurisdiction because accused arrested Rift Valley Province tried there Mr Whyatt there question Mr Thacker being first class magistrate competency accused He cited Indian involving Indian equivalent Section A magistrate competent district heard another The defendant appealled after convicted charging Judge lacked Jurisdiction conviction nullity The conviction upheld however groundsthat Judge otherwise competent failure Justice shown Mr Thacker otherwise competent Mr Whyatt With Mr Whyatt concluded It taken hours A luncheon recess declared Mr Prltt opened afternoon The spectators roused themselves partial slumber Mr Pritt reputation witty buffoonery sarcasm The spectators disappointed He Judges prosecutors laughin Only Sir Barclay Since clients respondents Mr Prltt confined answering points raised Attorney Genera1 This court Kapengurla Northern Province Court Mr Prltt twitted prosecutors opening statement He hinted further proceedings which unhappily Taking Mr Whyatt first point magistrate Jurisdiction colony legally needs further assignment Mr Prltt A magistrate prerogative appointment under Let Patent somthln jurisdiction That somethln assignment under Section Nr Whyatt claim magistrate magistrate every province strange phrase province Mr Pritt declared referrin phrase occurs Section Section gives ovrnment positive power assumed reason Assinlng Mr Thacker Northern Province implies urisdiction other province Mr Pritt added There Justification saying learned friend Section assigning magistrate province second around transferrin Mr Pritt recalled Mr Whyatt statement Section publicity valus Prltt Side saying principal functions Section urges construction destroys value first appointment ReferrinE Mr Whyatt assertion magistrate might assisned provinces Mr Pritt If whole colony would right learned friend It remains abuse language youappoint colony every province TouchinE Mr Wnyatt statement theft Section superogation N Prltt My Lords crosses sympathize those arguments Rearding Governor assignment Mr Thacker Northern Provlnce My Lords definitely decision sending Rift Valley Province On Wednesday morning after exchanged Mr Pritt resumed The reason assisned Mr Thacker Northern Provnce wanted trial Kapenguria thought Northern Province Mr Pritt asked Judges arrive conclusion there ground inferring imaginin ernor makin formal written assignment making informal assignment assignment asked about would DER4 Turnin Mr Whyatt second argument Mr Pritt If should Privy Council I wonder They tried Northern Province tried Rift Valley Province trying assigument Kapenguria Disagreein6 Mr Whyatt contention Section conmtrued dlreetory Mr Prltt since confers Jurisdiction strictly construed In inferior court Jurisdiction cannot presumed It shown exist Accordingly Mr Prltt assignment place provlnee should presumed assignment district ThereAs evidence Mr Thacker Kapenguria Mr Prltt We guess someone unknown somehow unknown somewhere urmown somewhen unknown before December decided Mr Thacker should Kepengurla schoolhouse With outrage Mr Pritt objected Mr Whyatt having called Mr Pritt Kapila witnesses He referred Mr Whyatt assertion Mr Thacker Kapenuria proved chan6e venue It sufficient prove there proved there His Excl under Section Mr Prltt concluded Attacking Mr Whyatt third argument Section cures defect Mr Pritt afternoon sesslon rferring Mr Whyatt reference court sittin inadvertently Kapenguria Anythin inadvertent sitti caUrteat EaePentelaoCnntdbeai Ho eerreeallodothe ofvnue ffrsan Icv miles abominable roads Eapenguria There Lords confusion exists learned friend arguments though prominent other confusions about difference between court Judge Nr Pritt If wrong trial place wrong province savin curir clause works If Northern Province Court could sitting wrongly DER But Mr Pritt prosecution place wrong province admit Northern Pro vlnce Court But could Northern Province Court N Pritt asked answering No because district commissioner takinE cognizance established Rift Valley Ccurt There nothir court there gentleman assigned Northern Province Mr Pritt evokin laughter Did Mr Thacker Northern Province magistrate Northern Province Court Mr Pritt asked answered No lordships sittin courtroom London would constitute Appeal Eastern Africa The court which N Thacker court which Mr Wilson court Rif Valley Court The plain truth Rift Valley Court there sitting stranger Mr Prltt declared laughter Referring Mr Whyatt complaint Supreme Court Judges dealt Section startlin brrrevity Nr Pritt story purchased dachshund latter complained seller short My Lords Mr Pritt pertinent answer They reach round The Thursday Mr Whyatt polished hlsarguments reply Mr Prltt That afternoon Mr Pritt argued appeal retrial order cancelsd He since Supreme Court order custody defendants havin reverted detention status amounted discharge custody Were there trial which proved nullity might thought routine order trial I suggest normal order although I order In submission order which ought quite simply setting aside finding sentence discharging accused leavin Crown start another prosecution wants A trial necessary automatic opinion Supreme Court right cruder His clients subjected financial strain DER4 Mr Pritt asked alternatively certain conditions imposed Court Appeal trial Hs asked trlal hearing first acquaint defendants particular allegatio accessible place Kapenguria hideously inaccessible designated trial Crown substantial payment client money It seemed Mr Pritt expect these conditiOns ganted bringing matter anyhow Mr Griffith Jones Solicitor General replied Crown afternoon He trial declared nullity England retrial ordered It apparent Supreme Court Judgment defendants discharged Nowhere learned friend quoted authority court impose conditions Attacking Mr Pritt proposed conditions Attorney Gemeral decides whether preliminary inquiries should appeal court decide where subordinate court should My Lords authority quoted I suggest before embarkin course authority learned friend In reply Mr Prlt_t running aromd country believing Kenya governmmt incredibly incompetent where Kapenuria The hearing It Thursday Judges weuld Saturday The names Mr Kenyatta other defendants mentioned times Registrar callin morning Mr Prltt Mr Kapila Lokltaung Prison Friday their clients Lokltaun desert Northern Province miles Sudanese border Europeans Nairobi lumly predicted Mr Pritt would Some M Kenyatta would additional charges result recent investigotions brought trial again At Saturday I drove Law Cotrts Building reading Judgment About Africans gathered entrance They silent An heawier police guard posted around building A squad askari_s carrying rifles truck parked entrance ready peded trouble DER Both press spectators sections filled Some spectators waited hours A European police officer I previously found friend spectators gallery The spectators there seemed certain tenseness Mr Prltt young policeman assigned bodyguard arrived Joined Mr Kapila Mr Whyatt Mr Somerhough Mr Grifflth Jones arrived European policemen taken stations African gallery Previously skaris_ there The Registrar rapped order three Judges entered bowed Counsel spectators returned Sir Barlcay adjusted rimmed spectacles began readln Judgment Criminal Appeal No He first Point One Mr Whyatt He recalled Pritt Supreme Court appointment makes magistrate eligible assignment virtue assignment local Jurisdiction becomes effective The court Mr Pritt distinction fallacious Sir Barclay We think administrative officer appointed province district resident magistrate appointed named province statute requires further action needed clothe Jurisdiction court determine causes Ithln local limits court But Sir Barclay continued difficult whole Attorney General first argument The court agrees essential every Section initial appointment But since Mr Thacker appointed colony particular province Section needed Jurisdiction If appointed Rift Valley Province Section would On first therefore conclusion particul which considering necessary governor assignment under Section Whyatt failed clear first hurdle DER4 Sir Barclay turned second point SectiOn directory obligatory substantial compliance enough Substantial compliance Mr Thacker icular place Examinin6 Section appeal found Governor assignment chooses orally informal formal instrument But however signification Governor command immediately effectively vests magistrate authority exercise Jurisdiction court province district which asssned It S ection demands assignment shall subsesuently published Gazette mubsequentl imprecise legal meaning attached We doubt where legislation imposes action which command regarded merely directory consequently failure publish notification invalidate assignment nullify actio person assigned The appeal court Judgment Judges Supreme Court given weight terms notification little weight facts which actual assignment Governor The facts appeal Judges continued transfer Nr Wilson M Thacker magistrate Jurisdiction holding Gourt Mr Thacker Kapenguri application venue Epenguria undoubted trial place Kapenguria From these facts think reasonable inference Governor perhaps someone authorized directed N Thacker proceed Kapenguria respondents We understand Mr Pritt impossible facts would strong thin6 Oourt stage We think however reasonable interpretation facts desisnation Northern Province Notification No incuriam attributable entirely mistaken opinion West Suk District still formed province That being remaining question argument whether sufficient compliance Section We think DER The Judges cited authority effect decidln6 whether statute imperative directory qdestion governed considerations conve nience Justice Applyir these tests Section Judges opinion properly rearded directory substantial compliance provisions sufficient The language permits assignment without formality construed meanln6 emer6ency magistrate required ursently another District Province orally telephone Mombas Court there sufficient assignment Coast Province which Mombasa situated It would absurd suppose Leg islature expected demanded formal compliance words section The object provide distribution postin magistrates proviuces districts Colony effectively practice directln6 places where Courts established merely tellin6 particular province district The June notice zette_ which Mr Thacker assigned Rift Valley Province appointment correctly expresses ntention Governor which assign Mr Thacker whatever province which Eapen6uria situated The Judsment concluded On second therefore appeal Cron succeeds Mr Whyatt Sir Barclay thou6N third point Mr Whyatt argument considered Judges because possibility further appeal They a6ree M Pritt trial place proper province before wrong Judge If Crown appeal rested point alone would failed Mr Whyatt citation Inlan applicable correct That Judge could tried district while Mr Thackr could The decision Mr Pritt cross appeal aside retrial order hollow victory DER The Judges though outcome relevance because Mr Whyatt conclusion found erroneous higher court think appropriate should indicate Instead ordering retrial Supreme Court should ordered defendants tried court competent Jurisdiction It Illogical order retrial persons never lawfully tried In result therefore appeal allowed The order Supreme Court directin retrial aside convictions entered against sentences imposed respondents Residen Magistrate restored Sir Barclay finished There courtroom Tradition rigid rules forbid anything strict silence Perhaps spectators waded through legal language Mr Pritt arose notified Judges would appeal Privy Council England He stltlen_for leave appeal would filed early October It agreed between Mr Prltt M Whyatt hearin before Supreme Court Kenya other points raised Mr Prltt would postponed after Privy Council ruled Jrisdictional matter With their Lodshlps bowed Counsel spectators returned Judges court An elderly woman M Whyatt Congratulations John Reporters crowded around Registrar copies Judgment The spectators salleries silence Mr Pritt Law Courts Building Kapila The Africans still standin front buildinE They applauded Honorary Chief Pritt quickly dispersed sight The police relaxed I Mr Pritt bodyguard hotel later afteruoon He lived reputation charm His bodyguard previously I agree anYthlng bloke certainly pleasant Mr Prltt I discuss because still pendln I about ituation Kenya because Kenya government mouth He Mr Eapila would probably England Privy Council appeal If leave granted would heard March Mr Prltt Kenyatta others health spirits Lokltaung DER I drove airport sendoff Mr Pritt might there There would Africans there course because curfew those Africans evening employment En route I stopped Duke Street crown Asians Africans street watchin fight between Sikhs African The African shirt Sikhs wavln The African started another African pulled Amid sounded curses uttered languages individuals Africans withdrew Mr Pritt farewell party airport attended dozen dressed Amlans their women The bodyguard I nlght sleep Every I heard I noise I second listening A mlnutem later Pritt plane disappearing twilight bound Khartoum A later attentions Nairobi cltizenm trned matters Cordially Received Ne York