R.
V. GILIBA, JARMO(1970) H.C.D. n.
138.
FACTS
The
accused was charged
with the murder
of Lohay Ami.
The deceased’s body was
not found intact,
but, sometime after
the deceased was
reported missing, some charred
bones – said
to be human
– and some
burnt cloths were found in a
pit near
the deceased’s house.
The accused happened
to be the
deceased’s nearest
neighbour. As a
result of suspicion,
the accused was
arrested by the Village
Executive Officer and
taken to the
police station. While
in custody, the accused
made an extra-judicial statement
to the Administrative Secretary,
who had powers of a justice
of the peace.
The statement was
made in a
local language and translated
into Kiswahili by
one Musa, the
boma head messenger, and subsequently
recorded in English
by the Administrative Secretary.
At the time, Musa
was also a
police officer. The
statement was to
the effect that
fifteen days before the
bones were discovered
on the night
he had been
asleep at home. He
heard someone making
a noise near
his cattle Kraal.
It was in the
middle of the
night and he
opened his door
slowly and quietly.
He saw somebody lying down
near his cattle.
When he saw
this he beat
the person with
a stick on the
neck four times
until he died.
When he saw
that the man
was dead he
took his body and
put it in a ditch,
covered it with
firewood and set
the wood alight.
He had done so
because he was
afraid. He recognized
him after his
death and he confirmed
that the deceased
was Lohay Ami.
In his defence
statement he continued to
admit that he
killed the man
but in slightly
different circumstances.
HELD
(1)
“Having considered the
authorities I held
on the strength
of OKITU EDEKE v.
R. (1941) 8
E.A.C.A. 40 that the
use of a
police officer as an
interpreter would not
debar confession. The
practice is clearly
undesirable and should not
be repeated as
R. v. SIDIKI
KYOXO &OHERS (1943)
16 E.A.C.A. and GOP S. ONYAKI
v. R. (1953)
20 E.A.C.A. 333 both
show; nevertheless the authorities do
not show that
the confession is
thereby inadmissible. On
the other hand, it
must still be
clear that the
accused was not
compelled to make
the confession. In the
first place section
38 of the
Evidence Act states
that a confession made
by an accused
in custody in
the presence of
a Magistrate. Secondly It
was proved that
the accused and
Musa did not
know each other before.
When Musa is
on duty at
the District Office
he wears ordinary messenger’s uniforms.
It did not
appear therefore that
the accused could
have been disturbed by
the messenger’s other
duties. Moreover, the
accused had generally repeated
in his defence
the same story.
There seems no
reason to doubt that
the statement was
voluntary and properly
recorded.”
(2)
“From these statements and
the surrounding circumstances
I am satisfied
that accused killed the
deceased. The defence
raised the point
that the medical
evidence had been impossible to
get and that
therefore it was
not clear whether
the deceased had died
through the beating
or through burning
…. But in
the circumstances of
this case, I hope to
demonstrate that whether
the death was
due to beating
or burning is immaterial.
Suppose that it was the
beating which caused
his death. The issues
would be whether
the accused intended
to cause, at
least, grievous harm without lawful excuse
as the prosecution
contends, secondly whether
he had acted reasonably
in self defence,
and thirdly whether
it was an
intermediate position
arising from the
excessive use of
force in self
defence. On this supposition the
fact that the
body was burnt
later would have
nothing to do
with the case. It
would be evidence
of other offences.
The burning would
only be relevant if
the death occurred
in that way
and then the
directions in R. v.
CHURCH (1965) 49
Cr. App. R. 206
would be
relevant. In the
absence of any other
evidence to the
contrary Lohay must
be taken as
a trespasser, likely
to carry out a theft
of cattle at
least. He was
lying down near
the cattle…… as the
accused claims in
his defence that
he feared for
his life, and that
of his family
or property, it
seems that he
must have known
that some person was
there to endanger
him. He made
the point clear
in his statement
Ex. A that he
knew a man
was there. I
find therefore that
he did see
a person lying down
in the cattle
boma and it
was the presence
of this person
which alarmed him. He
would naturally think
that his cattle
were in danger
and he was
entitled to use such
reasonable force to
expel Lohay or
arrest him. In
a trespass such
as this he could
justify beating Lohay
to cause him
to desist from
taking the cattle
as Lohay was in
the cattle boma,
but to kill
him would be
Manslaughter. (In Archbold 36th
Ed. Para 2513).
Another aspect of
the case would
be whether the
accused used unnecessary force.
It is a
case very much
like Yoweri Damulira
v. R. (1956) 23
E.A.C.A. 501 except that
in Yoweri’s case
he did call
out as to
who was there and
there was some
conversation during the
beating. Even so
the use was
held to be excessive.
In this case
the accused simply
beat the man
he found near
the cattle. Moreover, it
seems to have
been a severe
assault, which the
accused says caused his
death. In that
case I think
the accused’s offence
would be manslaughter. He
was justified in
using force, but
the force was
excessive. On the other hand,
if Lohay had
merely been unconscious
and then acting
on a different impulse
altogether, the accused
tried to destroy
what he thought
a corpse, I would
follow the view
taken in CHURCH
referred to above
at page 214. The
court held: “We
adopt as sound
Dr. Glanvill Williams’
view …. That
‘if a killing by
a first act
would have been
manslaughter, a later
destruction of a supposed
corpse would also
be manslaughter’” I
do not think
that this is
a case such as
YAKOBO JAMBO s/o
NAMBIO (1944) 11
E.A.C.A. 97. Although that was
again a case
of the disposal
of a living
body probably thought
to have been dead,
in that case
it was held
that the first
of assault was
all one series
of transactions with the
disposal of the
body, a murderous
intent having persisted throughout the
transaction. In the
present case, I
accept that the
accused’s intent was to
safeguard his property
but that he
exercised unnecessary force
in the execution of
his plan. Then
a different intent
accompanied his act
in destroying the body.
As far as
one can judge,
the accused had
not been activated
by the intent to
cause grievous harm
throughout; therefore following
the direction in CHURCH,
I would hold
that even if
the death occurred
during the burning,
it was manslaughter only
and not murder.”
(3)
Acquitted of murder,
convicted of manslaughter.
LUNDAMOTO & MKONDA V. R.(1972)
H.C.D n. 44.
FACTS
The two appellants were convicted of
burglary and stealing. They had been charged with a third man who was acquitted
at the trial, the present appellants being the first and third accused. The
accused's had forcibly entered the complainant’s premises at night and after grappling with him and his
wife, ransacked the premises and stole some cloth and a sum of money. It was
alleged that the accused had confessed
to a tencell leader, a police officer and a ward executive officer. The appeal judge excluded
the confession to the police officer as inadmissible under s. 27 of the Evidence Act 1967. He
excluded the confession to the ten-cell leader as inadmissible under S. 28
since it was made in the presence of a
police officer. He then considered the confessions to the ward executive officer.
HELD
(1) “[As for ] the confessions made
to the ward executive officer, the two sections of Evidence Act, 1967, section
27 and 28, correspond to and are reenactments of sections 25 and 26 of the old Indian Evidence Act, which was repealed
and replaced by our evidence Act.
Although the two sections deal with
confessions made to or whilst in the custody of a police officer, there is a long line of
cases to the effect that these two sections
are not to be narrowly construed
as limiting their operation to police
officers, but are extended to cover a wide range of officials who have
been granted powers of arrest, as, for
example, in the old days a tribal
policeman, a village headman, and
administrative officer in charge of the police in his district and whilst acting in such capacity,
and also other officers who have vested in them powers of arrest. Most of the officials enumerated above are no longer in existence,
and in some cases their offices have
been abolished, and they have been replaced by new types of officials.”
(2) “The principal legislation
concerned with these officials and their
powers is contained in the Local Government Ordinance (Cap. 333 – Supp. 62),
wherefrom it is sufficient to quote Sections 42, 42A, 42B and 420 of the Ordinance Cap. 333 – Supp. 62 and
continued]: “It is thus clear from the foregoing provisions that the
clerk to a district council,
which includes the chief
executive officer of such council, and a messenger employed by such council, as
well as the clerk to a divisional committee, which will also include the chief
executive officer of such committee, have vested in them powers of arrest and
are therefore, in so far as confessions
are concerned, in the same position as
police officers.”
(3) “Although other officials like a
ten-house-cell leader, so I have held in many cases in connection with
ten-house-cell leaders, whose powers are expressly laid down in the Interim
Constitution, that confessions made to
them are admissible, and it is not irrelevant
to add that a number of such cases wherein the accused was convicted of
murder, have found their way to the court of Appeal for East Africa and my ruling had not to date been queried. In my view, although an
official may exercise powers of arrest
and may even be popularly believed to have vested in him such power that in itself is not sufficient to equate him to
a police officer so as to render
confessions made him inadmissible. There must be, to my mind, some express authority conferring on such
official Powers of arrest in order to
equate him to a police officer in respect of confessions made to him or in his presence. I am fortified in this view by
the observation of my brother Onyiuke in R. v.
Bakari Mussa and another
(Criminal Sessions Case No. 2245 of 1969) in dealing with a confession
made to a village executive officer which he held admissible, stating in his judgment: - ‘…I am of the view
that there must be some legal basis for
the performance of police functions. A mere exercise of police powers is not enough and cannot give a person
greater powers is not enough and cannot
give a person greater powers than an
ordinary member of the public.”
(4) “The powers and duties of a ward
executive officer are nowhere defined but
after a great deal of research which accounts for the delay in the
preparation of this judgment. I have
discovered that ward executive officers are
replacing if they have not
already done so, divisional executive officers and that the post of
divisional executive officer either has been or is being abolished. This would
bring into play section 23(3) of the
Interpretation and General Clauses Ordinance (Cap. 1- Supp. 66-70) which
reads:- 23.(3) – Where an Ordinance confers a power or imposes a duty on the holder of an office –
(a) if the designation of that office is
subsequently changed, the power or duty shall be deemed to have been conferred
on the holder of the office as now designated; if the office is abolished, and the duties previously attaching to that office, or
any of them, are vested in the holder of another office, the Principal
Secretary, President’s Office may by notice in the Gazette confer the power or
duty on the holder of such other office, and the notice may be given
retrospective effect from the date on which the first –named office was
abolished.’ Therefore on the application of this section, a ward executive officer would have the same
powers as a divisional executive officer who, as noted, has or rather had, as the post
appears to have been abolished, powers
of arrest and can therefore be equated to
a police officer for the purpose of sections. 27 and 28 of the Evidence
Act, 1967 above set out.”
(5) “As sufficiently demonstrated the
case against the first accused does not rest on his confessions alone but there
is extraneous evidence as well. In the case of the third
accused however, there is no other admissible evidence apart from his alleged confession to the ward executive
officer. Apart from the fact that such confession for the reasons given, would
appear to be inadmissible, there is ample authority to the effect that a
repudiated or retracted confession even if admissible, requires corroboration, and in this case
there is no corroboration at all.”
(6) “In the
circumstances I find myself constrained to quash the conviction in the case of the third accused, and set aside
the sentence imposed on him.”
JUMANNE S/O MOHAMMED AND ANOTHER V. R. (1972) H.C.D.
n. 160.
FACTS
The accused were charged with
murder c/s 196 of the Penal Code.
Evidence was given of a confession made to
a TANU Youth Leader and of a statement made by the deceased in hospital
to a Police Officer after the assault on him and five days before he died.
HELD
(1) “Having examined the constitution
of the TANU Youth League produced to
this Court by the District Secretary of the TANU Youth League, I am satisfied that members of the TANU Youth League do not have powers of arrest nor are they
supposed to act as police officers. In the circumstances I find that they have
powers of arrest similar to those of ordinary citizens and therefore a
confession to them would be admissible
in law”.
(2) “A dying declaration needs material
corroboration as a matter of practice and not as a matter of law. In my view,
although I do not find that there is any
need of corroboration, I find corroboration in the evidence of Saudi Mkumbi. Some corroboration is also
found in the fact that the deceased was
found 5 paces from the house of
the accused …….. Repetition to other witnesses is evidence of consistency only
but reinforces the dying declaration”.
(3) The evidence, however does not
establish either murder or manslaughter. Accused convicted of common assault
and sentenced to one year a piece.
KAMBI AND ANOTHER V. R.(1972) H.C.D.
n. 100
FACTS
The two appellants were convicted of
cattle theft c/ss 268 and 265 of the Penal Code and each sentenced to 3 years
imprisonment and 24 strokes corporal punishment. The complainant (PW.1) had his
ten goats stolen on 5/7/71 as they were being grazed by his children. He approached his cell-leader
(PW. 4) and reported to him what had
happened and mentioned the two appellants as the people.He suspected as
the thieves. The appellants’ house (both apparently lived in one homestead) was
searched and there a skin of a recently
slaughtered goat was found. The complainant identified the skin as having marks on it similar to the marks he
had made on his missing goats
namely three cuts of the
lips of the ears. He had also earlier told the cell leader that one of the
he-goats was black and white in colour. The
skin found in the appellant’s
home-stead bore these marks and was black and while in colours. On being interrogated as to how they came to
be in possession of the skin which answered the description given by the
complainant the two accused admitted having stolen the goat whose skin was in
their house but denied stealing the
remaining nine goats. In their joint memorandum of appeal they have,
inter alia, argued that the trial
magistrate, should not have admitted the alleged confession as it was made
“outside a court of law” and before a cell-leader.
HELD
(1) “I fail to see the argument regarding the question – ‘the confession being made out of court’
as most confessions are made out of
court. When dealing with the question of confessions courts are not so much
concerned with the place where an alleged confession was made, they are more concerned with the person to
whom a confession is said to
have been made ….. The question of admissibility of a confession made to
a cell-leader was amply dealt with by Biron
J. in Thabit Ngalile vs. R.(1968) H.C.D.
case No. 182 where the learned Judge held ….. They (cell-leaders) have in fact no greater powers of arrest than
those of an ordinary citizen … they should not be equated with police officers
for the purposes of section 27 of the
Evidence Act, and the confession made to the ten house leader was admissible.
The confession to the cell-leader was
therefore rightly admitted as evidence against the appellants.”
(2) “The appeals against conviction
are incompetent and they be forthwith
summarily rejected”.
THABITI NGALILE V. R.(1968) H.C.D. n. 182.
FACTS
Accused was
charged in two
separate counts with
shipbreaking [P.C. s.
296(1)] and stealing [P.C.
s.265] and was
convicted on both
counts. Both counts
referred to the single
act of breaking
into complainant’s shop.
A confession which
accused made to
a TANU ten
house leader was
admitted into evidence.
A second confession, which
was made to
police officers after
accused had been
cautioned, was also admitted
officers after accused
had been cautioned,
was also admitted.
HELD
(1)
The offence of
housebreaking and stealing
created by Penal
Code section 296(1) is
a composite offence
in itself. The
second count of
stealing was therefore superfluous.
(2)
The confession to
the Police Officers
was inadmissible under section
27 of the
Evidence Act, 1967
even though accused
had been cautioned.
(3)
“Although there appears
to be a
not infrequent practice
of ten-cell leaders exercising
powers of arrest,
they have in
fact no greater
powers of arrest, they
have in fact
no greater powers
of arrest than
those of an
ordinary citizen.” Therefore they
should not be
equated with police
officers for the
purposes of section
27 of the
Evidence Act, and
the confession made
to the ten
house leader was admissible.
(4)
The introduction of
the confession to
the Police Officers
did not prejudice accused.
Conviction on first
count affirmed; sentence
on the second count set aside.
IDEFENCE MPENDAKAZI V. R. (1967) H.C.D n. 124.
FACTS
The
accused was convicted
of cattle theft.
A confession which
accused made before
an Assistant Village
Executive Officer was
admitted into evidence.
The only other prosecution
evidence was the
testimony of a
twelve-year-old boy.
HELD
(1)
A confession to
the Assistant Village
Executive Officer, who
had the power to
arrest and detain
persons suspected of
having committed offences amounted to
a confession to
a police officer
and was inadmissible
under section 25 of
to a police
officer and was
inadmissible under section
25 of the
Indian Evidence Act.
(2)
The testimony of
the boy required
corroboration and would
not support a conviction.
The conviction was
quashed.
OMARI S/O MUSA MSUSA V. R. (1968)
H.C.D n. 99.
FACTS
Accused was
convicted of robbery.
[P.C. s. 286]
At the trial
the prosecution introduced
a confession allegedly
made by accused
to a District
Council messenger who had
arrested him and
escorted him to
the police station.
HELD
( 1)
The messenger was
exercising the duties
of a police officer, and as
such a confession
made to him
by accused was
inadmissible.
(2)
The error in admitting
the confession occasioned
no failure of
justice. Appeal dismissed.
ALLI V. R.[1971] 1 EA 75
FACTS
The appellant who was a police
constable was convicted of the
murder of his wife. He told his
neighbour who was a police corporal that he
had killed and showed him his
wife’s body.
HELD
(i) (by the court) the
statement was a confession made to a
police officer and inadmissible;
(ii) (by Spry, Ag. P., and Lutta, J.A.; Law, Ag.V.-P.
dissenting) the remaining
circumstantial evidence could not safely
support a conviction.
Appeal allowed
R. V. MADIRISHA S/O KITIKITI(1969)
H.C.D n. 233.
FACTS
The deceased Ephraim s/o Robert,
was a young man who lived with his uncle
Amani s/o Salim, at Nyamahove Village in
Nyombe District. Early in the morning on
28 January 1968 he left home to go to
church. He never returned. On the following day, the deceased’s uncle, Amrani, set out to look for him. His
search took him to Makoga, from whence
he was led by the village executive officer to the village of Iholo. There they met the second accused, Besen, who admitted
that a boy had been tied and taken to the
home of the third accused, Mwakilima. When Mwakilima was questioned by the village executive officer, he admitted
that he and the two other accused had killed the boy. Mwakilima and
Besen then led the officer to the ravine
where the body had been thrown. The court found that the death had
occurred in the following way. The first accused, Madirisha, encountered the
deceased, and noting him to be a stranger, offered him food and drink. Ephraim,
however, would not or could not reply, where-upon Madirisha seized him and tied
him up, suspecting him to be a hooligan (“mhuni”). He took him to the third
accused, Mwakilima, who was also of the opinion that Ephraim was a hooligan and
should be bound. Later, after Ephraim
had been beaten, it was decided to main him. Besen and Mwakilima held him down
on the ground, while Madirisha pricked his eyes with a pin. Mwakilima claimed that he suggested only
one eye should be pricked, but Madirisha insisted that both be pricked
“so that he would be blind and be obliged
to live as a beggar”. It appears that Ephraim’s ears were also damaged at this time. The three accused then
left Ephraim at the scene of the maiming. The following morning, Mwakilima
returned to the scene and found Ephraim apparently dead. Returning again that
afternoon, he found Ephraim standing up,
which fact he reported to the other two. The following day, he again went back
and found Ephraim finally dead, or so he thought. He then disposed of the “body” by throwing it into a
ravine. Medical evidence established
that death occurred, not as a result of the
blinding or the damage to the ears but following a skull fracture which
must have been sustained when the deceased, apparently dead, was thrown into the ravine. The three accused
were charged with murder.
HELD
(1) A preliminary question arose as
to the admissibility of the admission
made by the third accused, Mwakilima, to
the village executive officer, to the effect that he and the others had
killed Ephraim. After some indecision, the court finally held: “Having
regard to the ruling of Biron J.,
in Athumani s/o Kasim v. R . [1968
H.C.D. n. 143], it would appear that my
misgivings on this point were ill
founded, the learned Judge holding in
that case that a confession to a divisional executive officer was admissible
having regard to the provisions of Section 29 of the Evidence Act, 1967. I deliberately refrained from referring to
the admission to the village executive
officer in my summingup to the Assessors but I think it proper to mention it now to indicate the readiness
and willingness of all accused to
confess to the parts they had played in their dastardly venture. This desire to confess may also be gleaned from
the pleas of the accused when the
information was read over to them by the Chief Justice on the 28th October, 1968, the same
attitude being adopted by them when pleading before this Court on the
19th February, 1969. whether regard can
be had to what an accused person says in answer to a charge has at times, being
doubted but recently Biron J., in Issa
s/o Mohamed v. R. Criminal Appeal No. 108 (P.C.) of 1968 (unreported) was of the view that what was stated in a plea could be taken into
consideration and I believe the decision in
R. v. Hazeline 1967 2Q. B. 857 would
appear to lend force to the opinion of
Biron J., with whose view I respectfully
agree.”
(2) “The picture therefore that
emerges …….. indicates that after the
three accused had inflicted the injuries
to the eyes and ears of the
deceased. …… only the third accused
participated in what followed, the
deceased dying tin the ravine in consequence of head injuries he sustained when
discarded there. The first an second accused were not a party to the fatal injury
and it cannot be said that the original
wounds at the time to death were
still an operating and substantial cause of death. If the original
wounding was merely the setting in which another cause operated, and I accept that this was the situation death would not be said to
result from the wounding (Vide R. v.
Smith 43 Cr. App. R. 121) There is no
doubt that these two accused
intended to main the deceased and did in
fact main him, this being an offence c/s
222(1) of the Penal Code ……. This offence ……. Has been amply established and
having regard to the provisions of Section 181
of the Criminal Procedure Code I
think it proper to conviction them of this offence and I do so accordingly. (R. v. Muhoja s/o Manyenye,
9E.A.C.A. 70. is relevant on this aspect of the case).
(3) “The third accused was the
only one who displayed an interest
in what was happening to the stranger
after he had been maimed. His first
belief that death had occurred was shattered on his next visit to the scene
when he found the victim standing. His final visit led him to believe
that death had finally come, he then endeavoring to conceal the body by
throwing it into the pit. Notwithstanding that he believed Ephraim to be dead when he disposed of the body the
accused’s behaviour cannot be considered
save as a series of acts designed to cause death or grievous bodily harm and it is impossible in his case,
to divide up what was really one transaction. In this view I am strengthened by the decisions
in R. v. Church 49 Criminal Appeal R. 206 and Thabo Meli
& Other v. R. 1954 I. A. E.R 373 Accused convicted of murder.
(4)
“Sentence: I have had the
accused examined as to their ages by a medical officer, the first accused
being in his mid thirties, the second in
his late fifties and the third accused is in his early fifties. The age factor
as far as the first two accused are concerned has influenced me greatly in determining what
punishment should be meted out to them for their part in this shocking crime. I
sentence the first accused to twelve
years’ imprisonment and the second accused to six years’ imprisonment. As
regards the third accused there is only one sentence in law which the court can
and does pass and that is that he shall
suffer death by hanging.”
HAMADI JUMA V. R. (1970) H.C.D n. 30.
FACTS
The
appellant was convicted
of rape c/ss
130 and 131,
Penal Code. The appellant’s unsworn
statement admitted that
the complainant was
his girl friend but
denied having intercourse
with her on
the day in question. The
Magistrate disbelieved the appellant
and, in his
judgment, mentions as one of
his reasons, the fact
that the appellant
when he first
came before the
court to plead,
said that he had
sexual intercourse with
the complainant’s consent.
HELD
“It
was misdirection for
the Magistrate in
deciding the appellant’s guilt or
innocence to consider
his statement when
making his plea.
The only purpose for
which the words
of a plea
of not guilt
are to be
used is to ascertain
whether or not
he is admitting
his guilt as
charged. Once it
is clear that
he is denying guilt,
everything is in
issue and the
trial court may
not use part
of the words in
his plea in
order to fill
up subsequently the
scales of evidence
against him. However, in
the present case,
I am of
the view that
there was ample
other evidence to support
the conviction. The
appeal is accordingly
dismissed and the sentence
confirmed.”
BAMPAMIYKI S/O BUHILE V. R[1957] 1 EA 473.
FACTS
The appellant was convicted of
the murder of
a woman who was burned to death
after her house had been set on fire.
The principal evidence against the appellant consisted of two statements made by him to a police officer in which he had
admitted setting fir e to the house. It
was conceded by the Crown that in the
absence of these statements there was insufficient evidence to support the conviction. At the trial
it was submitted that these
statements amounted to confessions, not of the offence charged, but of the
offence of arson and that as such they
were inadmissible against the
appellant by reason of s. 25 of the Indian Evidence Act. The
trial judge had held that they were admissible. On appeal it was argued on behalf of the Crown that the construction which ought to be put on
s. 25 was that the word “confession”
means confession to the offence charged;
and that an admission of the commission of an offence other
than that charged was not a
“confession” in the context of the particular trial and therefore was not
excluded by s. 25.
HELD
(i) the word “confession” in s. 25
of the
Indian Evidence Act means a
confession of any offence and should
not be confined to a confession of
the specific offence with which
an accused may ultimately be charged.
(ii)
the statements made by the
appellant to the police officer were
wrongly admitted in evidence.
Appeal allowed. Conviction quashed
and sentence set aside.
MUSTAFA S/O MSUMI V. R(1970) H.C.D n. 178.
FACTS
The
appellant was convicted
of stealing a
leather pouch from
motor vehicle c/ss 269
and 265, Penal
Code. On appeal,
it was held
that the case
had been proven beyond
reasonable doubt. Incidentally,
however, the court
dealt with the admissibility of a statement
made by the
special constable who
arrested the appellant. “When
arrested the accused
told me that
he had not
stolen but he had
picked the pouch
from the car.”
HELD
(1)
“With respect, I
am inclined to
the view ….
That the statement
is admissible, as although
it constitutes an
admission in that
the appellant admitted that
he picked up
the pouch from
the car, it
is not per se
a confession to any
offence. He may
merely have picked
up the pouch
in order to
hand it to
its owner or otherwise
safeguard it for
her. This statement
is thus perfectly
capable of an innocent
construction and explanation
…. If admitted,
that evidence certainly clinches the
case against the
appellant beyond a
peradventure.”
(2)
Appeal dismissed.
MKAREH V. R.(1971) H.C.D n.74.
FACTS
The
appellant was convicted
in the High
Court of Tanzania
of the murder of
his wife. The
most important evidence
against him was
that of a neighbour, a
corporal of police;
who testified that
the appellant had
called him, said “
I have killed;
go in and
see “and showed
him the dead body of
his wife. At
the trial the
advocate for the
appellant objected that this
evidence was inadmissible
in view that in
view of the
provision of Section
27 of the Tanzania
Evidence Act 1967
which states: “27 . No.
confession made to a
police officer shall
be proved as
against a person
accused of an
offence …….” The trial
judge (Georges C. J.) admitted
the statement holding that it did
not amount to
a confession and
that it was
not made to
the witness in his capacity
as a police
officer.
HELD
(1)
[Per Spry Ag.
P. & Lutta
J. A.] “The
learned Chief Justice said
“It is my
view that a
statement should be
regarded as a
confess ion only when it
contains an admission
of all the
ingredients of the
crime with which the
accused is charged
so that an
accused person could
be properly convicted on
his own plea
had he in
answer to the
charge made the statement
which is alleged
to be a co
nfession.” We think
that is too restrictive a
definition. When taking
a plea of
guilty a court
requires to be satisfied that
the accused person
appreciates and admits
all the ingredients of he alleged
offence, b e be sati cause
only in that
way can the
court sfied at least
where the accused
person is unrepresented, that
he is truly admitting
the offence; we
think that to
apply the same
standard to confessions for
the purpose of
section 27 and
other sections of Evidence Act
would be to
render those provisio the ns of
very little effect.
We think the true
test is whether
the statement is
such that in
the absence of my
explanation or qualification
and in the
particular circumstances, it points
clearly to the
guilt of the
maker. Thus such
statements as “I
killed him ” and “ I
took the money”,
unaccompanied by any
exculpatory words, and uttered
in relation to
a person who
has died of
unnatural causes or to
missing funds, as
the case my
be, are, in
our view, indicative of
guilt and therefore confession.”
(2)
“As regards the
second proposition, we think
the warding of
section 27 is so
clear that it
affords no scope for
interpretation or interpolation. What
the learned Chief
Justice did, in effect,
was to interpolate
the words “acting
in his cap acity
as such” after the
words “police officer”,
with respect we
do not think
he was entitled to
do so …..where
the admissibility of
a statement is
challenged on the ground
that it is
excluded by section
27, and it
is held to
amount to a confession,
the si mple test
is “was or was
not the person
to whom the statement
was made a
police officer?” if
the answer is
“yes”, the statement must be
excluded.
(3)
Appeal allowed.
SOUTH INDIA CORPORATION (TRAVENCORE)
PRIVATE LTD. V. H. J. STANLEY & SONS LTD.(1967)
H.C.D. n. 168.
FACTS
Defendant contracted
to sell cashew
nuts to plaintiff,
and this suit
arose out of a
dispute as to
their quality. Two
samples of the
nuts were taken
and were sent
for inspection to a
company (General Superintendents) nominated
by plaintiff. With respect
to one of
these samples defendant
offered into evidence
the original certificates
of General Superintendents stating
the results of
the inspection. With
respect to the
other sample, the
original certificate was
not introduced, but
defendant offered a
letter purporting to
state the results
of the test.
HELD
(1)
Neither the certificate
nor the letter
were admissible as a business
entry under section
32 (2) of
the Indian Evidence
Act. To come
within that section, the
business entry must
deal with matters
of fact rather
than of expert opinion as
did this evidence.
(2)
The opinion of
the expert must
be given orally, and
a mere certificate
by him is not evidence.
Citing commentary of
Indian Evidence Act,
section 45; Ratantal
and Dhirajlal Thakore,
The Law of
Evidence, 14th Ed., p.
133.
(3)
The original certificate
was, however admissible
as an admission by
plaintiff. Section 20
of the Indian
Evidence Act, which
applies to both
oral and written statements,
provides, “Statement made by persons
to whom a
party to the suit
has expressly referred for
information in reference
to a matter
in dispute are
admissions. “
(4)
The letter constituted
secondary evidence of
the original certificate and cannot
be admitted until
a proper foundation
has been laid..
M. S. MNONYA V. ALI ABDALLAH(1967)
H.C.D. n. 379.
FACTS
Plaintiff sued
defendant for failure
to pay a
Shs. 100/- debt.
Plaintiff introduced an I.O.U.
signed by defendant
promising to repay
the debit in
April 1966. Plaintiff
also introduced an
undated chit in
which he (plaintiff)
stated that defendant
had failed to repay
the money and
as a result
plaintiff seized defendant’s
radio as security.
The chit also
stated, “I give
him his radio
when he repays
back Shs. 100/.”
Plaintiff testified that
he in fact
returned the radio
to defendant in
June 1966, although the
money had not
been repaid. Defendant
argued that the
return of the radio
proved the repayment
of the debt.
HELD
The
trial magistrate correctly
relied on the
chit and the
evidence of the return
of the radio
in finding that
the debt had
been repaid.
DUNCAN MBERELIE V. GIBSON MAWALLA(1968) H.C.D n.
484.
FACTS
This
was essentially a
family dispute, growing
out of a
partnership agreement. The parties
are disputing who
has failed to
perform certain duties
under the agreement, whereupon
plaintiff brought this
suit claiming certain
moneys. His action
was dismissed, because
he failed to
present documentary proof
of his claim, in
that he did
not tender in
to court receipts
for payments he
allegedly made. It is
claimed by plaintiff
on appeal that
even if he
failed for lack
of receipts, he
should have been allowed
recovery because defendant
had at the
trial admitted full
liability – and
admissions against pecuniary
interest are admissible
under 20(3) (a), Evidence Act, Act no.
6 of 1967.
Plaintiff’s claim was
rejected by the
trial court solely because
of his failure
to present the
requisite documentary evidence;
the alleged admission by
defendant was not
considered relevant by
the magistrate.
HELD
(1)
Plaintiff sought to
bring fresh evidence
– the receipts
– before the High
Court. Permission to
present such further
evidence was denied.
[Citing Civil Procedure Rules,
Order 39, rule
27; R. Tarmohamedi
v. Lakhani (1958)
E. A. 567, at
584]. “This is
not a case
of fraud or
surprise, and from
the nature of the
application it is
plain that the
documentary evidence could
have been adduced
at the trial. The plaintiff
was represented by
counsel …. and
therefore I cannot
think why fresh evidence
should be admitted.”
(2)
The failure by
the trial magistrate
to consider defendant’s
admissions constituted error.
Feeling unable to
decide the case on
the bases of
the record, the
High Court remanded
the case for
a new trial.
At the same time
it observed that
“it is not
a light matter
to order a
fresh trial owing to
undesirable features in
that course of
action.” [Citing Harharrshen
Rhemarey v. Lachbai Murlidhar
(1960) E.A.1].
New
trial ordered.
ZARINA AKBARALI SHARIFF AND
ANOTHER V. NOSHIR PIROSESHA SETHNA AND
OTHERS [1963] 1 EA 239.
FACTS
A motor scooter driven by the first respondent on a minor road and a
motor van driven
by the second respondent on a major road came into
collision near the centre of the intersection of the two
roads causing the death of one A.,
who was a
pillion passenger on the scooter. The appellants, as administrators
of the deceased, claimed damages
against the first and second respondents, alleging
negligence, and against the third
respondent company as owner of the van, the second respondent
being the company’s agent at the material
time. There was evidence that there was a “Yield” sign on the minor
road about fifty-four feet
from the intersection, but there was no
“slow” or other warning sign on the major road. An extra-judicial statement
by the second respondent to the police
relative to the accident and his deposition taken by a magistrate in criminal proceedings
against the first respondent were put in evidence after
an objection to their admissibility had been over-ruled. The trial judge found
that the first respo ndent was negligent
in approaching the intersection too fast, namely, 20 to 25 miles an hour, and
that he did not keep a
proper look-out. The
judge found that
the second respondent was not
entitled to assume (as he had
apparently done) that all
vehicles tr avelling on the minor road would, at the junction, give way to traffic on the major road; and that
he was negligent
in approaching the intersection too fast, namely, 20 to 25 miles an hour, and in not looking to his
left on entering the intersection. Havin g found that both the first and
second respondents were negligent the judge also
held that their negligence was a contributory cause of the collision, the first respondent
being three quarters to blame and the second respondent one quarter to
blame. The ju dge awarded general and special damages in
the sum of £4,825, and entered judgment against the first respondent for the sum of £3,618 15 s . the sum of
£1,026 5 s . 0d 0d . and against
the second and third respondents jointly
and severally for ., together
with c osts against all three respondents apportioned in the same way. The appellants appealed on the ground
that the first and second respondents
being concurrent tortfeasors judgment should have been entered against all
three respondents jointly and
severally. The second and third respondents cross-appealed
against the finding that the second respondent was negligent and that his
negligence was a contributory cause of the collision and against the
quantum of d amages awarded. It was
contended that the facts found by the judge did not establish any negligence on the part of the second
respondent, that the speed with which the van was travelling was a reasonable
speed in the circumstances, that a
motorist on a maj or road on which there
is no warning sign is entitled to proceed on the assumption that traffic on a
minor road will conform to traffic signs and not behave negligently and, therefore, that it
did not matter
that the second respondent did not look to his l eft on entering the
intersection. It was also submitted for the respondents that
only facts of the extra-judicial
statement and deposition should have been admitted by the judge.
HELD
(i) when an
admission is tendered against party,
he is entitled to have proved, as
part of his adversary’s case, so much of the whole statement or document
containing the admission, as is
necessary to explain the admission, although such other
parts may b e favourable to him; the usual practice is to tender the whole
statement or document containing the
admission; accordingly there
could be no objection to the whole of the
statements being admitted
in evidence.
(ii)
the second appellant was not entitled to ignore traffic approaching the
intersection along the minor road and to assume, as he did, that such traffic would conform to the “Yield” sign and as it was his
duty to keep a proper lookout to his
left, he wa s negligent in failing to do so.
London Passenger Transport Board v. Upson
[1949] 1 All E.R. 60 , applied.
(iii) there was no ground for
interfering with the
judge’s apportionment of one
quarter of the blame to the second respondent.
(iv) the finding of a trial judge as
to degrees of blame to be attributed
to two or
more tortfeasors involves an
individual choice or discretion and will
not be interfered with on appeal save in exceptional circumstances.
(v) it could not be said that the
judge attached insufficient weight to the likelihood of the widow’s remarriage or that fourteen
years’ purchase, taking into consideration the youth of the deceased
and his dependants, was excessive.
(vi) the damages awarded were,
perhaps, on the high side, but not so
inordinately high as to justify
interference by an appellate court.
(vii) the first and second respondents were concurrent
tortfeasors and the second and third respondents as between themselves
were joint tortfeasors and all three were liable
jointly and severally for the whole damage; accordingly judgment should have bee n entered for the appellants against
the first, second and third
respondents, jointly and severally, in
the sum of £4,825 and costs.
Appeal allowed. Cross-appeal
dismissed.
JOHN MAKINDI V. R. [1961] 1 EA 327.
FACTS
The appellant appealed from his
conviction and sentence for the manslaughter of a small boy, towhom he was in
loco parentis, by beating him so severely that he died. The defence
foreshadowedfrom statements made by the appellant to the police seemed to be
that the deceased was an epilepticand that his injuries and death were due to
an accident caused by epilepsy. When, at the trial, theprosecution sought to
lead evidence of previous severe beatings of the deceased by the appellant
inorder to rebut this defence, the trial judge ruled that this evidence should
not be admitted at that stage,but after hearing the appellant’s unsworn
statement, noted the nature of the defence and then admittedthe evidence of
previous beatings. It was considered on appeal whether this evidence should
havebeen admitted.
HELD
(i) for the admission of evidence of
previous beatings by the appellant, it was not necessary for thetrial judge to
wait to ascertain what defence would be advanced by the appellant; the
evidence,if it was admissible, was admissible in anticipation.
(ii)
the evidence was admissible under s. 7 of the Indian Evidence Act in
explanation andsubstantiation of the cause of death and also under s. 8 and s.
14 as showing a motive in theappellant for revenge on the deceased and the
appellant’s ill will towards him.
(iii) the fact that the evidence was
admitted in rebuttal when it could have been admitted inanticipation did not
cause any prejudice to the appellant.
(iv) there was ample evidence to
support the conviction and there was admissible evidence onwhich the trial
judge could find (as he did) that the death of the deceased was the
culminationof a series of brutal beatings over a period of months.
Appeal dismissed.
ISIDORI NDETHNGA V. EUGEN MANGALILI
(1969) H.C.D. n. 186.
FACTS
The
respondent and the
appellant share a
common boundary along
which respondent (Eugen) had
plated trees. The
appellant alleging that
these trees, or their
branches on being
blown by the
wind had falled
on his land
and had damaged his coffee and
banana trees, sued
Eugen for compensation
for the damage caused.
On appeal, his
claim was rejected
by the District
Court of Kilimanjaro at
Moshi.
HELD
The
real question seems
to me to
be whether at customary
law a person
who plants a
boundary tree is
liable if the
tree itself or any
part of it
falls on his
neighbour’s land causing
damage therein. The argument
seems to fall
under two headings:
(a)
whether a boundary
tree which causes damage,
is damage for
which compensation can
be claimed;
(b)
whether damage caused
by a wind
–blown tree, is
damage for which compensation can
be claimed. These
questions arise out of the
arguments which were first
raised in the
District Court. Therefore,
as the court
was without the advantage
of the opinion
of the assessors
at first instance,
two Generally speaking boundary
trees are common
property and if
a tree itself
or a branch falls
on to the
land of the
party who has
not planted it,
that person may use
it as timber.
He has no
right to compensation
if the tree
is diseased and falls
by itself or
if it is blown down
by abnormal wind.
Should the person who
planted the tree
remove the fallen
tree or branch
from his neighbour’s
land that would
be an interference
for which compensation
could be claimed.
It
was, consequently, said
that Isidori could
claim for the
value of the
timber if he was
deprived of it,
but he could
not claim for
he loss of
his coffee or banana
trees. As this
opinion was shared
equally firmly by
both assessors, I accept
their opinion. It
follows that regarding
boundary trees there
is no notion amongst the
people of this
area, following what
in the general
law would be called
negligence or strict
liability for harbouring
dangerous objects which have
escaped on a neighbour’s land.
That is probably
due to the
idea of the joint
ownership of the
trees. Accepting the
customary law as
explained by the assessors
I hold that
the District Court
came to the
right conclusion in dismissing
Isidori’s claim.”
Appeal dismissed.
KANCHANBAI LALJI RAMJI RAJA V. KASHIBAI P R KATARIA AND ANOTHER
[1965] 1 EA 362
FACTS
The
plaintiff claimed damages for
herself and her six children for the death of her husband (the deceased) after
a collision with a stationary
lorry. The judge found that
the accident was
caused solely by the negligence of the driver of first defendant’s
h usband who was also killed. The deceased owned a shop giving him an average income of £924 per
year. The deceased’s estate was
realised for Shs. 49,000/- which went to the dependants. The plaintiff
was 45 years old and the
deceased was 50. The
six children were aged between 13 and
19. In assessing damages the judge had
to consider the amount to be deducted in respect of the acceleration of the
benefit of the deceased’s estate to the
dependants.
HELD
(i) having regard to the anticipated
savings which might reasonably have been expected to have been made by the deceased if he
had lived the amount realised from the deceased’s estate should not suffer a reduction on the
ground of accelerated benefit;
(ii)
where the court is assessing damages for several dependants it
should estimate the total dependancy as
a lump sum and then, after making the appropriate
deductions, apportion it among the
various dependants: Ltd ., [1965] 2 All
E.R. p. 875, followed.
Judgment for the plaintiff for
£4,525.
THE MOTOR MART & EXCHANGE
(FINANCE ) LIMITED V. HIRALAL MOHANLAL
GANDHI AND ANOTHER [1963] 1 EA 657.
FACTS
The
first defendant entered into a
hire purchase agreement on July 11, 1960 with the plaintiffs in respect of a
motor vehicle and on July 20, 1960 the second defendant guaranteed due performance
of the agreement by the first
defendant. The first
defendant having defaulted the plaintiffs first terminated the agreement
and demanded the return of the vehicle,
and subsequently sued the defendants for the instalments in arrear,
return of the vehicle
or its value and damages. The
first defendant was served by sub
stituted service and did not enter an
appearance and the second
defendant contended that since
the guarantee was given after execution of the hire purchase agreement, there
was no consideration and that the car
was not hired to the first defendant at the s econd
defendant’s request.
HELD
(i) the vehicle was hired to the
first defendant at the request of the second defendant;
(ii) the expression
“has done” in s. 2 ( d ) of the Indian Contract Act, 1872, connotes
something done before, the vehicle was supplied to the first defendant “at the
desire of the promisor”, the second defendant, and accordingly although
the guarantee was executed after the hire purchase
agreement there was good consideration for the guarantee;
(iii) the plaintiffs were entitled to recover their
actual damage, namely, the money
they had advanced together with
interest at a reasonable rate up to the
time when the hiring was terminated, less the instalments paid. Bridge v.
Campbell Discount Co, Lt d 385 applied.
Judgment for plaintiffs for Shs.
11,047/-.
SULEIMAN MUWANGA V. WALJI BHIMJI
JIWANI AND ANOTHER[1964] 1 EA 171.
FACTS
The first plaintiff brought an action
under s. 7 of the Law Reform (Miscellaneous Provisions) Ordinance, 1953, as personal representative of the deceased for the benefit of the estate and
the mother of the deceased claiming
damages for negligence resulting
in the death of the deceased.
During the hearing the plaint was amended and the mother
was added as
second plaintiff. The deceased, a school girl was 13 years old
at her death. Her father had predeceased her
and on his
death the first plaintiff, who
was t he paternal uncle of the deceased, became her guardian according to
custom and was responsible for her
upbringing and education. After the
death of
the deceased according to
custom the first plaintiff was appointed
successor to the estate of the deceased
a nd was the only person entitled to
receive any dowry if
the deceased had
married. At the hearing it was submitted for the defendants that the
action was not maintainable by the first plaintiff as
he was not the proper person to have brought the
action. Und er s. 2 of the Ordinance the
words “member of the family” has the same meaning as in the Workmen’s
Compensation Ordinance and by s. 3 of the latter Ordinance “member of the
family” under the paternal system is
defined as including mother, father, wife
or husband, daughter, sister,
father’s father and father’s brother.
HELD
(i) in the clan to which the
deceased belonged the
paternal system prevails and
accordingly the first and second
plaintiffs were members of the family of
the deceased;
(ii) under s. 8 of the Law
Reform (Miscellaneous Provisions) Ordinance, 1953, the first and
second plaintiffs were the rightful and lawful persons by
and in whose name
and for whose benefit the action should be brought; accordingly the action was well fou nded and
maintainable;
(iii) the court would take judicial
notice of the fact that African
children while at
school are expected to assist in
domestic work and after school on
gaining employment to contribute towards
the maintenance of the family; accordingly the mother and the girl’s grandparents were entitled to damages
for loss of service.
Judgment for the plaintiffs for Shs.
13,740/-.
M'IBUI V. DYER[1967] 1 EA 315.
FACTS
The plaintiff, a trader ’ s conduct
at trial relevant. in “miraa”, and
five others were
travelling by landrover
from Meru district
to Nairobi late one night
in order to
deliver a load
of sacks of
“miraa” to the
Nairobi market the following
morning. Because of
shifta activity in
the area , they
decided to travel over a secondary road as
attacks had been
made on persons
travelling on the
main road. This secondary road crossed a number of sheep
farms and while the landrover was
crossing the defendant’s farm, it developed minor engine trouble and the vehicle was stopped while running
repairs were carried out.
In the meanwhile, the
defendant, a farm manager, who had been asleep in his
home, was wakened by his herdsmen
and told that there was an attack being made on his sheep boma.
It was common cause that stock-thefts
were prevalent in that area and that
because of this most of the farmers and
their herdsmen were licensed to carry
firearms. The defendant, with two of his
staff, drove to the sheep boma where he
found his sheep scattered and then drove towards the road in an attempt to track down the thieves. The
defendant saw the plaintiff’s
vehicle stopped and, as
he approached it, he saw two men
scramble into it and the vehicle move
off. The defendant saw what
he thought were a number of sheep
i n the landrover but which were, in
fact, the sacks of
“miraa”. The defendant
alleged that as the landrover moved off he and his men shouted for
it to stop and he fired
two shots into
the air. The vehicle then stopped
and three men, one of whom was the plai ntiff, got out and ran away. The
defendant then fired a third shot
aiming upwards but in the
direction of the plaintiff at a range of some 60 yards; the two other men
stopped and the plaintiff disappeared.
A search party with a torch
discovered him nearby with a gunshot wound in his shoulder and another in his leg. The
plaintiff then attacked the defendant and
inflicted minor injuries on him,
for which the defendant counterclaimed in the suit.
The defendant then took the
plaintiff to Timau police station where the matter was reported and the plain
tiff sent for hospital treatment.
The plaintiff, who had refused to
have the shotgun pellet
removed from his shoulder,
claimed damages for his injuries and the
court framed the
issues on liability as follows: –
(i) Had the defendant reasonable grounds for suspecting that the plaintiff
had committed a felony?
(ii) If so, was the defendant
negligent in the particular manner in
which he used his shot-gun?
During the trial the defendant
maintained the attitude that the
plaintiff was a stock-thief.
HELD
(i) in Kenya
law there is no distinction between the power of a
police officer and of a private person to arrest without warrant on suspicion
of felony; and, so long as there are
reasonable grounds for the suspicion, a private person is entitled
to arrest and in doing so to use such force as is
reasonable in the circumstances or is
necessary for the apprehension of
the offender;
(ii) there were reasonable grounds
for suspecting that a felony had been
committed;
(iii)
the defendant was not negligent in firing the first two shots in the air
by way
of warning;
(iv) the defendant was negligent in
firing the third shot in the direction of the plaintiff and was not protected
by any
of the provisions of the
criminal law as the amount of force used in the particular circumstances
was neither reasonable nor necessary ;
(v) the fact that the plaintiff had
refused to have the pellet removed
from his shoulder and
the fact that his inability to resume
work was largely due to
psychological factors would
be taken into account in assessing the damages;
(vi) shooting for the purpose of arrest on suspicion of felony
being to some extent analogous to
false imprisonment, the defendant’s
persistence in the course of the
trial in regarding the plaintiff as a stock-thief aggravated the damage to
the plaintiff’ s reputation and he was
entitled to recover accordingly.
Judgment for the plaintiff on
claim and for defendant on counterclaim.
R. V. BHAGUBHAI NAGARBHAI PATEL AND
OTHER [1957] 1 EA 416.
FACTS
The four accused persons were charged
with conspiring together and with other
persons not before the court to effect an unlawful purpose, namely that
the first accused being unable to pay
his debts from his own monies as they
became due should suffer a jud icial proceeding with a view to giving
the third accused, a creditor, a
fraudulent preference over the other creditors of the first accused.
Objection was taken to the information
on the grounds that it did not disclose sufficient particulars to enable
the accused to know what was alleged against them and
also that the information did not disclose any offence
known to the criminal law of Kenya. It was further submitted that “unlawful purpose”
used in para. (6) of s. 396 of the Penal Code must connote either a crime or a tort and that for a debtor to
prefer one creditor is neither a crime nor a tort and, therefore, the information did not
disclose an unlawful purpose and must be quashed.
HELD
(i) the information
before the court did not contain
sufficient particulars to apprise the accused of the fact that the “unlawful
purpose” alleged was contravention of the provisions of s. 139 of the
Bankruptcy Ordinance;
(ii) the information before the court
disclosed no offence.
Objection allowed.
ONGODIA AND ERIMA V. UGANDA[1967] 1
EA 137
FACTS
The
two accused captains in the Uganda Army
appealed to the Court-Martial Appeal Court against the findings of a
General Court-Martial at Kampala under
s. 90 of the Armed Forces Act (Cap. 295) (U.). Both appellants had been
convicted on two charges:
(1) That on February
24, 1966, at Entebbe they had conspired together and with other
persons unknown to effect an unlawful
purpose, namely to set up
a road block near Baitabibiri and arrest
the then Prime Minister Dr. A. M. Obote – contrary to s.
375 (6) of the Penal Code and s. 77
(1) ( a Armed Forces Act 1964.
(2) That they had jointly on February
24, 1966, at Entebbe, improperly
occasioned false alarm by saying to two other officers, namely Anguram
and Guweddeko “We are at war, war
has broken out” or similar words contrary
to s. 16 ( g ) of the Armed
Forces Act 1964.
The material facts as believed were
as follows: On February 24,
1966, the two appellants arrived at the
Officers’ Mess at
Entebbe at about 2 p.m. The first
appellant Ongodia, in the presence of the second appellant Erima, informed
Anguram and Guweddeko in the Mess
that war had broken out, that the
Army Headquarters at Mbuya had been
surrounded and they had managed to escape
– Ongodia asked Anguram
if he had confidence in his
platoon and on receiving an affirmative reply,
Ongodia asked Anguram to
take his
pl atoon to Baitabibiri on the Kampala/Entebbe Road and set up a road
block with the object of arresting the then Prime Minister Dr. Obote. Ongodia added that other
troops were advancing from Kampala and they would be
arriving at any moment. Erima
remained si lent throughout the conversation
but nodded his head from time to
time. It was not established at what precise moment of the conversation he
nodded his head.
The Judge Advocate in his direction
stated that if the evidence of Anguram and Guweddeko was believed the trial court
would be justified in finding each
appellant guilty on both charges.
HELD
(
On the 1st charge )
(i) evidence was sufficient to
justify the inference that the first
appellant Ongodia conspired with a
person or persons unknown to
arrange for the road block to arrest the Prime Minister and the finding
on the first charge was confirmed;
(ii) evidence was insufficient to
establish that the second appellant was acting
in concert with
the first appellant and a finding
of not guilty was substituted.
( evidence was sufficient to
justify the inference that the first
appellant Ongodia conspired with a
person or persons unknown to
arrange for the road block to arrest the Prime Minister and the finding
on the first charge was confirmed; evidence was insufficient to establish that
the second appellant was acting in concert
with the first appellant and a
finding of not guilty was substituted.
(On the 2nd charge )
both
appellants were not guilty. “Improperly occasions false alarms” means “to cause or to
be the occasion of false alarms” and the prosecution had failed to prove that
(a) an alarm was in fact occasioned; and
(b) at least one man of reasonable
firmness was alarmed.
First appellant might have been
guilty of an attempt to commit this
offence but as he was not charged in the alternative with any attempt the court had no power to substitute
such a finding.
Order accordingly.
JOHN MOODY LAWRENCE BROWN AND OTHERS
V. R.[1957] 1 EA 371.
FACTS
The three appellants were convicted
of conspiracy to defraud and the first
and third appellants were also convicted of conspiracy to commit a misdemeanour. The main grounds of
appeal were that a
separate summing-up should have been given in respect of each of the accused, that a passage in the evidence
of a Crown witness referred to in the
summing-up was inadmissible and that there was an omission in
the summing-up of any warning to the jury that a conviction on the first count could
only be justified if th e
non-delivery of goods ordered and paid
for in at least one of the eleven
transactions was proved beyond reasonable doubt.
HELD
(i) whether a separate summing-up
should be given in respect of each accused in a
case of conspiracy is
a matter within the discretion
of the trial judge and an appellate
court will not interfere with that
discretion except for one or more well-recognised reasons which were not applicable in this
case; the trial judge had taken great pains to put to the jury the case for
and against each appellant and they
were not prejudiced by the course which he adopted;
(ii) the evidence complained of,
which was brought out in re-examination
without objection from counsel for the
defence, being relevant to a suggestion made by the second accused in his defence, was
admissible;
(iii) the evidence on some of the transactions was sufficient to establish the non-delivery
of goods beyond reasonable doubt
and the explanations given by the first and
second appellants regarding
payments made to them by the
third appellant were so obvio usly
untruthful that any jury must
inevitably have found that the payments
were made for some improper and corrupt
reason.
Appeal dismissed.
KELLA AND ANOTHER V. R.[1967]
1 EA 809.
FACTS
The
appellants were convicted of
murder at a trial some three years after the event. The body of the victim
was never found and the identification of the appellants as members of a
shifta gang was unsatisfactory. No evidence was given of former statements
by the witnesses at the trial.
HELD
Upon consideration of the evidence,
it would be unsafe to allow the
conviction to stand.
Observation as to the
desirability of giving in evidence former statements of witnesses to
show consistency under s. 165, Evidence
Act ( Shabani Bin Donaldi v. R. (1)
applied).
Appeal allowed.
WELLINGTON THUKU PAUL MUGO AND OTHERS
V. R. [1966] 1 EA 124.
FACTS
The
appellants were each convicted on five counts of robbery with violence committed in quick succession
at five petrol stations in and around Nairobi. A stolen
Ford car was
used on each
occasion. Their identities were established at identification parades by
witnesses who also misidentified innocent men. It was argued for the
appellants that these discrepancies made all
the identifications
unreliable. It was also submitted on the
basis of s. 57(1)( a court should h ) of the Evidence Act, 1963, that the lower
ave directed itself that any evidence
which showed that an accused was guilty of an offence on any of the
other counts was
inadmissible and could not be taken into account when considering the
count in question. The prosecution asked
for the sentences to be enhanced
HELD
(i) the identifying
witnesses could be
relied on only
in so far as they identified a
particular appellant with a particular count;
(ii) s. 57(1)( a ) of the Evidence Act, 1963, properly construed in conjunction with the marginal
note, was intended to prevent evidence of
previous offences or charges, the
accused’s character not being
in issue, where
the only effect would be to
demonstra te a tendency or propensity to commit
the offence in question; consequently
the section could not be used to exclude evidence of the commission of another
offence when such evidence was admissible as evidence of a fact in issue.
Appeals allowed in part; convictions
upheld on certain counts on which
sentences enhanced.
BHANBIR S/O VERSI AND ANOTHER (1969)
H.C.D. n. 243.
FACTS
The
appellants were convicted
of being a
common nuisance c/s
170, Penal Code. They
had driven a car through
a quiet residential
area at 11
p. m and the
car had backfired
several times in
a manner sounding
like gun-fire, annoying and
disturbing the residents,
one of whom
gave chase. The
trial court found that
the appellants had
deliberately caused the
car to backfire.
HELD
“Here
a motor vehicle
in the course
of a short
time produced 5 explosions
yet when this
vehicle was driven
to the police
station shortly thereafter with
a policeman as
passenger, no noise
or explosion was
heard at all. I
cannot think the
presence of a
policeman would have
produced this noiseless affect.
Learned counsel ….
Contends the prosecution
did not produce evidence
to show whether
the vehicle in
question was prone
to back fire. I
should have thought
in normal circumstances
a vehicle does
not backfire, and if
it does the
knowledge would be
peculiarly within the knowledge
of appellants and
his friends. However
appellants elected to remain
silent and said
nothing and gave
no explanation at
all. In these circumstances the
only possible reasonable
inference is appellant
and his friends deliberately
and intentionally caused
the vehicle to
backfire.”
Appeal dismissed.
SEWA SINGH MANDIA V. R.[1966] 1 EA 315
FACTS
The
appellant, who at the material
time was a magistrate, was charged and convicted of corruptly giving a bribe to
a police constable as an inducement
to forebear from taking any
proceedings on a number of traffic offences which had allegedly been committe d by the driver of the motor vehicle in which the appellant was travelling. The
appellant admitted giving the
money, his motive being to test the
constable as he had “heard of these things and wanted to
know if it was real”. The trial
judge in convicting t he appellant adopted the reasoning in R. v. Smith ,
[1960] 2 Q.B. 423 and held that it was
not necessary for the prosecution to
prove a corrupt motive but merely an intention
to corrupt the person
to whom the offer was made. On
appeal it was argued that the trial judge
misdirected himself and the assessors with regard to the word
“corruptly” in s. 3 (2) of the Prevention of Corruption Act. For the
respondent it was contended that
the appellant’s motive was immaterial and that all the prosecution had to prove was that the appellant intentionally entered into what was in fact a corrupt
transaction.
HELD
(i) a corrupt motive is an essential
ingredient of an offence
under s. 3 (2) of the Prevention of Corruption Act;
(ii) the appellant’s state of mind, which included motive and
intention, was an
essential and material factor in
determining whether he was acting corruptly
or not: R. v. Smith Q.B. 423,
distinguished;
(iii) the appellant’s motive was innocent.
Appeal allowed.
CHAMBA V. R [1970] 1 EA 280.
FACTS
The appellant through false
representations obtained from one Ahmed a cheque for Shs. 2,000/-drawn in
favour of his employer the National Housing Corporation. He falsely represented
to theaccounts officials that the cheque was for him. A receipt of Shs. 2,000/-
was issued to him. He thenasked the accountant to set off his debt of Shs.
1,500/- to the Corporation and give him the balance ofShs. 500/- in cash.
Before the appellant was paid Ahmed made inquiries about his cheque.
Theappellant was arrested and was later convicted on two counts: of attempting
to obtain money from theCorporation by false pretences, and of obtaining goods
– a receipt for the cheque – by false pretences.
On appeal it was contended that the
charge was bad as not alleging that the money or goods wasthe property of any
person, that evidence of false pretences made to Ahmed was inadmissible and
thatthe evidence showed only an attempt to obtain money from Ahmed and not from
the HousingCorporation.
HELD
(i) on a charge of obtaining by false
pretences it is not fatal to the charge to omit to state theownership of the
property;
(ii) the evidence of the false
representations to Ahmed were part of the same transaction and sointerconnected
as to be admissible;
(iii) the evidence showed that the
appellant had made false representations to the Corporation.
Appeal dismissed.
GERADI V. R.(1972)H.C.D. n. 87.
FACTS
The appellant, a Kenyan, was
convicted of stealing c/s 265 of the
Penal Code. The evidence, which the trial court accepted, showed that the
appellant was a friend of PW. 3, who was a brother in law of the complainant
P.W. 2. It was alleged that the appellant and PW.3 regularly took their
meals at the house of P.W.2 although the
appellant totally denied this. P.W 3 was
aware that P.W. 2 was keeping Shs. 3,000/= in
tin in her house, but neither
P.W. 3 nor the appellant knew the exact spot the money was kept. P.W. 2 said that she buried the
money in the ground next to her bed, but
it is not clear whether P.W. 3 and the
appellant took their meals in the same room. It appears that the complainant
wanted to supply money to P.W.3 so that
it may be sent to her husband. When she checked her hiding place on the
3rd December, 1970, she found the tin
empty and money missing. It happened
that the appellant disappeared on this same day. It appears that in the evening
of the same day, the appellant decided
to go back to Kenya by ship. When he was on board the ship, P.W.3 and police
constables went to him and took him
off the boat. As he was getting off the
boat, his suit case fell into the lade,
but it was retrieved by a Police Inspector P.W. 7. The police officer P.W. 1
and P.W.3 implied that the appellant had deliberately thrown his suitcase into the water, but the appellant said that it had accidentally fallen into the water.
From his suit case, a sum of Shs. 543/05 was found and the appellant claimed
that the money was his and explained how
he came to earn it. Apart from what is stated above there was no other circumstantial evidence to connect the appellant with the theft of the alleged Shs.
3,000/= the learned trial magistrate found that the evidence was
adequate for convicting him for theft. The learned magistrate was influenced by
the fact that (a) the appellant gave a confused
account as to how he came to earn the
money he was found with and (d) that the appellant did not produce witnesses to
“support his alibi”.
HELD
(1)"As it can be seen, the
case against the appellant was based
entirely on circumstantial evidence.
Such evidence should show that
the inculpatory facts are incompatible
with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of
guilt – (see Simon Musoke v. R. (1958)
E.A. p. 715 and R. v. Kipkering
Arap Koske and Nor. (1949) 16 E.A.C.A. p. 135) and that it is
for the prosecution to prove this. Can it be said that the evidence, in this case, satisfied this test? ……. The
evidence did not satisfy this test. It simply raised suspicion which is not even strong enough in
my view.”
(2) “Considering the defence, the
learned magistrate criticized the appellant for not supporting his alibi. He had no such duty in law and therefore it was a misdirection on
the £part of the learned trial magistrate to require the appellant to support
his alibi as if he was required to prove his alibi beyond reasonable doubt”.
(3) Appeal
allowed conviction quashed.
SIMONI MUSOKE V. R [1958]
1 EA 715.
FACTS
The appellant was charged, along
with one
A., on one
count of theft of a vehicle and on two counts of robbery with violence. A. was acquitted on all
counts, but the appellant was convicted under
s. 255 (A) of the Penal Code of
theft of the vehicle and of t heft on the second and third counts under
s. 252. The evidence proved that at about 1 a.m. on January
19, 1958, a blue and white Zephyr
car, No. UFJ. 681, was stolen outside a building at
Mengo, Kampala. According to B.
the appellant attended a funeral cer emony
fifty-one miles from Kampala on
January 18, and, according to B’s evidence
in the High Court, the appellant
was last seen there at 10 p.m. that
day, going away on a bicycle.
B., however, at the preliminary
inquiry had said that the
appellant left the funeral at between 2
and 3 a.m. on January 19. At about 8
a.m. that day the appellant was seen by E. driving a blue and white
Zephyr and borrowed from E. a
tool to do repairs.
E. also said he had seen the appellant wearing a red
helmet, like one put in as an exhibit,
but did not say the appellant was
wearing it then. B. also said that whilst still
at the funeral ceremony on January
19 he saw the appellant drive up
in a Zephyr, which was white on top, and that the appellant was then wearing
a red helmet. Ne ither B. nor E. noticed the number of
the car. On the morning of
January 20 two robberies took place,
involving three men who were in the stolen Zephyr, and both victims said that
one of the men wore a red helmet. At about 2 p.m. that day
the same Zephyr s topped outside a bar, and three men got out and had a
meal there. The bar owner subsequently
identified the appellant and A. as two of the men, but the trial judge
rejected the bar owner’s evidence of identification on the grounds that no
questions were pu t to this witness to
elicit the reasons for the identification. When the stolen
car was found outside the bar it
contained, amongst other articles, the helmet exhibited at the trial.
HELD
(i) it is not established practice to
question a witness who has made an
identification at a parade as to his reasons for doing so; comment
voluntarily made by
the witness is
often received in evidence as part of the act of identification, but answers to of doubtful
admissibility.
(Procedure appropriate
for such parades as stated in approved.)
(ii) had the attention of the trial
judge been called to the deposition of
B. at
the preliminary inquiry, the appellant might well have been
acquitted of the charge of theft of the vehicle, and since the
second and third counts depended not upon the aggre gation of a number of mutually supporting items of circumstantial evidence, but upon the one inference, which was that because the
appellant was seen in a blue and white Zephyr and wearing a red helmet on
January 19, he
must have been the man wearing the r ed helmet in a similar car the
following day, the evidence fell short
of the standard of proof required to
prove the guilt of the appellant beyond reasonable doubt.
(iii) in a case depending
exclusively upon circumstantial evidence, the court must, before
deciding upon a conviction, find that the inculpatory facts are incompatible with the innocence
of the accused, and incapable of
explanation upon any other reasonab le
hypothesis than that of guilt. Teper v. R ., [1952] 2 All E.R. 447 , followed.
Appeal allowed.
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