Gathoga and Another v Regina (Criminal Appeals Nos. 1696 and 1699 of 1953 (consolidated)) [1953] EACA 41 (1 January 1953)

## APPELLATE CRIMINAL

### Before HEARNE, C. J. and DE LESTANG, J.

#### KARIUKI s/o GATHOGA AND ANOTHER, Appellants

# $\mathcal{V}.$

## REGINA, Respondent

## Criminal Appeals Nos. 1696 and 1699 of 1953 (consolidated)

Criminal Law—Penal Code section 62 (1)—Being present at and consenting to the administration of an illegal oath—Acquittal, but conviction for being a member of an illegal society contrary to section 71 (a)—Whether evidence relevant—Whether essential for accused person to be given particulars before conviction.

The two appellants were charged under section 62 (1) of the Penal Code with being jointly present at and consenting to the administration of an unlawful Mau Mau oath to another. The magistrate, in the absence of sufficient evidence, acquitted both but because some of the evidence suggested that the appellants were present at another oath administration ceremony on an occasion other than that charged, convicted them of being members of an unlawful society contrary to section 71 (a) of the Penal Code. The appellants appealed.

Held (14-12-53).—Without deciding whether, where an accused person is charged with being present at and consenting to the administration of an unlawful oath at a certain time and place, and the evidence falls short of the offence charged, he may be convicted of<br>being a member of an unlawful society, the Court was satisfied that he cannot be so convicted on evidence irrelevant to the offence charged and of which he was given no particulars. Convictions quashed and sentences set aside.

#### $R$ , $B$ , Bhandari for appellants.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellants in Criminal Appeals Nos. 1696 and 1699/53 were charged with being jointly present at, and consenting to, the administration "of the unlawful Mau Mau oath to one Muchene Kahara" in January, 1953, at Kibiko.

Muchene Kahara (3 P. W.) did not give any evidence of an oath having been administered to him in January, 1953, at Kibiko, at which meeting he alleged the appellants were present.

Mujono Mukosio (1 P. W.) gave evidence of being at the meeting in January, 1953, at Kibiko, and while he said the appellant in Criminal Appeal 1699/53 was present, he said that he did not see the appellant in Criminal Appeal 1696/53.

The magistrate acquitted both the appellants of the offence with which they were charged, but by reason of some evidence suggesting that the appellants were present at another oath administration ceremony, on an occasion other than the occasion in respect of which they were charged he convicted them of being members of an unlawful society.

We do not in these appeals, decide the question of whether, where an accused person is charged with being present at, and consenting to the administration of an unlawful oath at a certain time and place, and the evidence falls short of proof of the offence charged, he may be convicted of being a member of an unlawful society. But we are satisfied that he cannot be convicted of being a member of an unlawful society, on evidence which is quite irrelevant to the offence with which he was charged, and of which he was given no particulars.

The convictions and sentences are set aside.