Gikera and Others v Reginam (Criminal Appeals Nos. 419, 420 and 421 of 1955) [1955] EACA 360 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA-

Before SIR BARCLAY NIHILL (President), SIR KENNETH O'CONNOR, Chief Justice (Kenya), and DE LESTANG, J. (Kenya)

(1) KAMAU s/o GIKERA, (2) MBUGWA s/o MUREMA, (3) MATARA s/o GICHU, Appellants (Original Accused Nos. 1, 2 and 3)

## v. REGINAM, Respondent

## Criminal Appeals Nos. 419, 420 and 421 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Rodwell, Ag. J.)

Murder. Whether time of murder is an essential ingredient of offence—Rule in $R$ . v. Dossi-Penal Code, section 210.

The appellants were charged with murdering the deceased in July, 1954. A prosecution witness led evidence that he had seen the deceased alive in September, 1954. There was no definite finding by the trial Judge whether the deceased was murdered in July or later in the year, but relying on R. v. Dossi and believing that time was not of the essence of the crime of murder and that the appellants had killed the deceased, he convicted them.

By section 210 of the Penal Code a person is not deemed to have killed another if the death of that person does not take place within a year and a day of the cause of death.

Held (6-10-55).—Time is of the essence in the offence of murder.

Appeals allowed. New trial ordered.

Case referred to: R. v. Dossi, 13 C. A. R. 158.

Appellants present, not represented.

## Brookes for respondent.

JUDGMENT (delivered by Nihill (President)).—These three appellants were tried together and convicted of murder by the Supreme Court of Kenya sitting in Emergency Assize. The information alleged in the particulars of the offence that it occurred on a day between 1st July, 1954 and 31st July, 1954. At the end of his judgment the learned Judge entered as his verdict that all three accused were guilty which should mean that he found them guilty of the offence as charged. For the reasons stated below, however, we cannot be sure that this is what the learned Judge did mean. All these three appellants have made statements which were held to be voluntary ones by the learned trial Judge, which amounted to admissions by them that they took part in the killing of the deceased, and these statements were made in answer to a charge that they had murdered the deceased in the month of July, 1954. There was also the evidence of three prosecution witnesses who said that the deceased was murdered on some day in that month. No difficulty would therefore have arisen in this case except for the fact that one of the prosecution witnesses, who was related to the dead man, stated that he last saw him alive during the month of September. The evidence of this witness seems to have been accepted by the assessors who all found the appellant not guilty. It is common knowledge that the average African witness often has great difficulty in determining with precision days and months of the

calendar, and we think it highly likely that this particular witness made an error. There is a passage in the judgment in which the learned Judge said that he could see no reason why the first, second and third prosecution witnesses should deliberately lie in naming the day and time of the incident as in July, but at the same time he thought that the witness (P. W. 17) who said that he saw the deceased in September was perfectly honest. Unfortunately, the learned Judge does not seem to have addressed his mind to the question as to whether the witness, although honest, might have been mistaken, nor did he come to any definite finding as to whether the deceased was murdered in July, 1954, or much later in that year. The reason he did not do so seems apparent. He relied on the English case of Rex v. Dossi (13 Criminal Appeal Reports 158) and believed that time was not an essential ingredient of the crime of murder, and that therefore even if the deceased was alive in September, 1954, this did not prevent the conviction of these appellants on an information charging them with having killed him in the month of July.

Here, with respect, we consider that the learned Judge erred because, in our view, it is impossible to say that time is not of the essence in the offence of murder. If A attacks B with malice aforethought and injures him, but B does not die within a year and a day from the date of the attack, A cannot be prosecuted for murder (see section 210 of the Kenya Penal Code). We consider, therefore, that the learned Judge wrongly applied the dicta contained in the judgment of Atkin, J., in *Dossi's* case to the instant case. This being so, it follows that without an amendment of the information the learned Judge, if in doubt, as he clearly was in doubt, as to whether the offence occurred in July, 1954, or in September or even later, could not convict these appellants on an information charging them with having killed the deceased in July.

We, accordingly, are bound to allow these appeals in respect of the convictions at present entered against these appellants.

We have come to the conclusion, however, that this is eminently a case where the court should order a new trial, because there is evidence on the record, including the appellants' own statements, that the deceased was killed and that they took part in the killing. Accordingly, we quash the present convictions of murder and set aside the sentences of death imposed. The appellants will be remanded in custody pending the new trial.