Kimani v Rex (Criminal Appeal No. 199 of 1950) [1951] EACA 139 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill, President, Sir G. Graham Paul, C. J. (Tanganyika), and LOCKHART-SMITH, J. of A.

## DEDAN MUGO s/o KIMANI, Appellant

$\mathbf{v}$

## REX, Respondent

## Criminal Appeal No. 199 of 1950

(From the decision of H. M. Supreme Court of Kenya—Modera, J.)

Kenya Penal Code, section 62 (1)—Administering unlawful oath—Accomplice— Proof of unlawful society.

The accused was convicted by the Kiambu Magistrate of the offence of administering an unlawful oath contra to section 62 (1), Penal Code. His appeal was dismissed by the Supreme Court. It was contended on behalf of the appellant:-

- (1) That the complainant and principal witness Johanna was an accomplice and his evidence was uncorroborated, because under section 63 as originally enacted he was a person who took such an oath and such a person cannot set up the defence of compulsion unless within 14 days of taking it he declared by information on oath before a Magistrate ... the whole of what he knows concerning the matter ... - Held (22-1-51).—That section 63 as originally enacted operated only to preclude a person who has taken an oath and who is actually charged with the offence thereunder, from setting<br>up the defence of compulsion unless he had made the declaration within the time prescribed. - (2) That the Gazette containing the Government Notice declaring the Kikuyu Central Association (1938) to be a dangerous society was not put in evidence at the trial, and the Government Notice was never referred to in the charge or at any stage of the trial save in the penultimate paragraph of the Magistrate's judgment.

Held (22-1-51).—The Magistrate was bound to take judicial notice of Government Notice<br>No. 465 of 1940 on becoming aware of it, even if not produced in evidence, though the<br>proper practice is to produce the rel

That the appellant was not in any degree prejudiced or embarrassed by any ambiguity. Appeal dismissed.

A. R. Kapila for appellant.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by LOCKHART-SMITH, J. of A.).—This is an appeal from a judgment of the Supreme Court of Kenya, dismissing an appeal from a decision of the First Class Magistrate, Kiambu.

The appellant was charged in the Magistrate's Court with an offence against sub-section (1) of section 62 of the Penal Code.

Section 62 reads as follows: —

"62. Any person who—

(1) administers, or is present at and consents to the administering of, any oath or engagement in the nature of an oath, purporting to bind the person who takes it to act in any of the ways following, that is to sav $\rightarrow$

$(a)$ to engage in any mutinous or seditious enterprise;

$(b)$ to commit any offence not punishable with death;

$(c)$ to disturb the public peace;

- $(d)$ to be of any association, society or confederacy, formed for the purpose of doing any such act as aforesaid; - $(e)$ to obey the orders or commands of any committee or body of men not lawfully constituted, or of any leader or commander or other person not having authority by law for that purpose; - $(f)$ not to inform or give evidence against any associate, confederate or other person: - $(g)$ not to reveal or discover any unlawful association, society or confederacy, or any illegal act done or to be done, or any illegal oath or engagement that may have been administered or tendered to or taken by himself or any other person, or the import of any such oath or engagement; or

(2) takes any such oath or engagement, not being compelled to do so,

is guilty of a felony, and is liable to imprisonment for seven years."

The appellant was convicted by the learned Magistrate under paragraphs (d), (e), (f) and (g) of sub-section (1) of the above section, and was sentenced to three years' imprisonment with hard labour.

Mr. Kapila, in an able and persuasive argument, has confined himself to two main grounds of appeal: $-$

Firstly, that the complainant and principal witness for the prosecution, Johanna Njuguna s/o Mamau (P. W.1), was an accomplice, and that his evidence was not corroborated by any other evidence implicating the appellant in the commission of the offence charged:

Secondly, that it was never proved at the trial that the Kikuyu Central Association named in the charge, and in respect of which the appellant was alleged to have administered an unlawful oath, was an unlawful society within the meaning of section 69 of the Penal Code, or identical with the "Kikuyu Central Association" (1938)" which was declared by the Governor in Council under section 64 (2) (ii) (now section 69 (2) (ii)) of the Penal Code, by an Order published by Government Notice No. 465 of 1950, to be "a Society dangerous to the good government of the Colony". (Section 69 of the Penal Code defines a society to be an unlawful society when, inter alia it is declared by an Order of the Governor in Council to be a society dangerous to the good government of the Colony.)

The appeal against sentence was not pursued in this Court.

In support of his first ground, Mr. Kapila relied upon section 63 of the Penal Code as originally enacted. (This section has now been repealed and replaced by the Penal Code (Amendment, No. 2) Ordinance, 1950, but as that Ordinance was not enacted until after the conviction of the appellant, and was not made retrospective, it must be disregarded for the purposes of this appeal.)

Section 63 as originally enacted reads as follows: —

"63. A person who takes any such oath or engagement as is mentioned in the two last preceding sections cannot set up as a defence that he was compelled to do so, unless within fourteen days after taking it, or, if he is prevented by actual force or sickness, within fourteen days after the termination of such prevention, he declares by information on oath before a magistrate, or, if he is on active service in the military forces of the Colony or in the police force, either by such information or by information to his commanding officer, the whole of what he knows concerning the matter, including the person or persons by whom and in whose presence, and the place where and the time when the oath or engagement was administered or taken."

Mr. Kapila submitted that as the complainant Johanna did not comply with the provisions of this section, he could himself have been charged jointly with the appellant with an offence against section 62, and, if he had been so charged. could not successfully have set up a defence of compulsion but must have been convicted. He was, therefore, an accomplice. If he was an accomplice, then there was no corroboration of his evidence implicating the appellant. The trial Magistrate did not treat Johanna as an accomplice, and failed to direct himself on the rule which ordinarily requires corroboration of the evidence of an accomplice. (See. e.g., Mason, 5 Cr. App R., page 171.) The appellant ought, therefore, to have been acquitted. (Mason was the case cited by Mr. Kapila, but of course it is more usual to support this proposition by the later case of Baskerville, 12 Cr. App. R., page 16, as adopted and followed in numerous subsequent cases.)

Mr. Kapila defined an accomplice as, *inter alios*, a person who can be jointly charged with the principal offender, and cited in support of this definition Woodroffe's commentary upon section 133 of the Indian Evidence Act, 1872, at page 952 of the 9th edition of his "Law of Evidence". (The Indian Evidence Act, 1872, is in force in this Colony by virtue of paragraph (b) of Article 11 of the East Africa Order in Council, 1897.)

In reply to this ingenious argument, Mr. Todd, for the respondent (Crown) submitted that section 63 (as originally enacted) could not come into operation until the person taking the oath had been actually charged with an offence against sections 61 or 62. When so charged, such a person was precluded from setting up as a defence that he was compelled to take the oath unless he could show that he had complied with the terms of the section. The section had no relevance in deciding whether or not a person who had never been charged with an offence against sections 61 or 62 was, or was not, an accomplice.

We are of the opinion that section 63 as originally enacted must be construed as applying only in the circumstances to which it specifically relates—that is, that its only operation is to preclude a person who has taken an oath or engagement as mentioned in the last two preceding sections, and who is actually charged with an offence thereunder, from setting up as a defence that he was compelled to do so, unless he has made the declaration required by the section within the time prescribed. It cannot be invoked against a person who has never been charged with an offence. In the present case, the complainant was never so charged. We are satisfied that he was in fact compelled to take the oath, and that he made a full report to the police within a few hours of the incident. In our opinion he was not an accomplice, and the first ground of appeal relied on therefore fails.

As regards the second ground, Mr. Kapila pointed out that the Gazette containing the Government Notice which published the Governor in Council's Order under section 64 (2) (ii) (which, at the relevant time, had become section 69 (2) (ii) of the Penal Code, declaring the Kikuyu Central Association (1938)) to be a society dangerous to the good government of the Colony (and hence "an unlawful society") was never put in evidence at the trial, and that the Government Notice was never referred to in the charge, or at any stage of the trial until the reference made to it by the learned trial Magistrate in the penultimate paragraph of his judgment.

Mr. Kapila invited our attention to the judgment of the Supreme Court of Kenya in Criminal Appeal No. 545 of 1948 (George K. Ndegwa v. Rex) in which the Court was at great pains to satisfy itself that there was evidence establishing the fact that the "Kikuyu Central Association" referred to in that case was the same body as the "Kikuyu Central Association (1938)" specified in Government Notice No. 465 of 1940. He stressed that there was no such evidence

in the present case, and that in the absence of such evidence the conviction ought not to stand. (It may be observed that the words "also known as the Kikuyu Central Association" have now been added to paragraph (a) of Government<br>Notice No. 465 of 1940 by Government Notice No. 1415 of 1950, but here again the amendment was made after the conviction of the present appellant, and must be disregarded for the purposes of this appeal.)

Mr. Todd, replying to this ground, relied on sub-section (1) of section 57 of the Indian Evidence Act, 1872, and submitted that the learned trial Magistrate was entitled to take judicial notice of, and give effect to, Government Notice No. 465 of 1940, on its coming to his notice, whether or not it was formally proved at the trial.

He did not agree that there was no evidence that the "Kikuyu Central Association" referred to in the charge was the same body as the "Kikuyu Central Association (1938)" specified in the Government Notice. He referred to the evidence of the appellant himself at page 18 of the record: $-$

"I have never been a member of the Kikuyu Central Association, not even before it was proscribed by the Government.";

and to the evidence of Johanna (the complainant, P. W. 1) at pages 11 and 12-

"I was a member of the Kikuyu Central Association before it was banned in 1940. This Association still exists.... The intention of the oath which the accused administered to me was to make me a member of the Kikuyu Central Association" (page 11);

$and-$

"the Kikuyu Central Association is still active in my location" (page 12).

We are of the opinion that the learned Magistrate was bound to take judicial notice of Government Notice No. 465 of 1940 on becoming aware of it, even if it was not produced in evidence, but we desire to add that it is clearly the proper practice in such cases for the prosecution to produce the relevant Gazette to the trial Court, and this should always be done in future.

As regards the identity of the society named in the charge with the society proscribed by the Government Notice, we do not dissent from the opinion of the Supreme Court in its judgment already referred to that if an appellant had in fact been prejudiced by any failure to establish identity he would be entitled to succeed on that ground alone. We are satisfied, however, that neither the appellant nor his counsel was under any misapprehension at any stage of the trial. It was never in doubt that the accused was charged with administering an unlawful oath in connexion with the proscribed society, and he was not in any degree prejudiced or embarrassed by any ambiguity.

In these circumstances, the second ground of appeal also fails, and the appeal is dismissed accordingly.

Sentence will commence from the date of judgment of the Supreme Court.