Kimari and Others v Reginam (Criminal Appeals Nos. 216, 217, 218, 219, 220 and 221. of 1955) [1955] EACA 345 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and PAGET BOURKE, Acting Justice of Appeal

## (1) KIMARI s/o MIHINDI, (2) KETHI s/o MANGARA, (3) KIMARO s/o GITHUSU, (4) KIRAGO s/o KARIOKI, (5) MUKURURUA s/o KIHATO. (6) MWANGI s/o KIRU, Appellants (Original Accused)

## $\mathbf{1}$ REGINAM. Respondent

Criminal Appeals Nos. 216, 217, 218, 219, 220 and 221 of 1955 (Appeal from the decision of H. M. Supreme Court of Kenya, sitting in Emergency Assize, Law, Ag. J.)

Evidence—Expert evidence—Evidence of police officer as to home-made gun— Possession—Joint possession—Judicial notice of notorious facts—Indian Evidence Act, section 45.

The six appellants were convicted of two offences of unlawful possession of a firearm contrary to regulation $8A(1)(a)$ of the Emergency Regulations, 1952, and of unlawful possession of ammunition contrary to regulation $8A(1)(b)$ of the same Regulations.

A large patrol of Security Forces carried out a sweep in the Nyeri District and, in the course of the operation, the discovery of a bag of maize raised suspicions as to the presence of terrorists. A search was made and under some dried grass a piece of wood was found which formed the cover to a hole leading to an underground shelter. The six appellants emerged from the hideout and were taken into custody. The fourth appellant brought out a home-made gun loaded with a round of ammunition. The sixth appellant had some rounds of ammunition in one of his pockets.

The trial Judge came to the conclusion that the appellants were members of a gang of active terrorists, that each knew of the physical possession by a companion of the firearm and the ammunition, that the weapon and ammunition were used by the gang in connexion with their terrorist activities and found that the appellants were in joint possession of the firearm and the ammunition.

A police officer deposed to a test he carried out in connexion with the weapon, gave his opinion that the same was a lethal weapon, and then testified to long experience of home-made weapons.

It was argued $(a)$ that the trial Judge did not address his mind to the question of the competency of the witness to testify as an expert and $(b)$ that the evidence of the witness did not go to establish that he was sufficiently qualified to speak of the properties of the weapon.

It was also argued that there was no evidence to support a finding that the appellants were in joint possession of the firearm and ammunition, it being submitted $(a)$ that in the circumstances, the appellants were no more to be regarded as terrorists than six men emerging from a hole in the ground on Hampstead Heath, and $(b)$ that there was insufficient material to justify the inference that each of the appellants knew of the physical possession of the firearm and ammunition by two of them.

Held (30-5-55).-(1) Whilst, in strictness, an expert witness should testify as to his "skill" before being allowed to depose to the test he carried out and the conclusion he has formed as a result, such evidence was in fact given by the witness in the instant case, and there was no reason to suppose that the trial Judge had not satisfied himself as to the competency of the witness as an expert witness.

(2) The police officer concerned had been shown to be an expert witness in relation: .to home-made guns.

Gatheru s/o Njagwara applied.

(3) A court will take judicial notice of facts which are notorious. In Kenya, thereis a proclaimed State of Emergency and it is a notorious reality of the situation that there<br>is armed conflict and that over a period of some two and a half years armed bands of persons have moved from concealment to the perpetration of acts of terrorism over certain areas of the Colony, particularly in the district concerned.

(4) Where persons are found together in a confined space, the presence of a tew small objects, such as rounds of .303 ammunition, found in the pocket of one of them, is not necessarily known to the others so as to make them in joint possession thereof.

Convictions and sentences of first, second, third and fifth appellants on Count 2 set. aside; appeals of all appellants otherwise dismissed.

Cases referred to: Gatheru s/o Njagwara v. R., 21 E. A. C. A. 384; Maina s/o Kimani.. ante page 362; Bennett v. White, (1910) 2 K. B. 1; Gathega s/o Waweru v. R., 21 E. A. C. A. 349.

O'Donovan (Bhandari with him) for appellants.

Brookes for respondent.

JUDGMENT (prepared by Bourke, Ag. J. A.).—The six appellants were convicted in the Supreme Court of Kenya sitting in Emergency Assize at Nyeri of the two offences of unlawful possession of a firearm contrary to regulation $8A(1)(a)$ of the Emergency Regulations, 1952, and of unlawful possession of ammunition, to wit, six rounds of .303 ammunition, contrary to regulation $8A(1)(b)$ of the same Regulations, and were sentenced to death on each of these two counts. The learned trial Judge refused a certificate that it was a fit case for appeal on fact or mixed law and fact.

On 21st March, 1955, a large patrol of Security Forces carried out a sweep in an area of the Nyeri District. In the course of this operation the discovery of a bag of maize in a shamba raised suspicions as to the presence of terrorists. A thorough search was made and under some dried grass a piece of wood was found which formed the cover to a hole leading into an underground shelter described by the learned Judge as a cunningly concealed hide-out. The six appellants emerged from the hide-out and were taken into custody. One of the appellants (there was an unresolved conflict of evidence as to whether it was the fourth appellant, Kirago s/o Karioki, or the sixth appellant, Mwangi s/o Kiru) brought out a home-made gun (exhibit 1) loaded with a round of .303 ammunition (exhibit 2). The sixth appellant had five rounds of .303 ammunition (exhibit 3) in a breast pocket. The learned Judge came to the conclusion that the appellants were members of a small gang of active terrorists: that each of them knew of the physical possession by a companion of the firearm and ammunition: and that the weapon and ammunition were used by the gang in connexion with their terrorist activities. He rejected the defence that there was any prior intention to surrender and found that the appellants were in joint possession of the firearm and six rounds of ammunition without any lawful authority or excuse.

The first point taken by Mr. O'Donovan for the appellants concerns the first count alleging the unlawful possession of a firearm. It is argued that the learned Judge acted upon inadmissible evidence in reaching the finding that the home-made gun was a "firearm" within the meaning (as defined by regulation $8A(4)$ of the Regulation under which the offence is laid. The Judge was satisfied that the gun is a lethal weapon although not an efficient one. This conclusion was arrived at in acceptance of the evidence of Police Inspector Perrott, who was in charge of the Criminal Investigation Department at Othaya; this witness testified: -

"On 22nd March I tested the gun (exhibit 1) by loading it with the round (exhibit 2). I tied the gun to a post and fastened a string to the bolt, having placed a piece of wood a few inches in front of the barrel. At about the 6th attempt the round discharged, the bullet struck the piece of wood and bounced off to the left, denting the wood to about one-tenth of an inch. In my opinion the bullet was discharged with sufficient force to kill a person at short range. I have had one and a half years' experience of home-made weapons and have seen about 100 such guns. In my opinion the gun (exhibit 1) has all the components of a firearm and is a lethal weapon."

The appellants were represented at their trial and no objection was taken to any of this evidence. No question was put to the witness in cross-examination nor, according to the record, was there any submission made as to a lack of proper proof of the qualities of the weapon requisite to the offence. At the stage of the trial the competency of the witness to give an opinion as an expert was not challenged; but it is now contended (a) that the learned Judge did not address his mind to the question of the competency of the witness to testify as an expert and so misdirected himself in acting upon the evidence of opinion, and (b) that the evidence of the witness did not go to establish that he was sufficiently qualified to speak to the properties of this home-made barrelled weapon.

It is of course correct that in strictness the witness should have been heard to testify as to his knowledge and "skill" before he was allowed to depose to the test he carried out and the conclusion he formed as a result. However, having given this evidence, he testified—"I have had one and a half years' experience of home-made weapons and have seen about 100 such guns:" he then gave the opinion that the gun "has all the components of a firearm and is a lethal weapon".

We have no reason to suppose that the learned Judge, in finding on the police inspector's evidence that the gun was a lethal weapon, although not an efficient one, neglected to apply his mind to and satisfy himself on the question of the competency of the expert, which together with the opinion evidence, was never sought to be impeached or challenged for a moment by the defence. We are further of the opinion that it is useless to argue that there was no evidence reasonably to justify the conclusion that Police Inspector Perrott was sufficiently skilled to testify as an expert to the properties of a weapon such as that which he examined for the purposes of his testimony in the case. As this question has been raised, it may be as well to quote the following passage from the judgment of this Court in Gatheru s/o Njagwara v. R. 21 E. A. C. A. 384-

"This Court has on several occasions said that when a trial court has to form an opinion upon the question whether a home-made gun or part thereof is a lethal barrelled weapon it must have the assistance of expert opinion. Section 45 of the Indian Evidence Act provides that when the court has to form an opinion upon, inter alia, a point of science, the opinions of 'persons specially skilled in such science' are relevant. We think that such special skill is not confined to knowledge acquired academically but would also include skill acquired by practical experience. In Vander Donckt v. Thellusion (1849) 8 C. B. 812, Maule, J., said 'All persons, I think, who practise a business or profession which requires them to possess a certain knowledge of the matter in hand are experts so far as experience is required'. That case has been very recently approved by Their Lordships of the Judicial Committee in an appeal from Nigeria, Said Ajami v. Comptroller of Customs,

where Their Lordships said that the practical knowledge of a person who was not a lawyer might be sufficient in certain cases to qualify him as a competent expert on a question of foreign law (see The Times newspaper, 9th November, 1954).

It may well be that in the present circumstances in Kenya a police officer employed on operational or investigation work acquires a sufficient practical knowedge to qualify him to speak as an expert on the type of home-made weapon so frequently used by Mau Mau terrorists, but even so, his competency as an expert should, as in all such cases, be shown before his testimony is properly admissible."

In that case the appeal was allowed because in the opinion of this Court it was not proved by competent evidence that the firearm, which was described in the particulars of offence as "a home-made rifle", was a lethal barrelled weapon within the terms of the definition of firearm in the Regulations. The case differs materially from the instant matter in that there was no evidence as to the police officer's experience of such home-made weapons, or as to how long he had performed the duties of an investigating officer, or whether he had even seen or examined any home-made weapon other than those seized in the course of the operation which led to the appellant's arrest. In the present case the police inspector testified to long experience of such home-made weapons of which he had seen about a hundred.

We are of the opinion that there is no substance in this ground of appeal which, accordingly, fails.

It is then argued that there is no evidence to support the finding that the appellants were in joint possession of the firearm and ammunition. As to the sixth appellant, who had five rounds of ammunition in his pocket, it is conceded that the submission as to possession cannot affect or bring into question the propriety of his conviction on the second count. Again the case of the fourth appellant presents no difficulty, for there is the additional evidence of his recorded voluntary statement given to Police Inspector Perrott (exhibit 8) in which he admitted "We were found in possession of one gun and six rounds of ammunition."

It is evident from the judgment that in reaching a conclusion as to joint possession, the learned Judge applied the law as accepted by this Court in Maina s/o Kimani, ante page 362. We quote the relevant passage from the judgment in that case: $-$

"The one point which we have had to consider on this appeal is whether on these facts the learned trial Judge was right in law in making use of. section 23 of the Penal Code so as to make it possible for him to find this appellant in joint possession of the pistol. Mr. Le Gallais, for the Crown, in supporting the conviction, has cited the English case of Rex v. Thomson, 11 Cox's Criminal Cases, page 362, in which the Court of Criminal Appeal held that where several persons were found out together by night for the common purpose of housebreaking and one only of them was in physical possession of housebreaking implements, all the other members of the party were in law in possession of implements of housebreaking without lawful excuse, because in such a case the possession of one was the possession of all. On the facts as found by the learned trial Judge in this case we find nothing to distinguish it in principle from the circumstances set out in $\text{Rex } v$ . Thomson, for on the evidence which he accepted he was clearly entitled to infer that this appellant was associated with the person who had the pistol for the common purpose of Mau Mau terrorism, and there was the appellant's own admission that he knew that his confederate was carrying a pistol. It can

further be inferred that he knew that the pistol was being carried for the furtherance of the common purpose."

The argument for the appellants is based upon two submissions. In the first place it is contended that there was no evidence to justify the inference that the appellants were associated together for the common purpose of carrying on activities as terrorists involving the use of the firearm. Mr. O'Donovan brought this contention so far as to say that the appellants in all the circumstances were no more to be regarded as a gang of active terrorists than six men emerging from a hole in the ground on Hampstead Heath. To accept that line of argument would be to lose sight of the notorious facts of the situation that has existed in this Colony since 1952. A court will take judicial notice of facts which are notorious. Whatever may be said about Hampstead Heath in present times, the courts in England have, for instance, noticed that the streets of London are crowded and dangerous (Bennett v. White (1910) 2 K. B. 1, 6). In this Colony there is a proclaimed State of Emergency. It is a notorious reality of that situation that there is armed conflict and that over the last two and a half years or so armed bands of persons have moved from concealment to the perpetration of acts of terrorism over certain areas of the country and particularly in the Kikuyuinhabited district of Nyeri. When the circumstances of this case, as established on the evidence, are viewed in the light of this knowledge, it seems to us that it would have been unreasonable for the learned Judge to have come to any other conclusion than that which is now sought to be impugned.

The second limb of the argument is based upon paragraph 8 of the memoranda of appeal which reads as follows: -

"The learned Judge was wrong in law in drawing the inference that the appellant must have known the presence of the home-made gun and five rounds of ammunition which the accused No. 6 is alleged to have had in his pocket as there was no evidence of the space in which the accused were alleged to have been found or any other evidence to support this finding or inference."

We think there was sufficient material reasonably to justify the inference that each of the appellants knew of the physical possession of the firearm by a member of the gang, and indeed the contrary submission on this can hardly be said to have been very seriously pressed. The question strongly canvassed was as to whether there was evidence reasonably to support the finding that the appellants. 1 to 5 knew that five rounds of ammunition were in the pocket of the sixth $\frac{1}{2}$ appellant. The argument as put forward seemed to overlook the round of ammunition with which the firearm was found loaded, but in considering this aspect of the matter we have not left it out of account. It is to be noted that, according to the charges entered at the head of the recorded statements exhibited of the appellants 1 to 5, there is reference to only one round of ammunition, while in the charge similarly appearing on the statement of the sixth appellant there is the allegation of possession of one round of .303 ammunition and also the possession "of a further five rounds of .303 ammunition". It does not appear that at that stage, when the investigating officer charged and cautioned the appellants, it occurred to him that there was any joint possession of the five rounds discovered in the pocket of the sixth appellant.

In support of his argument Mr. O'Donovan has referred to the decision of this Court in Gathega s/o Waweru, 21 E. A. C. A. 349. In that case the facts were that Security Forces operating on patrol in the Nyeri district arrested three men who emerged from a tunnelled hole in the ground. Four rounds of .303 calibre ammunition were found in the pocket of one of the prisoners (accused 2). This accused was found guilty of the offence of unlawful possession of ammunition: and the other two were convicted of the offence of consorting with him being. a person in unlawful possession of ammunition, contrary to regulation 8c (1) of the Emergency Regulations, 1952. There was evidence that one of these two men (accused 3) admitted that he knew accused 2 had the ammunition in his pocket. The appeals of accused 2 and 3 were summarily dismissed. The appeal of the remaining appellant. Gathega s/o Waweru, was allowed. It was held by this Court—"that there was no express finding that this appellant ever knew that the second accused was in possession of ammunition, no direct evidence to that effect, and practically no evidence from which such knowledge could have been inferred." The court expressed the view that the trial Judge had overlooked the necessity of proof of such knowledge and had formed no conclusion on the point, and it went on to say in the judgment: -

"If, however, the learned Judge found that knowledge could be inferred from the general circumstances, he gave no reasons for that finding, and we are of the opinion that, in the absence of such reasons, the finding cannot be supported. It is not impossible that such a finding might have stood, if supported by a close analysis and evaluation of the evidence."

In the instant case the learned Judge did address his mind to the question of knowledge, though he made no express reference in this connexion to the round loading the firearm. As to the remaining five rounds he said in the judgment: "in the confined space in which they (the appellants) were living I believe they must have known of the five rounds of ammunition which I am satisfied that sixth accused had in his pocket." That is the only reason given for the finding on this point. We think there was no misconception of the evidence in describing this hole in the ground as a confined space, but we do not think that it necessarily follows that simply because persons are in a confined space, the presence of a few small objects such as rounds of .303 ammunition in the pocket of one of them must be known to the others, or that they must know that a round has been put into the breech of a firearm in the physical possession of one of them. There are of course other factors, such as the established circumstance that this was a band of terrorists in possession of a firearm capable of discharging .303 calibre ammunition, from which it would appear likely that each member of the gang would know that the means to employ the gun as a weapon were at hand and what was the supply of ammunition available to them. But likelihood is one thing and proof beyond all reasonable doubt is another. Had there been any close analysis and evaluation of the evidence to support the finding now called into question, it is possible that we would not be persuaded that there was ground to interfere. Whether the learned Judge would have reached the same finding, as it affects the first, second, third and fifth appellants, had he not rested this conclusion as to knowledge on unwarranted inference from evidence of occupation of a confined space, is open to doubt. In the case of the fourth appellant, as has already been pointed out, there was the evidence of his admission as to possession of the gun and six rounds of ammunition. In the circumstances we think it safer to allow the appeals of four appellants against their convictions on the second count.

The convictions and sentences of the first, second, third and fifth appellants on the second count are set aside.

The appeals of the six appellants are otherwise dismissed and all remain under sentence of death.

During the hearing of this appeal a vague suggestion was made by Counsel that in respect of the third, fourth, fifth and sixth appellants, they may have been under 18 years of age on the date of this appeal. This was not made a ground of appeal and we can find nothing on the record which supports any such doubt. However this is a matter which no doubt will not be lost sight of in another quarter.