Kiriri v Rex (Criminal Appeal No. 549 of 1950) [1951] EACA 116 (1 January 1951)

# 116

#### APPELLATE CRIMINAL

## Before THACKER, Ag. C. J., and WINDHAM, J.

MWANGI s/o KIRIRI, Appellant (Original accused).

REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 549 of 1950

(Appeal from the decision of the R. M.'s Court at Nairobi-G. R. Crawley, Esq.)

Plea of guilty attested by Police Officer—Whether desirable to allow conviction to stand.

The appellant wrote on Police Form 18, a Bond and Bail Bond "I plead guilty to this charge", signed it, and the signature was witnessed by a police Sergeant.

*Held* $(12-3-51)$ .—(1) It is undesirable that a written plea of guilty be made in the presence of a police officer who testifies to being a witness of the plea and it was undesirable to allow the conviction to stand.

(2) The conviction was quashed leaving the Prosecution, if it so wished, to institute <sup>1</sup> further proceedings.

#### Handa for Appellant.

Boyle, Crown Counsel (Kenya) for the Crown.

JUDGMENT.—This is an appeal against conviction and sentence. The appellant was convicted on a written plea of guilty of the offence of driving a motor lorry in a manner dangerous to the public contra section 11 of the Traffic Ordinance, 1948. The sentence was a fine of Sh. 200 in default one month Imprisonment with Hard Labour and the appellant's certificate of competency was suspended for one vear.

The appellant apparently wrote in ink on a Police Form 18, which is a Bond and Bail Bond as follows: "I plead guilty to this charge", and apparently signed it with his name. The Bail Bond incidentally was not signed by him, but the written plea of guilty appears to have been witnessed by one Shah, who again appears to be a Sergeant of Police, for so he describes himself, on the form.

It would seem therefore that the written words "I plead guilty to the charge" $\mathcal{L}^{\mathcal{L}}$ were witnessed by this Sergeant, Shah, for there is his signature thereto, as a witness.

It is argued that what certainly appears to be an unequivocal plea of guilty should not have been admitted by the Magistrate as such since it is a confession to or before a police officer.

We do not know whether or not any persuasion was used to get the accused to plead guilty. It is sufficient to say that it is undesirable that a written plea of guilty of this kind should be made in the presence of a police officer, who testifies to being a witness to the plea. A plea of guilty of this kind should appear to be clearly voluntary and independent of the presence of any police officer.

For this reason we think it undesirable to allow the conviction to stand and declare the trial to be a nullity, quash the conviction and set aside the sentence, leaving the Prosecution to institute further proceedings if it so wishes.