Kiulu v Rex (Criminal Appeal No. 504 of 1949 .) [1950] EACA 64 (1 January 1950)

# APPELLATE CRIMINAL

### Before de LESTANG, J. and KEATINGE, AG. J.

## DAVID KALATA S/O KIULU, Appellant (Original Accused)

# REX, Respondent (Original Prosecutor)

## Criminal Appeal No. 504 of 1949

(From Original Conviction and Sentence in Cr. Case No. 149 of 1949 of the First Class Magistrate's Court at Kitui—R. G. Brayne-Nicholls, Esq.)

Criminal Procedure Code—Section 211—Accused's right to address Court in conclusion of case—Section 194 (2) Cr. P. C. reading back of evidence to witness.

. A driver of a lorry when stopped by a special police who took down in a note book the number of the lorry that was carrying more passengers than was licensed for, snatched away the book and drove off at speed. He was convicted under sec. 247 (2) and 269 P. C. He appealed on the grounds set out in the following judgment.

Held (3-1-50).—(1) Section 211 Cr. P. C. entitles an accused person to address the Court in conclusion of his case but it does not impose a duty on the Magistrate to inform him of his right to do so.

(2) Non-compliance with section 194 (2) Cr. P. C. is an irregularity not fatal to conviction but is curable under section 381 Cr. P. C. unless it has in fact occasioned failure of justice.

Appeal dismissed.

Morgan for the appellant.

Somerhough, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted on two counts of obstructing a police officer in the execution of his duty and of stealing that police officer's note book. He has appealed to this Court not on the usual grounds of misdirection and insufficiency of evidence but on technicalities as follows: -

"1. That from the record it would appear either—

- (i) that there was no Court Procedure or alternatively, - (ii) that there was a Court Procedure in which event both such prosecutor and the Magistrate took it in turns to cross examine the accused and also the complainant and the Court erred in cross examining.

In the event of (i) it is submitted that this is highly undesirable and possibly even irregular.

In the event of (ii) it is contended that it is improper for the trial Magistrate to cross examine an accused person.

2. That the accused from the record was given no opportunity to give evidence in re-examination after he had finished undergoing cross examination.

3. That the accused according to the record was given no opportunity of re-examining his own witness after that witnesses' cross examination had terminated.

4. That the accused according to the record was given no opportunity of addressing the Court at the close of the defence evidence.

5. That according to the record no single witness throughout the case either for the Prosecution or for the Defence either had his evidence read back to him or was asked if he wished it to be read back to him.

That this is in contravention of section 194 (2) of the Criminal Procedure Code of Kenya.

6. That for all the above reasons it is submitted that the conduct of the trial was irregular and that justice may have suffered thereby and it is prayed that the conviction be quashed."

There is no substance in the first ground of appeal as from a perusal of the record, in particular from the specific reference to prosecution at p. 4, we are satisfied both that there was a Court prosecutor at the trial and that the Magistrate did not cross-examine the accused and the witnesses.

As regards the second ground of appeal the record is silent as to whether the accused was given an opportunity to re-examine himself or not. Assuming, however, that he was not we fail to see how he could possibly be prejudiced by such an omission in the circumstances of this case. The accused was only asked one question in cross-examination and his answer was a repetition of what he had already said in examination in chief. The question therefore did not raise any new matter upon which he could properly re-examine himself.

As regards the third ground of appeal we are satisfied from the record that the witness for the defence was not cross-examined by anybody. Consequently no right of re-examination arose.

As regards the fourth ground of appeal the record being silent as to whether the appellant addressed the Court or not at the conclusion of his case it must, we think, be assumed that he did not do so. We are not, however, prepared to assume that he was not given any opportunity to do so. Section 211 C. P. C. entitles an accused person to address the Court in conclusion of his case but it does not impose a duty on the Magistrate to inform him of his right to do so. Consequently mere failure, assuming it to be the case, to apprise the accused of his right of address. would not be a breach of the provisions of the Code.

There is, we think, more substance in the fifth ground of appeal than in the others. From the silence of the record we feel we are entitled to assume that the evidence was not read back to the witnesses nor that the witnesses were informed of their right to have their evidence read back to them. This constitutes a breach of section 194 (2) of the C. P. C. and amounts to an irregularity in the proceedings. It has been suggested to us that we should send back the record to the Magistrate to ascertain whether he complied with that section or not. We are not disposed to adopt this course because we do not think that it is necessary to do so in this case and also because we think that this Court on a matter of this nature should not go beyond what is on the record itself. We consider, however, that noncompliance with section 194 (2) C. P. C. is an irregularity which is not fatal to a conviction but is curable under section 381 C. P. C. unless it has in fact occasioned a failure of justice.

This was a very careful trial by a Magistrate who obviously knew his job. There is no suggestion that the Magistrate recorded the evidence wrongly or that any of the witnesses said something, which has not been recorded. That being so and having regard to the nature of the evidence against the accused, we are satisfied that the irregularity in question could not possibly have caused any failure of justice.

We therefore, dismiss the appeal.