Lengobe and Another v Rex (Criminal Appeals Nos. 90 and 91 of 1951) [1951] EACA 193 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President. and LOCKHART-SMITH, J. of A.

# (1) AKADIT s/o LENGOBE and (2) LEGERAN s/o LESLILIT, Appellants

## v

## REX, Respondent

## Criminal Appeals Nos. 90 and 91 of 1951

## (Appeal from decision of the Special District Court of the Northern Province at Lodwar—Criminal Confirmation Case No. 413 of 1951, H. M. Supreme Court of Kenya—Bourke, Ag. C. J.)

Murder—Trial concluded—Judgment deferred pending further investigation.

The two appellants were convicted of murder before a First Class subordinate Court exercising special jurisdiction in a special district of the Northern Province. Kenya.

The trial of the accused so far as taking evidence and recording the opinions of the assessors were concerned was concluded on 20th June, 1950. But the Magistrate did not give judgment and convict the accused until 20th April, 1951. The Magistrate felt it necessary to investigate rumours that the deceased man alleged to have been murdered was still alive.

Held (26-6-51).—Section 318, Criminal Procedure Code, requires a Judge shall give judgment after recording the assessors' opinions—and means that the judgment should be given if not immediately at least with reasonable despatch.

Appeals dismissed.

#### Accused present.

#### Templeton, Crown Counsel (Kenya), for Crown.

JUDGMENT.—The two appellants in this case were convicted of murder by a subordinate Court of the First Class, exercising special jurisdiction in a special district of a Northern Province.

Both the appellants appear to us to be very young men and this is clearly a case where evidence as to their age should have been taken at the trial, and before sentence of death was passed on them. We feel sure, however, that this factor will be fully inquired into and taken into consideration in another place.

As regards their conviction, the trial Magistrate, in the course of a long and careful judgment, has given his reasons, which we regard as unexceptionable, for coming to the conclusion that the person named in the information did in fact die by reason of injuries received at the hands of the appellants, and further that he was justified on the evidence before him, in concluding that a defence based on provocation was not open to the appellants, and that it must be inferred that they intended, and shared this intention in common, to do at least grievous bodily harm to the deceased. It follows therefore that their appeals against conviction must be dismissed.

There is one point in this somewhat exceptional case to which we must make reference. The trial of the appellants, so far as the taking of the evidence and the recording of the opinions of the assessors were concerned, was concluded on the 20th June, 1950, but the trial Magistrate did not deliver judgment and convict the accused until the 20th April, 1951. A long note appears on the record in which the Magistrate has explained why this course of action was followed. We have no doubt at all that the Magistrate, who we think probably also was responsible for the police administration of his district, felt it incumbent upon himself to investigate fully rumours which had reached him that the deceased man, Narriman, was still alive. Certainly no prejudice has been occasioned to the appellants by his action, other than that they were kept in custody a long time awaiting judgment. Section 318 (2) of the Criminal Procedure Code, read with sub-section 1 of the same section, requires that a Judge shall give judgment after recording the opinions of the assessors, and we consider that the words "The Judge shall then give judgment" must mean the judgment should be given, if not immediately, at least with reasonable despatch. We think, therefore, that the trial Magistrate in this case, even although he knew of the rumours, should have come to a decision on the evidence before him as to whether he was prepared to accept the evidence which implicated the appellants. It would still, of course, have been the duty of the Magistrate, in his other capacity as a police or administrative officer, to prosecute such inquiries as he deemed desirable, and to have informed the proper quarters that such inquiries were in progress.