Logoi v Reginam (Criminal Appeal No. 360 of 1955) [1955] EACA 361 (1 January 1955)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), Sir Kenneth O'Conner, Chief Justice (Kenva) and Rudd, J. (Kenva)

## RUTO ARAP LOGOI (OR CHEROP), Appellant (Original Accused)

## REGINAM, Respondent

Criminal Appeal No. 360 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya, Hooper, J.) Allocatus—Whether evidence to be taken—Criminal Procedure Code, section 325.

By section 325 of the Criminal Procedure Code—"The court may, before passing sentence, receive such evidence as it thinks fit, in order to inform itself as to the sentence proper to be passed."

It was submitted that the trial judge should have received evidence after conviction to determine the proper sentence to be imposed in the circumstances of the case. No application for such evidence to be taken was made by the appellant. Held (7-10-55).—Section 325 of the Criminal Procedure Code is permissive and not mandatory,

its use being a matter resting entirely with the discretion of the trial court.

Appeal dismissed.

Appellant present, not represented.

## Brookes for respondent.

JUDGMENT (delivered by Nihill (President)).—In this appeal the appellant's advocate, who defended him at his trial but did not appear in this Court, has filed a Memorandum of Appeal which, apart from stating that the sentence was excessive, takes the single point that the learned trial Judge did not sufficiently direct his mind on the issue of insanity. The appellant was charged with murder, but the learned Judge found him guilty of manslaughter only, on the ground that he thought there was sufficient evidence of drunkenness to make it possible that the appellant at the time he attacked his wife was so drunk that he might not have been capable of forming the specific intention to murder. This was a very merciful view and we are somewhat surprised that the appellant's advocate has now seen fit to raise the question of insanity. This issue was in fact considered by the learned Judge, who came to the conclusion that at the time the appellant assaulted his wife he clearly was not insane, and we can see no reason to differ from that finding.

As regards the sentence, there is no ground whatsoever for intervention, because in the circumstances of this case it is very evident that the sentence passed by the learned Judge was in no way excessive.

Perhaps we should add that in the second paragraph of the Memorandum of Appeal it is alleged that the learned Judge should have received evidence after conviction in order to determine what was the proper sentence to impose on this appellant in the circumstances of the case. We assume that Mr. Malik has in mind section 325 of the Kenya Criminal Procedure Code, but that section is permissive and not mandatory, and its use is a matter resting entirely with the discretion of the court. There is nothing on the record to suggest that any application was made by the defence for evidence to be received and in his allocutus before sentence the appellant stated that he had nothing to say. Accordingly, there is no merit in this ground of appeal.

The appeal against both conviction and sentence is dismissed.