Mwangi v Rex (Criminal Appeal No. 93 of 1951.) [1951] EACA 218 (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.

### JEREMIAH s/o MWANGI, Appellant

v

## REX. Respondent

### Criminal Appeal No. 93 of 1951.

(Appeal from the decision of H. M. Supreme Court of Kenya—Windham, J.)

Criminal law—Informations—Three informations tried together—Nullity.

The appellant was charged in three separate informations with the murder of three separate persons. The informations were tried jointly by the Supreme Court of Kenya (Windham, J.), which convicted him of all three murders and sentenced him to death. He appealed on the ground that his conviction was against the weight of law and evidence.

Held (16-8-51).—That the joint trial of two or more informations is a nullity, and that the Court will take the point that there has been no jurisdiction if it is not taken by the parties.

Appellant ordered to be tried according to law on one of the informations filed against him.

Appeal against conviction allowed. Retrial ordered.

Cases referred to: Saulos Ndima and Another, 3 E. A. C. A. 34 approved; Mashiki s/o Ngila, 7 E. A. C. A. 50, not followed.

Appellant in person.

John H. S. Todd (Crown Counsel, Kenya), for the Crown.

JUDGMENT (delivered by LOCKHART-SMITH, J. of A.).—The appellant appeals against his conviction by the Supreme Court of Kenya of the murder of three of his children.

There are no merits in the appeal. The appellant has never denied that he killed the children, and the only substantial question before the court of trial was as to whether the appellant was insane in the legal sense at the time of the killing. All three of the assessors at the trial were of the opinion that the appellant was not insane at the time of the killing, and we consider that the learned trial Judge was right in holding that the appellant had failed to establish the defence of insanity as defined in section 13 of the Kenya Penal Code.

There is, however, one aspect of the conduct of the trial which was not referred to by the appellant in his Memorandum of Appeal, but which we nevertheless feel it incumbent upon us to consider.

Separate informations were, quite rightly, filed on behalf of the Attorney General against the appellant in respect of each of the alleged murders. When the case came on for trial, however, Crown Counsel did not elect upon which of the informations he would proceed, and it appears that the appellant was arraigned upon all three informations which were thereupon jointly tried.

The learned trial Judge does not seem to have appreciated the position, as in recording the plea of the appellant he made the following note:

"Charges-Murder, counts 1, 2 and 3 of 3 different persons. Accused charged states: 'I killed my three children and thirty goats. I did not intend to kill my children'. Entered as plea of Not Guilty to all three counts."

The judgment commences with the words, "The accused is charged on three counts", and concludes with a finding of guilty of all three counts.

In actual fact the appellant was not tried on an information containing three counts, but was charged with three murders in three separate informations which were jointly tried.

In Mashiki s/o Ngila, 7 E. A. C. A. 50, this Court held that the joint trial by the High Court of Tanganyika of separate informations against one accused for two murders did not render the trial a nullity, but was an error in form curable under section 335 (now section 346) of the Tanganyika Criminal Procedure Code. That section corresponds exactly to section 381 of the Kenya Criminal Procedure Code, and the provisions of the two Codes in respect of informations are to all intents and purposes identical.

An appellate court consisting of more than one Judge ordinarily bows to its own decisions on the grounds of judicial comity (see Halsbury, Laws of England, 2nd edition, Vol. 19, paragraph 556, page 256) but there are some special considerations in respect of the decision in *Mashiki* which, in our opinion, entitle us to examine the position afresh.

The point has previously come before this Court for decision on more than one occasion. In Kristofa Male and Another, 1 E. A. C. A. 151, two persons were charged in separate informations with the murder of another. The informations were jointly tried by the High Court of Uganda. On appeal, this Court held that the principles of English law applied, and that the trial was a nullity. The conviction was set aside and the appellants were ordered to be tried according to law.

In Singile and Others, 1 E. A. C. A. 182, separate informations against several persons for murder and for conspiracy to murder respectively were jointly tried by the High Court of Tanganyika. On appeal, Abrahams, C. J., delivering the judgment of this Court, said: $-$

"This trial is invalid. An information for murder was tried together with an information for conspiracy to murder the same person. This Court held in Rex v. Kristofa Male that the trial of two separate informations was invalid. We quash the convictions, but in view of the nature of the evidence, we order the appellants to be tried."

In Saulos Ndima and Another, 3 E. A. C. A. 34, separate informations were filed against three persons for the murder of another, and were jointly tried by the High Court of Nyasaland. On appeal, Sheridan, C. J., in delivering the judgment of this Court, said: -

"Three separate informations were filed against three persons in respect of the same murder. Nevertheless all three were tried together and two of them were convicted, the third person being acquitted. Both convicted persons appealed and the Court has raised the question as to whether the trial was valid. The question being one of considerable importance it was deemed advisable to have it argued before a Bench of five Judges. The Court had the advantage of having the question argued by the learned Attorney General of Kenya, who submitted that in view of the decision in Crane v. Director of Public Prosecutions (1921), 1 A. C. 299, and Rex v. Dennis and Parker (1924), 1 K. B. 867, he was unable to resist the conclusion that the trial was a nullity, a submission with which we agree. This Court in the case of $\text{Re}x$ v.

Kristofa Male s/o Nikodemu Kyononeka and Another (1934 E. A. C. A. 151)

following the English cases to which we have referred decided that where two persons committed for trial together were charged in separate informa-

tions but tried together and convicted, the proceedings were a nullity. The

case was a Uganda case, but is authoritative for the reason that the law of Nyasaland on the point is identical with the law of Uganda, as is also the law of Kenya and Tanganyika. The present case cannot be distinguished from *Kristofa Male's* case (*supra*) which, assuming the Court of Appeal Law Reports to be available in Nyasaland, does not appear to have been brought to the notice of the learned trial judge. We set aside the convictions and order the appellants to be tried according to law. As to whether there should be two separate trials or a joint trial on one information is a matter for the Crown."

In view of this weight of authority, and especially of Saulo's case, in which a Bench of five Judges was convened to consider the point, and in which the Attorney General of Kenya appeared for the Crown in person, we find it, with respect, difficult to appreciate how the three Judges who composed this Court in Mashiki (two of whom had been members of the Bench in Saulos) felt justified in reaching a contrary conclusion.

It is true that Mashiki differed from the earlier cases, as does the present case, in that the informations which were jointly tried were against one and the same person. We do not consider, however, that this circumstance at all affects the application to such a case of the principle established in the earlier cases. In any event, this Court took note of the distinction in Mashiki, and did not think it safe to rely upon it, as the decision in Saulos was founded upon the decision of the Court of Criminal Appeal in *McDonnell*, 20 Cr. App. R. 163, in which the joint trial of two indictments against one person was held to be a nullity. (In actual fact the judgment in Saulos does not refer to McDonnell. The latter case was, however, cited in the course of argument.)

In England, the Court of Criminal Appeal, when composed of three Judges, feels itself bound to follow a decision of a full Bench of five Judges convened to consider an identical point.

In *Ireland*, 4 Cr. App. R. 74, the Court of Criminal Appeal, composed of three Judges, held that an appeal lay against the special verdict of "guilty but insane" allowed by section 2 (1) of the Trial of Lunatics Act, 1883. In *Machardy*, 6 Cr. App. R. 273, the question arose whether there was an appeal against that part of a special verdict which finds the accused person to be insane. The question was first argued before a Bench of three Judges, who after consideration, directed the appeal to be re-argued before a full Court. A full Court of five Judges then re-heard the appeal, and held by a majority (not, as in Saulos, unanimously) that there was no appeal against the part of a special verdict finding the accused. to be insane.

In Felstead, 9 Cr. App. R. 227, there was a pro forma appeal to the Court: of Criminal Appeal on the same point, in view of an application for leave to appeal to the House of Lords. The Court was composed of three Judges, and the Lord Chief Justice in delivering the judgment of the Court, said: -

"We think that having regard to the decision of the Court of five judges." formed to consider the question it would be impossible for us to come to a contrary decision whatever our views might be.... It would be useless to argue the matter now, and, as a matter of form, we dismiss the appeal."

We think that the three Judges who composed this Court in Mashiki ought similarly to have regarded themselves as bound by the earlier unanimous decision. of five Judges who were specially convened to consider the same point in Saulos. In the present case we feel ourselves at liberty, if not bound, to follow the decision in Saulos. We consider moreover that Saulos was correctly decided and that, for the reason given below, *Mashiki* was not good law.

In Mashiki this Court observed: "In the first place it seems to us that we ought not to lose sight of the fact that the East African Dependencies have their own Codes and that whilst, generally speaking, we observe the principles applied in English criminal law, we have departed from the English practice in many matters of form and procedure, for guidance in which we are bound only by our local domestic legislation".

If the relevant domestic legislation differed in any material respect from the English criminal law, we would entirely agree with that observation. It is in accord with the judgment of Their Lordships of the Judicial Committee of the Privy Council in *Wallace Johnson v. The King* (1940), A. C. 231, in which it was held (at page 240) that the Criminal Code of the Gold Coast must be construed in its application to the facts of the case free from any glosses or interpolations derived from any expositions, however authoritative, of the law of England. But if it emerges from an examination of the local domestic legislation that it is practically indistinguishable from the English legislation on the same subject then it would appear to be more apt to apply the view of Their Lordships expressed in *Trimble v. Hill*, 5 A. C. 342 at 345, that it is of the utmost importance that in all parts of the Empire where English law prevails, the interpretation of that law by the Courts should be as nearly as possible the same. This view was recently reaffirmed by Their Lordships in M. R. M. M. M. N. Nadarajan Chettiar v. C. H. M. R. M. W. T. Walauwa Mahatmee (1950), A. C. 481 at 492.

We doubt whether the learned Judges who composed this Court in Mashiki fully appreciated how extremely closely the revelant provisions of the Tanganyika Code (to which the comparative provisions of the Kenya Code now correspond) followed the provisions of the English Indictment Act, 1915, and Indictment Rules, 1915, which rules appear in the First Schedule to the Act, and are to have effect "as if enacted in this Act" (section 1). Indeed, it is a peculiarity of the judgment that the modern English statute and case law on the subject nowhere receive any considerations save for a passing reference in *McDonnell*.

The main ground for the decision in *Mashiki* was that in the Tanganyika Code the document upon which an accused person is prosecuted in the High Court is described as an "information", whereas in England it is called an "indictment". The relevant passage of the judgment is as follows:-

"The framers of the Tanganyika Criminal Procedure Code, whilst taking much of their terminology from the English Law, saw fit to jettison the term "indictment" and to substitute therefor the term "information". They must be taken to have done so advisedly. In section 233 they do not say that an information shall be for all purposes and in all respects the same as an indictment. All they say is that it shall 'be as valid and effectual in all respects as an indictment'. Is it safe to infer that they intended that an information should suffer from all the disabilities and be hedged round with all the technical formalities which appertain to indictments as the result of their ancient and peculiar history? On the contrary we are disposed to take the view that the term 'information' was probably introduced deliberately in order to make for more elasticity and to enable our Courts to administer justice according to the Code in a practical manner freed from inherited technicalities. Be that as it may we can see no reason why in mere matters of form our Courts should, when dealing with 'informations', consider themselves rigidly bound by English decisions on indictments."

Reference to the comparative table attached to the "Objects and Reasons" appended to the Tanganyika Code when in Bill form, seems to show that the expression "Information" was adopted from the Laws of the Gold Coast and of Nigeria. (See the Special Supplement to the Tanganyika Gazette of 8th November, 1929.) The comparative table is not in all respects accurate. It does not, e.g. show any source for clause 233 of the Bill. This clause, however, which, upon enactment, became section 228 of the original Tanganyika Code (now section 240, and section 250 of the Kenya Code) was in fact derived from section 192 of the Criminal Procedure Code of the Gold Coast. (Cap. 10 of the 1936 edition of the Laws of the Gold Coast.) Both sections provide for the drawing up and filing of an information by the Attorney General if he is of the opinion, upon the committal for trial of an accused person that the depositions disclose a case which ought to be tried upon information by the High (or Supreme) Court. It is not possible to ascertain locally the reasons which led the draftsmen in West Africa to make use of the expression, but it may be worthy of note that section 2 of the Gold Coast Criminal Procedure Code defines "indictable offence" to mean "any offence punishable under Book 3 of the Criminal Code, or punishable on information in a Divisional Court under any other statute". Book 3 of the Gold Coast Criminal Code is headed "Indictable Offences", and deals with those offences in respect of which the accused person may be committed for trial by the Supreme Court upon information.

Some of the provisions in the Tanganyika and other East and Central African Codes which deal with informations were as originally enacted, more or less directly derived from the provisions of the Indian Code of Criminal Procedure governing charges (see Cap. XIX thereof), with the difference that the expression "charge" was, in the local Codes, confined to proceedings in subordinate Courts, whilst "information" was substituted in respect of proceedings in the High Court (or, in Kenya, Supreme Court). The local Codes as originally enacted did in fact differ materially in some respects from the English legislation dealing with indictments, and yet in Kristofa Male, Singile and Saulos (supra) this Court held that the English rule that the joint trial of two or more indictments was a nullity applied to the joint trial of two or more informations.

Before the date of *Mashiki*, however, the Tanganyika Code had been amended, by Ordinance No. 23 of 1939, so as to apply to the informations required by the Code all the procedural provisions of the Indictment Act and Rules of 1915. If this Court held, at a date when the local Codes did materially differ from the English legislation on the subject, that the English decisions on the joint trial of two or more indictments nevertheless applied locally, then, *a fortiori*, we should have thought, it ought so to have held at a date when the English and local legislation on the subject had become to all intents and purposes identical. In our opinion the true inference to be drawn from the course of local legislation is the very opposite of the inference drawn in *Mashiki*.

Mr. Todd, for the Crown, has frankly conceded that, apart from the name "information" in substitution for "indictment", the present provisions of the Kenya Code governing the form and contents of information are directly derived, with only minor and immaterial variations, from the English Act and Rules of 1915. These provisions are to be found under the heading "Charges and informations" in section 134 et sequentes of the Code as at present enacted, and it is only necessary to compile a comparative table to establish their direct derivation from English legislation beyond all possible doubt. For example, at the date of the decision in Mashiki section 132 of the Tanganyika Code, as enacted by Ordinance No. 23 of 1939 was derived, as is the present section 134 of the Kenya Code, from section 3 (1) of the Indictments Act, 1915. The East African and English provisions are respectively as follows:

#### East Africa

Every information shall contain and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable informations as to the nature of the offence charged.

#### **England**

Every indictment shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as may be necessary for giving reasonable informations as to the nature of the charge.

This close similarity to the English legislation is now maintained throughout the other relevant sections of the East African Codes. The forms of information in the Second Schedule to the Kenya Code which, or forms conforming thereto as nearly as may be, are by section 137 (a) (iv), to be used in cases to which they are applicable, in all instances closely resemble, and in the great majority of instances are merely copies of, the forms of indictment in the Appendix to the Indictment Rules, 1915, which, or forms conforming thereto as nearly as may be, are similarly to be used in cases to which they are applicable by virtue of rule 4 $(5)$ . We are of the opinion the local legislation governing informations is, for all practical purposes, indistinguishable from the English legislation governing indictments and that therefore, in accordance with *Trimble v. Hill (supra)*, the English decisions on such legislation ought to be followed by this Court. In the Uganda Code, the word "information" has now actually been replaced by the word "indictment", and we are informed that it is intended to make a similar amendment in the Kenya Code.

It should not be overlooked that the English legislation nowhere expressly prohibits in terms the joint trial of two or more indictments, yet the Courts in England have held that such a trial is a nullity, presumably because the whole tenor of the English legislation makes it clear that only one indictment can be tried at a time. Exactly the same position obtains under the East African Codes in respect of informations.

Moreover, the East African Codes contain a provision (see, e.g., section 257) of the Kenya Code) that the practice of the Supreme (or High) Court in its criminal jurisdiction shall be assimilated as nearly as circumstances will admit to the practice of His Majesty's High Court of Justice in its criminal jurisdiction and of Courts of Oyer and Terminer and General Gaol Delivery in England. They also contain a provision (see section 255 of the Kenya Code) that all informations drawn up in pursuance of the Code, shall when signed by, or (in effect) on behalf of, the Attorney General, shall be as valid and effectual in all respects as an indictment in England which has been signed by the proper officer of the Court.

It is, of course, well settled in England that the joint trial of two or more indictments is a nullity. In Crane (1920), 3 K. B. 236, it emerged in the Court of Criminal Appeal that two men had been separately indicted the one for stealing skins and the other for receiving the skins and that indictments had been jointly tried. It was contended on behalf of the appellant that what had happened was an irregularity which ought to lead to the quashing of the conviction, and that the trial was not a nullity enabling the Court to order the appellant to be tried according to law. The Lord Chief Justice in delivering the judgment of the Court said:-

"The result in our opinion is that there has been no trial. The two prisoners could not be given in charge of the jury on two separate indictments in the same way as if they had been jointly indicted. The proceedings were void ab initio."

The decision of the Court of Criminal Appeal was upheld by the House of Lords by a majority of five to one, see (1921), 2 A. C. 299, but even Viscount Finlay, in his dissenting judgment never suggested that (as was decided in Mashiki in respect of the joint trial of two informations) the joint trial of two indictments was a curable irregularity. He merely dissented from the view of the majority that the trial was a nullity and that therefore the Court of Criminal Appeal had power to order the appellant to be tried according to law. He thought that the true view was that the proceedings were so gravely irregular that they ought to have been set aside and a judgment of outright acquittal entered. In considering

Crane and the other English authorities it should not, of course, be overlooked that the Court of Criminal Appeal has not the power, which this Court possesses, to order a new trial when there has been a serious irregularity, although the learned Judges of the Court have frequently expressed the view that the law ought to be amended so as to give them such power. It was established in Crane, however, that where the proceedings are a nullity, so that there has been no trial at all, the Court may order a trial according to law.

In *Dennis and Parker*, 18 Cr. App. R. 39, two men were charged in separate indictments the one with keeping, the other with using a betting house. Counsel for the Crown and for the accused agreed to the joint trial of the indictments. On appeal, Counsel proceeded to open the appeal on its merits. He was stopped by the Court and asked why two defendants who had not been jointly indicted had been tried together. He submitted that, even if the proceedings had been a nullity, the Court was not bound to take the point. Avory, J., said "The Court cannot accede to that doctrine. It was the Court took the point in *Crane*. It is bound to take note of a manifest want of jurisdiction. Consent cannot give it. An irregularity may be waived by consent, but not a want of jurisdiction". The trial was held to have been a nullity.

In McDonnell, 20 Cr. App. R. 163, a man was charged in two separate indictments with stealing a bicycle and with stealing a bundle of clothing respectively. The indictments were jointly tried. On appeal, the Lord Chief Justice said that there were no merits at all on the facts. No one appeared to have been aware of the existence of separate indictments, and the case proceeded as if there had been two counts in one indictment. (The similarity to the position in the present case will be noted.) It was impossible to resist the conclusion that the whole trial was a mere nullity.

In Wilde, 24 Cr. App. R. 98, a man was charged with breaking and entering a shop and stealing certain articles, and also with entering a church with intent to commit a felony. Separate indictments were filed and jointly tried. On appeal, the Lord Chief Justice said: "This appellant was tried on two indictments at the same time and appeals against conviction. . . It is obvious that this appeal must be allowed and this conviction quashed...

At page 184 of the 32nd edition of Archbold it is stated that the same decision was reached in Thomas (1934), but the case does not seem to have been reported.

In Olivo (1942), 2 All E. R. 494, two men were charged in one indictment with conspiracy to defraud and one of them was charged in another indictment with obtaining money by false pretences. These were the only two indictments before the Court, but in the course of argument on appeal it was discovered that in fact a third indictment for attempted fraudulent conversion had been filed against the other man and that all three indictments had been tried jointly. Tucker, J., in delivering the judgment of the Court, said: "... there would appear to be no merits in the application at all. None the less it has, for a great number of years, been elementary in criminal procedure that, if there is more than one indictment-if there are two indictments, and still more if there are three indictments—they cannot be tried together and any so-called trial at which such a procedure has been adopted is a complete nullity. There is no jurisdiction to proceed in that way at all".

In our opinion the conviction in the present case cannot stand, but before proceeding to make our final order there are a few further observations which we wish to make on the judgment in *Mashiki*.

Reference was made in that judgment to *Odda Tore and Another*, 1 E. A. C. A. 114; Mongella s/o Ngui, 1 E. A. C. A. 152 and Ngidipe bin Kapirama and Others, 6 E. A. C. A. 118. All these cases dealt with the joinder in one *count* of an information of more than one charge of murder, and it was held that the consequent breach of the rule against duplicity was not fatal to the conviction, but was a curable irregularity. Without expressing any opinion as to the correctness or otherwise of those decisions, we do not see what relevance they bear to the totally different question of the validity of the joint trial of two or more informations. Moreover the judgment in *Mashiki* asserts that this Court held in *Monoella* "that there was nothing improper in trying together two charges of murder laid in separate counts of the same information". We cannot understand this assertion. What this Court in fact said in *Mongella* was: -

"We would add finally that it appears undesirable to try an accused person on more than one charge of murder: it is apparently the practice in England not to join murder charges."

That, of course, is so. In Davis, 26 Cr. App. R. 95, a prisoner was tried on two counts of one indictment each of which charged him with the murder of a separate person. On appeal it was held that, whilst this course was undesirable. the trial of the two counts together did not invalidate the conviction. In Cr. App. No. 90 of 1950 (not yet reported) this Court said "we think it right to emphasize the view already expressed by this Court that it is generally inadvisable that more than one charge of murder should be contained in one information". In this instance also, however, the question under consideration was entirely distinct from the question of the validity of the joint trial of two or more informations.

The judgment in Mashiki further observes: "If we apply the principles of English law it is clear that there is nothing improper in trying two felonies or misdemeanours together if they form part of one transaction". We entirely agree. Rule 3 of the Indictment Rules, 1915, so provides in effect, and the East African Codes, faithfully following as always, the English model, also so provide in effect (see, e.g., section 135 (1) of the Kenya Code). The two old cases of Giddines and Benfield (1842 and 1760 respectively) relied on in the judgment as establishing this principle thus only anticipated the modern statute law, and it might have been more useful to have referred to the latter. In any event, the rule does not affect the question of the validity of the joint trial of two or more informations.

Mashiki seems to suggest that when two or more informations are jointly tried the fact, if such is the case, that the offences charged in such informations form part of the same transaction may be a redeeming feature. But in our opinion this is not correct. The only English case which we have been able to find in which the joint trial of two indictments was not held to be a nullity is Brett and Parish, 3 Cox C. C. 79, decided at *nisi prius* in 1848, many years before the enactment of the Indictments Act, 1915. The headnote to the case reads: -

"By consent, a jury may be charged with the trial of two or more indictments at the same time, even though the indictments be for separate offences, and against different persons, where the circumstances upon which the indictments are founded form part of the same transaction."

This case was cited to the Court of Criminal Appeal in *Dennis* and *Parker* (supra) Avory, J., remarked: "If that case is exhumed, the sooner it is reinterred the better. In fact it was cremated by Crane".

The judgment in Mashiki also contains the following passage: "As is pointed out in Stroud's Legal Dictionary and in the case of R. v. Slator (8 Q. B. D. 267) there has always been a very definite distinction between an indictment and an information, and we have nowhere seen it suggested that in England a decision of the Courts on the subject of indictments would apply equally to informations"

ž Ż

In Stroud and in *Slator* the distinction drawn is between an indictment presented by a grand jury (or, since the Administration of Justice (Miscellaneous Provisions) Act, 1933, signed by the proper officer of the Court) and an *ex officio* information by the Attorney General of his own motion. The corresponding distinction in the local Codes is between an information (or, in Uganda, indictment) filed by the Attorney General under, e.g., section 250 of the Kenya Code upon the depositions after a committal for trial, and an information exhibited by him under the provisions of section 84, which enables him to exhibit to the Supreme Court against persons subject to its jurisdiction, informations for all purposes for which His Majesty's Attorney General for England may exhibit informations on behalf of the Crown in the High Court of Justice in England. The Tanganyika Code at the date of *Mashiki* contained a similar distinction. It has no relevance in deciding whether an information filed on the depositions is indistinguishable from an indictment in England.

We would also refer to the passage in the judgment which states: "The Code (i.e. the Tanganyika Criminal Procedure Code) affirmatively provides for the trial together of offences forming part of the same transaction, or of three offences of the same kind". Apparently this passage refers to section 132 (a) and $(b)$ of the Tanganyika Code as originally enacted, which, as the judgment itself points out a few lines above, had been repealed at the date of Mashiki. The Code as enacted at the date of the case did *not* so provide. Paragraphs $(a)$ and $(b)$ of the original section 132 of the Tanganyika Code are derived respectively from section 234 (1) and section 235 (1) of the Indian Code of Criminal Procedure. Mashiki seems to assume, under the erroneous impression that these provisions were still in force, that they afforded a greater latitude in the matter of the joinder of charges than did the law of England. In our opinion this was a misconception. Whereas in England, subject to the provisions of the Indictment Act and Rules of 1915, and certain rules of practice laid down by the Court of Criminal Appeal, any number of offences may be jointly charged so long as each offence is made the subject of a separate count of the indictment, under the Indian Code (section 233) and the Tanganyika Code as originally enacted, every distinct offence of which any person is accused must be the subject of a separate charge (in the original Tanganyika Code "Charge or information") and every such charge (or information) must be tried separately save in certain specified excepted cases. The excepted cases themselves do not permit of so wide a joinder of offences as do the provisions of English law.

Finally, we would refer to the following passage of the Judgment: $-$

"In R. v. Lockett and Others (1914, 2 K. B. at page 730) Sir Rufus Isaacs (as he then was), C. J., reviewed the authorities as to the trial of various distinct felonies at the same time and the principles which clearly emerge from his judgment are that the propriety or otherwise of permitting such a trial depends upon whether the facts charged form part of one and the same transaction and whether the joint trial may embarrass or confuse the<br>prisoner in making his defence. The felonies there were not charged in separate indictments but that does not seem to affect the question of principle."

The headnote to *Lockett*, which was decided shortly before the passing of the Indictment Act, 1915, reads as follows: —

"there is no rule of law that separate and distinct felonies cannot be tried together in one indictment. As a matter of practice and procedure the Judge presiding at the trial can in the exercise of his discretion quash the indictment or call upon the prosecution to elect upon which of the counts for felony they will proceed, in order to safeguard the interests of the prisoner and to prevent him from being put upon his trial upon an indictment in which

$\epsilon$

there are several counts for distinct felonies. In exercising his discretion as to putting the prosecution to this election, the material element to which the Judge should direct his attention is whether the overt acts relied on as proving the different offences are in substance the same."

It will thus be seen that, substantially speaking, the decision merely anticipated the relevant provisions of the Act and Rules of 1915. It does not touch the question of the validity of the joint trial of two indictments. The same learned Lord Chief Justice who delivered the judgment of the Court in Lockett, also, some seven years later, delivered the judgment in Crane supra, in which it was emphatically held that the joint trial of two-or more indictments was a nullity. In England, therefore, the view was clearly taken that the fact that the offences were charged in separate indictments did affect the question of principle, and that the circumstances that the facts charged formed part of one and the same transaction could not cure the fatal flaw. In our opinion, the English authorities should have been followed in *Mashiki*.

We quash the conviction of the appellant, and order him to be tried according to law on one of the informations filed against him. In such case, as the Court of Criminal Appeal said in *Davis supra* (at page 98) it will be "easy and proper for the prosecution on the trial of one indictment only to tender evidence relating to the whole of the matter". With the substitution of "information" for "indictment", we adopt that comment.