Ndagusa v Rex (Criminal Appeal No. 159 of 1949) [1949] EACA 43 (1 January 1949)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and Sir John Gray, C. J. (Zanzibar)

NDAGUSA OLE LELENGWESI, Appellant (Original Accused)

$\mathcal{L}(\mathcal{L})$

REX, Respondent (Original Prosecutor)

Criminal Appeal No. 159 of 1949

(Appeal from decision of H. M. Supreme Court of Kenya—Keatinge, Ag. J.)

Murder—Proof of previous conviction and escape from custody—Whether admissible—Section 159 (6) $(a)$ .

The deceased Sergeant Muinde and six constables went to arrest three persons including the accused. In cross-examination, accused admitted he had been sentenced to 18 months' imprisonment for stock theft and had escaped after $2$ months

Held (12-10-49).—The evidence was admissible to prove that the action of the Police in seeking to arrest accused was lawful.

Appellant absent, unrepresented.

Munir, Crown Counsel (Tanganyika), for Respondent.

$\sim$

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant was convicted in the Supreme Court of Kenya of the murder of a Police Sergeant. The assessors in the case were of the opinion that murder was not proved and would have acquitted the appellant.

We are of opinion that the learned Judge was right in finding the appellant guilty of murder on the evidence for the prosecution which he believed. We have examined in the light of the evidence the grounds of appeal which have been put before us. In so far as they refer to questions of fact we find no substance in any of the grounds.

We further think that there was no evidence before the learned Judge necessitating his consideration of the question of manslaughter. There was no evidence of legal provocation.

As regards the criticism that in the cross-examination of the appellant inadmissible evidence as to previous convictions was elicited we refer to section 159 proviso (6) (a) of the Kenya Criminal Procedure Code. It was necessary to establish that the action of the police in seeking to arrest the appellant was lawful otherwise it might not have been murder on the part of the appellant to resist arrest with violence and the cross-examination of the appellant was directed to, and did in fact, elicit the justification for the arrest of the appellant.

We find no substance in the appeal which is dismissed.