Ndecho and Another v Rex (Criminal Appeals Nos. 33 and 34 of 1951) [1951] EACA 171 (1 January 1951)

## COURT OF APPEAL FOR EASTERN AFRICA

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

# ROBERT NDECHO (Original Accused No. 2) and OGONYO LUORA (Original Accused No. 6). Appellants

## REX. Respondent

## Criminal Appeals Nos. 33 and 34 of 1951

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

Charge of murder—Conviction of wilfully obstructing the police—Section 179 (2) of the Kenya Criminal Procedure Code.

The appellants were tried with others on an information charging them with murder of a police constable. The appellants were convicted of wilfully obstructing the police in the due execution of their duty or of persons acting in their aid.

Section 172 (2) Kenya Criminal Procedure Code reads as follows: -

"(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it."

Held $(18-5-51)$ .-(1) Where an accused person is charged with an offence he may be convicted of a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say of the same genus or species.

(2) The wording of section 179 (2) is permissive only, and when the offence is murder<br>a Court should exercise its discretion most warily before convicting a person charged, with any alternative offence, although cognate, other than manslaughter. The test to be applied when exercising such discretion is whether the accused person can reasonably be said to have had a fair opportunity of making his defence to the alternative.

#### Appeals allowed.

Cases cited: Wallace Johnson v. The King, 1 A. E. R. 241; Rex v. Bantebura, 3 E. A. C. A. 117; Rex v. Mupere, 3 Tanganyika L. R. 72; Rex v. Home, XI E. A. C. A. 107; Rex v. Muhoja, IX E. A. C. A. 70. Sohoni 12th Edition, page 593, Indian Code of Criminal Procedure

#### Parry for appellants.

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

JUDGMENT.—These two appellants, Robert Ndecho and Ogonyo Luora were tried by the Supreme Court of Kenya with others on an information charging them with the murder of a police constable named Chengo. The learned trial Judge found that the prosecution had failed to prove a common intention between the accused to kill or do grievous harm to the deceased and he accordingly convicted only one of the accused of murder, namely a man called Obiyo, whose appeal has been heard separately, there being evidence that he was the man who administered the fatal blow. Having convicted Obiyo of murder the learned Judge then proceeded to convict three of the accused persons before him, including these two appellants of wilfully obstructing the police in the due execution of their duty or of persons acting in their aid. We observe in passing that the learned Judge did not comply with the requirements of sub-section (2) of section 169 of the Kenya Criminal Procedure Code in that he did not state the section of the Penal Code under which he was convicting the appellants. We draw attention to this, not because we think that his omission occasioned any failure of justice in this case so as to render the error incurable by the provisions of section 381, but because we wish to impress on all Courts exercising criminal jurisdiction, the necessity of compliance with the section. The requirement to state the section under which the Court convicts is mandatory and it is manifest that failure by a Court to do this may lead to mistakes and confusion. In the present case it is evident that the learned Judge must have intended to convict the appellants of an offence contrary to section 248 $(b)$ of the Penal Code. This offence is a misdemeanour, which however renders the offender liable to a maximum punishment of five years' imprisonment. The learned Judge sentenced the first appellant, Robert Ndecho, to four years' imprisonment, and the second appellant, Ogonyo Luora, to two years' imprisonment. He likewise convicted and sentenced to four years' imprisonment one other accused, Aloo Kacho, who has not appealed.

$\overline{I}$

This appeal has been argued by Mr. Parry for the appellants on two grounds. Firstly, that there was not sufficient reliable evidence before the learned Judge on which he could convict the appellants of an offence against section 248 $(b)$ and secondly that if there was, seeing that the appellants were arraigned before him on a charge of murder, it was not open to him to convict them of any other minor offence save that of manslaughter.

On the learned Judge's view as to creditability we must reject Mr. Parry's first ground. There was evidence before the learned Judge, which if believed, entitled him to conclude that both appellants, and the other accused who has not appealed, were members of a crowd whose common intention was to obstruct the police or those persons who were assisting them and who by their individual actions did in fact do so.

We come then to the second ground which does raise an issue of great interest and importance. Section 179 (2) of the Kenya Criminal Procedure Code reads as follows: $-$

(2) When a person is charged with an offence and facts are proved which reduce it to a minor offence, he may be convicted of the minor offence although he was not charged with it."

On a true construction of this sub-section, is a Court entitled even on an information or indictment for murder to find the accused person guilty of an offence entirely unconnected with homicide? If it does, then the Legislatures in these territories, have approved of a departure from the principles of the English common law of a fundamental character. Nevertheless if this be so then that is the law to be applied. (*Wallace Johnson v. The King* (1940), 1, A. E. R., 241).

Mr. Parry has frankly conceded that at first sight it would appear to flow from certain judgments of this Court that this far-reaching change has been introduced into our criminal procedure by the enactment of the above sub-section, and he has invited us to say, that if this be the case, then we should hold that in this respect those judgments are wrong. We have carefully reviewed the material cases and we are not convinced that this Court has ever held that on an information for murder the Court is at liberty when acquitting the accused of murder to convict him of an offence totally uncognate with that offence. Section 179 (2) as it now reads was introduced into the Criminal Procedure Code by section 13 of the Kenya Criminal Procedure Code (Amendment) Ordinance, 1939. This section repealed section 173 which read as follows: -

"When a person is charged with an offence, and part of the charge is proved, but the part which is proved amounts to a different offence, he may be convicted of the offence which he is proved to have committed, although he was not charged with it."

Before the amendment of 1939 there was no uncertainty as to the law, for in Rex v. Bantebura, 3 E. A. C. A. 117, this Court held following an earlier judgment in Rex v. Mupere that in an information for murder a conviction for having caused grievous bodily harm was a nullity. This decision was given on 10th November, 1936. In both the above cases the ratio decidendi was that there was no authority for the proposition that on an information for murder the person charged could be convicted of a lesser offence other than manslaughter, it being pointed out that the killing was the substance of the charge.

This brings us to Rex v. Home, XI E. A. C. A. 107, which was an appeal from the Supreme Court of Kenya and which was determined in 1944, that is to say after the enactment of the amending Criminal Procedure Code of 1939. In this case, a European named Home, was charged with attempted murder and the jury, without any direction from the trial Judge, found him guilty of an assault occasioning actual bodily harm. This Court on appeal refused to set aside the conviction and in the course of the judgment discussed the meaning of the words "minor offence" used in section 179 (2). This Court held, following an earlier decision on a precisely similar section in the Tanganyika Criminal Procedure Code (section 173), that the section was sufficiently wide in its terms to allow of a conviction of a lesser offence on an information for murder or attempted murder. (Rex v. Muhoja, IX E. A. C. A. 70.) The point which we stress and which may be in danger of being overlooked is, that in both these decisions, this Court implied that the minor offence must be of a cognate character. Admittedly neither judgment stated this in explicit terms, yet we are convinced that that is the effect of both judgments. In Rex v. Muhoja Sheridan, C. J., giving judgment of the Court said this: $-$

"Since the decision in Rex v. Josephu Mupere, 3 E. A. C. A. 117, the section of the Criminal Procedure Code (common to the East African Territories) which came under consideration in that case has been altered and what we have to consider is whether the new section is sufficiently wide in its terms to allow of a conviction for instance of an assault causing actual bodily harm with intent to disable."

The Court held that it did.

Again in Rex v. Home (supra) Sheridan, C. J., said this, when considering the scope of section 192 (2) of the Kenya Criminal Procedure Code: -

"A typical illustration of the meaning of the section is a case like the present where the charge was attempted murder and the conviction was for assault occasioning actual bodily harm."

It will be observed that in both these cases the minor offence substituted was cognate to the offences charged in that they were both offences which involved hurt to the human body. This Court has never said, and in our opinion could not without error say, that section 179 (2) permits a Court, on an information for murder, to find the person so charged, to quote one example, guilty of riding a bicycle without a light. In our view to read the sub-section as giving the Court such a power would not only be repugnant to natural justice but would introduce into the wording of the sub-section something that is not there. The governing word in this sub-section is the word "reduce", and the sub-section cannot be read as if the words ran "and facts are proved which reveal another offence". The facts proved must reduce the major offence to a minor offence. The words used being "facts are proved which reduce it to a minor offence". In our opinion we have no doubt that the Legislature both intended and have so expressed the intention that the minor offence must be cognate to the major offence charged. We are fortified in this view by a passage in Sohoni, 12th edition, page 593, where the learned author comments on section 238 (2) of the Indian Code of Criminal Procedure

which sub-section is precisely similar in wording to section 172 (2) of the Kenya Criminal Procedure Code: -

"Murder and Kidnapping.—Where the accused was charged with murder, but the evidence established the offence of kidnapping from lawful guardianship with which he was however not charged, held that the latter offence was not a minor offence within the meaning of this section of which he could be convicted, Weir II, 302."

The report of this case cited by the learned author is not available to us but we do not need it because the principle of the decision is clear. If a person charged with murder should not be charged with other offences on the same information, a fortiori, when a person is charged with murder, it would be a denial of natural justice that he should be burdened with the fear that during the course of his trial he might have to defend himself against other offences disclosed by the evidence of which he had received no notice and no particulars. Such a departure from the basic principles of the English common law will have to receive express legislative sanction before this Court will countenance it.

A glance at the facts in the case now before us will illustrate the dangers into which a Court may fall unless the sub-section is read in the sense in which it must be read, and can only be read, namely that the minor offence must be cognate in character. The accused in this case were charged with murder. Mr. Templeton who has appeared for the Crown at this appeal and who also was in charge of the prosecution at the trial has admitted to us that the first suggestion that the accused stood in danger of conviction of another offence came from him, during his final speech to the Court. By then, some of the accused had admitted in their evidence that they knew that the deceased and his comrade, both of whom were dressed in plain clothes, were in fact police officers, this supplying an element in the Crown case, which otherwise would have been lacking on the charge for which they have been convicted. Even after the suggestion had been made the learned Judge appears to have made no reference to the matter in his address to the assessors and he did not take their opinion as to whether the accused were guilty of the offence of obstructing the police.

For the above reasons the convictions entered against these two appellants under section 248 (b) of the Penal Code are a nullity and cannot be allowed to stand. We accordingly set aside the sentences of imprisonment imposed and order them to be set at liberty forthwith.

In the case of the convict Aloo Kacho (accused No. 3 before the Court of trial) who has not appealed, this Court will entertain his appeal if preferred, and will give him leave to appeal out of time.

In order to make the position abundantly clear we restate again that the judgments of this Court given in Rex v. Muhoja and Rex v. Home (supra) mean nothing more than this: where an accused person is charged with an offence he may be convicted of a minor offence although not charged with it, if that minor offence is of a cognate character, that is to say of the same genus or species. Furthermore we point out that the wording of section $179(2)$ is permissive only and that in our opinion, when the major offence charged is murder, a Court should exercise its discretion most warily before convicting a person charged, with any alternative offence, although cognate, other than manslaughter. The test the Court should apply when exercising its discretion is whether the accused person can reasonably be said to have had a fair opportunity of making his defence to the alternative.

This Court is not now called upon to decide, and does not decide, whether a person acquitted on an information for murder can subsequently be charged with another offence arising out of the same facts, or whether the present appellants could successfully plead *autrefois* convict should the Crown institute fresh proceedings against them. It will, we are sure, not be overlooked that the appellants have been in custody for nearly a year and that for nearly eight months on a charge of murder.