Njaggi and Another v Regina (Criminal Appeal No. 42 of 1952; Criminal Appeal No. 43 of 1952) [1953] EACA 37 (1 January 1953)

# APPELLATE CRIMINAL

### Before HEARNE, C. J. and BOURKE, J.

## WAMBUGA s/o NJAGGI AND ANOTHER (*Appellants*)

#### $\mathbf{1}$

# REGINA (Respondent)

## Consolidated Criminal Appeals Nos. 42 and 43 of 1952

Criminal Law—Section 150, Criminal Procedure Code—Power of Court to call for and examine a witness—Calling witness by the Court after defence has been closed—Not *ex improviso*—Whether injustice to accused. $\sqrt{ }$

The two accused, who were Tribal policemen, were charged contra section 93 (1) of the Penal Code with official corruption in that they accepted bribes. at Kagumo Market. The accused, at their trial, gave evidence on oath and called witnesses. One of these, a chief, gave evidence which the magistrate did not accept, to the effect that the charge could not be true. The magistrate was, according to his judgment, at the close of the defence case, prepared to find the charge proved, but an element of doubt remained in his mind for he elected to call a person mentioned by one of the accused as being present at the time of the alleged commission of the offence, not called as a witness to give evidence. On the strength of that evidence the magistrate held the charge proved beyond any doubt. The Crown did not support the conviction.

Held (18-4-52).—The powers of the court to call a witness after the case for the defence has been closed should be limited to those cases where something has arisen *ex improviso* on the part of the accused, which human ingenuity could not foresee lest injustice be done. The calling of the witness was not justified by these considerations. An injustice having been done to the appellants the convictions must be quashed.

Appeals allowed.

Le Gallais, Crown Counsel, for the Crown.

Appellants absent, unrepresented.

JUDGMENT.—The Crown does not support the conviction.

As we pointed out in the last appeal (Mr. Wilkinson was also the magistrate) in order that injustice should not be done to an accused, the calling of a witness by the court after the case for the defence has been closed should be limited to the cases where something has arisen *ex improviso* on the part of the accused which human ingenuity could not foresee. We think that in this case an injustice was clearly done to the appellants by the calling of the witness Kasinga when the defence had been closed. It was certainly not justified by the considerations we have mentioned.

Appeals allowed. Convictions and sentences set aside.