Nyamu and Another v Reginam (Criminal Appeal Nos. 552 and 553 of 1955) [1950] EACA 484 (1 January 1950)

## H. M. COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (President), BRIGGS and BACON, Justices of Appeal

(1) MUCHIRI s/o NYAMU and (2) KINGORI s/o NGATHI, Appellants (Original Accused Nos. 1 and 2)

## $\mathbf{v}$ REGINAM, Respondent

## Criminal Appeal Nos. 552 and 553 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Seton, J.)

Procedure—Admission of extra-judicial statement made to Tribal Police—Indian Evidence Act, 1872, section 25—Kenya Evidence (Amendment) Ordinance, 1952, section 2.

The accused had been convicted of unlawful possession of a firearm. A member of the Tribal Police Reserve who first saw them crouching under a sisal plant said in his evidence, "I told them to come out and asked them what they had. They said they had one gun".

The procedure at the trial regarding the admissibility of extra-judicial statements made to an Inspector of Police when charged was almost identical with that adopted in Cr. App. No. 551 of 1955 (supra p. 480) except that the accused after the assessors had returned again expressed denial of having made the statement.

Held (12-3-56).—(1) If the statement made to the Tribal Police Reservist constituted a confession it was inadmissible under section 25 of the Indian Evidence Act, 1872, as amended by section 2 of the Evidence (Amendment) Ordinance, 1952.

(2) The irregularity in procedure was not of sufficient substance even when coupled with the earlier error to justify setting aside the conviction.

Appeals dismissed.

Case referred to: Pakala Narayan Swami v. The King-Emperor, (1939) A. I. R. P. C. 47.

Appellants in person.

Webber for respondent.

JUDGMENT (perpared by BACON, J. A.).—These appeals were in each case against conviction by the Supreme Court of Kenya for unlawful possession of a firearm contrary to regulation $8_A$ (1) of the Emergency Regulations, 1952. The appellants were jointly charged with joint possession of the firearm in question, namely a home-made gun. Questions of law alone were open on appeal, the learned trial Judge not having granted a certificate. We dismissed the appeals and now give our reasons for so doing.

The facts as found at the trial were as follows. A patrol of Tribal Police Reserve was operating between Muthinga and Mungaria. One of them, seeing the appellants crouching under a sisal plant with their backs to him signalled to a colleague who thereupon, accompanied by a third member of the patrol, joined him. The three police then moved to surround the appellants. The latter, on being ordered to come out, emerged with their hands raised, the first appellant holding the gun aloft. When tested, the gun proved to be a lethal barrelled weapon. On being charged by an Inspector of Police with being in unlawful possession of a firearm, the first appellant said "I have got nothing to deny; it is true I was

found with it", and the second appellant said, "The gun was not belonged to me: it belonged to Muchiri", according to the interpreter's translation of their statements in Kikuvu.

At the hearing of their appeals the appellants were present but unrepresented. We invited counsel for the Crown respondent to deal with two questions.

The first question arose out of a passage in the evidence of the Tribal Police Reserve who first saw the appellants crouching under the sisal plant. He said this: "I told them to come out and asked them what they had. They said they had one gun".

If the statement thereby attributed to the appellants constituted a confession of the offence for which they were on trial when the evidence in question was given, the evidence was inadmissible by reason of section 25 of the Indian Evidence Act, 1872, as amended, in its application to Kenya, by section 2 of the Evidence (Amendment) Ordinance, 1952, the effect for present purposes of section 25 so amended being to prohibit proof, as against a person accused of any offence, of a confession of that offence made to a Tribal Police Reserve.

For a statement to amount to a confession it must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence; an admission of a gravely incriminating fact, even a conclusively incriminating fact, is not of itself a confession. Moreover, the statement must not contain any self-exculpatory allegation of a fact which if true would negative the offence alleged to be confessed: Pakala Narayan Swami v. The King-Emperor, (1939) A. I. R., P. C. 47; 18 Indian L. R., Patna, 234 at pp. 250-251.

The offence against regulation $8\lambda$ (1) with which the appellants were charged consisted of having a firearm in their possession without lawful authority. If proved to have been in possession of a firearm the burden would be on them to show that they had lawful authority to possess it. In our view the words,<br>and the only words, "We have one gun" spoken by the appellants or either of them in the circumstances to which we have referred did constitute a confession and not merely an admission. If a person admits, without qualification or reservation, to having with him a "gun", he admits possession of a firearm as defined by sub-regulation (4) of regulation 8A. And if, when that person is found admittedly in possession of a firearm in circumstances which point clearly to the presumption on the part of a police officer who so finds him that he has no lawful authority to possess it and he offers not the slightest suggestion to show (as he would have to show, if he were to avoid conviction when charged) that he has any such authority, his admission then made to that police officer amounts to a confession.

Accordingly there arises the subsidiary question as to whether the admission in evidence of the inadmissible passage which we have cited should be held to affect the decision of the trial Court. We think it should not, for not only did the learned trial Judge make no mention of it in his judgment and thus apparently did not rely on it as supporting his decision, but also there was (even excluding the appellants' extra-judicial statements, to which we shall presently revert) other ample and cogent evidence upon which to found the convictions and we are satisfied that no injustice was in fact occasioned by this relatively minor error.

The second question which we raised was as to the procedure followed at the trial when the admissibility of the appellants' extra-judicial statements was challenged, though without success. We have already quoted those statements verbatim. The procedure at the trial of this issue was almost identical with that adopted on the similar issue in the case in which we have just delivered our reasons for dismissing the appeal, Kinyori s/o Karuditu v. Reginam, Cr. App.

No. 551 of 1955. The only difference was that in the instant case each appellant, when testifying on the general issue after the return of the assessors to Court, was recorded as again expressing his denial of having made the statement attributed to him, though without the alleged reasons or circumstance to which each had testified when the assessors were absent, whereas in the previous case there was no record of any mention of the repudiation at any time when the assessors were present. In the instant case, when the issue was being tried in the assessors' absence, each appellant testified in effect that he had been tricked into signing a statement which he never made and which was totally inconsistent with what he had said.

When delivering our reasons in the previous appeal we expressed our view as to the impropriety of the procedure followed in that case, and what we there said applies here equally. However, as in the previous case, here also we do not think that the irregularity is of sufficient substance, even when coupled with the earlier error to which we have herein referred, to justify our setting aside the convictions. There seems to be no reason to doubt that the learned trial Judge, who saw and heard the appellants testifying in favour of excluding their extrajudicial statements, would have come to the same conclusion on that issue as he did. Moreover, regarding the evidence as a whole we came to the conclusion that, apart from any admission or confession made by either appellant at any stage, it was so convincing that section 381 of the Criminal Procedure Code clearly obliged us to dismiss these appeals.