Onkoba v Regina (Criminal Appeal No. 695 of 1951) [1952] EACA 326 (1 January 1952)

## APPELLATE CRIMINAL

## Before DE LESTANG, J. and WINDHAM, J.

OMORIBA s/o ONKOBA, Appellant (Original Accused)

**REGINA, Respondent (Original Prosecutrix)**

Criminal Appeal No. 695 of 1951

(Appeal from the decision of the Resident Magistrate's Court at Kericho, A. E. E. Reade, Esq.)

Criminal Procedure Code, section 197—Failure to comply—Whether invalidating proceedings.

The Magistrate having failed to record the evidence of witnesses in full and to write a judgment the question arose whether such failure invalidated the proceedings.

Held (22-2-52).—Failure to comply fully with the provisions of section 197 Criminal Procedure Code could not per se invalidate the proceedings so long as it had not occasioned a miscarriage of justice. Appeal dismissed.

Case referred to: Rex v. Hassam Merali, 13 E. A. C. A., page 85.

Appellant, absent, unrepresented.

Pearson, Crown Counsel, for Crown.

JUDGMENT.-The only point which has troubled us in this appeal is the failure of the learned Magistrate to comply strictly with the provisions of section 197 of the Criminal Procedure Code. He has neither recorded the evidence of the witnesses in full nor written any judgment. Section 194 of the Criminal Procedure Code prescribes the manner in which the evidence of witnesses shall be recorded, and in recording what appears to be merely the gist of the evidence the learned Magistrate has not complied with that section. Section 197 on the other hand provides that where evidence has been taken and not recorded there must be a judgment embodying the substance of such evidence. This the learned Magistrate has failed to do.

We are aware of the decision of the Court of Appeal for East Africa in Hassam Merali, 13 E. A. C. A. page 85, where it was held that a failure to comply fully with the provisions of section 197 of the Criminal Procedure Code could not per se invalidate the proceedings so long as it had not occasioned a miscarriage of justice. In other words if notwithstanding the failure of the Magistrate to comply strictly with the provisions of section 197 of the Criminal Procedure Code, there is material on the record on which the Court of Appeal can properly exercise its judgment, then in such a case the mere compliance with section 197 Criminal Procedure Code will not be fatal to a conviction since it would not have occasioned any failure of justice. The defect in the proceedings in such a case would be curable under section 381 Criminal Procedure Code.

Applying these principles to this case, we consider that the brief evidence recorded supported the conviction.

The appeal is dismissed.