Patel and Another v Reginam (Criminal Appeal No. 44 of 1956) [1950] EACA 536 (1 January 1950)

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

Before Sir Newnham Worley (President), Briggs, Justice of Appeal and FORBES. J. (Kenya)

## (1) RAOJIBHAI GIRDHARBHAI PATEL and (2) CHUNIBHAI PATEL, Appellants (Original Accused)

# REGINAM, Respondent

### Criminal Appeal No. 44 of 1956

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J., de Lestang and Edmonds, J. J.)

Conspiracy—Case stated from acquittal by Magistrate's Court—Whether charge of conspiracy a whole and indivisible transaction—Supreme Court order to Magistrate to consider corroboration having already expressed its own views-Variation of Supreme Court order-Preliminary objection on point of law—Kenya Penal Code, section 112 (a)—Kenya Criminal Procedure<br>Code, sections 265 (1), 367 and 371—Eastern African Court of Appeal Rules, 1954, rules 44 and 48 (g).

The appellants had been acquitted on a charge of conspiracy to defeat At the instance of the Attorney-General a case was stated for the justice. determination of certain points of law by the Supreme Court, which directed that the matter be remitted to the Magistrate's Court with the opinion of the Supreme Court on the points of law raised and with an order to the Magistrate to convict subject to certain observations on the question of corroborative evidence. The appellants appealed asking that the order of the Supreme Court be set aside and the judgment of acquittal affirmed. The facts are set out in the judgment.

Held (1-6-56).—(1) On a preliminary objection, while the Court will not allow a formal or technical objection to be taken for the first time on appeal it will not refuse to entertain an important point of substantive law.

(2) A charge of conspiracy is not a whole and indivisible transaction and as the Crown had proved an agreement between the appellants to do an unlawful act in respect of the persons specified in the charge, the charge was proved as laid.

(3) The Supreme Court was not justified in remitting the case to the Magistrate with a direction to consider the question of corroboration after itself expressing the<br>view that there was ample corroborative evidence, but the Court agreed that the facts found by the Magistrate disclosed ample corroboration of two witnesses who were accomplices.

Appeals dismissed but Supreme Court order varied by substitution of a mandatory order to the Magistrate to convict.

Cases referred to: Zaverchand Dhanji Shah v. R., E. A. C. A. Cr. App. No. 273 of 1955; R. v. Pollman, 170 E. R. 1139.

#### Sir Frank Soskice, O. C., and O'Donovan for appellants.

Conroy, Q. C., Solicitor-General, and O'Beirne for appellants.

JUDGMENT (prepared by Forbes, J.).—The appellants in this case were acquitted by the Resident Magistrate, Nairobi, in December, 1955, on a charge of conspiring to defeat justice contrary to section 112 (a) of the Penal Code. The first appellant was also acquitted on certain other counts, but they are not relevant to this appeal. At the instance of the Attorney-General the learned Magistrate stated a case under section 367 of the Criminal Procedure Code

submitting for determination by the Supreme Court of Kenya certain points of law in connexion with the charge of conspiracy. Upon consideration of the case stated the Supreme Court directed that the matter be remitted to the Magistrate's Court with the opinion of the Supreme Court on the points of law raised and with an order to the Magistrate to convict the appellants subject to certain observations in regard to the question of corroborative evidence.

From the determinations, directions and order of the Supreme Court the appellants have appealed to this Court, praying that the directions given and order made for the remission of the case to the Magistrate's Court be set aside and that the judgment of acquittal by the Resident Magistrate be affirmed.

The particulars of the offence of conspiring to defeat justice with which the appellants were charged were as follows:-

Raoiibhai Girdharbhai Patel and Chunibhai Patel between the 4th and 24th day of October, 1955, at Nairobi in the Nairobi Extra-Provincial District conspired together and with other persons unknown to obstruct. prevent, pervert, or defeat the course of justice by causing V. M. Browse, F. W. Loebinger, P. Foale, B. Factor, R. Gross, W. Diamant, J. E. Turner,<br>T. Carter, N. M. Vincent, P. Stewart, F. A. Grammenopoulous, H. V. Wood, E. F. Sauvage, M. E. Cox, M. Notkin, V. R. R. Preston, J. Hunt, P. M. Shaw, I. Maclennan, J. Roberts and P. Katzler to be summoned as jurors at the Supreme Court in Nairobi on the 24th day of October, 1955, the. said persons not having been chosen by law as jurors in the Supreme Court.

The charge arose out of events which took place in connexion with the impending trial on criminal charges of two persons, Whipp and Shariff, which was due to commence on 24th October, 1955. The following brief history of these events is taken from the judgment of the Supreme Court upon the case stated, the references to the respondents of course being references to the appellants in this Court:-

"The first respondent, Raojibhai Patel, was at all material times the senior clerk in charge of the criminal side of the Resident Magistrate's Department in the Law Courts in Nairobi. The second respondent, Chunibhai Patel, is a City Councillor, a building contractor and a member of the Finance Committee of the City Council. One Harold Whipp was the Water Engineer to the City Council and one Chaudhary Mohamed Shariff is a member of a firm of contractors who had had contracts from the City Council. In October, 1955, Whipp and Shariff had been committed to the Supreme Court to stand their trial on certain criminal charges relating to contracts in which Whipp was alleged to have certified payments as due by the City Council to Shariff's firm which were greatly in excess of the amounts actually due. The trial of Whipp and Shariff before a Judge and jury was due to commence on 24th October, 1955.

On 28th September, the Deputy Registrar of the Supreme Court, acting under section 265 of the Criminal Procedure Code, signed a letter addressed to the Resident Magistrate, Nairobi, requesting him to issue 200 juror summonses for the Whipp and Shariff case. There are several Resident Magistrates in Nairobi and the practice is for jurors' numbers to be drawn by ballot by the Magistrate who, having conducted the preliminary inquiry, has committed the accused concerned to the Supreme Court. In this instance the committing Magistrate was a Mr. Sampson. On 30th September the first respondent approached Mr. Sampson and asked him to draw the numbers for the jury panel. Mr. Sampson said he would do $\infty$ on 4th October.

Meanwhile, according to the prosecution case, the first respondent, the second respondent and one Ramanbhai Patel (the senior clerk on the civil side of the Resident Magistrate's Courts Department) had been having conversations as to the possibility of arranging that the panel of jurors to be summoned for the Whipp and Shariff trial should be composed of persons who might be expected to be favourably inclined towards Whipp.

On 4th October, Whipp went to the office of the second respondent and was there given by the second respondent a copy of the official jury list containing the names (but not the numbers) of the 5,975 persons liable for jury service in the Colony. This copy had been abstracted from the Court and given to the second respondent by the first respondent and Ramanbhai. The second respondent told Whipp to select 50 jurors from this list, and Whipp did, marking off 50 or 51 names.

On 4th October, Mr. Sampson, with the aid of his African clerk, drew 200 jurors' numbers and made a list of them. The African clerk gave this list to the first respondent, who passed it on to another clerk, Lugwire, together with the official jury list in order that juror summonses might be prepared. The official jury list contains jurors' names and the juror number allotted to each juror. The first respondent told Lugwire not to bother with 39 of the numbers, so that only 161 summonses were typed. These were signed by Mr. Sampson on 8th October. The first respondent kept them on his table (where they were afterwards found by the police) and made no attempt to have any of them served.

By 8th October the first respondent had received from Ramanbhai the copy of the official jury list upon which Whipp had made his 50 or 51 selections. Notwithstanding that no authority to summon extra jurors had then been obtained from the Registrar, the first respondent went to Mr. Sampson and informed him that only 17 of the previous summonses could be used and asked that 50 more should be drawn. Mr. Sampson agreed that he would do this on 11th October.

The first respondent ascertained the official numbers of Whipp's nominees by consulting the official jury list. He and Ramanbhai then set out to extract these numbers from a large envelope which contained thousands of jurors' numbers written on slips. Lack of time prevented their extracting more than 20 of the numbers of Whipp's nominees. These 20 numbers were put in a separate envelope.

Meanwhile, Ramanbhai was giving information to the police of what $Mr.$ Sampson was informed of what was afoot and a trap was occurring. was laid for the respondents. When the first respondent appeared in Mr. Sampson's chambers on 11th October, to help to draw the extra 50 jurors (whom he had represented to be necessary to summon), Mr. Sampson had been informed of the plot and had been equipped by the police with a wire-recorder. Mr. Sampson drew 50 jurors' numbers and, as he drew each number, he read it out to the first respondent who noted each number on a white piece of paper. Mr. Sampson made no note of the numbers, relying on the machine to record them. The first respondent took the piece of white paper away together with 50 slips bearing the numbers of the jurors drawn that day. Later the first respondent gave to Lugwire a blue piece of paper containing 50 numbers (referred to hereinafter as the blue list). Lugwire prepared juror summonses from the blue list. Mr. Sampson signed them, and 21 of them were served.

The blue list handed to Lugwire by the first respondent on 11th October contained 48 of the numbers of the 50 or 51 jurors whom Whipp had selected on 4th October. Of these jurors 21 were served.

The copy of the official jury list with the names marked by Whipp was found by the police in a drawer in the office table of the first respondent.

It was the Crown case that none of the 50 numbers on the blue list given to Lugwire by the first respondent had been drawn by Mr. Sampson: the first respondent having substituted for the numbers drawn by Mr. Sampson numbers corresponding to Whipp's selections."

At the trial of the appellants the prosecution sought to put in evidence the wire-recorder and its recording to prove that the numbers on the blue list were not the numbers drawn by Mr. Sampson, and much of the argument both in the Magistrate's Court and the Supreme Court related to the question of the admissibility of the recorder, recording and transcriptions of the recording. The Magistrate excluded this evidence at the trial, but the Supreme Court ruled that, where a proper foundation has been laid, such evidence is admissible and a recording may be played back in Court. We agree with this view, which was not challenged in this Court, but for the purposes of this appeal the ruling is not material since the Supreme Court did not direct a rehearing with the recording admitted.

In the absence of the wire-recorder and its recording the Magistrate acquitted the appellants on the basis that they were charged with having "caused some 21 named jurors to attend the Court when the 21 had not been chosen by law to attend", and that the Crown had "failed to prove beyond all reasonable doubt that these 21 named jurors were not chosen by law".

Apart from the question of the admissibility of the wire-recorder and recording, the other points of law raised on the case stated, and the answers. of the Supreme Court thereon, were as follows:-

- Question (1): Having found that there was a conspiracy to defeat the course of justice and that the conspirators included the two accused. was the learned Magistrate correct in acquitting the accused? - Answer (1): In order to convict the two accused it would not have been sufficient to find that there was a conspiracy to defeat the course of justice and that the conspirators included the two accused. In order to justify their conviction the Magistrate must find the conspiracy laid, that is a conspiracy entered into between 4th and 24th October, 1955, in which both the accused were participants, to defeat the course of justice by causing the 21 named persons to be unlawfully summoned as jurors on 24th October. The findings of the learned Magistrate<br>do amount to this. Even if it be assumed in favour of the accused, that the words "not having been chosen by law as jurors in the Supreme Court" constituted a statement of fact to be proved, that fact was proved. Accordingly, subject to the matter of corroboration, the Magistrate's acquittals of the accused were incorrect. - Question (2): The charge being conspiracy to defeat justice was the learned Magistrate correct in directing himself that the charge against the two accused is that they caused some 21 named jurors to attend the Court when the 21 had not been chosen by law to attend?

Answer $(2)$ : No.

Question (3): Was the learned Magistrate correct in deciding that the Crown's case depended upon whether it could prove that the jury numbers of the 21 persons named in the charge were not drawn by : Mr. Sampson on 11th October?

Answer $(3)$ : No.

*Question* (4): (In view of the answers to questions $(1)$ , $(2)$ and $(3)$ , this does not arise.)

- Question (5): Was the learned Magistrate correct when applying his mind to the question before him, in reaching the conclusion that the prosecution had failed to prove the charge and was not the only conclusion to be drawn from the facts that the accused were guilty? - Answer (5): In addition to applying his mind to the question before him, the learned Magistrate erroneously applied his mind to a question which was not material, namely whether the 21 named jurors had been lawfully chosen by Mr. Sampson on 11th October or not. If he had not made this error he must, on the facts which he found (subject to what is said on the matter of corroboration), have convicted both the accused on count 4. Moreover, as Mr. Sampson had not been requested by the Registrar under section 265 Criminal Procedure Code to choose the 50 additional jurors the 21 named persons chosen as jurors on 11th October were not chosen in accordance with law. Therefore (subject again to the matter of corroboration) the Magistrate should have found both the respondents guilty, even on his own construction of the charge."

The Supreme Court then made the following order:—

"Under section 371 of the Criminal Procedure Code the matter is remitted to the subordinate court with the opinion of this court upon the questions arising on the case stated, set out as above, and with an order to the Magistrate:-

- (1) that if, before making the findings of fact set out in his judgment he directed himself that the evidence of Whipp, Ramanbhai and Shariff was accomplice evidence and that it was dangerous to convict thereon without corroboration, and he considered the corroborative evidence and found it sufficient, he should record that fact and proceed to convict both the accused on count 4 and pass appropriate sentences; - (2) that if he did not, before reaching his findings of fact, direct himself as above and consider the corroborative evidence, he should now so direct himself and record that he has done so and proceed to consider the corroborative evidence which exists, and - (a) if his conclusions of fact remain unaltered, he should proceed to convict both the accused on count 4 and pass appropriate sentences, and - (b) if his conclusions of fact are altered, he must consider whether, in the light of this judgment, the acquittals on count 4 can stand or whether he should convict both the accused on count 4 and pass appropriate sentences, and, if the latter, he should act accordingly."

The points argued on behalf of the appellants upon the hearing of the appeal to this Court were as follows:-

(a) that the conspiracy charged in the Particulars of Offence was not established in that neither the facts found by the Magistrate nor the evidence given at the trial suggested that there was any agreement or conspiracy between the appellants to cause the particular 21 persons mentioned in the charge to be summoned as jurors;

- (b) that the conspiracy charged in the Particulars of Offence was not established in that the evidence did not suggest that the appellants at any time conspired with any "persons unknown" to cause any jurors to be summoned: - (c) that the construction placed on the wording of the charge by the learned Resident Magistrate was correct and that the answers of the Supreme Court to the second and third questions in the case stated were wrong and should be set aside: - (d) that the charge must be construed according to the ordinary meaning $(d)$ of the words used without looking at the evidence, and that any ambiguities apparent in it must be construed against the Crown; - (e) that if the construction placed on the charge by the Magistrate is accepted, the facts advanced for holding that Mr. Sampson was acting without lawful authority when selecting the 50 names were mere technicalities and should be ignored; and - (f) that the Supreme Court erred: - (i) in holding that the Magistrate must have considered the question of corroboration; - (ii) in expressing a view on the existence and the sufficiency of the corroborative evidence; - (iii) in requiring the Magistrate to consider the question of corroboration after having expressed views in terms which made it virtually impossible for the Magistrate to exercise his own discretion in the matter.

As regards point $(a)$ —which was the principal ground upon which the appellants relied—two points in the nature of preliminary objections were taken by the Solicitor-General for the Crown although he did not raise them as such, but in the course of his general address. The objections were (i) that the point that no conspiracy was proved to summon the particular 21 persons named in the charge was a new point which had not been taken either at the trial or in argument on the case stated to the Supreme Court and that it was now too late to take it; and (ii) that the point was not raised on the Memorandum of Appeal and that therefore it was not open to the appellants to argue it.

As to the second objection, the Court intimated that had it been raised at the outset, as would have been preferable, leave to amend the grounds of appeal would have been granted, and that the Court would treat the matter as if this had been done.

As to the first objection, we were assured that, though the point is not wholly clear on the record, Mr. O'Donovan did in fact argue the point both at the trial and before the Supreme Court, though as a subsidiary point, and we accept that assurance. In any event, although the Court will not allow a formal or technical objection to be taken for the first time on a second appeal, it will not refuse to entertain an important point of substantive law: Zaverchand Dhanji Shah v. R., E. A. C. A. Crim. App. 273 of 1955. It appears to us that the point taken here is a substantial one which it is expedient for us to consider.

For the appellants it was urged that there was no finding by the Magistrate that the particular persons named in the charge were agreed upon by the two appellants as the persons to be summoned; that the Magistrate's finding was that there was a conspiracy to summon a suitable number of jurors out of the fifty drawn by Whipp and that this is quite different from a conspiracy to

summon 21 named persons; that on the facts found by the Magistrate it was impossible for there to have been any agreement between the appellants as to the summoning of the particular persons named in the charge since the second appellant took no further part in the matter after 4th October and the selection of the particular 21 persons did not take place until 11th October; that the summoning of the 21 named persons was a unilateral act on the part of the first appellant, admittedly undertaken in execution of the conspiracy to defeat justice entered into between the two appellants, but not itself the subject of any specific agreement between them; that it is trite law that a charge of conspiracy must be proved as laid, that the defect in the charge is no mere error of description; and that the appellants are accordingly entitled to acquittal.

The appellants in effect seek to treat the conspiracy as one whole and indivisible transaction. It does not follow, however, that an agreement on a particular matter is necessary indivisible. An agreement as a whole may comprise agreement on a number of component factors. In the instant case the Magistrate found that there was a conspiracy to rig the jury in the Whipp and Shariff trial by causing certain persons selected by Whipp to be summoned as jurors. There were 50 or 51 names selected by Whipp, and in our view the conspiracy found necessarily comprised an agreement between the appellants in respect of each of the persons so selected. The charge laid against them included the 21 persons, all of whom had been "ticked" by Whipp, and who were actually summoned in pursuance of the conspiracy entered into by the appellants. It appears clear to us on the facts found that the agreement between the appellants included each and all of these persons. We agree that a charge of conspiracy must be proved as laid, but we are of the opinion that the Crown proved an agreement between the appellants to do an unlawful act in respect of the persons specified in the charge.

The fact that the proof adduced by the Crown indicated that there was also agreement between the appellants in respect of other persons in addition to those mentioned in the charge is in our view immaterial. The Magistrate found that the object of the conspiracy was that the jury of five who should try Whipp and Shariff was to consist of any five out of the 50 persons chosen by Whipp, and that this was to be effected by seeing that no persons other than those 50 should be summoned to act as jurors. Any combination of names within the 50 and any number of persons within the 50 might be summoned. It was contemplated and agreed that some of the 50 should be so summoned, and in pursuance of the agreement one of the conspirators caused these 21 to be summoned. That exactly complied with the general plan. It was one of a large, but mathematically ascertainable, number of methods, all within contemplation as methods of achieving the object, and all equally part of the conspiracy. The worst that can be said of this charge is that it refers to the one method finally adopted, and not to other methods not adopted. The conspiracy charged was one to pervert the course of justice. This object was proved, as also was the method alleged and in fact adopted to bring about the result. We are of opinion that the charge was proved as laid in so far as it relates to the 21 named The first submission argued on behalf of the appellants accordingly persons. fails.

The next point argued on behalf of the appellants urged that the charge had not been proved as laid since the appellants were charged with conspiring together and "with other persons unknown" though there was no suggestion in the evidence of the existence of any unidentified party to the conspiracy. We are of the opinion that there is no substance in this point. It is stated in Archbold's Criminal Pleading, Evidence and Practice (33rd ed.) at p. 1485 that

"where several persons are charged with conspiring together, a verdict is not repugnant which finds that some, but not all, conspired as alleged, the principle... being that, where there are two or more persons charged with conspiracy in the same count, the count is a single and complete count and is sustainable by a finding that two or more agreed to conspire, although the jury find that the others were not parties to the agreement". This statement is supported by the case R. v. Pollman, 170 E. R. 1139, cited on behalf of the appellants in support of the proposition that a charge of conspiracy must be proved as laid. In that case one of four persons indicted on a charge of conspiracy was acquitted but the other three were nevertheless found guilty. The principle stated must apply equally where named persons are charged with conspiring together and with persons unknown, and a conviction of the named persons will be good although the finding negatives the participation of any "person unknown" in the conspiracy. Further, on any view, this point is the merest technicality for it has never been suggested that the appellants were in any way misled or prejudiced by the inclusion of these words in the particulars. This ground of appeal accordingly also fails.

The third, fourth and fifth points argued on behalf of the appellants relate to the construction to be placed on the wording of the charge and can conveniently be taken together. It was urged, as had been urged before the Supreme Court, that the inclusion of the words "the said persons not having been chosen by law" in the charge meant that the conspiracy laid was that the conspirators agreed to have persons summoned as jurors whom they knew had not been chosen according to law, whereas it was clear on the evidence that it was immaterial to the conspirators whether or not any of the persons they desired to be summoned should chance to be lawfully chosen as a juror.

We cannot agree with this submission, and we concur with the view taken by the Supreme Court that the words "not having been chosen by law as jurors in the Supreme Court" are part of the particulars of the plot alleged and a description of what the conspirators agreed to do in futuro. We also concur with the view of the Supreme Court that the absence of a written request from the Registrar to the Magistrate, as required by section 265 (1) of the Criminal<br>Procedure Code, in respect of the drawing of the 50 names on 11th October was not a mere technical defect, and that none of the 21 named persons was in fact lawfully chosen by Mr. Sampson. It is clear on the facts found that on 11th October Mr. Sampson was acting in collaboration with the police and that the drawing undertaken by him on that day was not a drawing of jurors' names in the ordinary course of law. The suppression of the original 200 names lawfully drawn and the request to draw a further 50 names were unlawful acts done directly in furtherance of the unlawful object. The absence of authority from the Registrar to draw further names, so far from being an accidental technical defect, was a necessary element of the plan, for if such authority had been sought inquiries might well have been made and have disclosed the suppression of the original 200 names. Therefore, even if the construction of the charge for which the appellants contend were to be accepted, the necessary facts to establish the charge as laid were found by the Magistrate. Accordingly these grounds of appeal also must fail.

The last ground of appeal argued relates to the consideration of the question of corroboration by the Supreme Court and its finding and order thereon.

Having considered and answered the questions of law raised on the case stated, the Supreme Court went on to consider the question of corroboration. In so far as the case for the Crown against the appellants rested on the evidence of accomplices it would clearly have been necessary for the Magistrate, had he

contemplated convicting the appellants at the trial, to give himself a proper direction on the question of corroboration. Since, however, he was about to acquit, the question of corroboration was not at first relevant and he cannot be blamed for failing to direct himself on the matter in the judgment itself. In the circumstances, although the question of corroboration did not arise directly upon the case stated, we think that it was proper for the Supreme Court to consider whether the facts found by the Magistrate disclosed the existence of corroboration. If the Court was satisfied that facts found by the Magistrate amounted in law to corroboration, it was, in our opinion, entitled to find accordingly and to remit the matter to the Magistrate with a direction to convict. We think, however, with due deference, that the Supreme Court was not justified in remitting the case to the Magistrate with a direction to consider the question of corroboration after itself expressing the view that there was ample corroborative evidence. We agree with the submission that such a direction, while not technically binding the Magistrate to convict, would put him in a position where it would be a matter of great embarrassment for him to disagree, and in fact would render it very difficult for him to act independently.

However, we entirely agree with the view taken by the Supreme Court that the facts found by the Magistrate disclose ample corroboration of the evidence of the two accomplices, Whipp and Ramanbhai, and as we indicated at the close of the argument, we propose to vary the order of the Supreme Court by substituting a mandatory order to the Magistrate to convict the appellants.

Another argument leads us to the same conclusion. Although it was not necessary for the Magistrate to consider corroboration for the purpose of acquitting the appellants, it was necessary for him to consider it as soon as he was asked to state a case and proposed in doing so to state findings adverse, or potentially adverse, to the appellants. The Magistrate was fully aware that on those findings he might be directed, on a certain view of the law, to enter convictions, and that in consequence he could not include adverse findings in the case on a mere balance of probability, but must be satisfied of their truth with exactly the same precision as if he were himself going to convict on the same findings. If he required corroboration in order to convict, he required it equally at that stage for purposes of the case stated. It might have been desirable to mention corroboration in the case. However, it is neither necessary nor usual to give reasons in detail for one's findings in a case stated, and we think an appellate Court should assume that findings set out therein are properly based, unless there is good reason to think otherwise. Since ample corroboration existed and the status of the accomplices was not in doubt, we prefer to assume that the Magistrate duly considered the need for corroboration and found the corroboration sufficient for the purpose of his findings.

It was suggested in argument that it was not open to this Court on an appeal from a case stated to act on the provisions of section 381 of the Criminal Procedure Code, which relates to the dismissal of appeals based on error, omission, irregularity or misdirection not in fact occasioning a failure of justice. In the view we have taken of this case there is no necessity to have recourse to this section. We have, however, considered the matter and have come to the conclusion that the provisions of the section are applicable to an appeal before this Court from a case stated. It was argued that the section only applies to the Supreme Court but this is clearly wrong. Paragraph (c) of section 381 in particular must of necessity apply to appeals from the Supreme Court to this Court. In any case similar power to dismiss an appeal where no substantial miscarriage of justice has occurred is expressly conferred on the Court of Appeal in respect of second appeals in criminal matters by rules 41 and 48 (g) of the Eastern African Court of Appeal Rules, 1954.

As we have already indicated, and for the reasons set out above, the appeal must be dismissed. We think it proper, however, to vary the first and fifth answers of the Supreme Court on the case stated as follows:-

- Answer (1): In order to convict the two accused it would not have been sufficient to find that there was a conspiracy to defeat the course of justice and that the conspirators included the two accused. In order to justify their conviction the Magistrate must find the conspiracy laid, that is a conspiracy entered into between the 4th and 24th October, 1955, in which both accused were participants to defeat the course of justice by causing the 21 named persons to be unlawfully summoned as jurors on the 24th October. The findings of the learned Magistrate do amount to this. Even if it be assumed in favour of the accused that the words "not having been chosen by law as jurors in the Supreme Court" constituted a statement of fact to be proved, that fact was proved. Further, in order to justify conviction, the Magistrate should have directed himself on the question of corroboration of the evidence of While the matter did not arise on the judgment of accomplices. acquittal entered by the learned Magistrate, the findings of fact are such that no reasonable Magistrate could have failed to find the existence of overwhelming corroborative evidence. In addition, on the wording of the case stated, we are prepared to assume that the Magistrate did. before setting out his findings therein, consider the question of corroboration. Accordingly the Magistrate's acquittals of the accused are incorrect. - Answer (5): In addition to applying his mind to the question before him, the learned Magistrate erroneously applied his mind to a question which was not material, namely whether the 21 named jurors had been lawfully chosen by Mr. Sampson on the 11th October or not. If he had not made this error he must, on the facts which he found and in view of the overwhelming corroborative evidence available, have convicted both the accused on count 4. Moreover, as Mr. Sampson had not been requested by the Registrar under section 265 of the Criminal Procedure Code to choose the 50 additional jurors, the 21 named persons chosen as jurors on 11th October were not chosen in accordance with law. Therefore the Magistrate should have found both the respondents guilty, even on his own construction of the charge.

The order of the Supreme Court also is set aside and the following order substituted therefor: -

Under section 371 of the Criminal Procedure Code the order of acquittal entered by the Resident Magistrate in respect of both appellants on the fourth count is set aside and the matter is remitted to the subordinate Court with the opinion of the Court upon the questions arising on the case stated and with an order to the Magistrate who tried the case to convict both the accused on count 4 and pass such sentences according to law as he shall think appropriate.

And lastly we order that the appellants be remanded in custody in Her Majesty's Prison at Nairobi until required to appear before the Resident Magistrate for conviction and sentence as aforesaid.