Queen v M'ikobia (Emergency Assize Criminal Case No. 395 of 1954) [1954] EACA 159 (1 January 1954)

### ORIGINAL CRIMINAL

#### Before CRAM, Ag. J.

#### THE QUEEN, Prosecutrix

$\nu$ :

## M'IKIRIAMA s/o M'IKOBIA, Accused

# Emergency Assize Criminal Case No. 395 of 1954

Criminal Law—Evidence—Indian Evidence Act, section 25—Police Ordinance. 1948, section 2 and section 4—Kenya Police Force Reserve Ordinance, 1948, section 2—Kenya Police Force Reserve (Amendment) Regulations, 1952— Regulation 2 (1)—Reserve Police Officer having equivalent rank of Assistant Inspector in Regular Police Force—Whether confession taken by Reserve Police Officer may be proved in evidence.

A confession made to a Reserve Police Officer of a rank equivalent to Assistant Inspector is admissible in evidence.

Davis, Public Prosecutor, for the Crown.

Nene for accused.

RULING.—The point has been taken that an alleged confesion to a reserve police officer is inadmissible as evidence by reason of the provisions of section 25 of the Indian Evidence Act.

According to the interpretation clause, section 2 of the Kenya Police Force Reserve Ordinance, 1948, a "Reserve Police Officer" means a member of Kenya Police Reserve. There is no doubt therefore, that the witness in question is a police officer, although it is equally plain that he has not the same status as a regular police officer, for such is defined in the interpretation clause section 2 of the Police Ordinance, 1948, as "a member of the Kenya Police Force".

As the Indian Evidence Act stood before amendment, while confessions to police officers were perfectly lawfully received and legally capable of being recorded and preserved and used in the course of investigation of offences, none the less, without limit or qualification, any confession made to any police officer was declared inadmissible as evidence.

Section 25 of the Evidence Act was amended by Ordinance 39 of 1952 to read: "No confession made to a police officer shall be proved as against a person accused of any offence, unless such police offimer is of or above the rank of, or a rank equivalent to, Assistant Superintendent..." Subsequently for "Assistant Superintendent" was substituted "Assistant Inspector".

"Assistant Inspector" is defined as a subordinate officer of the Regular Police in section 4 of the Police Ordinance, 1948, so that this rank is distinguished from that of a "Reserve Police Officer".

By the Kenya Police Force Reserve (Amendment) Regulations, 1952<br>(Government Notice 996, vol. 31 Subsidiary Legislation, page 439), regulation 2 (1) it was declared that a Reserve Police Officer has the equivalent rank of Assistant Inspector in the Regular Police Force.

In that event, I rule that the evidence of this alleged confession is admissible on the ground that the police officer to whom it was made has the equivalent rank of Assistant Inspector, and so may prove the alleged confession in terms of section 25 of the Indian Evidence Act, as it now stands amended during the subsistence of the current Emergency Regulations.