Rex v Adika and Others (Criminal Appeals Nos. 109, 110, 111 and 112 of 1939) [1938] EACA 164 (1 January 1938)

# APPELLATE CRIMINAL

# Before SIR JOSEPH SHERIDAN, C. J., THACKER, J. AND SIR CHARLES BELCHER, Ag. J.

#### Rex, Respondent (Original Prosecutor)

### 1. ADIKA S/O NYANGWARA

## 3. KIBENI s/o MALALA

2. NYAMITA $s/o$ AMIMO 4. HONGO $s/o$ NGOYA Appellants (Original accused Nos. 3, 2, 1 and 5 respectively)

Criminal Appeals Nos. 109, 110, 111 and 112 of 1939

Criminal Law—Right of appeal—Confirmation—Whether order on confirmation bars right of appeal—Criminal Procedure Code, sections 11, 333 and 340.

Appellants sought to appeal to the Supreme Court from orders made against them in confirmation proceedings heard before two judges whereby the original sentences were reduced. A member of the Court raised the question as to whether, in view of sections 11 and 340 of the Criminal Procedure Code, there was such a right of appeal from the order made in the confirmation proceedings.

Held (21-9-39).—That an appeal lay from the order made in the confirmation proceedings.

Appellants absent Unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT.—A question has been raised by a member of the Court as to whether the appellant in this case has a right of appeal in the circumstances that the case has already been dealt with in confirmation. Learned Crown Counsel has submitted that the invariable practice has been that the right of an accused person to appeal. against a conviction prevails even though his sentence may have been confirmed. A majority of the Court are of the opinion that the dictum of Hamilton C. J. in Rex v. Sironga and Another, 7 E. A. L. R. 148 at p. 149 on this point should be followed and that the language of section 333 Criminal Procedure Code clearly supports that dictum and is of such an unequivocal nature as to make it clear that the right of appeal prevails despite any order made confirming the sentence and that, even though the Court sitting in confirmation may have consisted of two or more judges. This view is strengthened when it is considered that to take contrary view would be to deprive an accused person of a valuable right such as that of appeal. To take away such a right as according to section 333 an accused person possesses would require unequivocal language. On the point, did any doubt arise, and the majority view is that it does not, a construction favourable to the accused would have to be placed upon the relevant provisions.

Note.—The judgment was signed by Sir Joseph Sheridan, C. J. and Thacker, J.