Rex v Amimi (Cr. App. 78/1933.) [1933] EACJ 6 (1 January 1933)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J., THOMAS, and LucrE-SMrra, J. J. (Kenya).

REX *(Respondent)*

## *V.* OBAU S/O AMIMI *(Appellant).*

- Cr. App. 78/1933.

Criminal Procedure Code, section 282 (2)—Absence of assessors during the trial.

*He id* **(21-7-33).—That in this case throughout the trial the sssne two assessors were present.**

*Branigan, Acting Crown Counsel, for Crown.*

*Accused absent, unrepreBented.*

From the record it appeared that in the course of the proceedings two of the three assessors were absent. At the commencement of the trial, one of the assessors called by the Registrar was absent. The services of a third assessor were requisitioned from the members of the public in the vicinity of the Court. After the adjournment, the assessor whose services had been requisi tioned was late and the proceedings continued.

The trial Judge's record of the facts led to the misapprehen. sion that of the three assessors who had taken their places at the beginning of the trial two had been absent at different stages.

The Court admitted an affidavit of the Registrar, who was present throughout the trial in the lower Court, from which it appeared that the first and second assessors were in fact present throughout the trial, and in the circumstances held that the provisions of section 282 had not been departed from.

JUDGMENT.—The only point in this appeal is whether or not there were the same two assessors present during the whole of the trial. From the judge's notes, this fact was not clear. On page 3 of the typed copy appears this note: " Registrar informed us Assessor No. 2, Orike, not present; duly summoned. Order: Notice to show cause why absent assessor should not be fined Sh. 20 for absence when summoned: section 257, C. P. C."

The trial then proceeded.

On page *5* appears the following: " Assessor No. 2, Orike, now present. Called upon to show cause, states: I was late; that is all I have to say.' This assessor fined Sh. 5; section 257,

C. P. C. Assessor Okello s/o Anyango now absent. Under section 282 (1), C. P. C., the trial is continued in the presence of the remaining two assessors only."

It will be seen that Orike's name does not appear in the list of assessors chosen as one of such assessors.

The second assessor in such list is Yoremini s/o Oyugi.

The learned Crown Counsel, appearing for the Crown, has lodged an affidavit by the Registrar of the Court, from which it appears that the assessor, Orike, who was absent and fined, was an assessor summoned, but who through his absence was not selected to sit.

It is therefore now clear that assessors 1 and 2, i.e. Sotel and Yoremini, were present during the whole of the trial, which was accordingly regularly held.

The evidence supports the conviction. The appeal is dismissed.