Rex v Banha and Others (Cr. Conf. Case No. 57/35.) [1935] EACA 137 (1 January 1935)

# CRIMINAL CONFIRMATION.

Before SIR JOSEPH SHERIDAN, C. J., and GAMBLE, Ag. J.

### REX, Prosecutor

#### v.

# 1, NJEROGE WA BANHA; 2, KIMITA WA NJOMU; 3, MUTURI WA WANGANGA, Accused.

### Cr. Conf. Case No. $57/35$ .

- Evidence-Plea of accused, if one of not guilty entered, not to be used as evidence even if it amounts to an admission of guilț. - defence—Necessity calling—Section $\rm Witness$ $\quad\text{for}\quad$ $\quad\text{for}\quad$ 197 Criminal Procedure Code. - $Held$ (21-2-35).—That an inculpatory statement in answer to a charge cannot be used against an accused person if a plea of not guilty is entered. - Held Further.-When an accused person wishes to call a witness the witness should be called if it is reasonably possible to procure his evidence.

Bruce, Solicitor-General, for Crown.

JUDGMENT.—The evidence against the first accused supports the conviction. Apart from the question whether the evidence against the second accused is sufficient, there are two reasons why his conviction must be set aside, both reasons based on decisions. of the Court of Appeal for Eastern Africa. The first reason is that the magistrate took into consideration against him statements of an inculpatory nature derived from what he said when he was called upon to plead. In his summary of the evidence against him. he stated that he "paid a debt with maize morning after theft" and that he stated he had got the maize from the first accused's. This information is derived from what the accused said. hut. when called on to plead and in this connection the Court of Appeal. in Rex v. Primin bin Kunjanga (1935 2 E. A. C. A. 64) held "Thatan inculpatory statement in answer to a charge cannot be used. against an accused person if a plea of not guilty is entered." The $\sqrt{ }$ In the case before us a plea of not guilty was entered. second reason is that the accused was not given an opportunity of calling the witness upon whom he relied to establish his alibi. The magistrate in his judgment says: "Accused 2 produces an alibi which cannot be substantiated because his witness is and was at the time of the occurrence at Rumuruti over sixty miles. away". Whatever the information of the magistrate may have been the only legitimate way in which the truth of the alibi could. be tested was by hearing the witness, and thereafter arriving at-

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a conclusion on his evidence. In Rex v. Asmani s/o Likonia. Cr. App. $47/30$ , the Court of Appeal on this very point said: "There is nothing on the record to show that the witness would not have been available within a few days or even hours. The result has been that a witness whom one of the accused desired to have called has not been called and no explanation is forthcoming for the omission. It is to be regretted that the attention of the High Court was not directed to this point. This Court is unaware of the nature of the evidence which accused No. 3 expected this witness to give. The accused desired his evidence and he is entitled to have his evidence, if it were reasonably possible to secure it... In these circumstances there must be a new trial of the two appellants". Following the decision in this case in Rex v. Murray, Cr. A. No. 133/1932 the Court of Appeal said: "In our opinion the proper course for the magistrate to have adopted here was to adjourn the trial for a reasonable time in order that steps should be taken to procure the attendance of this witness. In cases of this grave nature every facility should be given to an accused person to produce his witnesses at the trial.'' In the case before us it was all-important that the accused should have been given an opportunity of proving his alibi and we have indicated the only mode by which the point could be determined. As the conviction of the second accused cannot stand for the reasons we have given, there is the question whether we should order a new trial, and after hearing the learned Solicitor-General, we have decided not to do so. The available admissible evidence being that of the first accused's concubine is not of such weight as to induce us to do so, the accused was not sentenced to a long term and he has already been in prison for over a month. Logically it follows that we should set aside the conviction against the third accused, for the evidence in our opinion is not sufficiently strong to support the conviction. The conviction and sentence in the case of the first accused are confirmed and those of the second and third accused are quashed, these accused being acquitted and directed to be released forth- $\quad\text{with.}$