Rex v Deaf and Dumb (Criminal Case No. 75 of 1947) [1947] EACA 82 (1 January 1947)

# ORIGINAL CRIMINAL

#### Before BOURKE, J.

### REX, Prosecutor

### $\nu$ .

# DEAF AND DUMB, Accused

# Criminal Case No. 75 of 1947

# Criminal Procedure—Accused deaf mute—Unable to understand proceedings— S. 167 Criminal Procedure Code—Power of Supreme Court.

The facts appear fully from the judgment.

Held (18-4-47).—That the discretion, given to the Supreme Court to pass such orders as it thinks fit in proceedings referred to it under section 167, Criminal Procedure Code, where an accused person has been unable to understand the proceedings in the lower Court, is a very wide one and is not restricted to the making only of an order that the accused be detained during His Excellency the Governor's pleasure.

R. v. Kibet Arap Kibor 19 K. L. R. 100; referred to.

[Editor.—In so far as the headnote in $R$ . $v$ . Kibet Arap Kibor suggests that the only order which the Court may properly make is that the accused be detained during the Governor's pleasure, it is inaccurate.]

Ebblewhite, Ag. Crown Counsel, for the Crown.

# Accused in person.

ORDER.—The accused is a deaf mute who has been convicted of the offence of robbery with violence, contrary to section 289 of the Penal Code, by the Magistrate's Court, Nairobi. The magistrate sentenced the accused to three years' imprisonment with hard labour. The accused appealed and in the result the senence was set aside and the case remitted to the magistrate to furnish a report in accordance with section 167 of the Criminal Procedure Code. That report has now been supplied and it rests with this Court to make such order as it thinks fit. No question of insanity has arisen in the proceedings and it is evident that the magistrate was able to communicate with the accused as to the nature of the physical acts alleged against him and the evidence led to substantiate those acts. As the magistrate remarked in his judgment "fortunately it was a case which lent itself to easy demonstration by signs", and in his report to this Court he refers to the physical acts aforesaid as "picking a man's pocket, hitting him on the head and running away". One may also refer to the memorandum of appeal from which it appears that the accused had a grasp of the circumstances put forward against him at the trial. But the accused could not be made to understand the proceedings within the meaning of section 167. It was, for instance, found impossible to convey to him his rights under the Criminal Procedure Code, particularly regarding the cross-examination of witnesses, his rights under section 209, and the right to call witnesses in his defence.

It is submitted on behalf of the Attorney General that the proper order to make is that the accused be detained during the pleasure of His Excellency the Governor and I am referred in support to the decision of this Court (Lucie-Smith and Hayden, JJ.) in Rex v. Kibet Arap Kibor 19 K. L. R. 100, where a similar proposition was accepted and the order made. But it is evident that the wide discretion given to the Court under section 167 is not limited to the making of such an order and reference to Sohoni (12th Ed.) p. 759, will disclose the various forms of order that have been made by the High Court in India under section 341 of the Indian Criminal Procedure Code, which corresponds in identical terms with our section 167. But in the absence of any special circumstances I am of the opinion that the appropriate order in the instant case is that suggested by the Attorney General. It is accordingly ordered that the accused be detained during the pleasure of His Excellency the Governor.