Rex v Ebeiyon (Criminal Appeal No. 92 of 1947) [1947] EACA 28 (1 January 1947)

## COURT OF APPEAL FOR EASTERN AFRICA

# Before Nihill, C. J. (Kenya), Sir G. Graham Paul, C. J. (Tanganyika) and EDWARDS, C. J. (Uganda)

# REX. Respondent (Original Prosecutor)

# EBEIYON s/o LOBOK, Appellant (Original Accused) Criminal Appeal No. 92 of 1947

(Appeal from decision of H. M. Supreme Court of Kenya)

Observations upon the propriety of noting upon the record that the Court recommends that mercy be shown.

### Appellant absent, unrepresented.

## Holland. Crown Counsel (Kenva) for the Crown.

JUDGMENT (delivered by NIHILL, C. J.).—We have considered this appeal on its merits although it was filed out of time. In his memorandum of appeal the appellant frankly admits that he killed the deceased as a reprisal for the killing of his brothers by men of the deceased's tribe. He also states that he was provoked into committing the offence, but it was not provocation of a kind that the law recognizes. The killings of his brothers took place some time before the appellant's attack upon the deceased, not in his presence, and not by the hand of the deceased. The appeal must be dismissed.

This trial was held in the Special District Court for the Northern Frontier District of Kenya and we note that the First Class Magistrate who tried the case and convicted the appellant has noted on the record that the Court recommends that mercy be shown. Whilst we can appreciate the reason that prompted the Magistrate to make and record this observation, we question its propriety. The Judge in every trial which results in the passing of a death sentence has a duty to report thereon to the Governor and to make such recommendations or observations on the case as he may think fit (vide section 329 (1) Kenya Criminal Procedure Code). It is not fitting and might prove embarrassing both to the Court and the Governor for a disclosure to be made to the public by the trial Judge in advance as to the nature of such observations.