Rex v Kadzanja and Another (Cr. App. Nos. 144 and 145/1935.) [1936] EACA 34 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and HALL, C. J. (Uganda) HORNE, J. (Kenya), and WEBB, J. (KENYA).

REX, Respondent (Original Prosecutor)

## SAULOS NDIMA and KADZANJA, Appellants (Original Accused).

Cr. App. Nos. 144 and 145/1935.

Criminal Procedure—Separate informations against two persons -Joint trial-Trial a nullity-Crim. Pro. Code (Nyasaland), Sec. 128A.

Held (18-2-36) - That, where separate informations were filed against two persons in respect of the same offence but both were tried together, the proceedings were a nullity and a re-trial was ordered.

(Crane v. Director of Public Prosecutions (1921 1 A. C. 299), R. v. Dennis and Parker (1924 1 K. B. 867), R. v. Kristofa Male s/o Nikodemu Kyononeka (1934 E. A. C. A. 151) followed.)

Appellants absent, unrepresented.

Harragin, K. C., A. G., Kenya, for the respondent referred to Archbold (28th Ed.) 210. R. v. Dennis and Parker (1924 1 K. B. 867), Crane v. Director of Public Prosecutions (1921 1 A. C. 299), R. v. Kristofa Male (1934 E. A. C. A. 151), R. v. McDonnell (20 Cr. App. R. 163), Kenya Order in Council, 1921, Art. 7. In the phrase, "such persons may be charged and tried together or separately," in Sec. 128A of the Nyasaland Crim. Pro. Code, the words "charged and tried" must be read together.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.)-Three separate informations were filed against three persons in respect of the same murder. Nevertheless all three were tried together and two of them were convicted, the third person being acquitted. Both convicted persons appealed and the Court has raised the question as to whether the trial was valid. The question being one of considerable importance it was deemed advisable to have it argued before a Bench of five judges. The Court had the advantage of having the question argued by the learned Attorney General of Kenya, who submitted that in view of the decisions in Crane v. Director of Public Prosecutions (1921 1 A. C. 299) and R. v Dennis and Parker (1924 1 K. B. 867) he was unable to resist the conclusion that the trial was a nullity, a submission with which we agree. This Court in the case of $R$ . $v$ . Kristofa Male s/o Nikodemu Kyononeka and another (1934 E. A. C. A. 151) following the English cases to which we have referred decided that where two persons committed for trial together were charged in separate informations but tried together and convicted, the proceedings were a nullity. The case was a Uganda case, but is authoritative for the reason that the law of Nyasaland on the point is identical with the law of Uganda, as is also the law of Kenya and Tanganyika. The present case cannot be distinguished from Kristofa Male's case (supra) which, assuming the Court of Appeal Law Reports to be available in Nyasaland, does not appear to have been brought to the notice of the learned trial judge. We set aside the convictions and order the appellants to be tried according to law. As to whether there should<br>be two separate trials or a joint trial on one information is a<br>matter for the Crown.