Rex v Karanja (Cr. App. 126/1933.) [1937] EACA 74 (1 January 1937)

#### COURT OF APPEAL FOR EASTERN AFRICA.

### Before ABRAHAMS, Ag. P., C. J. (Uganda), LUCIE-SMITH, Ag. C. J. (Kenya), and Horne, J. (Kenva).

#### $REX$ (Respondent)

$\boldsymbol{v}$ .

#### KANGARA S/O KARANJA (Appellant).

Cr. App. 126/1933.

Evidence at trial.

Held (2-1-34).—That a trial Judge is not entitled to import into his<br>judgment facts of which no evidence was given at the trial, but<br>which appear from the committal proceedings.

Branigan for Crown.

Accused absent, unrepresented.

Branigan.—The evidence at the trial before the Supreme Court would justify this Court in finding that there had been grave and sudden provocation.

JUDGMENT.—In this case we are faced with a preliminary difficulty in that the learned Acting Judge has imported into his judgment facts of which no evidence was given at the trial. He states that the deceased before his death is alleged to have told several witnesses that accused had caused his wound, and in another place he states that the witness Nzau went and saw the deceased, who made a dying statement to him incriminating the accused. No such evidence appears on the record, and it seems to us that the learned Acting Judge studied the depositions and assumed it to be sufficient for his judgment that this evidence had been given in the lower Court. Again he states that the woman Wanjuki supports the evidence of Musengo, the only eye-witness. But Wanjuki, despite her corroborative evidence in the lower Court, was for some reason which we are unable to understand merely offered for cross-examination at the trial.

It is, to say the least of it, not improbable that the unjustified assumption that the above-mentioned facts had been proved aided the learned Acting Judge to arrive at a finding adverse to the accused. The question for us then is whether the learned Acting Judge would in all reasonable probability have come to the same conclusion without such an assumption, and if so whether he ought to have come to such a conclusion on the evidence properly admitted. This depends upon what credence he gave to the evidence of the eye-witness, Musengo. On a study of the judgment we think that he believed that Musengo was telling the truth, and that he came to that conclusion independently of any extraneous influence. We are of the further opinion that he ought to have accepted Musengo's evidence, as the only alternative conclusion that he could have arrived at would have been

that Musengo himself or one of his party killed the deceased, and this appears to us not to have been reasonably possible.

There is, however, the further question as to whether the conviction for murder ought to stand. The learned Acting Judge appears not to have rejected the hypothesis that the unjustified removal of the woman by the askaris might have deprived the appellant of self-control, but he says that the accused has said that he felt no resentment at the woman going with the askaris. and that it has not been shown that the provocation, if any, was so sudden as to rouse the accused to passion, and that moreover. if he felt any such passion, there would have been time for it to cool. He considered that the onus of proving extenuating circumstances which was upon the accused had not been discharged by him.

Now it has been laid down time and time again by the Court of Appeal in England, and we respectfully agree with the dictum, that a judge in a trial for murder is bound to direct the jury to consider any facts in the evidence led for the Crown which might tend to reduce the offence to manslaughter, whether or no the accused asks for such a verdict. That the accused says he felt no resentment at the woman going with the askaris is hardly surprising, since his defence is a complete denial of the violence alleged against him.

We can see nothing in the evidence which appears to us to justify the learned Acting Judge in holding that if the accused felt any passion there would appear to have been time for it to cool. The only eye-witness of the affair, Musengo, who was with the group which took charge of the woman, merely says the accused ran away, and that he and the others then took the woman and found accused later on waylaying them with the billet of wood he flung at the deceased.

There is nothing in the evidence which enables us to ascertain the probable time which elapsed between the escape of the appellant and the fatal blow, nor are we anywhere informed when the appellant first knew that the woman had been taken away. The learned Acting Judge has, in our opinion, omitted to consider properly the question of provocation. This might be the ground for a re-trial in other circumstances, but we have examined the billet of wood which it is said was flung at deceased from five paces away. Taking into consideration the object employed, the method of employment, and the circumstances of employment, we are of opinion that there can be no reasonable certainty that the appellant meant or was likely to cause death or grievous harm. As we have said above, we have no grounds for interfering with the finding that the appellant killed the deceased in the way alleged, but we reduce the conviction from murder to manslaughter and sentence the appellant to five years' imprisonment with hard labour.

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), LUCIE-SMITH, Ag. C. J. <sup>1</sup> (Kenya), and Horne, J. (Kenya).

### $REX$ (Respondent)

# AHMED'BIN ABDUL HAFID (Appellant). Cr. App. 144/1933.

Defence of alibi-Age of accused-Section 25 (2) of the Penal Code.

$Held$ (2-1-34).—That the defence of an alibi should be disclosed at the earliest possible opportunity.

(2) That the age of an accused person is a matter which by<br>statute is left to the opinion of the trial Judge, and where this<br>opinion is arrived at judicially this Court will not as a rule interfere.

"Branigan for Crown.

Malik for Appellant.

JUDGMENT. In this case, the Crown produced a very strong body of evidence against the appellant.' A reason was adduced for his being outside the house of the victim of the crime; the victim's wife stated that she recognized him immediately after he had stabbed her husband, and that she thought she had identified him is borne out by a denunciation of him to a police officer very shortly after the crime, and an acquaintance of the appellant stated that he saw him running from the direction of the victim's house just about the time of the occurrence, and he recognized him sufficiently to call upon him by name as he ran past. These two witnesses were in agreement, though incomplete as to the clothing that they said the appellant was wearing at the time they saw him, and the description they gave of the clothing agreed, though again partially, with that given by two of the appellant's employees, who testified that he left his shop at 7.30 p.m., a few minutes before the time when the murder was alleged to have been committed.

A search of the premises of the appellant about 8 p.m. the same night disclosed in a bedroom to which he had access a pair of trousers and a sweater identified by one of the appellant's employees as having been worn by the appellant when he left his shop that night. The trousers were stained with human blood freshly shed.

The appellant could not be discovered for three days. He was seen in the open by the police, some distance away from his place of abode, and, on sighting the police, bolted, and concealed himself in the loft of a house, where he was eventually discovered

by the police. The explanation for his long absence was that he Thad gone to collect a debt. The explanation of his conduct upon seeing the police was that he was afraid the people running towards him might kill him.

The appellant's defence was an alibi. He produced several<br>witnesses to say that he was with them at a time which would "have made it impossible for him to have been at the victim's house at the time alleged. The principal witnesses for the prose-"cution appear to have been so certain about the time when the events to which they testify took place, that, if the alibi is genuine, the appellant has been either the object of a wicked conspiracy or the victim of a most remarkable series of incriminating coincidences. The improbability of either alternative renders necessary a careful scrutiny of the alibi. This the learned Acting Judge has given. He does not regard the alibi witnesses as being so reliable on a question of time in the circumstances as the prosecution witnesses, and he has commented on their demeanour and on their evidence in a manner which indicates he is not satisfied with the alibi. It should be added that the alibi witnesses were not brought forward until the trial, the appellant in the lower Court, though defended, reserving his defence. It has been said in strong terms by the Court of Criminal Appeal in England that a defence of this nature should be disclosed at the earliest possible opportunity; the excuse given by counsel for the appellant for this neglect that the appellant is young and inexperienced hardly applies to a reserved defence in the lower Court by the advice of counsel himself.

We are not impressed by the submission that all three assessors were not satisfied with the prosecution evidence, and preferred that of the defence. In view of the formidable body of evidence adduced by the Crown, not affected substantially by the few discrepancies and inconsistencies in detail, we are unable to see how the assessors could have come to the conclusion that they did if they had weighed the evidence intelligently and fairly, unless of course their mentality is such as to unfit them to adjudicate in a Court where English procedure and evidence obtains.

We agree with the finding of guilty by the learned Acting Judge. We do not see how he could reasonably have come to any other conclusion.

As to the age of the appellant, this is a matter which by statute is left to the opinion of the Judge. The learned Acting Judge thought the appellant was between eighteen and twenty. Two medical officers, on a physical examination, thought he was seventeen or over; one thought he was anything up to twenty one or twenty-two. On the other side, an uncle of the appellant said he was born in 1337 A. H., which would make him a little under fifteen. The learned Acting Judge held he was over sixteen, and in reaching this conclusion used his discretion judicially, which is all that can be required of him.

We dismiss the appeal.

*Note.*—On 2-2-1934, appellant applied to this Court for special leave to appeal to His Majesty in Council. The application was dismissed following the dictum of Lord Watson in *In re Dillet*, 12 A. C. 459 at 467, on the g