Rex v Kenga and another (Criminal Appeals Nos. 199 and 200 of 1943 (Consolidated)) [1943] EACA 41 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

# Before Sir Joseph Sheridan, C. J. (Kenya), Sir Henry Webb, C. J. (Tanganyika) and SIR NORMAN WHITLEY, C. J. (Uganda)

### REX, Respondent (Original Prosecutor)

# KENGA s/o KAYAA and KATANA s/o KIBOKO, Appellants (Original

Accused Nos. 1 and 2) $\bigwedge$

## Criminal Appeals Nos. 199 and 200 of 1943 (Consolidated)

#### Appeals from decision of H. M. Supreme Court of Kenya

Criminal Law-Murder-Evidence of extra judicial confession-Confession before committing magistrate—Retraction of confession—Corroboration—

Evidence against second accused of confession by another accused.

The appellants appealed from convictions of murder. In an extra judicial confession before a magistrate the first appellant admitted his participation in the murder and later before the committing magistrate he stated on oath "we did kill the deceased on account of his witchcraft. I have no more to say". At the trial the first appellant in an unsworn statement said that he had only heard that the deceased had been killed and this was held by the trial Judge to be an implied retraction of his previous extra judicial confession and that it was necessary to have independent corroborative evidence implicating the accused in the commission of the crime.

Held (9-11-43).—(1) In the circumstances corroboration was not necessary of the extra judicial confession. When what the appellant said in his unsworn statement at the trial is contrasted with what he said in his extra judicial confession, definitely confirmed as it was by<br>his evidence before the committing magistrate, the unsworn statement was relatively<br>valueless. The extra judicial confession and mitting magistrate would have been sufficient to convict the acused.

$R$ v. Sinoya and another 6 E. A. C. A. 155 referred to.

(2) Since the first accused admitted his participation in the murder in his extra<br>judicial confession and implicated the second accused in it, it was competent for the trial Judge to take the confession into consideration against the latter. Similarly, where the first accused gave evidence before the committing magistrate that "we did kill the deceased on account of his witchcraft", it was competent for the Court also to take this into consideration against the second accused.

Appeals dismissed.

## U. K. Doshi for first Appellant.

#### R. M. Doshi for second Appellant.

#### Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The two accused were convicted of murder and sentenced to death in a trial before the Supreme Court sitting at Mombasa. From the evidence it is clear that the murder had its origin in a belief that the deceased had been responsible for certain deaths that had taken place, through his exercising powers of witchcraft. While we have no ground for questioning the genuineness of the belief, the circumstances of the killing of the deceased do not raise a defence of legal provocation. Against the first accused, Kenga, the evidence is very strong. In an extra judicial confession before a Magistrate he admitted his participation in the murder and later, before the Committing Magistrate, he stated on oath: "We did kill the deceased on account of his witchcraft. I have no more to say. I have no witnesses to call". This evidence was properly received at the trial.

In an unsworn statement at the trial Kenga, without making any reference to the detailed extra judicial confession or his unequivocal and telling evidence before the Committing Magistrate, said that he had only heard that the deceased had been killed. The learned Judge considered that this statement amounted to an implied retraction of his previous extra judicial confession and that it was necessary to have independent corroborative evidence implicating the accused in the commission of the crime before convicting. With this direction we disagree. When what the accused said in his unsworn statement at the trial is contrasted with what he said in his extra judicial confession, definitely confirmed as it was by his evidence before the Committing Magistrate, and where he not merely failed to give any explanation whatsoever as to why he had previously admitted in detail his participation in the murder but made no allusion to it, the unsworn statement is relatively valueless in our opinion. In this connexion we would once more draw attention to what this Court said in Rex v. Sinova and another, 6 E. A. C. A. 155. There was, however, the additional evidence of an eye-witness to the murder which was accepted by the learned Judge and while as we have indicated the extra judicial confession and the evidence of the accused before the Committing Magistrate would have been sufficient to convict the accused, this independent evidence confirms and strengthens the case against him.

With regard to the second accused, Katana, he was convicted on the evidence of the same eye-witness, Sidi, which the learned Judge considered to be the only evidence against him. We do not understand why this limited view of the evidence was taken, for inasmuch as the first accused admitted his participation in the murder in his extra judicial confession and implicated the second accused in it, it was competent to take the confession into consideration against the latter. And similarly when the first accused gave evidence before the Committing Magistrate that "We did kill the deceased on account of his witchcraft", it was competent to take this into consideration against the second accused. We dismiss both appeals.

We wish to observe that this was eminently a case in which the production of a plan would have been of the greatest assistance to the Court.