Rex v Kija and Others (Criminal Appeals Nos. 186, 187 and 188 of 1947) [1947] EACA 46 (1 January 1947)

# COURT OF APPEAL FOR EASTERN AFRICA

## Before NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika) and BARTLEY, J. (Kenya)

### REX, Respondent (Original Prosecutor)

## (1) KIJA s'o SAGIDA, (2) LEGWA s/o GWANDA, (3) HOLO d/o BATANO Appellants (Original Accused)

### Criminal Appeals Nos. 186, 187 and 188 of 1947

(Appeals from decision of H. M. High Court of Tanganyika)

Criminal procedure—Advice by Judge to accused—Section 278, Tanganyika Criminal Procedure Code.

After the prosecution had closed its case the learned Judge strongly advised the accused to say nothing.

Held (22-8-47).—That this advice to the accused rendered the trial a nullity.

Appellants absent, unrepresented.

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

JUDGMENT (delivered by NIHILL, C. J.).—We have consolidated these three appeals. The appellants were jointly convicted of murder in the High Court of Tanganyika. The appellants were undefended at their trial and the learned trial Judge quite properly regarded it as his duty to constitute himself in some degree as their adviser. This dual role of Judge and defending counsel, however, caused him to commit a grave error in procedure which we regard as incurable. At the close of the Crown case, instead of complying with the provisions of section 278 (2) of the Tanganyika Criminal Procedure Code, he seems, from his own record of what took place, to have advised the appellants strongly not to enter upon any defence at all, or at least that the appellants should say nothing more. The Judge was no doubt influenced by the fact that the evidence given by the appellants at the preliminary inquiry and put in as a part of the Crown case at the trial, taken together tended to incriminate each one of the appellants, but he overlooked the fact that the appellants might have wished to retract or explain the statements they had made. As there was little, if any, evidence against the appellants other than these statements, the matter becomes one of crucial importance, and it is impossible for us to say that a failure of justice may not have been occasioned by the Judge's action. We therefore feel compelled to declare the trial a nullity which, of course, has the effect of leaving the appellants in custody committed for trial in the High Court on a charge of murder. We direct that any further trial of these three accused persons or any of them shall take place before another Judge.