Rex v Kimanjo (Con. C. 48/1932.) [1932] EACA 17 (1 January 1932)

### CRIMINAL CONFIRMATION.

#### Before SIR JACOB BARTH, C. J.

## REX

## $v.$

# KIMNYONGO ARAP KIMANJO.

### Con. C. 48/1932.

The Criminal Procedure Code, section 133, autrefois acquit-Section 11 & 349—Powers of Supreme Court in Confirmation -Effect of an Order quashing a conviction and sentence.

$Held$ (27-2-32): -That where, in the exercise of its powers in confirmation, the Supreme Court quashes a conviction and sentence and does not order a re-trial; the accused person cannot again be<br>placed on trial on the same facts for the same offence.

The facts of the case are set out in the judgment, which reads is follows: $\rightarrow$

JUDGMENT.—In this case the accused was tried and convicted. of an offence under section 255 of the Penal Code and Cap. 79. of the Theft of Stock.

The same accused was tried, with two others, for the same offence on the same facts in Criminal Case No. 1837 of 1931 by the same Magistrate, i.e., the Resident Magistrate, Kisumu. In this accused's case on confirmation the learned Judge dealing with the matter ordered that the conviction and sentence in relation to this accused be quashed. The learned trial Magistratehas in the subsequent trial of this accused sat in revision of the learned Judge's Order and held it to be bad and incapable of being raised to support a special plea of autrefois convict or autrefois acquit. I do not think it necessary, however, to deal with this aspect of the Magistrate's judgment or the propriety of it.

There is one observation in the Magistrate's judgment which appears to be incorrect, i.e., that the sentence imposed by him in the first trial-two years' hard labour and a fine of Sh. 2,500, with six months' hard labour in default—was outside the scope of section 11 of the Criminal Procedure Code and that therefore no Order of any kind of the Supreme Court was necessary. That section provides that no sentence imposed on a native by any Subordinate Court exceeding six months imprisonment (whether such sentence shall be a substantive sentence of imprisonment or a sentence of imprisonment in default of a fine or a combination of such sentences) shall be carried into effect until the record of the case or a certified copy thereof has been transmitted to and then sentence has been confirmed by the Supreme Court. It also provides that no fine exceeding £50 shall be levied until the

sentence has similarly been confirmed. The accused is a native and in view of the sentence, which appears to have required confirmation, both of the imprisonment and the fine, I am at a loss to understand what with in the Magistrate's mind.

The principle underlying the special pleas of *autrefois convict* and *autrefois acquit* is that no person shall be twice in peril for the same offence. If there has been an error, such as an error in the indictment, then a special plea at a subsequent trial will not be successful, $vide :=$

## Rex v. Kitching, 21, C. A. R. 144.

Reg. v. Drury and others, 18, Law Journal, Magistrates' Cases. 189.

Coleridge, J.; in his judgment in the latter case said: "The true meaning, therefore, of not having been in jeopardy in this rule seems to be, that by reason of some defect in the record, either in the indictment, place of trial, process, or the like, the prisoner was not lawfully liable to suffer judgment for the offence charged on that proceeding; and so understood, it is true in the present instance, the judgment reversed is the same as no judgment; upon a record without any judgment, no punishment can be suffered." That principle also underlies the various cases in which a prisoner acquitted of one charge has been held properly tried on another charge, although the facts are essentially the same: cf. The King v. Barron (1914, 2, K. B. 570).

I have now to consider the effect of the Judge's Order in the first trial quashing the conviction and sentence against the accused. There was no express Order of acquittal, but there was no Order for a re-trial. Although not included in the Order, the reason for it appears from the papers filed to have been the inadmissibility of some of the evidence tendered, which was the sole evidence tending to prove the offence apart from some circumstances which by themselves would not have proved the offence. That evidence was a confession made by the accused before a baraza. In the Judge's opinion the confession might have been made because in the mind of the accused something was to be gained by making it. Following the principle that no one should be in jeopardy twice on the same charge, in my view the effect of the Judge's Order is one of acquittal and is a bar to further proceedings on the same charge with the same evidence which the learned Magistrate is of opinion was inadmissible.

The Crown has had an opportunity of supporting the conviction, but has declined.

The conviction and sentence are reversed and the accused is acquitted.