Rex v Kimenja (Cr. App. 73/1933.) [1933] EACA 20 (1 January 1933)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J., LUCIE-SMITH, J., and GAMBLE, Ag. J. (Kenya).

## $REX$ (Respondent)

## CHUMA ARAP KIMENJA (Appellant). Cr. App. 73/1933.

Criminal Procedure Code-Admissibility of parole evidence of confession made by accused to Magistrate but not signed by accused.

$Held$ (21-7-33).—That the parole evidence was properly admitted.

Branigan, Acting Crown Counsel, for Crown.

Appellant absent, unrepresented.

Branigan.—The principal ground of appeal is that the crime was committed while drunk. As regards the evidence of the confession to the Magistrate, section 24 of the Evidence Act cures the informality, as parole evidence could be brought to rectify the omission by the Magistrate to obtain accused's signature to the confession. Referred to sections 164 and 364 of the Indian Code of Criminal Procedure, and to Rex v. Ali bin Kavanga Msumbwa, 13 Kenya Law Reports, p. 60.

JUDGMENT.—The only ground of appeal set forth in the memorandum is that the crime was committed under the influence of tembo.

The learned trial Judge specifically dealt with this defence in his summing up to the assessors, and his summing up on this point was in accordance with the principles laid down in Kingori v. Rex, Cr. Appeal $135/1931$ —an appeal to this Court.

Another point was, however, raised by this Court, and that was as regards the admissibility of parole evidence in the case of a confession made by the accused to a Magistrate but not signed by the accused.

Learned Crown Counsel argued that as the Indian Evidence Act is an applied Act, this Court would take into consideration certain sections of the Indian Code of Criminal Procedure which deal with confessions.

Cap. 7 of the Revised Laws contains, in sections 131 and 293, provisions similar to those of sections 164 and 364 of the Indian Code. This Cap. 7, however, was repealed with certain saving clauses by section 379 of the Criminal Procedure Code; such saving clauses do not preserve sections 131 and 293 of Cap. 7. The Criminal Procedure Code contains no provisions whatever for the recording of an accused's confession made otherwise than at a preliminary inquiry.

Section 24 of the Evidence Act sets out when a confession made by an accused person is irrelevant, and section 80 sets out that whenever any document is produced before any Court purporting to be a confession by any prisoner or accused person taken in accordance with law, etc., the Court shall presume, inter alia, that such confession was duly taken. "Taken in accordance with law" would refer to the law of Kenya, but our law contains no provisions for the taking of confessions, and we are therefore forced to avail ourselves of the provisions of section 3 (3) of the Criminal Procedure Code. In other words, the practice and procedure observed by and before His Majesty's High Court of Justice in England at the date of the coming into operation of our Code as regards confessions must be followed in this Colony. Such English practice and procedure would, however, be subject to any specific restrictions imposed by the Indian Evidence Act, e.g. section 25 of the Act, "Confessions made to a Police Officer."

In May, 1930,\* the date of our Code coming into force, the English law did not require a confession to be made to any special person or class of persons, nor need it be reduced into writing.

It was settled by Req. v. Thompson (1893), 2 Q. B. 12, that in order that evidence of a confession may be admissible, it must be affirmatively proved that such confession was free and voluntary; that is, was not preceded by any inducement to the prisoner to make a statement held out by a person in authority, or that it was not made until after such inducement had clearly been removed.

In this case, Mr. Evans was called to give evidence of an alleged confession made by the accused to him. Mr. Evans states that accused asked to make a statement; that he did so, and did so voluntarily, and that he (Mr. Evans) satisfied himself that there was no inducement held out to the accused to make the statement.

On this evidence, the learned trial Judge allowed the witness to proceed. The learned Judge, being satisfied that the witness had at the time of the accused's making his statement made a

<sup>\*</sup> Note.—Although assented to in May, 1930, the Penal Code did not actually come into operation until 1st August, 1930.

note thereof, allowed the witness to refresh his memory from such note. We are of the opinion that the evidence was properly admitted. Even had such evidence been improperly admitted, there is still ample evidence on the record to warrant the conviction.

We would point out that the decision of this Court in $\text{Re } x$ v. Ali bin Kavanga, 13 K. L. R. 60, does not apply to confessions in Kenya, as Zanzibar, in its decrees, has retained in substance sections 164 and 364 of the Indian Code of Criminal Procedure.

Appeal dismissed.