Rex v Kirundi (Cr. App. 117/1933.) [1937] EACA 65 (1 January 1937)

### ' CRIMINAL APPEALS.

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. Ag. P. (Uganda), SIR JOSEPH SHERIDAN, C. J. (Tanganyika), and Lucie-Smith, Ag. C. J. (Kenya).

# $\therefore$ REX. (Respondent)

#### $\mathbf{r}$

## NJUGUNA alias KIRUNDI (Appellant) (Original Accused). Cr. App. 117/1933.

- Kenva Criminal Procedure Code, section 219-Statement of Accused in preliminary inquiry before committal. - Held (2-1-34).—That as the statement made by the accused under<br>section 219 of the Criminal Procedure Code was not properly attested before the committing magistrate, it should have been excluded at the trial. Branigan for Crown.

Accused absent, unrepresented.

Branigan.—Conceded that the mandatory provisions of section 219 (4) of the Criminal Procedure Code must be construed strictly, and failure to conform thereto renders a statement made by an accused at the preliminary inquiry of no effect.

The following is an extract from the judgment:-

"This is an appeal from a judgment of the Supreme Court. of Kenya. Examining this case apart from the statement made by the appellant in the Magistrate's Court, which was put in evidence before the Supreme Court, and to which we shall refer later, the question is whether the rest of the evidence is of such weight that had the learned Judge disregarded the statement it is highly improbable that he would have arrived at a different conclusion or reasonably certain that he would have arrived at the same conclusion. $\cdot$ .

"And now to refer to the accused's statement before the Magistrate which was taken into consideration by the learned Judge. In that statement he admitted his guilt, but before the Supreme Court stated that the interpreter misrepresented what he said. It has been fairly conceded by Crown Counsel that this statement should be excluded for the reason that it is not certified as required by section 219 (4) of the Criminal Procedure Code. As Magistrates do not appear to appreciate the requirements of this section, we quote it in full:—

' Section 219. $(4)$ When the whole is made conformable to what he declares is the truth, the statement shall be attested by the Magistrate, who shall certify that such statement was

taken in his presence and hearing and contains accurately the whole statement made by the accused person. The accused person shall sign or attest by his mark such record. If he refuses, the Court shall add a note of his refusal, and the statement may be used as if he had signed or attested it.'

"The statement is not certified, and in the absence of a certificate we are at least doubtful as to its admissibility, and consequently have considered the appeal independently of it. For the Magistrate to state that the provisions of the section were complied with—a statement which appears on the record on a page prior to that on which the statement is shown-is not the equivalent of a certificate..."

The Court found that there was sufficient evidence to support the conviction apart from the accused's statement at the preliminary inquiry.

Appeal dismissed.