Rex v Kurgat (Confirmation Case No. 910 of 1939) [1938] EACA 157 (1 January 1938)

## CRIMINAL CONFIRMATION

## Before SIR JOSEPH SHERIDAN, C. J. and THACKER, J.

## REX, Prosecutor v.

## SAWE ARAP KURGAT, Accused Confirmation Case No. 910 of 1939

Criminal law—Evidence—Confession to Chief—Indian Evidence Act, section 27.

Accused was charged with unlawful possession of stock in a proclaimed area contra section 10 of the Stock and Produce Theft (Levy of Fines) Ordinance, 1933. Evidence was admitted of a confession made to an assistant chief by the accused while under arrest by tribal retainers. In the course of the confession the accused stated that he had placed the cattle with $M$ , and $R$ ; as a result of these statements one of the cattle was discovered with M. and two with R.

**Held** (15-12-39).—That the confession was not admissible in full, but that so much of it as led to the discovery of the cattle was admissible under the proviso to section 27 of the Indian Evidence Act.

(Conviction confirmed.)

Phillips, Crown Counsel, for the Crown.

Accused absent unrepresented.

JUDGMENT.—This case was set down for argument on two points: (1) that the magistrate took into consideration the statement made by the accused in answer to the charge, relying on it where it supported the prosecution case and comparing it with other evidence in the case; and (2) convicting on inadmissible evidence.

As to the first point it has been pointed out frequently by this Court and the Court of Appeal for Eastern Africa that where a plea of not guilty has been entered what an accused person says in answer to the charge cannot be used against him in derogation of the plea. This was laid down in Rex v. Kyesongera s/o Weraga (1935) 2 E. A. C. A. 63, Rex v. Pirmin bin Kunjanga (1935) 2 E. A. C. A. 64, and Rex v. Alukani s/o Alimunya (1935) 2 E. A. C. A. 87. As to the second point the question is whether the accused when according to the Assistant Chief Arap Biondo and the Ex-Chief Arap Siritiet he admitted his guilt he was in such custody as to render the admission he is alleged to have made inadmissible. The magistrate would seem to have had some doubt on the point for he said in his judgment: "In addition we have the explicit statements of two Kipsigis. Native Authorities, second and third p.w.'s, that the cattle were actually stolen by four men, of whom accused was one, and that these four men admitted this in the presence of many people, when they were originally arrested. This may, or may not, be good evidence. For my part, I believe these statements to be perfectly true. Accused, however, is charged under section 10, Ordinance 18/33, and I find ample evidence of his guilty knowledge." From this passage it is clear that the magistrate's doubts were well founded, and it appearing that the admission of guilt was made in such

circumstance, that is while the accused was under arrest, that it is inadmissible, we propose to exclude it from our consideration. The question then arises whether the remaining evidence on the record is sufficient to support the conviction. Here it is necessary to refer to section 27 of the Indian Evidence Act:-

"Provided that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence in the custody of a police officer, so much of such information whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered may be proved."

The accused made certain statements to Arap Biondo and Arap Strittet that he had placed the cattle with Arap Martingoi and Arap Rotich and as a result of the statements one of the animals was discovered with the former and two with the latter. As this information given by the accused led to the discovery of the animals it is admissible on the authority of the section we have quoted. The case against the accused then is that he was in possession of three of the animals which according to the herd who was looking after them, Arap Taituk, were stolen on the 15th September or some date between then and the 12th October when they were found at places the information as to which was given by the accused. This coupled with the failure of the accused to give any explanation of his possession is in our opinion sufficient to uphold the conviction. The conviction will stand and the sentence is confirmed.