Rex v Kyoyo and Others (Criminal Appeals Nos. 89, 90, 91 and 92 of 1943 (Consolidated)) [1943] EACA 33 (1 January 1943)

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR NORMAN WHITLEY, C. J. (Uganda) and GRAY, C. J. (Zanzibar)

REX. Respondent (Original Prosecutor)

(1) SIDIKI KYOYO, (2) WADEBUKA s/o MALIWA, (3) KAYENDEKI w/o MUGA, (4) YOWANA KATENDE, Appellants (Original Accused Nos. 1, 2, 3 and 5)

Criminal Appeals Nos. 89, 90, 91 and 92 of 1943 (Consolidated)

Appeals from decision of H. M. High Court of Uganda

Interpretation of confessions to police officers—Undesirability of policemen acting as interpreters.

The appellants appealed from convictions of murder. The facts of the case are not material to the point upon which the case is reported.

A Native Corporal in the Police who had arrested all the appellants and had made some investigation into the crime later acted as interpreter of statements made to a European Police Officer by each of the appellants.

Held (17-5-43).—It is undesirable that policemen, especially if they have been engaged in the investigation of a case or in arresting the accused should act as interpreters of confessions

to police officers, although there may be cases where no alternative is available.

The appeals were dismissed.

## Appellants present, unrepresented.

Stuart, Acting Crown Counsel (Uganda); for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This case has its origin in a belief whether sincere or otherwise that the deceased was a wizard who was responsible for causing the deaths of children of one Naikoma w/o Muga, who was one of five accused in the case and discharged on the ground that the evidence against her was insufficient. These four co-accused, Sadiki s/o Kyoyo, Wadebuka s/o Maliwa, Kayandeki w/o Muga and Yowana s/o Katende, were convicted of murder and against their convictions they have appealed to this Court. Yowana, according to the evidence, played the part of the hired assassin, the woman Kayendeki, in the opinion of the learned trial Judge, being the archmover in the conspiracy to murder and in hiring the assassin, Yowana. Against all four accused there is the evidence of Musubika, the daughter of Wadebuka, who said that on the night of the murder Sadiki, Wadebuka and Yowana left the compound of Sadiki's hut together, and that sometime in the middle of the night they returned and she heard them talking outside Sadiki's hut. Her evidence reads: "Yowana said 'I have killed the one you wanted killed', I had met Yowana that evening only. Kayendeki said, 'You have done well to kill him: he was<br>bewitched and killed my people'". The learned trial Judge regarded this witness as the only independent and untainted witness to the essential facts. It is to be inferred that the other witnesses were regarded as tainted, although it is not clear to us why the witness Muzee should have been so regarded. He is the son of Kayendeki, the brother of Sadiki, and the nephew of the deceased Musumami. His evidence was to the effect that the woman Naikoma came to Kayendeki's house and asked what was killing her children, and that both she and Kayendeki were of the opinion that Musumami was the person. His evidence then proceeds: "Sadiki, Kayendeki and Naikoma were present in our hut. Kayendeki said it was Musumami bewitching them. Wadebuka said his brother knew how to beat that—

his brother Katende-fifth accused. Kayendeki asked how much he would want for it. Wadebuka said he would do it for a goat and Sh. 50. This was agreed and the meeting broke up. All appeared to acquiesce in this. Yowana was not present". Later in his evidence he said: "The day before Musumami was killed, I was at home. We had a party in the morning, many people came. In the evening we had a feast. All the people went away. Later, about 9 p.m., Wadebuka and Yowana came. I was in Kayendeki's house. They came close to the hut and called Sadiki and said let us go and do our business. Yowana said this. They went together, the three. Musubika was in the hut with me. Kayendeki and Naikoma were in the vard. They told us to shut the door of our hut. We then shut it. In the night I woke and went to urinate, and saw Sadiki, Wadebuka and Yowana returned from the direction of Musumami. Yowana spoke to the women Kayendeki and Naikoma, who were in Sadiki's hut, he said 'We have finished Musumami'. The women said 'thank you'". As we have said it is not clear why this witness, a youth of 17, was regarded as tainted, but it is clear that his evidence, involving the accused Sadiki, Wadebuka and Nayendeki, is corroborated in material particulars by the reliable witness Musubika. Next there is the evidence of Ibrahim, the son of Yowana. As to him—different from the case of Muzee—we can understand his being regarded as an accomplice, for he speaks of accompanying the expedition that set out to kill Musumami, though he said he thought its object was the stealing of goats, in which he said his father had engaged on previous occasions. He speaks of Yowana opening the door of Musumami's hut, going inside, his hearing the sound of three blows, adding that he could see him striking something on the bed. Here again whether his evidence be regarded as that of an accomplice or not, it receives corroboration from Musubika. If the case stood there, the evidence against all four accused would be sufficient to implicate them in causing the death of Musumami. So that if the confessions in the case and the deposition of the witness Adriani, who was originally charged with the murder, be excluded from our consideration, there is sufficient evidence to uphold the convictions. One point we have not referred to and that is the argument that the proof of the cause of Musumami's death was inadequate. There is nothing in the point, for in view of the family decision to murder Musumami it becomes a matter of indifference whether a blow or blows on the enlarged spleen killed him before the head blows were struck, though we will say that the improbability of that having happened is such that the point is not deserving of a second thought. We have pointed out in the course of the appeal the undesirability of policemen, especially if they have been engaged in the investigation of a case or in arresting the accused, acting as interpreters of confessions to police officers, though we admit there may be cases where no alternative is available. The appeals are dismissed.