Rex v Lalasia (Cr.A. 87/1936.) [1936] EACA 106 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); LAW, C. J. (Zanzibar; and LUCIE-SMITH, J. (Kenya).

## REX Respondent

## $\overline{n}$ .

## MADAGASI LALASIA, Appellant (Original Accused). Cr. A. 87/1936.

Criminal Law—Evidence—Confession—Confession $to$ private persons held in the circumstances to require corroboration.

The appellant was convicted upon an information charging him with the murder of a person unknown. In fact two boys, Ekeno and Ekidoli, sons of Napio, had been killed and it was alleged that the appellant killed one of them, though it was not known which. The conviction rested almost entirely upon a confession said to have been made by the appellant to two Samburu, Sesegat and Mekeri, who differed, however, in their accounts of the circumstances in which it was made.

Held (8-8-36).-That in the circumstances corroboration of the confession was necessary.

Budhdeo, for the appellant.

Wallace, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The conviction in this case rests almost entirely on a confession alleged to have been made by the accused. The confession is not in the nature of a statutory statement made in the course of a judicial proceeding, nor is it a statement made extra-judicially to a magisstrate. It is a statement said to have been made to two private persons in the course of conversation. The making of the confession has been denied and though we do not say that in every case corroboration of such confession would be required, in the event of its making being denied, to sustain a conviction, it is obvious that the evidence of its making can by no means be considered as of such weight as in the case of a judicial confession or an extra-judicial confession made before a magistrate. In the present case it is of very great importance to note that one Crown witness, Sesegat, gives a different account of the circumstances in which the confession was made to that given by his brother, Makeri. Sesegat said that the confession was made in the evening when the accused was conversing with his brother and that he merely heard what was said. His brother on the other hand said that on his return in the evening the first person to tell him that the accused had killed the two boys was his brother, Sesegat, and that on hearing this news he questioned the accused. The

variation in their accounts amounts to this: Sesegat says that the first time he learnt that the accused had committed the murder was when his brother questioned the accused and elicited the information. Mekeri on the other hand says that on hearing from his brother that the accused had committed the murder he proceeded to question the accused; this variation is not in our view a mere discrepancy. It casts some doubt on whether the witnesses are telling the truth when they say the inculpatory statement, the making of which the accused denies, was really made. With this variation, it becomes necessary in our opinion to look for corroboration of the making of the confession and all $\boldsymbol{\mathcal{V}}$ the more so for the reason that the witness, Sesegat, admitted to having told lies in the matter. There is nothing in the alleged confession itself from which corroboration can be extracted. In that respect the case differs from a case which came before a bench including two members of this Court in which a conviction was upheld on a confession made to a woman by the accused and which he denied making. In her evidence the woman described the kind and position of certain wounds on the body of the murdered person, the correctness of which was proved by other witnesses; the woman had not seen the body and there was no! suggestion of her having obtained the information from anyone! else. There is at least a real doubt in this case as to whether the confession on which the case is based was made and the accused must have the benefit of it.

A point was argued by Mr. Budhdeo for the appellant that. the information was bad for want of a description of the deceased person. Having decided to allow the appeal for the reasons we have already stated, a finding on the point is unnecessary for the decision of the case and we merely state our opinion that on the facts as known to the Crown the information was correctly drawn up in pursuance of section 243 (6) of the Criminal Procedure Code.

The appeal is allowed and the appellant acquitted...