Rex v Luguma (Criminal Appeal No. 298 of 1947) [1948] EACA 13 (1 January 1948)

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR G. GRAHAM PAUL, C. J. (Tanganyika), EDWARDS, C. J. (Uganda), and BOURKE, J. (Kenya)

### REX, Respondent (Original Prosecutor)

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## KISWAGA S/O LUGUMA, Appellant (Original Accused) Criminal Appeal No. 298 of 1947

(Appeal from decision of H. M. High Court of Tanganyika) Criminal law—Local native custom—Stated by assessors after close of defence case.

Held (15-1-48).—That where a conviction for murder depends upon local native custom such custom must be proved in evidence for the prosecution. It may not be received by the Court when the accused has no longer an opportunity to challenge and controvert it.

## Appellant absent, unrepresented.

## Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—It is abundantly plain: from the terms of the learned Judge's judgment in this case that but for the statement of Muha custom given by the assessors at the end of the case after the defence was closed he would have convicted of manslaughter and not of murder. The conviction of murder depends therefore upon a statement of Muha. custom which the accused, to whom it means the difference between life and death, was given no opportunity to challenge or controvert. If for a conviction of murder the prosecution depends upon local custom, that local custom should be proved in evidence for the prosecution so that the witnesses to it may be cross-examined and the accused may have an opportunity of controverting it by other evidence. That we consider is the effect of the decision of this Court: in Criminal Appeal No. 97 of 1947 (Ndembera s/o Mwandawale v. Rex. Mombasa, 24th July, 1947).

We consider that this case is governed by Ndembera's case and that the earned Judge ought not to have been influenced by the statement of local custom given by the assessors at the end of the case. We think it clear from his judgment that if he had not been so influenced he would have convicted of manslaughter and not murder. That being so, we consider that we should quash the conviction of murder and substitute a conviction of manslaughter and it is so ordered. We also order by way of sentence that the appellant be imprisoned with hard labour for five years.