Rex v Machoka (Criminal Appeal No. 174 of 1940) [1940] EACA 25 (1 January 1940)

## COURT OF APPEAL FOR EASTERN AFRICA

BEFORE SIR JOSEPH SHERIDAN, C. J. (KENYA), WHITLEY, C. J. (UGANDA) AND LUCIE-SMITH, J. (KENYA)

## REX, Respondent

v.

## MACHOKA S/O OKUNI, Appellant Criminal Appeal No. 174 of 1940

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Procedure-Evidence-Kenya Criminal Procedure Code, section 219-Improperly certified statutory statement—Magistrate called to piove that the statement was taken in accordance with statutory requirements— Admissibility.

The only point on which this decision is reported is on the question as to whether a statement made under section 219 of the Kenya Criminal Procedure Code but not duly certified in accordance with the requirements of the section can be admitted in evidence when the magistrate who conducted the preliminary inquiry is called as a witness and proves that the statement was taken in compliance with statutory requirements.

The certificate in this case was as follows: -"I certify that the above statement was taken in my presence and in my hearing and is a correct translation of it to the best of my ability and belief". The magistrate was called at the trial and testified that the statement contained accurately the whole statement made by the accused and that it had been taken in accordance with the requirements of the section.

Held (14-11-40).—That on the magistrate's evidence the statement had been properly admitted in evidence. R. v. Njuguna 1 E. A. C. A. 65 distinguished.

Appellant absent, unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—There is no doubt that the appellant killed the deceased after forming an intention to do so. He raised witchcraft as a defence but we agree with the learned trial judge that the evidence does not support a case that the appellant was put in such fear of immediate danger to his life as to constitute any mitigating circumstances in law. From the appellant's evidence in cross-examination he would appear to have killed the woman because of the deaths of some of his relatives which he had attributed to her as a witch. Then the evidence of the witness Nyandawaro negatives the existence of any mitigating circumstance in law. The learned trial judge would seem to have been embarrassed by the decision in Rex v. Njuguna 1 E. A. C. A., p. 65. From a perusal of that case it is clear that no question of calling the committing magistrate was in issue. No application had been made to call him and all this Court was concerned with was that the uncertified statutory statement had been wrongly admitted in evidence. As distinct from the present case no attempt had been made to rectify the procedural defect by calling the magistrate to certify that the statutory requirements had been complied with. In the present case we approve of the course that was taken in calling the committing magistrate. The question of witchcraft arising in the case is one for consideration in another quarter. The appeal is dismissed.