Rex v Mengech (Criminal Appeal No. 158 of 1939) [1940] EACA 8 (1 January 1940)

# COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR JOSEPH SHERIDAN, C. J. (Kenya), WHITLEY, C. J. (Uganda) and WEBB, C. J. (Tanganvika)

#### REX. Respondent

v.

### CHUMA ARAP MENGECH, Appellant Criminal Appeal No. 158 of 1939

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

Kenya Criminal Procedure Code, section 219(4), certification of accused's statutory statement in Preliminary Inquiry-Propriety of calling evidence at the trial to cure defect in certificate—Whether certificate must follow strictly the form prescribed—Observations on desirability of incorporating provisions of section 533 of the Indian Procedure Code in the Kenya Criminal Procedure Code.

The certificate was in the following form: $-$

"I certify above statement was voluntarily made before me after accused had been thoroughly warned in accordance with section 219 P. C.(sic). It has been read over to accused and declared to be correct. It was made in the Kipsigis language by accused, translated thence into Swahili by Government Interpreter Chelule arap Boin and by me into English to the best of my ability."

The other facts appear sufficiently from the judgment.

Held (31-1-40).—That the certificate was in order.

Appellant absent, unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The evidence fully supports the conviction and the child's evidence both as to the commission of the offence and the implication of the appellant was corroborated. We observed that the learned trial Judge received the evidence of the Committing Magistrate and his clerk as to the Statutory statement having been properly recorded and translated to the appellant. This was on the submission of Crown Counsel who was anxious lest the certificate should later be held not to conform with the provisions of section 219(4). The certificate is in the following words: $-$

"I certify above statement was voluntarily made before me after accused had been thoroughly warned in accordance with section 219 P. C. It has been read over to accused and declared to be correct. It was made in the Kipsigis language by accused, translated thence into Swahili by Government Interpreter Chelule arap Boin and by me into English to the best of my ability."

This certificate, though not in the exact words of section 219(4), sufficiently complies with the provisions of the section and while we understand the prudence of the Crown Counsel we should have been prepared to hold that the certificate was in order. In connection with this point we think it desirable to record our regret that the provisions of section 533 of the Indian Criminal Procedure Code no longer appear in our Code of Criminal Procedure. The section reads as follows: $-$

$(1)$ If any Court before which a confession or other statement of an accused person recorded or purporting to be recorded under section 164 or section 364 is tendered or has been received in evidence, finds, that any of

$\mathbf{r}$

the provisions of either of such sections have not been complied with by the Magistrate recording the statement, it shall take evidence that such person duly made the statement recorded; and notwithstanding anything contained in the Indian Evidence Act, 1872, section 91, such statement shall be admitted, if the error has not injured the accused as to his defence on the merits.

(2) The provisions of this section apply to Courts of Appeal, Reference and Revision."

It was thought fit to retain those provisions in the 1914 Criminal Procedure Ordinance and its successor, Cap. 7 of the Laws of Kenya which came into force on 1st January, 1924, and remained in force until the 26th May, 1930, when the present Code superseded it. It may well be and probably is the case that the Law Officers considered its further retention unnecessary. Our view however is that with the absence of this useful provision individual Magistrates and Judges may think that where the statutory statement has been inadequately certified or not certified at all, the Magistrate cannot be called as a witness to remedy the defect. This would be a serious consequence of the omission of the provision. We would suggest that an early opportunity for restoring the section in the East African Codes be taken.

The appeal is dismissed.