Rex v Ndamungu (Criminal Appeal No. 46 of 1941) [1941] EACA 64 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and Sir HENRY WEBB, C. J. (Tanganyika)

## REX, Respondent

$\mathbf{v}$

## KICHANJELE S/O NDAMUNGU, Appellant

Criminal Appeal No. 46 of 1941 Appeal from decision of H. M. Supreme Court of Kenya.

Criminal Law—Treason, section 36, Penal Code—Death sentence mandatory.

Appellant was convicted of treason contrary to section 36 of the Penal Code and sentenced therefor to five years imprisonment with hard labour. Section 36 provides that a person found guilty of treason "shall be liable to suffer death".

Held (15-8-41).—That where an offence contrary to section 36 of the Penal Code is established it is mandatory that sentence of death be passed and there is no power in the court to impose. a sentence of imprisonment.

Original sentence quashed and sentence of death substituted therefor.

Appellant in person.

Spurling, Crown Counse!, for the Crown.

JUDGMENT (delivered by SIR HENRY WEBB, C. J.).—The appellant was convicted of treason contrary to section 36 of the Penal Code, in that on the 2nd November, 1940, he was adhering to the King's enemies aiding and comforting them by assisting them to loot certain houses in the village of Kiunga. The learned trial Judge found as a fact, and the evidence amply justified him in so finding, that the appellant, a native of the Badaa section of the Boni tribe, who live in the Mudiriate of Kiunga in Kenya Colony, took part with some Italian askaris in looting two houses and a shop in the village. The only defence put forward by the appellant was a denial that he was there at all: he admitted that he had been captured by an Italian banda, but alleged that he had escaped from them before they raided Kiunga. Having regard to the strong evidence of identification by witnesses who knew the appellant previously the trial Judge rejected this defence. It was also suggested in the cross-examination of the prosecution witnesses that the appellant was acting under the compulsion of the Italian askaris, but the witnesses all denied that this was so, and said that, on the contrary, he appeared to them to be helping the askaris, or as one witness put it, that "he looked happy, as if he was enjoying it". Notwithstanding the inconsistency of this suggestion with the defence put forward by the appellant himself it was proper that it should be considered; in R. v. Hooper (1915) 2 K. B. 431, Lord Reading, C. J., said: $-$

"Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence—we say no more than that—upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand."

. In that case the Court of Criminal Appeal, being of opinion that the jury might have found the appellant guilty of manslaughter if that question had been specifically left to them, altered the conviction accordingly. In the present case, however, the position was quite different, it was the appellant himself and not his counsel who adopted a line of defence wholly inconsistent with the theory of compulsion and the learned Judge did consider that theory and in our opinion rightly rejected it.

The appellant, who from his appearance is obviously incapable of doing much to aid or comfort the King's enemies, was sentenced to five years' imprisonment with hard labour and it was for the consideration of the legality of this sentence that this appeal was adjourned from the last Session of the Court of Appeal. Section 36 of the Penal Code provides that a person found guilty of treason "shall be liable to suffer death", whereas section 187 says that a person found guilty of murder "shall be sentenced to death". It was because of this difference in phraseology that the learned Judge took the view that whereas section 187 excludes the possibility of any alternative sentence, section 36 was intended to admit of a lesser sentence being passed. In our opinion this is not so. It is true that, save in section 187, the wording used throughout the Code is "shall be liable to", but a consideration of the various sections shows, in our judgment, that the use of the words "shall be liable to" does not import that the sentence mentioned in any particular section in which these words occur is merely a maximum and that the court may impose any lesser sentence below the limit indicated. Section 26 (2) contains a general provision that a person "liable to imprisonment for life or any other period may be sentenced for any shorter term", which would be unnecessary if the words "shall be liable to" of themselves indicated merely the maximum limit of sentence. Again, by section 123 a person convicted of rape "shall be liable to be punished with death or with imprisonment for life", which indicates that in the view of the legislature if the section had ended at the word "death" no lesser sentence could legally have been imposed.

For the foregoing reasons we are of opinion that the sentence imposed was an illegal sentence, because by section 36 the only sentence that can be imposed is one of death. It will be for the Governor in Council to say whether or not that sentence shall be carried out, and while we recognize that it is not for us to offer any opinion as to what is proper in the circumstances, yet we venture to suggest that, having regard to the primitive kind of person the appellant is, and to the fact that the learned trial Judge sentenced him, on the facts disclosed by the evidence, to a term of imprisonment, the sentence which we are obliged to pass is deserving of commutation. We quash the sentence imposed by the Supreme Court and under section 36 of the Penal Code we sentence the appellant to be hanged by the neck until he be dead.