Rex v Ndara and Seven Others (Criminal Appeals Nos. 133, 134, 135, 136, 137, 138, 139 and 140 of 1945) [1945] EACA 27 (1 January 1945)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

(1) NDARA s/o KURUKI, (2) KARANJA s/o MUKORA, (3) NJUGUNA s/o KARANJA, (4) FINEHAS s/o NJEROGE, (5) NJUGUNA s/o KARANJA, (6) ISUO, alias MUGOTO s/o KAMALA, (7) MWANDA s/o GUGERA, (8) KAMANGU s/o NGUGE, Appellants (Original Accused Nos. 1, 2, 4, 6, 7, 8, 9 and $10$ )

Criminal Appeals Nos. 133, 134, 135, 136, 137, 138, 139 and 140 of 1945 (Appeals from decision of H. M. Supreme Court of Kenya)

Criminal Law—Robbery with Violence—Accomplice evidence—Corroboration—<br>Scope of admissibility of statements and/or confessions made by one or more accused jointly tried.

This case is reported solely on the important observations made in the course of their Lordship's judgment regarding the admissibility of statements and confessions made by accused persons in cases in which a number of accused persons are tried together and the extent of such admissibility.

Appellants Nos. 1, 4, 6 and 7 present, unrepresented.

Todd, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The eight appellants were convicted of robbery with violence. Two other accused who were tried jointly with them were acquitted. The principal witness for the Crown was Kigoro Kimenye, a taxi driver, who described how he was engaged by Ndaria (first appellant) and Mwanda (seventh appellant) on the night of the 26th December, 1944. They picked up eight others and on directions he drove the taxi with the ten passengers to near Sigona Golf Club, where they all got out. After about half an hour the ten passengers came back with a suitcase (exhibit MM-1). He drove them back to Nairobi and was paid Sh. 50 by Ndaria (first appellant). He recognized all the accused except Kamangu (eighth appellant) as being among his passengers. He said that there was a tenth man, who may or may not have been Kamangu,

The steward of the Golf Club, Mr. Dias, and two bar boys, Kichura and Kamau, described how the club premises were burgled that night about 1 a.m., when they were violently assaulted and two safes were broken open. Over Sh. 1,600 in cash was taken, together with a suitcase, a pistol and other articles. The learned trial Judge regarded Kigoro as an accomplice and accordingly looked for corroboration. We agree with him that there is independent corroborative evidence tending to implicate each of the first seven appellants. Each of them made extra-judicial statements to a magistrate, in which they admitted going in the car and receiving Sh. 100 each as their shares at the end of the journey. They do not admit actual participation in the robbery and to some extent some of them retracted their statements at the trial, but it is clear from his summing up and his judgment that the learned Judge, like the assessors, regarded the statements as voluntary and proper to be taken into consideration as evidence against each accused. . Corroboration of an accomplice may be found in what an accused person himself says, and we agree that what each of these appellants said is strong corroboration of what the accomplice Kagoro said against him. In addition there is the finding of part of the stolen property in the possession

of two of the appellants and the identification of Ndaria (No. 1) by one of the club boys. We are satisfied that there is independent corroborative evidence implicating each of the first seven appellants and that the corroborative evidence, viewed as a whole, is so strong as to make it abundantly safe for the Court to rely upon and act upon the evidence of the accomplice Kigoro, from which the only reasonable conclusion to be drawn is that they all took part in the robbery. As regards the eighth appellant, Kamangu, the distinction is that Kigoro does not identify him. There is, however, in our opinion, sufficient evidence to support his conviction. In his extra-judicial statement he admitted going in the taxi with ten others, taking the money from the club and receiving Sh. 100 as his share. He made no complaint at the preliminary inquiry as to having been forced to confess, but at the trial he alleged that he was beaten to make him confess. The learned trial Judge, by implication, rejected his story of beating since he refers to the confession as voluuntary. He was also picked out as one of the robbers at identification parades by the two club boys. We feel no doubt that the learned trial Judge and the assessors were right in holding that he was the tenth passenger whom Kigoro was unable to recognize.

The direction of the learned trial Judge that a statement or evidence given by an accused person may be taken into consideration against his co-accused requires some qualification and since confusion frequently arises as to the position with regard to the admissibility of certain evidence in cases in which a number of accused are tried together and either make statements or give evidence tending to implicate one another, we think it desirable to summarize shortly our views as to the law.

Questions involved are extra-judicial confessions by accused and statements by accused not amounting to confessions; retracted confessions; statements and evidence of accused persons at the preliminary inquiry; and statements or evidence of accused at the trial.

We will take the case of A and B being jointly charged with the murder of C. If A makes an extra-judicial statement exculpating himself and putting the blame on B, such statement is not a confession and is not subject to the restrictions contained in the Evidence Act or Ordinance with regard to the admissibility of confessions. It can be proved as against A, the maker, even though it was made to a native police constable. But it cannot be taken into consideration at all as evidence against B.

If A makes a extra-judicial confession implicating unequivocally both himself and B, that confession is admissible and may be taken into consideration as against B as well as against A, subject, of course, to the conditions as to admissibility contained in the Evidence Act. But as against B, it has to be borne in mind that it is accomplice evidence involving the question of corroboration with which we deal shortly later.

If at the preliminary inquiry A makes a statement implicating both himself and B, so as to "tar himself with the same brush", such statement is, of course, evidence against himself and it may also be taken into consideration as against **B.** subject to the question of corroboration as emanating from an accomplice.

But if this statutory statement implicates B whilst exculpating the maker A, it cannot be taken into consideration at all as against B.

If at the preliminary inquiry $A$ elects to give evidence and implicates $B$ whilst exculpating himself, that may be used at the trial as evidence against $A$ , but it is not of itself exidence against B at the trial..

If at the trial A makes a statement implicating fully himself and also B, it is in the same position as an extra-judicial confession to similar effect and may be taken into consideration against B in the same way as accomplice evidence.

If at the trial A gives evidence, such evidence is on the same footing as that of any other witness and may be taken into consideration against B, irrespective of whether A implicates himself or not. B, of course, can cross-examine and the question of accomplice evidence again has to be borne in mind in deciding how far it is safe to act upon this evidence as against B.

In cases in which the confession or evidence of A can be taken into consideration against B, it will, generally speaking, be considered unsafe to convict B on such accomplice evidence, unless there is some independent corroboration tending to implicate B. On this the leading case is, of course, Rex v. Baskerville (1916), 2 K. B. 658, which should always be referred to in case of difficulty. A point which is sometimes lost sight of in considering accomplice evidence is that the first duty of the Court is to decide whether the accomplice is a credible witness. If the Court, after hearing all the evidence, feels that it cannot believe the accomplice it must reject his evidence, and unless the independent evidence is of itself sufficient to justify a conviction the prosecution must fail. If, however, the Court regards the accomplice as a credible witness, it must then proceed to look for some independent evidence, which affects the accused by connecting or tending to conect him with the crime. It need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connexion with the crime. But in every case the Court should record in its judgment whether or not it regards the accomplice as worthy of belief.

Each of the eight appeals is dismissed.