Rex v Ndwiga (Criminal Appeal No. 80 of 1941) [1941] EACA 61 (1 January 1941)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir JOSEPH SHERIDAN, C. J. (Kenya), Sir NORMAN WHITLEY, C. J. (Uganda), and THACKER, $J.(Kenya)$ .

## REX, Respondent

#### $\mathbf{v}$

# IRERI alias SHEINGO S/O NDWIGA, Appellant

## Criminal Appeal No. 80 of 1941

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

Criminal Law—Evidence—Use of depositions at trial.

Held (8-8-41).-Following Birch's case, 18 Cr. App. R. 26, that when a witness gives evidence at a trial his deposition can never be used as evidence of facts its only effect is to discredit or fail to discredit his evidence given at the trial.

Appellant absent unrepresented.

Spurling, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR NORMAN WHITLEY, C. J.).—The only difficulty in this appeal arises from a passage in the judgment which suggests that the learned trial Judge treated as evidence, and relied upon, a statement of the witness Njaggi in his evidence at the preliminary inquiry, viz., "Their conversation became heated", which, the Judge observes, is markedly different from what the witness said at the trial.

What a witness says before the committing magistrate may of course be used at the trial in order to test his credibility by comparing it with what he has said at the trial, but if a deposition is put in for that purpose its only effect is to discredit or fail to discredit the evidence given at the trial. Under no circumstances. may it be imported as substantive evidence to be taken into consideration in deciding whether or not the accused is guilty. His guilt must be decided upon the evidence given and legally admissible at the trial and upon nothing else.

It is clear that those words of the witness uttered in the court below ought not to have been allowed to influence the result of the trial, but the improper admission of evidence is not of itself ground for reversing the decision, if it appears to the court that, independently of the evidence wrongly admitted, there is sufficient evidence to justify the decision.

We are satisfied that, eliminating this piece of evidence, there remains ample evidence to support the conviction. The killing is admitted. The only question put in issue at the trial was whether it was accidental or intentional. The witness Njaggi demonstrated in court how the deceased came to be wounded accidentally by accused whilst they were "playing" and the learned Judge describes it as<br>"pushing round and about in a rather violent manner". The weapon admittedly used by appellant was a heavy, broad sharp pointed knife more like a large dagger than a panga. The doctor described the wound as very severe and said the weapon must have been used with considerable force in a stabbing manner. The edge of the breast bone was cut and the wound was four inches in depth.

It is difficult to conceive how such a wound could have been caused in "play". Furthermore there is the evidence of Njamuno that the accused said to him, "I will stab you as I stabbed Kamwana (deceased)", and that of Njachubi,. who says that the accused told him that he and deceased were having an argument. abusing each other, and that he had killed the deceased. In his statutory statement accused, whilst alleging that he had no intention of striking, admitted that he got angry and raised the panga threateningly. $\mathbb{Q}^{(n+1)}\to \mathbb{R}$ and the state

All three assessors found that accused stabbed intentionally, but did not intend to kill. We agree with the learned Judge in his finding that from such a wound with such a weapon (unless accidental) an intention to cause death or at least grievous harm must be inferred, which establishes malice aforethought so as to make the killing *prima facie* murder. We are also satisfied that the rejection of the appellant's story of accident is justified by the admissible evidence. There is no evidence to support any suggestion of legal provocation. The appeal is dismissed.