Rex v Sefula (Cr. App. 113/1931.) [1931] EACA 17 (1 January 1931)

Before SIR JACOB BARTH, C. J., THOMAS and LUCIE SMITH, JJ. (Kenya).

## REX

## (Respondent) (Original Prosecutor)

#### v.

# MWANDAMERE S/O SEFULA

## (Appellant) (Original Accused).

## Cr. App. 113/1931.

Evidence of identification.

$H$ eld (30-10-31):—Inter alia, that circumstances may be sufficiently strong to show the fact of murder although the body of the deceased was never found.

Appellant, abscnt, unrepresented.

Abbott, Crown Counsel, for Crown.

Abbott.-No body was recovered in this case. Some bones were recovered at the place where the murder was alleged to have been committed. The identification was imperfect. In the circumstances the conviction could not be supported by the Crown.

JUDGMENT.—The evidence in this case showed that a report was made that a man Mwaituto was missing. The police investigated the matter and a search was made with the result that a skull and certain bones were found in a swampy piece of ground about $1\frac{1}{4}$ miles away from the house of the accused.

The accused admitted quarrelling with the deceased and, in the fight that ensued, killing him. The accused further stated that he carried the corpse to the river about a mile away.

He was convicted of murder and sentenced to death. From that conviction he now appeals. He says that he acted in self defence when he killed Mwaituto.

Now it has been considered a rule, that no person should be. convicted of murder unless the body of the deceased has been found, and HALE says "I would never convict any person of murder or manslaughter unless the fact were proved to be done, or at least the body be found dead." But the rule or caution must be taken with some qualifications; and circumstances may be sufficiently strong to show the fact of the murder, though the (See Russell on Crimes, Vol. 1, body was never found. p. 781-782). In this case not the body but a skull and some bones have been found in a swamp near the shamba of the accused and the accused has admitted carrying the body to the

river. There would, therefore, seem to be some identification of the bones found and there is also some corroboration of the statement of the accused. From this it is open to the Court to say that it accepts the confession of the accused as a true statement.

When the evidence against an accused person depends mainly on the statement of the accused then the whole of that statement should be considered. It would not be right for the Court to accept so much of the statement only as incriminates the accused and to reject anything that the accused has said in his favour.

Now the accused has not only said that he killed but that the killing resulted from a sudden fight. The accused said that he got a spear. There is no suggestion that the accused was in fear of his own life. But it might well be that he used the spear whilst suffering from great provocation caused by the blow that he had received. There exists an element of doubt as to the exact circumstances under which the blow was delivered. But as there was no suggestion that the accused was in fear of his life the element of doubt would not go to the extent of saying that the accused was not guilty of any offence. The Court would, however, be justified in saying that whilst the charge of murder had not been made out there was sufficient evidence to find the accused guilty of manslaughter. The conviction is accordingly changed to one of manslaughter and the accused is sentenced to three years imprisonment with hard labour.

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