Rex v Wachuka (Criminal Appeal No. 213 of 1948) [1949] EACA 26 (1 January 1949)

#### COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), SIR G. GRAHAM PAUL, C. J. (Tanganyika), and EDWARDS, C. J. (Uganda)

#### REX. Respondent (Original Prosecutor) $\mathbf{v}$

# WACHUKA s/o MURUTHI, Appellant (Original Accused)

### Criminal Appeal No. 213 of 1948

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

Criminal Procedure and Practice—Absence of prosecutor in a Subordinate Court— Legality of trial.

The appellant was convicted of theft of an ass by the First Class Magistrate, Embu, and on admitting eight previous convictions was sentenced to three years' imprisonment with hard labour. There was no prosecutor at the trial. His appeal to the Supreme Court (heard by three Judges) having been dismissed by a majority judgment, the appellant appealed to the Court of Appeal.

The facts appear from the judgment below.

Held (19-2-49) (1).—That the Criminal Procedure Code of Kenya has left it very doubtful whether in Subordinate Courts there must or only may be a prosecutor, but having regard to local conditions it can hardly be believed that it was either contemplated or intended by the Legislature that in all cases coming before a Magistrate, whether in a policed or unpoliced area, there must be a prosecutor before the Magistrate can start to hear the case.

(2) That in the present case no shadow of injustice was in fact done to the appellant by the absence of a "prosecutor", and even if it were held that the very ambiguous provisions of the Criminal Procedure Code could be reduced to the definite proposition that the absence of a prosecutor was a breach of some section or other of the Code, in the circumstances of the case it would be an irregularity curable under section 381 thereof.

Rex v. Kiza Bayanga, 5 E. A. C. A. 56 referred to; Rex v. Mkwaya s/o Kenya, 13 E. A. C. A. 113 referred to: Adan Haji Jama and others v. Rex (1948) A. C. 225 discussed and distinguished.

Appeal dismissed.

Slade for the Appellant.

Hobson, Solicitor General (Kenya), for the Crown.

(*Editorial Note.*—The appeal to the Supreme Court (heard by BARTLEY, J., BOURKE, J., and NAGEON DE LESTANG, J.) was dismissed by a majority judgment of that Court, BOURKE, J. dissenting. On account of the importance of the point raised the judgment of the Supreme Court is published with this report and follows the judgment of the Court of Appeal.)

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—This appeal comes to this Court from the judgment of the Supreme Court of Kenya sitting in its appellate jurisdiction. It relates to a case which started in the Court of the First Class Magistrate sitting at Embu which is a remote station in a native reserve of the Central Province of Kenya, a place so remote that according to the statement of the Magistrate, which we accept, "there are no police to prosecute". The appellant was convicted in the Magistrate's Court of the theft of a donkey. The appellant admitted eight previous convictions, six for theft and two for impersonation, and was sentenced to three years' imprisonment with hard labour and to be subject to police supervision for five years on release: The appellant appealed to the Supreme Court against the conviction and sentence. The Supreme Court dismissed the appeal and the appellant now appeals to this Court against the sentence imposed upon him, but from the grounds stated in the Memorandum of Appeal it appeared that the appellant also attacked the conviction and we have heard the appeal on that basis.

This being a second appeal it lies only on questions of law and not on questions of fact. We have considered it necessary, however, to examine carefully the facts of the case, not so that we might decide the appeal on questions of fact, for that is not within our province in a second appeal, but, in order to restore a proper perspective to this case. Our examination of the evidence on record satisfies us that the Magistrate's judgment of the facts was correct and inevitable. The appellant, according to the Magistrate's judgment, was found at a market in a district adjoining the district in which the owner of the donkey and the appellant lived. He was found attempting to sell the donkey very cheaply "within a short time of its loss from next door to where accused lives". There was ample evidence to make that judgment inevitable. In his own affirmed statement at the trial the appellant *admitted* that the donkey belonged to a woman who lived next door to him. There were only three witnesses for the prosecution (one of them purely formal) and one (the appellant himself) for the defence. The whole case must have occupied less than an hour. The appellant, on being convicted, was informed of his right of appeal to the Supreme Court. He did appeal to the Supreme Court and his only ground of appeal was that there was insufficient evidence upon which to convict him. Having regard to the record of the evidence which we have considered there can be no doubt whatever that his appeal was simply frivolous and with no substance whatever. Indeed we would call it an extremely impudent appeal.

$\mathbf{L}$ On the appeal coming before a Judge of the Supreme Court, however, the appeal, instead of being summarily dismissed as without any substance whatever. was admitted to a formal hearing. The following is the order to that effect: —

"There is a document on record which discloses that an Inspector of Police wrote to the D. C. stating that accused *admitted* he had stolen the donkey.

The accused was then tried by the D. C. and it does not appear that anyone attended to prosecute. As I understand it from the record the D. C. as trial Magistrate conducted the case for the prosecution and the accused was 'cross-examined by Court'.

In view of the recent Privy Council decision from Somaliland (reference not to hand) I think it proper to admit this case to hearing."

This appeal was then formally heard by three Judges of the Supreme Court and in the result by a majority judgment the appeal was dismissed.

The appeal now comes to this Court on only two grounds. One, that the property in the donkey was in the charge laid in Ngari s/o Mureu whereas the evidence showed that the donkey belonged to the wife of Ngari. This ground of appeal has no substance whatever in it. It might be a matter for considerable argument under the native law as to whether the donkey was correctly described as the property of the husband, but in any event if there was a misdescription of the owner in the charge no injustice or even the slightest embarrassment was thereby caused to the appellant as there was no question as to the identity of the donkey which was actually an exhibit in the case, and the appellant admitted it was Ngari's wife's donkey.

The other ground upon which the appellant's advocate seeks to have the conviction and sentence quashed is that there was no "prosecutor" at the trial and that on the authority of the case of Adan Haji Jama and others v. Rex (1948) A. C. 225 the trial of the appellant was therefore vitiated and the conviction and sentence bad.

We find ourselves unable to treat this ground of appeal very seriously. The case of Adan Haji Jama and others v. Rex was an appeal in a murder case which was heard originally in the Protectorate Court of Somaliland. That case at its trial lasted 25 days, there being 55 witnesses for the prosecution and nearly 50 for the defence, and the Privy Council held that "the absence of a prosecutor necessarily involved a breach of section 226 of the Ordinance" regulating criminal procedure in trials before the Protectorate Court in Somaliland, and the convictions and sentences were quashed.

The appellant's advocate has taken us through the Criminal Procedure Code of Kenya most conscientiously and thoroughly, so far as it relates to criminal procedure in Subordinate Courts, in his attempt to show that the absence of a 'prosecutor" in this case necessarily involved a breach of some section or sections of the Criminal Procedure Code of Kenya but in the result we find that the Criminal Procedure Code of Kenya has left it very doubtful whether in Subordinate Courts there *must*, or only *may*, be a prosecutor. Having regard to local conditions we can hardly believe that the Legislature contemplated, still less that the Legislature intended positively to enact, that in all cases coming before a Magistrate, whether in a policed or unpoliced area, there must be a prosecutor before the Magistrate can start to hear a case. In that respect the Criminal Procedure Ordinance may perhaps be considered ripe for amendment with a view to producing some sort of certainty on this point. In this appeal, however, we find it quite unnecessary and profitless as to speculate on this point for the reason that we are absolutely satisfied that not the slightest shadow of injustice was in fact done to the appellant by the absence of a "prosecutor" in this childishly simple case. It follows that even if we held that the very ambiguous provisions of the Criminal Procedure Code could be reduced to the definite proposition that the absence of a prosecutor was a breach of some section or other of the Code we must hold that such breach of the Code was an irregularity which in this case never "in fact occasioned a failure of justice". We could not therefore interfere with the conviction or sentence. (See section 381 of Criminal Procedure Code.)

This is not the first time that the effect in law of the absence of a prosecutor has been considered by this Court and we think that a fair summary of the reported cases would be to say that whilst the Court has always stressed the desirability that in no case should a Judge or Magistrate be forced into the position of assuming, or into the appearance of assuming, some of the functions of a prosecutor, it has always consistently refused to declare a trial vitiated merely on the ground that no prosecutor was present (Rex v. Kiza Bayanga, 5) E. A. C. A. 56 and Rex v. Mkwaya, 13 E. A. C. A., 113). In the light of the Privy Council decision some of these decisions may need review should a case again come before this Court where on a trial before a Supreme or High Court in East Africa no prosecutor has appeared, but that is a matter which can await the event. In the case before us we are concerned with a trial in a Subordinate Court before a Magistrate, a matter which their Lordships of the Privy Council did not have to take into consideration in the case of *Adan Haii Jama and others:* neither did they have to consider those sections of the Somaliland Administration of Criminal Justice Ordinance, 1926, governing procedure in cases heard before a Magistrate. The decision cannot therefore in our opinion be regarded, so far as its application to Subordinate Courts in East Africa is concerned as constituting that "definite authority" that it is illegal to proceed with a case without a prosecutor of which this Court spoke in the judgment given in the Rex v. Kiza case (supra).

It has been pressed upon us by Mr. Slade that the judgment in Haji Jama and others goes deeper than a mere analysis of certain sections in a Somaliland Ordinance and that what their Lordships have in fact declared is that the absence of a prosecutor in any case, however trivial, so that a Judge has at least in some respects to assume his mantle, is inherently vicious in that it violates a fundamental principle of the common law of England that no man can be Judge in his own cause and the maxim that it is necessary not only that justice be done but that it may be seen to be done. Here again we think it is necessary to review the matter with a sense of proportion and to bear in mind that His Majesty in Council by the proviso to Article 4 (2) of the Kenya Colony Order in Council,

1921, recognized that the application of the principles of the common law in Kenya must be subject "to such qualifications as local circumstances render necessary". As to justice being seen to be done we hardly think that an African villager in an unpoliced district in Kenya, used to contacts with his District Officer, would derive either much comfort or a greater assurance that he was being justly dealt with by the presence of some stranger sent to prosecute him. With the spread of African education the time will undoubtedly come when even in the most remote areas police prosecutions will be entrusted to subordinate police officers but until then there must remain places not only in Kenya but throughout East Africa where a Magistrate has perforce to combine to some extent the role of prosecutor as well as that of counsel for the defence, as was done in the present case. Charged with the administration of justice a Magistrate is bound to do his best to elicit the facts and the truth in every case, and whether a titular "prosecutor" be present or not it will often be his duty to examine witnesses closely both for the prosecution and defence.

For the above reasons we support the majority decision of the Supreme Court of Kenya and dismiss this appeal.

The majority judgment of the Supreme Court of Kenya, delivered by BARTLEY, J.—The appellant was convicted by the First Class Magistrate's Court at Embu of the theft of an ass and on his admitting eight previous convictions, six of which were for theft, he was sentenced to three years' hard labour and ordered to be subject to police supervision for five years on release. The ground of appeal was there was insufficient evidence to support the conviction. It suffices to say that the evidence which was accepted clearly supports the conviction. The appellant also appealed against the sentence imposed. In the circumstances this was a proper one.

A question, however, was raised as to whether the recent decision of the Privy Council in Adan Haji and others v. the King (1948) A. C. 225 governed this case. The headnote to that case reads: -

"Where at the trial of the appellants on a charge of murder nobody appeared on behalf of the Crown to prosecute, and the trial Judge himself undertook the duties of the prosecution, the combination in one person of the duties of prosecutor and Judge prevented the trial from being one conducted substantially in the manner required by the relevant provisions of the Administration of Criminal Justice Ordinance, 1926, of the Somaliland Protectorate, and it was vitiated. The curative provisions of section 393 of the Ordinance could not be called in aid to support such a trial, and the convictions and death sentences passed on the appellants must be quashed and the appellants acquitted."

In the case before us there was no prosecutor the case being tried in a native reserve.

It is necessary to compare the relevant sections of the Somaliland Ordinance dealing with trials before the Protectorate Court of Somaliland, which clearly correspond to trials before the Supreme Court of Kenya, with the relevant sections of the Kenya Criminal Procedure Code dealing with trials before Subordinate Courts.

The relevant sections of the Somaliland Ordinance are set out in the report referred to and we do not think it necessary to quote them as reference to them is readily available. It is however convenient to set out section 226 of the Somaliland Ordinance as quoted in the report. That quotation reads:—

"226. (1) When the assessors have been chosen, the prosecutor shall open his case by stating the description of the offence charged, and stating shortly by what evidence he expects to prove the guilt of the accused.

(2) The prosecutor shall then examine his witnesses."

The relevant sections of the Kenya Code dealing with trials before Subordinate Courts read:-

"206. If the accused person does not admit the truth of the charge, the Court shall proceed to hear the complainant and his witnesses and other evidence (if any).

The accused person or his advocate may put questions to each witness produced against him.

If the accused person does not employ an advocate, the Court shall, at the close of the examination of each witness for the prosecution, ask the accused person whether he wishes to put any questions to that witness and shall record his answer.

209. (1) At the close of the evidence in support of the charge, if it appears to the Court that a case is made out against the accused person sufficiently to require him to make a defence, the Court shall again explain the substance of the charge to the accused and shall inform him that he has a right to give evidence on oath from the witness box, and that, if he does so, he will be liable to cross-examination, or to make a statement not on oath from the dock, and shall ask him whether he has any witnesses to examine or other evidence to adduce in his defence, and the Court shall then hear the accused and his witnesses and other evidence (if any).

210. If the accused person adduces evidence in his defence introducing new matter which the prosecutor could not by the exercise of reasonable diligence have foreseen, the Court may allow the prosecutor to adduce evidence in reply to rebut the said matter.

211. (1) Subject to the provisions of sub-section (2) of this section the prosecutor shall be entitled to address the Court at the commencement of his case, and the accused person or his advocate shall be entitled to address the Court at the commencement and in conclusion of his case.

(2) If the accused person, or any one of several accused persons, adduces any evidence, the prosecutor shall, subject to the provisions of section 161 of this Code, be entitled to reply.

213. The Court having heard both the complainant and the accused person and their witnesses and evidence shall either convict the accused and pass sentence upon or make an order against him according to law, or shall acquit him."

Both the Somaliland Ordinance and the Kenya Code contain provisions for the appointment of Public Prosecutors and both laws contemplate that there may be a prosecutor other than a Public Prosecutor. Section 88 of the Kenya Code provides:-

"88. (1) Any Magistrate inquiring into or trying any case may permit the prosecution to be conducted by any person, but no person other than a Public Prosecutor or other officer generally or specially authorized by the Governor in this behalf shall be entitled to do so without permission.

(3) Any person conducting the prosecution may do so personally or by an advocate."

The difference in the procedure governing trials in the Somaliland Protectorate Courts and in Subordinate Courts in this Colony is obvious from a comparison of the relevant sections.

Their Lordships of the Privy Council pointed out that the absence of a prosecutor necessarily involved a breach of section 226 of the Somaliland Ordinance as he could neither open his case nor examine his witnesses. The judgment continued: "the Judge himself undertook the duties of the prosecution. This is the real vice of the trial". Their Lordships having come to the conclusion that the trial had not been conducted substantially in the manner required by the Ordinance considered whether this could be cured by section 393 of the Somaliland Ordinance which section is similar to section 381 of the Kenya Code. Their Lordships' views on this aspect of the case were: -

"Breaches of particular provisions of the Ordinance might have been cured under section 393, but the combination in one person of the duties of the prosecutor and Judge, in their Lordships' view, prevented the trial from being one conducted substantially in the manner required by the Ordinance. The accused did not have the protection to which they were entitled under the Ordinance, namely, to be tried by a Judge whose mind was not. and could not have been, affected by assuming the duties of a prosecutor. The curative provisions of section 393 of the Ordinance (which is expressed in substantially the same terms as section 537 of the Indian Code of Criminal Procedure) cannot be called in aid to support a trial conducted in a manner substantially different from that laid down in the Ordinance (Pulukuri Kotayya and others v. King-Emperor (I)). Their Lordships have no doubt that the trial Judge did his best to be scrupulously fair to the accused, but it is impossible to be sure that a Judge, who himself examines the prosecution witnesses, escapes an unconscious bias in favour of accepting their evidence."

The headnote to the report of the case already cited clearly sets out the effect of this decision.

In a trial in a Subordinate Court in Kenya the code does not lay down that the prosecutor shall examine his witnesses. What the code requires is that the Court "shall proceed to hear the complainant and his witnesses and other evidence if any". This appears to be exactly what the trial Magistrate has done and indeed all he could have done under the circumstances. Doubtless he did interpolate questions in order to get a clear view of the story being unfolded. The code also requires the Magistrate to "hear the accused and his witnesses and other evidence if any".

In Subordinate Courts prosecutions can be instituted by complaints by private individuals as well as by charges brought by the police. Provision is made for the power of a prosecutor if one appears or if the Magistrate permits the prosecution to be conducted by any person but in our view it could not be maintained that the lack of a prosecutor in a Magistrate's Court prevented the trial from being one conducted substantially in the manner required by the relevant provisions of the code even though the accused has to be informed that he is liable to cross-examination if he gives evidence.

We have considered whether the Privy Council decision laid down as a general principle that all trials conducted without a prosecutor were vitiated irrespective of the law governing the procedure at the trial. We do not think this to be the case. The whole trend of the judgment was that as the trial had not been conducted substantially in accordance with the procedure Ordinance governing the trial there was no cure for such an infringement of the law.

We have been referred by the learned Solicitor General to the decision of the Court of Appeal for Eastern Africa in Rex v. Kiza s/o Bayanga, 5 E. A. C. A. 56 and to certain English cases in which no prosecutor appeared. In the East African case, in which the Court held that the absence of a prosecutor at a trial did not by itself vitiate the proceedings, no reference was made in the judgment to the laws of procedure governing the trial and the laws in question differ from those with which we are concerned the conviction appealed against being one by a Subordinate Court sitting in extended jurisdiction in Tanganyika and the laws of procedure governing the trial being the laws applicable to trials in the High Court of Tanganyika which laws are the same as those governing trials in the Supreme Court of Kenya. The English cases are naturally also governed by different rules of procedure.

Their Lordships of the Privy Council in the Somaliland case approved of the trial Judge refraining from cross-examining the defence witnesses and pointed out that "the chance, perhaps, a small one, that some witness might have impressed their veracity on the court by the manner in which they stood up to crossexamination was lost to the accused". It appears from the record in the case before us that the Magistrate cross-examined the accused who was the only defence witness. A Magistrate can-of course put pertinent questions to any witness and we agree with the submission of the learned Solicitor General that this was what the Magistrate did in the case.

Although it is obviously preferable that there should be a prosecuting officer to conduct a case in a Subordinate Court we realize that local conditions render this impossible in certain areas. The systems of confirmation and revision in force in the Colony are ever-present checks on Subordinate Courts and enable the Supreme Court to ensure that justice is not only done but seen to be done.

We dismiss the appeal.