Rex v Weraga (Criminal Appeal 147/1934.) [1935] EACA 63 (1 January 1935)

## COURT OF APPEAL FOR EASTERN AFRICA.

## Before SIR JOSEPH SHERIDAN, C. J., P., HORNE, J., and LANE, Ag. J. (all of Kenya).

## REX, Respondent (Original Prosecutor)

## KYESONGERA s/o WERAGA, Appellant (Original Accused). Criminal Appeal 147/1934.

Criminal Law-Murder-Plea-Words admitting killing under provocation—Plea of Not Guilty entered.

The appellant was charged with murder. On being arraigned he said: "I killed him in anger"; whereupon a plea of Not Guilty was entered and the trial proceeded. Both in his summing up and in his judgment the Judge referred to the fact that the appellant had admitted that he killed the deceased but that he did so in anger.

Held (30-11-34).—Following Rex v. Pirmin bin Kunjanga Cr. App. No. 27/1934), that when a plea of "Not guilty" is entered it must be taken as a general denial, and the words which are construed as the plea cannot also be construed in derogation of the plea.

JUDGMENT.—Both in his summing-up and judgment the learned Judge referred to the accused having admitted that he killed the deceased, but that he did so in anger. These references should not have been made. In the case of $\text{Re} x$ v. Pirmin bin Kunjanga, Cr. App. No. 27/1934\* this Court made the following observations: "The Magistrate who tried this case opens his judgment with the observations that the accused admits both in his plea and statement that he killed the woman whom he was charged with murdering. The learned Judge who confirmed the finding of the Magistrate observes that the accused admitted in answer to the charge, having killed the deceased with a spear... We are unable to accept the proposition that an inculpatory statement in answer to a charge can be used against an accused person if a plea of not guilty is entered. A plea of not guilty must be taken as a general denial, and the words which are construed as the plea cannot also be construed in derogation of the plea". Disregarding these references, however, there is no doubt on the evidence that the appellant was rightly found guilty of murder. A defence of provocation was raised but it was not of such a nature that it could be regarded in law as sufficient to reduce the crime from murder to manslaughter. The appeal is dismissed.

> \*Reported at p. of this Volume.