Thuo and Another v Rex (Criminal Appeals Nos. 133 and 134 of 1951) [1951] EACA 117 (1 January 1951)

## APPELLATE CRIMINAL.

#### Before BOURKE, J., and CONNELL, Ag. J.

## (1) KARA THUO, (2) KIBUE KAIGURI, Appellants

#### v

# REX. Respondent

### Criminal Appeals Nos. 133 and 134 of 1951

### (Appeal from decision of R. M.'s Court at Nyeri—A. C. Harrison, Esq.)

Criminal Procedure Regulations—right of Court to recall witness—right of accused to cross-examine recalled witness.

At the conclusion of the evidence for the defence the Resident Magistrate recalled the second appellant to the witness box and questioned him. At a later date he also recalled a prosecution witness and questioned him. The case was then adjourned for judgment but on that day he recalled another prosecution witness and questioned him also. It did not appear that the accused were informed of their right to cross-examine the recalled witness nor that the second accused applied for or consented to his recall.

#### Held (4-5-51).—When a witness is recalled under section 150 C. P. C. the accused should be informed of his right to cross-examine such witness.

### Appellants absent unrepresented.

#### Boyle, Crown Counsel, for the Crown.

JUDGMENT.—At the conclusion of the evidence for the defence the learned Magistrate recalled the second appellant to the box and questioned him. The case was then adjourned from $13/2/51$ to $20/2/51$ . On the latter date the Magistrate recalled the prosecution witness Moya s/o Enjuile and questioned him at length. The case was then adjourned to $27/2/51$ for judgment. On this date it was adjourned again to $2/3/51$ when the Magistrate recalled another prosecution witness, Segan Bastard, and questioned him at some length. It does not appear that the prosecutor made any application for the recall of these two witnesses and nothing arose *ex improviso*; no reason is given on the record for the recall and it appears therefrom that there was no compliance with the proviso to section 150 of the Criminal Procedure Code in that the three accused persons, who were unrepresented, were not informed of their right nor given the opportunity to crossexamine the witnesses after the examination by the Magistrate. It is apparent from the judgment that the Court below attached considerable importance to the evidence of these two witnesses. The failure to comply with the proviso in the opinion of this Court rendered the trial so unsatisfactory as to be fatal to the convictions; it is impossible to say that no prejudice has been caused to the Accused. We would further refer to R. V. C. Mkasa (1944-5) 21 K. L. R. 111, where the conviction was upset, two witnesses having also been recalled at the close of the case for the defence and after the case had been adjourned for judgment; in that case, however, as we have ascertained from the original record, there was compliance with the proviso to section 150 and the Accused exercised his right of cross-examination; nevertheless the conviction was quashed. It is true that the proviso does not in terms require a Court to inform as to the right of crossexamination, but where an Accused person is unrepresented we consider it essential that he should be told of his right and given the opportunity to cross-examine a recalled witness if he so desires.

There is a further aspect of the case to be mentioned. The 2nd appellant, who elected to and did testify on his own behalf on affirmation, was later recalled to the witness box and, according to the record, was "cross-examined" by the Magistrate, who elicited matter prejudicial to his case. The appellant had already been cross-examined at some length by the prosecution. It does not appear that the appellant made any application to return to the box or that he expressly consented to the recall. No doubt an accused who has testified is a "person already examined" within the meaning of section 150, and in certain circumstances provision for the recall of an accused may be valuable in the interests of justice. But in the opinion of this Court the use to which the section was put in this case is not only unique but is also improper.

The convictions entered against the two appellants are quashed and the sentences set aside. In exercise of the revisional jurisdiction the conviction of the third accused and the sentence passed upon him are also set aside.