Mungai v Republic

Court of Appeal, at Nairobi December 13, 1984

Kneller, Hancox JJA & Nyarangi Ag JA

Criminal Appeal No 84 of 1984

(Appeal from the High Court at Nairobi, Porter J)

Criminal law – murder - offence of - contrary to - Penal Code (cap 63)section 17 - killing arising from use of force in defence of person or property - whether a sufficient factor in reducing offence to manslaughter.

Criminal law – manslaughter - offence of contrary to - Penal Code (cap 63) section 17 - reducing offence of murder to manslaughter – killing arising from use of force in defence of person or property - whether a sufficient factor to reduce offence of murder to manslaughter.

Evidence - hearsay evidence - dying declaration - admissibility of - appellant charged with murder - appellant alleging sudden and violent attack by deceased - statement of deceased to his brother that he had not fought with appellant - absence of other evidence by which to test evidence of appellant - whether statement of deceased admissible as a dying declaration - Evidence Act (cap 80) section 33(a).

The appellant was charged with murder and after his trial, he was found guilty of the lesser offence of manslaughter on the basis of excessive use of force in defence of a person and on the basis also of provocation. He was sentenced to twenty-one months’ imprisonment. At the trial, there had been no evidence to set against the testimony of the appellant and one Christine, who it was alleged had been attacked by the deceased and who the appellant had been endeavouring to protect, as to what had happened save that the deceased had while in hospital made a statement to his brother in which he emphasized that he had not fought with the appellant. The appellant had shot the deceased in the thigh and the police had left him bleeding and unattended for about 45 minutes before taking him to hospital where, again, there was delay in administering a blood transfusion. The deceased died the following day and the cause of death was certified to be cardiac and respiratory failure due to irreversible shock brought on by excessive bleeding due to bullet wounds. The appellant appealed against his conviction.

Held

1. It is a doctrine recognised in East Africa that the excessive use of force in the defence of the person or property, whether or not there is an element of provocation present, may be sufficient for the court to regard the offence not as murder but as manslaughter-R v Ngolaile s/o Lenjaro (1951) 18 EACA 164; R v Shaushi (1951) 18 EACA 198.

2. While there is no rule that excessive force in defence of the person will in all cases lead to a verdict of manslaughter, there are nevertheless instances where that result is a proper one in the circumstances and on the facts of the case being considered-Palmer v Reginam [1971] 1 All ER 1077.

3. The deceased’s statement to his brother in which he emphasized that he had not fought with the appellant was admissible under the Evidence Act (cap 80) section 33(a) as a dying declaration. Nevertheless, the evidence of the appellant and Christine showed that the deceased had attacked both of them.

4. In a moment of unexpected anguish such as, as it was in this case, the sudden and violent attack by one person on another, a person in the situation of the appellant is not in law required to weigh to a nicety the exact measure of the action which it is necessary to take to deter the attack on that other person. The appellant’s actions had not been unreasonable or excessive in the circumstances with which he was faced.

5. The appellant, though not being regularly married to the person who had been attacked, was entitled in law to take reasonable measures to prevent danger to her life and, moreover, he was entitled under the Penal Code section 392 to act to prevent the commission of a felony which was occurring in his presence.

6. (Obiter) A court should select the assessors and should take care not to appear to confirm rather than to select assessors. The trial judge having carried out an inquiry as to the suitability of the persons to be summoned to serve as assessors had not selected the assessors as provided under the Criminal Procedure Code (cap 75) section 297 but had recorded that the assessors “chose themselves”, which was an error.

Appeal allowed.

Cases

1. Ilapala s/o Ibrahim v Reginam (1953) 20 EACA 300

2. Selemani s/o Ussi v Republic [1963] EA 442

3. Palmer v Reginam [1971] 1 All ER 1077

4. Rex v Ngoilale s/o Lenjaro (1951) 18 EACA 164

5. Julius Matendechere s/o Masakho v Reginam (1956) 23 EACA 443

6. The King v Biggin [1920] 14 CAR 87; 1 KB 213; [1918-19] AER 501

7. R v McInnes [1971] 3 All ER 295

8. R v Rose [1984] 15 Cox CC 540; [1982] 2 All ER 536

9. R v Shaushi s/o Miya (1951) 18 EACA 1981

10. Hau s/o Akonaay v R (1954) 21 EACA 276

11. R v Chisam [1963] 47 Cr App R 130

12. R v Duffy [19667] 1 All ER 62

13. Kaluma v Republic [1968] EA 349

14. R v Shannon The Times 19th April, 1980; [1980] Crim LR 438

15. George Karanja Mwangi v Republic Criminal Appeal No 132 of 1983; [1983] KLR 522

16. Kalume wa Tuku alias Saidi v Regina (1954) 21 EACA 201

Texts

1. Butler, T.R.F., Mitchell S.G., (Eds) et al. (1973) Archbold: Criminal Pleading, Evidence and Practice, London: Sweet & Maxwell 38th Edn

2. Hailsham, Lord, et al, (Ed), (1976) Halsbury’s Laws of England, London: Butterworths, 4th Edn para 1179

Statutes

1. Penal Code (cap 63) sections 17, 207, 208, 208(1), 213(a), 241, 244, 392

2. Evidence Act (cap 80) section 33(a)

3. Criminal Procedure Code (cap 75) sections 297, 382

Advocates

Mr BN Georgiadis for Appellant

Mr B Chunga for the Republic

Kipng'etich v Republic

Court of Appeal, at Nairobi

 December 10, 1984

Chesoni Ag JA

Criminal Application No NAI 17 of 1984

(Appeal from the High Court at Nairobi, O’Kubasu J)

Appeal - extension of time - to file appeal - application for - litigant taking necessary steps to instruct advocate - failure of advocate to file appeal in time - litigant instructing another advocate - application for extension of time made after 3 months - whether litigant entitled to extension of time.

The applicant, whose appeal was dismissed by the High Court, filed an application three months later asking the Court of Appeal for an extension of time within which to file a notice of appeal. In her affidavit in support of the applicant’s application, his wife deponed that she had instructed an advocate about a month after the dismissal of the appeal by the High Court but she later discovered that that advocate had taken no action in filing and prosecuting the appeal. She further stated that she instructed another firm of advocates who had filed the application for extension of time.

Held:

1. It had been satisfied that the applicant had taken the necessary steps to prosecute his appeal but she was let down by his former advocate.
2. The delay in filing the appeal was not inordinate and as the matter involved the liberty of a subject, the court would exercise its discretion in favour of the applicant.

 Application allowed.

Cases

No cases referred to.

Statutes

No statute referred to.

Advocates

1. Mr. Odero for Applicant
2. Miss Mbarire for Respondent

Geoffrey Ndung’u Theuri v Law Society of Kenya

Court of Appeal, at Nairobi

December 10, 1984

Kneller JA

Civil Application No NAI 33 of 1984

(In an intended appeal from the High Court at Nairobi, Porter J)

Costs - waiver of court fees - security for costs – waiver on appeal – where applicant lacks means to pay fees and deposit security – applicant’s intended appeal having reasonable probability of success –whether applicant was entitled to waiver - Court of Appeal Rules (cap 9 Sub Leg) rule 112.

Costs - court fees and security for costs – waiver of – applicant lacking means to pay fees and deposit security – intended appeal having reasonable probability of success – whether applicant entitled to waiver - Court of Appeal Rules rule 112.

The applicant applied to the High Court by summons in chambers under order XXXIX rules 2, 5 and 9 of the Civil Procedure Rules and section 3A of the Civil Procedure Act for an injunction to restrain the respondent from impeding his enrolment as an advocate, special and general damages and costs. The judge held that the court had no jurisdiction as the summons had not been filed out of any suit already in court and struck out the summons with the costs being awarded to the applicant. A further summons application by the applicant before the same judge to review the dismissal of the previous summons was refused. The applicant, by an ex parte notice under rule 112 of the Court of Appeal Rules, asked the Court of Appeal to direct that his intended appeal be lodged without prior payment of court fees, without lodging security for costs or on lodging of a sum less than that fixed by rule 104 of the Court of Appeal Rules and that he bears only the costs of preparing and binding his record and memorandum of appeal.

The appellate judge, after setting out the appellant’s means and considering various authorities on the issue on which the High Court had dismissed the applicant’s first summons.

Held:

1. The applicant lacked the means to pay the fees required for the lodging of his appeal or to deposit the security for costs.

2. The applicant’s intended appeal was not without a reasonable probability of success.

Application allowed.

Cases

1. Mwangi Njoroge Mugwe v James Mwangi Kihara Nairobi High Court Miscellaneous Civil Suit 255 of 1982 (unreported)

2. Manohur Lal Chopra v Rai Bahadur Rao Raja Seth Hira Lal [1962] AIR SC 527

3. Thorneloe v Skoines (1873) LR 16 Eq 126

4. Young v Brassey (1875) 1 Ch D 277

5. Carr v Morice (1873) LR Eq 125

6. Campana v Webb (1874) 22 WR 622

7. Chanhoch v Hertz (1888) 4 TLR 331

8. In Re “N” (Infants) [1967] 7 ChD 512; [1967] 1 All ER 161

9. L v L [1969] 1 All ER 852

Texts

1. Hailsham, Lord, et al (Eds) (1979) Halsbury’s Laws of England London: Butterworths, 4th Edn Vol XXIV para 1049

2. Venkataraman, T.L, (Ed) (1967) Mulla on the Code of Civil Procedure NM Tripathi Private Ltd: Bombay, 13th Edn Vol II p 1517

Statutes

1. Court of Appeal Rules (cap 9 Sub Leg) rule 112

2. Advocates Act (cap 16) section 13

3. Civil Procedure Rules (cap 21 Sub Leg) order XXXIX rules 2, 5 and 9; order VI rule 12

4. Civil Procedure Act (cap 21) section 3A, 27(1), 63

5. Code of Civil Procedure 1908 [INDIA] (Act V of 1908) sections 94, 96; order 39 rule 1

6. Rules of the Supreme Court [UK] order 29 rule 1(3)

7. High Court (Practice and Procedure ) Rules (cap 8 Sub Leg)

Maina wa Kinyatti v Republic

Court of Appeal, at Nairobi

November 23, 1984

 Kneller JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 60 of 1983

(Appeal from the High Court at Nairobi, Sachdeva & Abdullah JJ)

Transfer – of cases – from one court to another – grounds for transfer – reasonable apprehension of a fair trial – exercise of discretion to transfer case – principles applicable in exercise of.

Evidence – hearsay evidence – meaning of – rules governing hearsay evidence – when non-original evidence may not be hearsay – test – factors to be taken into consideration.

Criminal law – possession of seditious publication – offence of – contrary to section 57(2) of the Penal Code (cap 63) – definition of possession – meaning of personal possession – proof of possession – standard of proof. Sentencing – power to remit – a case for resentencing–– failure to exercise this power – whether error makes the sentence illegal – options of the High Court upon detecting the error – effect of.

The appellant was convicted in a Chief Magistrate’s court with the offence of being in possession of seditious publication contrary to section 57 (2) of the Penal Code (cap 63). His first appeal to the High Court was dismissed. The applicant appealed to the Court of Appeal on the grounds that the trial court erred in not allowing the case to be transferred to another court, in admitting hearsay evidence and in finding that he was in possession of a seditious publication in the absence of evidence proving that he had knowledge of their existence.

Held:

1. In deciding whether or not to transfer a case from one Court to another, the test was whether the appellant had made out a clear case by discharging on the balance of probabilities the burden of showing that the apprehension in his mind that he may not have a fair and impartial trial is of a reasonable character.
2. A trial magistrate or judge, unlike an assessor, has the discretion not to participate at a trial when the circumstances are such that bias might be suggested. However, that discretion must be exercised judicially and on the proper principles. In this case the discretion was exercised on the wrong principles.
3. Hearsay or indirect evidence is the assertion of a person other than the witness who is testifying, offered as evidence of the truth of that asserted rather than as evidence of the fact that the assertion was made. It is not original evidence.
4. The rule against hearsay is that a statement other than one made by a person while giving oral evidence in the proceedings is inadmissible as evidence of a stated fact.
5. Hearsay evidence may be admitted if the statement containing it is made in conditions of involvement or pressure, within proximity but not exact contemporaneity as to exclude the possibility of concoction or distortion to the advantage of the maker or the disadvantage of the accused.
6. The evidence of a statement made to a witness by a person who is not called as a witness may or may not be hearsay. It is hearsay and inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
7. A statement made by an observer or a participant is admissible as evidence in criminal proceedings if made on an approximately contemporaneous occasion so as to exclude any possibility of its having been concocted to the maker’s advantage regardless of whether or not he testifies at the trial.
8. Such a statement may be proved as original evidence when the fact that it was made, as distinct from its truth, : (a) is in issue whether or not the statement was made; (b) is relevant to an issue regardless of whether it is true or false; or (c) it affects the credit of a witness.
9. In defining “being in possession” for the purposes of section 57(2) of the Penal Code (cap 63), full control of the object or article in possession of the accused is not necessary, nor is it a requirement of that definition.
10. In order to prove possession, it is enough to prove any one of the following, that the accused (a) was in actual personal possession of the publication; (b) knew that the publication was in the actual possession or custody of another person; or (c) had the publication in any place (regardless of whether the place belongs or is occupied by him or not) for the use or benefit of himself or another person.
11. Being in personal possession includes actual holding or having the publication in one’s custody. Knowledge that the publication is in actual possession or one’s custody or of another person is inferred from the circumstances and/or proved the facts of the particular case.
12. From the facts of the case, the Court was satisfied that from the proven and admitted facts, the appellant was proved beyond reasonable doubt to have been in actual possession, in law, of the seditious publication.
13. The judges having detected the magistrate’s misdirections should have interfered, set aside the sentence based on the wrong principles and either substituted it with their sentence or remitted the case back to another magistrate seized with competent jurisdiction to sentence the appellant.
14. The failure by the High Court to remit the case for re-sentencing was an error in the nature of a procedural technicality and since the sentence was legal, that error was of no consequence as it had occasioned no miscarriage of justice.

Cases

1. Republic v Hashimu [1968] EA 656
2. Karanja v Republic High Court Criminal Appeal No 107 of 1976 (unreported)
3. Shilenje v Republic [1980] KLR 132
4. Patel, In the matter of an application by (1913/1914) 5 KLR 66
5. Dupeyron v Driver ILR 22 Cal 495
6. Mbogo & Another v Shah [1968] EA 93
7. Republic v Wang’ondu Criminal Case No 1096 of 1982 (unreported)
8. Thomson v Trevanion (1893) Skin 402
9. Republic v Foster (1834) 6 C & P 325
10. People v De Simone (1919) 121 NE 761
11. Subramaniam v Public Prosecutor [1956] 1 WLR 965
12. Sparks v Republic [1964] AC 964; [1964] 1 All ER 727
13. Ratten v Reginam [1972] 3 All ER 801
14. Shah v Reginam (1956) 23 EACA 410
15. Raojibhai Girdharbhai Patel & Another v Reginam (1956) 23 EACA 536
16. M’riungu & Others v Republic Criminal Appeals Nos 134, 135, 136 & 137 of 1982; [1983] KLR 455
17. Shah v Republic Criminal Appeal No 55 of 1982 (unreported)
18. Meghji v Republic Criminal Appeal No 76 of 1982 (unreported)
19. Missioni v Republic Criminal Appeal No 39 of 1979 (unreported)

Texts

1. Prinsep, H.T. , Woodroffe J. India Code of Criminal Procedure 1908
2. Mitchell, S.G. et al. (Eds) (1979) Archbold: Criminal Pleading, Evidence and Practice 1979 London: Sweet & Maxwell 40th Edition p 808 para 1282
3. Heydon, J.D. (1975) Cases and Materials on Evidence London: Butterworths p 5
4. Cross, R (1975) Cross on evidence London:Butterworths p 385

Statutes

1. Penal Code (cap 63) sections 4, 57 (2)
2. Criminal Procedure Code (cap 75) sections 79, 81, 361 (1)
3. Criminal Procedure Code (cap 16) [Tanzania] section 80
4. Evidence Act (cap 80) sections 6, 111 (1), 127 (2), 165
5. Criminal Procedure (Amendment) Act 1982 (Act No 13 of 1982)

Advocates

1. Mr . O Otieno for the Appellant
2. Mr . B Chunga for the Respondent

Kibutha v Kibutha

Court of Appeal, at Nairobi November 20, 1984

Kneller, Hancox JJA & Chesoni Ag JA

Civil Appeal No 54 of 1983

(Appeal from the High Court at Nairobi, Aganyanya J)

Arbitration - arbitration award - setting aside of - what is to be considered in setting aside award.

Arbitration - arbitration proceedings - nature of procedure.

Judicial discretion - exercise of discretion - judge’s discretion to set aside arbitration award - whether declining to set aside award on grounds of alleged misconduct is improper exercise of discretion.

Civil Practice and Procedure - inherent powers of the court - when the inherent powers of the court may be invoked in arbitration proceedings - Civil Procedure Act (cap 21) section 3A.

The appellant, a brother to the respondent, had filed an application in the High Court seeking to set aside an arbitration award in a land dispute between them. In his application the appellant had alleged misconduct by the panel of elders and after hearing the notice of motion, the judge dismissed the application holding that the inherent powers of the court could not be invoked as no injustice had been caused by the application of the appropriate rules. Aggrieved by the decision the appellant appealed on grounds that there was misconduct by the panel of elders as there was failure to record all the evidence given by the appellant, that the appellant was not given adequate hearing, that extraneous matters were introduced and that there were discrepancies.

Held:

1. The Civil Procedure Rules, order XLV, relating to a reference to arbitration contains provisions protecting a party who is dissatisfied with an arbitration award or the procedure leading to it namely;

a) the court may modify or correct an award under rule 13,

b) the court may remit an award to the arbitrators under rule 14 , and

c) it may set aside the award on the grounds of corruption or misconduct under rule 15.

2. The inherent powers of the court under the Civil Procedure Act (cap 21) section 3A cannot be invoked so as to override other rules unless it can be shown that special circumstances exist or that injustice would be occasioned by the application of the such other rules, which was not the case here.

3. It is not essential in arbitration proceedings, on a reference, that the procedure at the hearing of the arbitration be in technical conformity with that followed in the courts.

4. The general rule is that the court is reluctant to interfere with an arbitration award where the parties were heard and given the opportunity to question each of the witnesses resulting in a full adjudication upon the matters in issue.

5. An application to set aside an arbitration award can only be allowed where misconduct within the meaning of order XLV rule 15(a) is established.

6. The judge exercised his judicial discretion properly in declining to set aside the arbitration award.

Appeal dismissed.

Cases

1. Rawal v The Mombasa Hardware Ltd [1968] EA 392

2. Saldanha v Bhailal & Co [1968] EA 28 at 30

3. Ahmed Hassam Mulji v Shirinbai Jadavji [1963] EA 217

4. Ajodhya v Mussamat Phul Kuer [1922] AIR Pat 479

5. Naumann v Nathan [1930] 37 Lloyd’s Rep 249

6. Rashid Moledina & Co (Mombasa) & Others v Hoima Ginners Ltd [1967] EA 645

Texts

1. Walton, A., (1970) Russell on the Law of Arbitration, London: Stevens & Sons Ltd 18th Edn p 268

2. Mitter, R.C., (1953) Mulla on the Code of Civil Procedure, Bombay: N.M Tripathi Private Ltd 12th Edn Vol 1 p 660

Statutes

1. Civil Procedure Rules (cap 21 Sub Leg) order IX rule 13, order XVI rule 6, order XLV rule 15(a)

2. Civil Procedure Act (cap 21) section 3A, section 97

3. Code of Civil Procedure [INDIA] section 151

4. Civil Procedure (Revised) Rules 1948 (cap 21 Sub Leg) order XVI rule 6

Advocates

Mr Gaturu for Appellant

Mr Punja for Respondent.

Editorial Note

Section 97 of the Civil Procedure Act (cap 21) cited in this judgment has since been renumbered as section 3A.

Njenga v Republic

Court of Appeal, Nairobi November 16, 1984

Hancox JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 117 of 1984

(Appeal from the High Court at Nairobi, Ouma J)

Criminal Practice and Procedure - right of accused person - right to resummon and rehear witnesses where there is change of magistrate - case depending on evidence of identification and recognition - change of magistrate after evidence of first identifying witness - failure by succeeding magistrate to inform accused of right to recall witness - accused convicted - whether trial was proper - Criminal Procedure Code (cap 75) section 200(3).

Evidence - witness - resummoning and hearing of - circumstances in which witness may be resummoned - case depending on evidence of identification and recognition - change of magistrate after evidence of first identifying witness - failure by succeeding magistrate to inform accused of right to recall witness - accused convicted - whether trial proper – Criminal Procedure Code (cap 75) section 200(3).

The appellant was charged in a magistrate’s court with robbery with violence. The offence was alleged to have been committed at the house of the complainant one night at about 2 am. The prosecution case depended on visual identification and recognition of the appellant by the complainant and the third prosecution witness. After the evidence of the complainant only had been given in the case, a different magistrate took over and proceeded with the trial. The succeeding magistrate, did not inform the appellant of his right to have the complainant resummoned and at the end of the trial accepted the evidence of the prosecution and rejected that of the appellant and of his witnesses and convicted him. The appellant’s first appeal was summarily rejected and he appealed to the Court of Appeal.

Held:

1. In a case depending on visual recognition, where the principal witness is heard by one magistrate and the second identifying witness by another, it is essential that the accused is informed of his right to resummon the witness.

2. The Criminal Procedure Code (cap 75) section 200(3) entitles an accused person to demand that any witness be resummoned and enjoins the trial magistrate to inform the accused person of that right.

3. Since it could not be said that if the succeeding magistrate had seen and heard both identifying witnesses he would necessarily have convicted, it could not be said that the failure caused no prejudice to the appellant.

4. The appellant’s first appeal should not have been summarily rejected.

Appeal allowed.

Cases

1. Yongo v Republic Criminal Appeal No 1 of 1983; [1983] KLR 319

2. Mwangi v Republic Criminal Appeal No 132 of 1983; [1983] KLR 522

3. Mohamed Rafiq v Republic Criminal Appeal No 56 of 1983 (unreported)

Statutes

1. Penal Code (cap 63) section 296(1)

2. Criminal Procedure Code (cap 75) sections 200(3), 214(1), 352(2), 361(2)

Advocates

Mr Bali-Sharma for Appellant

Miss Mbarire for Respondent

Kiarie v Republic

Court of Appeal, at Nairobi November 15, 1984

Kneller JA, Chesoni & Nyarangi Ag JJA

Criminal Appeal No 93 of 1983

(Appeal from the High Court at Nairobi, Cockar J)

Criminal law - alibi - defence of - effect of raising defence of alibi – onus of proof where alibi raised - standard of proof on defence of alibi.

Appeal - second appeal - findings of fact made by lower court - circumstances in which Court of Appeal will upset such findings of fact - misdirection - the nature of a misdirection entitling Court of Appeal to upset lower court’s findings of fact.

Evidence - identification - identification of accused in court - no earlier identification parade conducted - trial court’s failure to consider existence of circumstances not favouring proper identification - possibility of honest mistake by identifying witness not considered - whether identification evidence was reliable.

The appellant was charged before a magistrate’s court with robbery with violence contrary to section 296(2) of the Penal Code (cap 75). He pleaded not guilty and he was later tried, convicted and sentenced. His appeal to the High Court was dismissed. He now appeals to the Court of Appeal against the conviction.

It was submitted at appeal that the trial magistrate had failed to consider the appellant’s defence of alibi and failed to advance any cogent reasons for not believing the alibi which on the totality of evidence raised a reasonable doubt and that as there had been no evaluation of the whole evidence, the judge had misdirected himself on the issue of alibi, on the matter of honest mistake of identity and on the trial magistrate’s decision to reject the defence evidence. Because of the misdirections, the appellant’s advocate further argued, there were no proper concurrent findings of fact and therefore the Court of Appeal had jurisdiction to interfere.

Held:

1. The Court of Appeal on a second appeal may upset a finding of fact by the trial or the first appellate court where there is a misdirection but such misdirection must be of such a nature and the circumstances of the case must be such that if it were a trial by jury, the jury would not have returned their verdict had there been no misdirection.

2. It is possible for a witness to be honest but mistaken and for a number of witnesses to all be mistaken.

3. Where the evidence relied on to implicate an accused person is entirely of identification, that evidence should be watertight to justify a conviction.

4. The identification of an accused person in court by a complainant is almost worthless without an earlier identification parade.

5. A trial court is entitled to comment on the demeanour of a witness and to take it into account in assessing the evidence of a witness but this does not exclude the court from the requirement of disclosing the factors which justify the finding on the demeanour. The failure by the trial magistrate to record evidence on the behaviour or attitude of the defence witnesses upon which he had taken a perverse view of their testimony in support of the accused’s alibi meant that there was nothing on which the magistrate’s finding on the alibi could be tested.

6. An alibi raises a specific defence and an accused person who puts forward an alibi as an answer to a charge does not in law thereby assume any burden of proving that answer and it is sufficient if an alibi introduces into the mind of a court a doubt that is not unreasonable. The judge had erred in accepting the trial magistrate’s finding on the alibi because the finding was not supported by any reasons. It was not possible to tell whether the correct onus had been applied and if the prosecution had been required to discharge the alibi.

7. The errors of law on the finding on identification and on the alibi were of such a nature that it was reasonably probable that without them the trial magistrate would not have convicted the appellant.

Appeal allowed.

Cases

1. Abdallah Bin Wendo & Sheh Bin Mwambere v Reginam (1953) 20 EACA 166

2. Wasaja v Uganda [1975] EA 181

3. Roria v Republic [1967] EA 583

4. R v Turnbull and Others [1976] 3 All ER 549

5. Rex v Shabani Bin Donaldi (1940) 7 EACA 60

6. R v Eria Sebwato [1960] EA 174

7. Saidi s/o Mwakawanga v Republic [1963] EA 6

8. Raphael v Republic [1973] EA 473

Texts

1. Mitchell, S.G. et al. (Eds) (1979) Archbold: Criminal Pleading, Evidence and Practice 1979, London” Sweet & Maxwell 40th Edn p52

2. Ranchhodas & Thakore, The Law of Evidence (The Indian Evidence Act) 13th Ed p 151

Statutes

1. Penal Code (cap 63) section 296(2)

2. Criminal Procedure Code (cap 75) section 361(1)

Advocates

Mr Khaminwa for Appellant.

Mr B Chunga for Republic