[1950] EACA 399

## H. M. COURT-OF APPEAL FOR EASTERN AFRICA

Before Sir Barclay Nihill (President), DE LESTANG and RUDD, J. J. (Kenya)

MOHAMED BACHU, Appellant (Original Accused)

$\mathbf{1}$

## **REGINAM.** Respondent

## Criminal Appeal No. 389 of 1955.

(Appeal from the decision of H. M. Supreme Court of Kenya, MacDuff, J.)

Trial with Assessors—Taking of assessors' opinions on particular points—When Court of Appeal will interfere—Kenya Criminal Procedure Code, sections 258, 293, 294 and 318.

The appellant was convicted of murder by the trial Judge who sat with assessors. There was some evidence of provocation. The assessors found that the accused did not strike the fatal blow and advised aquittal. The Judge found that the accused did strike the blow. He did not ask the assessors for a separate opinion on the issue of provocation, and himself found as facts: (a) that the alleged acts of provocation did not take place; and $(b)$ that if they did, they would have been insufficient to reduce the offence to manslaughter.

Held (19-10-55).—The Court must take the opinion of each assessor on the case generally, but is not obliged in addition to take their opinions on specific points which on their<br>general view of the case do not arise. The Court of Appeal will only interfere on the ground that the trial Judge had not required an opinion from them on a particular point if it can be shown that failure to do so was unfair to the accused or contrary to natural justice.

Appeal dismissed.

Case referred to: R. v. Guzambisi Wesongo, 15 E. A. C. A. 65.

O'Brien Kelly for appellant.

Brookes for respondent.

JUDGMENT.—The appellant appeals from a conviction of the murder of one Ali Mohamed who died as a result of being stabbed in the chest with a knife. The appellant denied stabbing the deceased in defence. No argument was put forward at the trial on his behalf to suggest that he had caused the death of the deceased under the influence of provocation as defined by section 204 of the Kenya Penal Code. According to eye-witnesses the deceased and the appellant were not on friendly terms. The deceased went to the appellant's house and the appellant came out and they had a short conversation in a low tone, whereupon the appellant whipped out a knife, stabbed the deceased in the chest and then went away carrying the knife in his hand.

According to the appellant the deceased caught him by the shirt, abused him in Hindi referring to his sister in a degrading manner and in Kiswahili referring to his mother in a similarly degrading manner and then raised his fist to strike the appellant who broke free and ran away, leaving the deceased unhurt. He said he was frightened; he did not say that he was angered or that he lost his power of control.

Although no issue as to provocation was raised by the defence the summingup included the most complete and careful directions as to the possibility that the appellant might have acted under sudden provocation.

The assessors were of opinion that the appellant had not stabbed the deceased and were silent as to the possibility of provocation. The trial Judge differed from the opinions of the assessors and found that the appellant had stabbed the deceased, thereby causing his death and that he had not acted under the influence of provocation. He did not believe the appellant's evidence that the deceased had struggled with him or that he had been abused as he said he was. Nevertheless, the learned trial Judge further held that even were the appellant's version as to the words used accepted, such words would not be sufficient to deprive an ordinary reasonable person of his race of the power of self-control and induce him to assault the deceased by striking him a severe blow with a lethal weapon in a vital part of his body.

It was conceded at the hearing of the appeal that the learned trial Judge's findings that the appellant had stabbed the deceased and that there had not been a struggle could not be effectively assailed. It was further conceded that adequate directions were given on the question of provocation.

The one matter of any substance argued on this appeal was a submission that the trial must be held to be a nullity because the learned trial Judge did not obtain specific opinions from the assessors as to whether the evidence showed sufficient provocation to cause an ordinary person of the appellant's community to lose his power of self-control and to induce him to stab the deceased.

It was conceded that upon the evidence in the case the learned trial Judge could have found as he did, whatever answers the assessors might have given if they had been specifically required to give their opinions as to whether there had been provocation, but it was contended that if these opinions had been obtained and if they were favourable to the appellant the learned trial Judge might have reached a different conclusion.

It was further contended that in any case the Judge was bound to ascertain the opinions of the assessors on every aspect of the case, failure so to do not being a trial with the aid of assessors as regards that aspect, and consequently not in compliance with section 258 of the Kenya Criminal Procedure Code which provides that subject to the provisions of Part VII all trials before the Supreme Court shall be with the aid of assessors: sections 293 and 294 of the Code were also invoked, the point being that both these sections refer to "a trial with the aid of assessors".

In our opinion none of these sections indicate how the aid of the assessors is to be obtained by the Court. The only section of the Kenya Criminal Procedure Code which contains mandatory provisions in that regard is section 318 and it was complied with. It provides as follows: $\rightarrow$

"318. (1) When, in a case tried with assessors, the case on both sides is closed, the Judge may sum up the evidence for the prosecution and the defence, and shall then require each of the assessors to state his opinion orally, and shall record such opinion.

(2) The Judge shall then give judgment, but in doing so shall not be bound to conform to the opinions of the assessors.

(3) If the accused person is convicted, the judge shall pass sentence on him according to law.

(4) Nothing in this section shall be read as prohibiting the assessors, or any of them, from retiring to consider their opinions if they so wish; or, during any such retirement or at any time during the trial, from consultation with one another."

That section does not require the Court to obtain specific opinions from the assessors on every question that arises in a case. We know of no authority for such a proposition.

In R. v. Gusambizi Wesonga, 15 E. A. C. A. 65 at p. 68, this Court said in a $\cdot$ case from Uganda:—

"We can see no objection to a Judge requiring assessors to answer specific questions after his summing-up provided he is careful to tell them that they should state opinion generally on the whole of the evidence for this seems to be required by the terms of section 277 of the Uganda Criminal Procedure Code.

These points we are aware involve the much larger one as to what are the precise functions or the exact status of assessors in a criminal trial. The legislatures of all the East African territories have been vague, perhaps intentionally so, in defining or setting out their functions, and until they are so defined it would be unsafe and impossible for the Court to set them out in comprehensive certainty. All that can be said is that in the examination of the actual exercise by assessors of any function this Court will always apply the test of what is fair to an accused person and will keep in mind the principles of natural justice."

We can well imagine cases in which it would be proper and indeed advisable for the trial Judge to obtain a specific opinion from the assessors on a certain point in addition to their opinions on the case as a whole. In fact it is often done, but the Kenya Criminal Procedure Code does not specifically require it to be done in all cases and the interference by this Court solely on the ground that the Court had not required an opinion from the assessors upon a particular point as well as upon the case as a whole could only be justified if it were shown that it was unfair to the accused or contrary to the principles of natural justice.

The application of this test to the present case does not justify interference with the learned trial Judge's findings.

The appellant's story of a struggle with the deceased was not believed and even if the deceased did use the words attributed to him by the appellant they are not capable of amounting to anything more in the circumstances disclosed by the evidence that the trial Judge accepted, than mere vulgar abuse not unusual between persons of the class of the appellant and the deceased and as such not capable of themselves alone of constituting legal provocation as defined by section 204 of the Kenya Penal Code.

For the above reasons as we indicated at the hearing, this appeal is dismissed