[1953] EACA 22

# APPELLATE CRIMINAL

### Before HEARNE, C. J. and DE LESTANG, J.

### PHILIP MUIGA s/o CHURIA, Appellant

$\boldsymbol{\nu}$

## REGINA, Respondent

#### Criminal Appeal No. 1774 of 1953

Criminal Law—Penal Code—Section 71 (a)—Being a member of the May May society—Section 71 (b)—Knowingly allowing a meeting of an unlawful society to be held in a house—Evidence—Risk of convicting on evidence of one eye-witness—Accomplice—Danger of conviction on uncorroborated evidence of-Whether burden of proof shifted to defence-Criminal Law and Procedure—Defective particulars of charge—Misleading particulars.

The accused was charged with being a member of the *Mau Mau* society and also of knowingly allowing a meeting of that society in his house contrary to section 71 (a) and (b) of the Penal Code. The particulars of the second count ran "allowing in 1951, 1952 and 1953 a meeting of the Mau Mau society to be held in his house". The magistrate accepted the evidence of a single eye-witness who admitted he had taken the *Mau Mau* oath at the meeting but had reported to no one. This witness stated he had seen the accused at the alleged meeting but no other witness who alleged attending the meeting in a dimly-lit house saw him there. The magistrate held that since the prosecution had proved that the meeting did take place in the house of the accused the burden of proof shifted to him to show that it was held there against his wishes. The magistrate convicted on both counts. The accused appealed.

*Held* (21-12-53).—(1) The second count was defective and misleading in that the word "knowingly" had been omitted from the particulars of the charge which also alleged a single meeting held during three separate years, wh

(2) The omission of the word "knowingly" from the particulars of the second count had misled the magistrate into holding that the burden of proof shifted to the accused say so soon as the prosecution had proved the meeting took place in his house. In fact the<br>burden of proof never shifted from the prosecution which, to succeed, had to prove, affirmatively, the the accused knowingly allowed the meeting to take place in his house.

(3) The magistrate had convicted the accused on the evidence of a single eye-witness who alleged he recognized the accused in a dimiy-lit house although other witnesses who stated they were present at the time had not seen him. In these circumstances, it was not safe to convict on the evidence of the alleged eye-witness.

(4) The alleged eye-witness admitted he had taken the Mau Mau oath at the meeting but had not reported this. He must be regarded as an accomplice and as there was no corroboration for his evidence and in the circumstances of conflict of evidence it was dangerous to convict.

Appeal allowed.

JUDGMENT.—The appellant was charged with being a member of the Mau Mau society on 28th September, 1953, the day on which he was arrested, under section 71 (a) of the Penal Code. He was also charged with the offence of allowing in 1951, 1952 and 1953 "a meeting of the Mau Mau society to be held in his house" at Plot 35, Londiani. The latter charge was most misleading. One meeting could not take place in each of three years. He was convicted on both counts. The magistrate found in regard to the second count that the meeting took place in April, 1953. Even if a meeting of the Mau Mau did take place in the

appellant's house, he could not be convicted unless he knowingly allowed it to take place in his house, and it is to be noted that the word "knowingly" is omitted in the particulars of the charge. We do not agree with the magistrate when he says "since the prosecution has proved the meeting took place in the accused's house, the burden is shifted: and it is up to the accused to show that it was held in that place against his wishes". It is for the prosecution to prove affirmatively that the appellant knowingly allowed the meeting to take place in his house.

Two witnesses (3 P. W. and 4 P. W.) said that they had taken the *Mau Mau* oath in the appellant's house in Londiani. Neither of them had discussed Mau Mau with the appellant, neither of them had seen the appellant at the meeting in his house, or immediately before or after the meeting in Londiani. One of them (3 P. W.) had seen the appellant's wife by the door of the house and it is possible that the meeting had taken place with her knowledge but not with that of the appellant. The possibility that this was the case is enhanced by the fact that according to the appellant himself and a witness called by him—their evidence was not challenged in cross-examination—the appellant was not resident in Londiani in 1953 but in Molo. The witness called by the appellant said that the appellant came to Londiani at the end of every month to see his wife, and unless it was proved that the meeting took place at the end of April—and this was not proved—it would be difficult to conclude that the appellant had allowed the meeting to take place, unless somebody saw him at the meeting.

The only evidence to this effect—and indeed it was the only evidence on which the magistrate convicted the appellant on both counts—was that of 2 P. W. who claimed that he had seen the appellant at the meeting, although the two other witnesses to whom we have referred did not see him. One of the witnesses in fact said that it was so dark that he could not recognize anybody. In these circumstances alone it would not be safe to act on the evidence of 2 P. W. In addition it must be noted that 2 P. W. who apparently made no report to anybody of the oath he had taken is an accomplice and that his evidence is not independently corroborated.

For the reasons we have given the convictions and sentences are set aside.