[1953] EACA 13
The court held that, regardless of whether a conviction for being a member of an unlawful society could be substituted where the evidence falls short of the original charge, such a conviction cannot stand if it is based on evidence irrelevant to the offence charged and where the accused was not given particulars of...
Source-derived case information.
- Citation
- [1953] EACA 13
- Parties
- Appellant: Kariuki s/o Gathoga and another; Respondent: Regina
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Criminal Appeal No. 1696 of 1953 ; Criminal Appeal No. 1699 of 1953
- Procedural Posture
- Criminal Appeal / Appeal
- Outcome
- convictions quashed and sentences set aside
- Judges
- De Lestang J, Hearne CJ
- Legal Topics
- Illegal Societies, Unlawful Oath Administration, Conviction on Alternative Offence, Evidentiary Relevance, Particulars of Offence
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Kariuki s/o Gathoga and another
Appellant
Regina
Respondent
Procedural Posture
Criminal Appeal / Appeal
Legal Issues
- 1 Whether a person charged with being present at and consenting to the administration of an unlawful oath can be convicted of being a member of an unlawful society on the basis of evidence unrelated to the charge.
- 2 Whether it is essential for the accused to be given particulars of the alternative offence before conviction.
Ratio Decidendi
The court held that, regardless of whether a conviction for being a member of an unlawful society could be substituted where the evidence falls short of the original charge, such a conviction cannot stand if it is based on evidence irrelevant to the offence charged and where the accused was not given particulars of the alternative offence. The lack of relevant evidence and particulars deprived the appellants of a fair opportunity to defend themselves against the substituted charge. Therefore, the convictions and sentences were quashed.
Court Disposition
convictions quashed and sentences set aside
Orders
- The convictions of both appellants are quashed.
- The sentences imposed on both appellants are set aside.
Full Case Text
Judgment text and source record
16 paragraphs
## APPELLATE CRIMINAL
#### Before HEARNE, C. J. and DE LESTANG, J.
### KARIUKI s/o GATHOGA AND ANOTHER, Appellants
$\mathbf{v}$ . REGINA, Respondent
# Criminal Appeals Nos. 1696 and 1699 of 1953 (consolidated)
Criminal Law—Penal Code section 62 (1)—Being present at and consenting to the administration of an illegal oath—Acquittal, but conviction for being a member of an illegal society contrary to section 71 (a)—Whether evidence relevant—Whether essential for accused person to be given particulars before conviction
The two appellants were charged under section 62 (1) of the Penal Code with being jointly present at and consenting to the administration of an unlawful Mau Mau oath to another. The magistrate, in the absence of sufficient evidence, acquitted both but because some of the evidence suggested that the appellants were present at another oath administration ceremony on an occasion other than that charged, convicted them of being members of an unlawful society contrary to section 71 (a) of the Penal Code. The appellants appealed.
Held (14-12-53).—Without deciding whether, where an accused person is charged with being present at and consenting to the administration of an unlawful oath at a certain time and place, and the evidence falls short of the offence charged, he may be convicted of<br>being a member of an unlawful society, the Court was satisfied that he cannot be so convicted on evidence irrelevant to the offence charged and of which he was given no particulars. Convictions quashed and sentences set aside.
#### $R$ , $B$ , Bhandari for appellants.
Bechgaard, Crown Counsel, for the Crown.
JUDGMENT.—The appellants in Criminal Appeals Nos. 1696 and 1699/53 were charged with being jointly present at, and consenting to, the administration "of the unlawful Mau Mau oath to one Muchene Kahara" in January, 1953, at Kibiko.
Muchene Kahara (3 P. W.) did not give any evidence of an oath having been administered to him in January, 1953, at Kibiko, at which meeting he alleged the appellants were present.
Mujono Mukosio (1 P. W.) gave evidence of being at the meeting in January, 1953, at Kibiko, and while he said the appellant in Criminal Appeal 1699/53 was present, he said that he did not see the appellant in Criminal Appeal 1696/53.
The magistrate acquitted both the appellants of the offence with which they were charged, but by reason of some evidence suggesting that the appellants were present at another oath administration ceremony, on an occasion other than the occasion in respect of which they were charged he convicted them of being members of an unlawful society.
We do not in these appeals, decide the question of whether, where an accused person is charged with being present at, and consenting to the administration of an unlawful oath at a certain time and place, and the evidence falls short of proof of the offence charged, he may be convicted of being a member of an unlawful society. But we are satisfied that he cannot be convicted of being a member of an unlawful society, on evidence which is quite irrelevant to the offence with which he was charged, and of which he was given no particulars.
The convictions and sentences are set aside.