[1937] EACA 160

## $160 \cdot$

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. P.; LUCIE-SMITH, Ag. C. J.; (Kenya), and WEBB, J. (both of Kenya).

## 1. KARIOKI WA GATIBO ALIAS WANJOHI KAMAU. 2. WANJOHI WA KAIHARA

(Appellants) (Original) (Accused No. 1 and 2)

$\overline{2}$

## REX (Respondent) (Original Prosecutor). Cr. A. 59/1934 and 60/1934.

- Murder-Section 187, Penal Code of Kenya-After Crown case closed whether accused should have been called upon to enter on their defence—Section 289 (4) Criminal Procedure Code— For trial Court to consider whether there is evidence on which accused should be called upon to enter on their defence —Duty of Court of Appeal in circumstances where trial Judge considered that there was evidence. - Held (29-6-34).—That it is for the Trial Court to consider and decide, after the Crown Case has been closed, whether there is evidence on which the accused should be called upon to enter upon his defence, and not for the Appellate Court to decide whether there actually was evidence. Case of Rex v. George, 1 Criminal Appeal Reports, page 168, followed. Appeals dismissed. - Held Further.-That, though counsel for accused has submitted at the proper stage that there is no case, yet if he takes part in the subsequent proceedings, he cannot on appeal rely on that. Rex v. Power, 14 Criminal Appeal Reports, page 17 followed.

Appeal from Supreme Court of Kenya.

Malik for appellants.

Bruce (Solicitor-General, Kenya) for Crown.

Malik.—Accused, who were brothers, murdered their uncle who had beaten their father. They had grave and sudden provocation. The provocation began when they saw their father.

$Bruce$ not called on.

Malik asks leave to add something. Refers to section 289, Criminal Procedure Code. There was no case to answer when case for prosecution closed.

JUDGMENT.—The appellants were convicted of the murder of their uncle. They elected to give evidence at the trial and admitted the killing in such circumstances as to exclude the submission they now put forward that they had grave and sudden provocation to do the act they did. It has, however, been

brought to our notice, though it was not made a ground of appeal, that at the close of the case for the Crown there was really no justification by the evidence for calling upon the appellants for their defence. We are of opinion that this is so. Mr. Malik, for the appellants, then argued that on the wording of section $289(3)$ of the Kenya Criminal Procedure Code the learned Judge ought to have recorded a finding of "not guilty".

Now Rex v. George 1. Criminal Appeal Reports, p. 168. decided, that where there was no evidence at the close of the prosecution case the Judge was not under a duty to stop the proceedings as no submission to that effect had been made of him. and since the prisoners elected to give evidence and so incriminated himself that he was convicted, the Court of Criminal Appeal did not consider it ought to interfere with the conviction. In Rex v. Power, 14 Cr. App. Reports, p. 17, the same Court held, approving $\text{Rev. } v$ . George, that, even if counsel for the defence submits there is no case to answer, he cannot rely in appeal upon that point if he participates in the subsequent proceedings and elicits evidence which leads to the prisoner's conviction.

We are of opinion that we ought to follow these cases unless -on a proper construction of section 289 (3) of the Criminal Procedure Code we are inhibited from so doing. Our decision must depend upon the meaning we attach to the expression "if the Court considers that there is no evidence that the accused committed the offence." We think that that expression must be construed as it stands. It is for the trial Court to consider whether there is evidence, and not for us to decide whether there actually was evidence. In this case the learned Judge must have considered that there was evidence. As the case turned out the appellants were clearly guilty and we therefore dismiss the appeal.