[1955] EACA 337

$448 \cdot$

# COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BRIGGS, Justice of Appeal

# LENSON AMBINDWILE s/o MAFUBILA, Appellant (Original Accused)

## REGINAM. Respondent

Criminal Appeal No. 90 of 1955

(Appeal from the decision of H. M. High Court of Tanganvika, Lowe, J.)

Evidence—Admissibility of evidence of third party as to communications between husband and wife—Coercion—Avoidance of criminal responsibility by wife according to tribal custom for act or omission in presence of husband-Indian Evidence Act, section 122-Penal Code (Kenya), section 20.

By section 20 of the Kenya Penal Code: "A married woman is not free from criminal responsibility for doing or omitting to do any act merely because the act or omission takes place in the presence of her husband; but on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of the husband."

By section 122 of the Indian Evidence Act: "No person who is or has been married shall be compelled to disclose any communication made to him during marriage by any person to whom he is or has been married: nor shall he be permitted to disclose any such communication, unless the person who made it, or his representative in interest, consents, except in suits between married persons, or proceedings in which one married person is prosecuted for any crime committed against the other."

The appellant who was married to $E$ by tribal custom, was convicted of murder. Evidence of statements made by the appellant to his wife in his presence was given by the appellant's father at the trial.

$Held$ (6-4-55).—(1) Section 122 of the Indian Evidence Act does not render inadmissible the evidence of a third party as to communications between husband and wife.

(2) Quaere-The application of section 20 of the Kenya Penal Code to a woman married according to tribal custom.

Appeal dismissed.

Cases referred to: R. v. Amkeyo (1917) 7 E. A. L. R. 14; R. v. Mange (1948) 15<br>E. A. C. A. 69; Robin v. R. (1929) 12 K. L. R. 134; R. v. Mwakio Asani (1930) 14 K. L. R.<br>133; R. v. Toya (1930) 14 K. L. R. 145; R. v. Daudi Odongo (1926) Nyawa (1933) 15 K. L. R. 99; R. v. Wambogo and another (1924) 10 K. L. R. 3; Youth v. King, (1945) 32 A.l. R. 40.

### Appellant absent, unrepresented.

#### Sir James Henry, Q. C. (Acting Attorney-General, Tanganyika) for respondent.

JUDGMENT (prepared by Worley (Vice-President)):—The appellant was convicted by the High Court of Tanganyika sitting at Mbeya of the murder, on or about 30th May, 1954, of an unnamed infant child, the son of one Estara, daughter of Sisala. Estara was married to the appellant according to their tribal custom, but the deceased child was admittedly not the appellant's. There was ample evidence to justify the finding of both the assessors and the learned trial Judge<br>that the appellant was guilty of murdering the child. The only ground of appeal which calls for mention is that the learned Judge erred in holding that the evidence of Estara as to communications made by the appellant to her during marriage was admissible.

This evidence was to the following effect: -

"On a Sunday about ten days after the child was born the accused said 'let me give the child medicine'. The child did not need medicine, it was quite well. I refused to let him give it medicine. He said 'If you refuse I shall beat you'. I then took the child and went to accused's father."

Objection to this evidence was taken at the trial but overruled by the learned trial Judge who in his judgment refers to the reported decisions in R. v. Amkeyo (1917) 7 E. A. L. R. 14 and R. v. Mange (1948) 15 E. A. C. A. 69 in which it was held that the relationship between an African man and woman created by a union effected according to tribal custom does not constitute a "marrlage" within the meaning of section 122 of the Indian Evidence Act, and that consequently, statements made by one such person to another are not excluded by that section. Amkeyo's case was a decision of the High Court of East Africa; Mange's case was a decision of this Court. In between these, Amkeyo's case was followed in Robin v. R. (1929) 12 K. L. R. 134, a decision of this Court, though the point was not necessary to the decision of the case; in R. v. Mwakio Asani (1930) 14 K. L. R. 133, and in R. v. Toya (1930) 14 K. L. R. 145. These last two cases cited were decisions of this Court. The position of women "married" according to native custom was also considered in R. v. Daudi Odongo (1926) 10 K. L. R. 49, a decision of the Supreme Court of Kenya in which it was held that a native woman married according to native custom was a wife within the meaning of section 497 of the Indian Penal Code (Adultery); and again in R. v. Nyawa (1933) 15 K. L. R. 99, a decision of this Court on the competency as a witness against her husband of a native woman "married polygamously". It was pointed out that before the woman's evidence was admitted there should be evidence as to the nature of the union. Lastly, in R. v. Wambogo and another (1924) 10 K. L. R. 3, a decision of the Supreme Court of Kenya, the point arose as to whether a native woman married according to native law and custom had acted under the coercion of her husband. The Court considered that under the Indian Penal Code, as then applied to the Colony, there was no room for the common law presumption of coercion. This decision, however, must now be read in the light of section 20 of the Penal Code of Kenya which in effect is a statutory enactment of the common law presumption. We are not aware of any reported decision of any court in East Africa on the application of this section to a woman married according to native custom.

It may be necessary at some time for this Court or another tribunal to review all the decisions cited above and to consider their real effect, but we do not consider it necessary or advisable to do so in the present appeal. For one thing, we have not had the advantage of any argument on behalf of the appellant, who was neither present nor represented, though we are indebted to the learned Acting Attorney-General for his assistance in referring us to the relevant decisions on the point. But it is evident from the record that even had the statements made by the appellant to Estara been excluded as inadmissible, it would have had no effect on the result of the case. The appellant's father did in fact give evidence as to very similar statements made by the appellant to his wife in his (the father's) presence shortly after Estara had taken the child to his house and, if authority be needed that the father's evidence of such statements was admissible, it will be found in the decision of the Privy Council in Youth v. King (1945) 32 A. I. R. 40. Further, apart from and in addition to the oral and circumstantial evidence implicating the appellant, there was also in evidence an extra-judicial statement made by him to a magistrate which amounted to a full confession that he had intentionally killed the child. In the circumstances, we saw no ground to interfere with the conviction and dismissed the appeal.