[1951] EACA 169

### COURT OF APPEAL FOR EASTERN AFRICA

# Before SIR BARCLAY NIHILL, President, SIR NEWNHAM WORLEY, Vice-President, and Lockhart-Smith, J. of A.

#### M'LIARA s/o M'YEKA, Appellant (Original Accused)

# REX. Respondent

### Criminal Appeal No. 28 of 1951

(Appeal from decision of Supreme Court of Kenva at Meru—Bourke, J.)

Information—Date on which deceased received his injury—Or date on which he died.

The appellant was convicted of murder by the Supreme Court of Kenya. The date of the offence given in the information was not the date on which the deceased received his injury but the date on which he died.

The Court was referred to Rex v. Lujo, 13 E. A. C. A. 156, which held that the time to be stated in a charge of homicide should be the day on which the wrongful act was committed and not the date on which death occurred. (Archbold, Criminal Pleading Evidence and Practice, 32nd edition, page 929), contra.

Held (10-5-51).—The date to be stated in a charge of homicide should be the day on which the wrongful act was committed and not the date on which death occurred.

Appeal dismissed.

Appellant present, unrepresented.

Templeton, Crown Counsel (Kenya), for Crown.

JUDGMENT.—This is an appeal from a conviction of murder by the Supreme Court of Kenva.

There was an abundance of evidence, which was accepted both by the learned trial Judge and the assessors, that it was the appellant who caused the death of the deceased by striking him on the head with a panga. This was on the 12th August, 1950. The deceased survived for some days but died as a result of the injury on the 19th August.

The appellant gave no evidence at the frial but relied upon the statement that he had made to the committing Magistrate. In this statement he admitted that he had been drinking in company with the deceased and others during the day but he denied that he had taken any part in any attack upon the deceased. At his trial his learned counsel does not appear to have persisted in this line of defence with any seriousness but to have relied mainly on the defence of drunkenness. In the course of a lengthy judgment the learned trial Judge carefully reviewed the evidence and came to the conclusion that on that evidence it was impossible to say that the appellant was so drunk as to have been incapable of knowing what he was doing, or of forming any intent. The evidence of the eyewitnesses, if believed—and it was accepted as true by the trial Judge—supports this conclusion for the appellant told the deceased that he wanted to kill him and that if he was given a panga he would kill him. The deceased did not take this observation seriously and handed him a panga and thereupon the appellant struck the deceased on the head with it. It seems very evident that the appellant had taken a lot of drink, and that both he and probably the deceased also were under the influence of drink, but nevertheless the fact that the appellant was able to make his quite rational threat to the deceased does indicate that he was sufficiently in his senses to know what he was about. Furthermore, there was evidence that after he had committed the attack upon the deceased he was able to find his hoe which had been left on one side and take it back with him to his own house.

The appellant before us has repeated the line of defence he put forward in his statement before the Magistrate, but in view of the finding of fact by the learned trial Judge on the evidence before him this is a defence which we cannot now entertain.

Learned Crown Counsel has brought to our attention one other ground of appeal, namely, that the date of the offence was wrongly stated in the information. The date given in the information was not the date on which the deceased received his injury but was the date on which he died. In Rex v. Lujo, 13 E. A. C. A. 156, it was held by this Court that the time to be stated in a charge of homicide should be the day on which the wrongful act was committed and not the date on which death occurred. It would seem then on the authority of that decision that the date given in this information was the wrong one, but even if it was, no possible prejudice could have been caused to this appellant in the circumstances of this case, so that the point taken by him in his Memorandum of Appeal cannot in any way affect the result of this appeal. Mr. Templeton, for the Crown, however, has pointed out to us that at page 929 of the 32nd edition of Archbold's Criminal Pleading Evidence and Practice, under the heading "Indictment for Murder", it is stated categorically that the date alleged in an indictment as the date of the murder should be the date on which the person murdered died. This passage does not occur in the 31st edition of the same work, and there is no note to indicate why it has been included in the new edition. Without more authority, therefore, we are not prepared to say that the rule given by this Court in the case we have quoted is a wrong one.

The appeal is dismissed.