[1955] EACA 327

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR NEWNHAM WORLEY (Vice-President), SIR ENOCH JENKINS, Justice of Appeal and BRIGGS, Justice of Appeal

NDUNGU s/o NGANGA, Appellant (Original Accused No. 1)

$\nu$ .

## REGINAM, Respondent

Criminal Appeai No. 1038 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Sir Kenneth O'Connor, C. J.)

Consorting with person in unlawful possession of firearm—Joint charge—Joint accused—Acquittal of co-accused—Whether other accused must be acquitted -Emergency Regulations, 1952, regulation $8c(1)$ .

The appellant was indicted, jointly with W. for the offence of consorting with a person in unlawful possession of a firearm contrary to regulation $8c(1)$ of the Emergency Regulations, 1952. W. was acquitted at the close of the prosecution case, but the appellant was called on for his defence and convicted.

Held (28-2-55).—(1) The fact that two accused are included in the same count does not necessarily mean that both must be convicted or both acquitted.

(2) If two persons are charged in the same count with consorting with a gunman, and one is acquitted, the other can be convicted on that count.

Appeal dismissed.

Cases referred to: R. v. Michalski (Times Newspaper 20-12-54 and 1-2-55); R. v. Reardon & Bloor, (1866) L. R. 1 C. C. R. 31.

Appellant present, unrepresented.

O'Beirne for respondent.

JUDGMENT (read by Worley (Vice-President)).-The appellant was indicted before the Supreme Court of Kenya at Nairobi, jointly with one Wakenya, for the offence of consorting with a person in unlawful possession of a firearm contrary to regulation $8c(1)$ of the Emergency Regulations, 1952. At the close of the case for the prosecution, the learned trial Judge acquitted Wakenya being satisfied that there was no case for her to answer on this count. The present appellant was called on for his defence and convicted. The appellant was granted a certificate under section 378 (1) (b) of the Kenya Criminal Procedure Code, but in our opinion the appeal raised no substantial question of fact or mixed law and fact, and we called on counsel for the Crown/respondent to reply only on a question of law raised by the learned trial Judge in his judgment.

This question was whether, if two persons were charged in the same count with consorting with a gunman and one was acquitted, the other could be convicted on that count. The learned trial Judge raised this question at the trial and after hearing counsel ruled that the acquittal of Wakenya in the present case did not involve the acquittal of the present appellant. His reasons were that the count did not charge a joint offence or aver in terms that the two accused persons jointly consorted with the gunman. The offence charged was not one which was necessarily joint, like conspiracy, and the fact that both accused had been included in the same count did not necessarily mean that both must be convicted or both acquitted. He further pointed out that even on a charge of conspiracy, which is of its nature a joint offence, if several persons are charged with conspiring together, two may be convicted and the others acquitted. We agreed with the learned Judge's reasoning and conclusions on this point and dismissed the appeal.

In the course of his judgment, however, the learned trial Judge referred to the case of R. v. Michalski (Times newspaper, 20th December, 1954, and 1st February, 1955) recently before the Court of Criminal Appeal in England. In that case, Michalski and one Mazurek were indicted on a count charging them<br>with jointly receiving stolen property. The evidence led disclosed two several receivings, namely, that the goods were first in the possession of Michalski and subsequently came into the possession of Mazurek. Mazurek was acquitted and Michalski was convicted. Two questions appear to have been reserved for a full bench of five Judges, namely: -

- (a) Since the evidence disclosed receivings by the prisoners separately, was the count, alleging a joint receiving, bad? - (b) On the count alleging a joint receiving, was it open to the jury to acquit one of the accused and convict the other?

The court answered "No" to the first question and "Yes" to the second.

In its judgment the Court of Criminal Appeal observed that a count was not bad because the evidence did not support it. They also referred to section 44 (5) of the Larceny Act, 1916 (formerly section 14 of the Administration of Criminal Justice Act, 1851) and to the case of R. v. Reardon and Bloor (1866) L. R. 1 C. C. R. 31. So far as we are aware there is no statutory equivalent in Kenya to section 44(5) of the Larceny Act, but the Court of Criminal Appeal further observed that "apart from the section altogether it was obvious that a jury had always had the power to convict one prisoner and acquit the other".

The decision of the Court of Criminal Appeal in Michalski's case was not available at the date of the learned Judge's judgment. We have therefore set out the substance of it, so far as relevant to this case, to show that the judgment is entirely consistent with the decision reached by the Supreme Court and by this Court in the instant case.