[1953] EACA 40

## APPELLATE CRIMINAL

#### Before HEARNE, C. J. and DE LESTANG, J.

# SIMON NDEGWA NJEROGE, Appellant

### REGINA, Respondent

## Criminal Appeal No. 1697 of 1953

Criminal Law-Indian Evidence Act, section 133-Conviction on uncorroborated evidence of accomplices—Whether exceptional circumstances—Penal Code section 71 (a)—Being a member of the Mau Mau unlawful society—Section .72 (3) presumption of membership.

The accused was convicted of being a member of an unlawful society, the Mau Mau, on the evidence of two witnesses who alleged he had attended a meeting of the society, a year before at which they had also attended. The witnesses alleged that they had ceased to be members of Mau Mau and that they had been ceremonially cleansed of the Mau Mau oath. The magistrate accepted their evidence as true. No evidence of tribal custom was led as to the efficacy of the cleansing ceremony. The magistrate did not consider whether the witnesses might be accomplices or warn himself about the risk of convicting on accomplice evidence and he found that the evidence of one witness corroborated that of the other.

Held (18-12-53).—The act of cach of the two witnesses in attending a Mau Mau meeting was an act which rendered each one liable to be convicted of the same offence as the accused by reason of the provisions of section 72 (3) of the Penal Code. In giving evidence for the prosecution it must be considered tha themselves. The witnesses had to be regarded as accomplices whose evidence in the absence of exceptional circumstances required corroboration. There was no corroboration nor could one accomplice corroborate the other.

Conviction quashed.

Case cited: Asumant Logoni $s/o Muza v. R. 10 E. A. C. A. 92.$

$R$ , $B$ , Bhandari for the appellant.

Bechgaard, Crown Counsel, for the Crown.

JUDGMENT.—The appellant was convicted of the offence of being a member of the Mau Mau society on 15th July, 1953, by reason of having attended a Mau Mau meeting in August, 1952.

Two witnesses gave evidence that, as members of *Mau Mau*; they attended a meeting of the unlawful society at Ngong in August 1952 and that the appellant also attended the meeting. There was no other evidence against the appellant. It was not suggested that he had ever administered or taken the *Mau Mau* oath or that, before or since August 1952 he had associated with Mau Mau adherents. He was convicted in July, 1953, solely on the evidence of two persons who stated that he had attended a *Mau Mau* meeting nearly a year before.

The two witnesses claim that they have ceased to be members of Mau Mau and, apart from any question of the efficacy, based on tribal custom which was not proved, of a cleansing ceremony, the magistrate would appear to have believed their evidence that at the date of trial, at any rate, (they did not say when they were ceremonially cleansed), they had ceased to be members of the society.

ν̈.

The act of each of the two witnesses, like the act of the appellant (assuming the two winesses are speaking the truth), viz. attending a Mau Mau meeting, is an act which rendered each one of them liable to be convicted of the offence of being a member of Mau Mau at the date of the meeting at Ngong, under section 72 (3), Penal Code. They must, we think, be regarded as accomplices whose evidence required corroboration. At the least it must be said of them that, in giving evidence for the prosecution, they expected not to be prosecuted themselves $(10 \text{ E. A. C. A}, 92).$

The magistrate is, of course, wrong in thinking that one accomplice is capable in law of corroborating another accomplice.

$\overline{a}$

The conviction and sentence are set aside.