[1948] EACA 26

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

$\mathbf{v}$ .

(1) ABDI MOGE, (2) MOHAMED ABDI, (3) ABDI MOHAMED, (4) ABDI HIRI, Appellants (Original Accused)

Criminal Appeals Nos. 82, 83, 84 and 85 of 1948 (Consolidated)

(Appeal from decision of H. M. Supreme Court of Kenya)

Criminal Law—Affray—Kenya Penal Code, section 89—Appeal to Supreme Court -Summary dismissal, section 352 (2), Criminal Procedure Code, Kenya-Appeal to Court of Appeal-Part of record found to have been missing-Incomplete record before Judge-Impossible for Court to judge merits of appeal—New trial considered.

The appellants, who had been convicted of committing affray with several others, appealed. Their appeals were considered by one Judge and rejected summarily under sections 352 (2) of the Criminal Procedure Code. Four other persons who had taken part in the same affray appealed successfully to the Supreme Court on the grounds that two pages were found to be missing from the Magistrate's record. In the case of the appellants herein there was nothing to indicate that the Judge of the Supreme Court was aware that part of the record was missing when he dismissed the appeals. The appellants appealed to the Court of Appeal.

Held (14-7-48).—(1) That had the learned Judge who dismissed the appeals summarily realized at the time that a portion of the record was missing he could not have given the certificate that he did.

(2) That it is impossible for an Appellate Court in such a case as this to be certain that an appellant has not been prejudiced in the prosecution of his appeal.

Appeals allowed.

u

Simpson v. Nakuru District Council, 19 K. L. R. 27 referred to.

Reasons for not ordering a new trial given.

A. R. Kapila for the appellants.

Holland, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).-We have consolidated this appeal with Criminal Appeals 83, 84 and 85 of 1948. All four appellants were convicted with others by the learned Magistrate of Nyeri in Kenya for taking part in an affray. From their conviction they appealed to the Supreme Court of Kenya but their appeals were dismissed summarily by one Judge who certified in accordance with the provisions of section 352 (2) (Kenya Criminal Procedure Code), that the appeals had been lodged without any sufficient ground of complaint. They have now appealed to this Court on a point of law namely that as two pages of the Magistrate's record of the evidence are missing the appellants have been seriously prejudiced in the prosecution of their appeals and that the learned Judge having perused an incomplete record only was not in a position to give the certificate he did.

Our attention has been called to a very recent case heard in the Supreme Court of Kenya sitting in its appellate capacity (C. A. 162, 213, 214 and 215/1948) where four other persons convicted for taking part in the same affray appealed successfully to that court on the same ground. The facts then before that Court are so nearly identical with the cases now before us that we cannot do better than quote from the judgment: --

"The Court has been placed in great difficulty in determining these appeals by reason of the fact that two pages from the record of evidence taken down by the learned Magistrate are missing from the typescript and this omission has been noted by counsel for the appellants who has made it a ground of the appeal that their absence has seriously prejudiced the prosecution of the appeal. We think it unlikely ... that the missing pages did in fact contain any reference at all to the four appellants now before us but it is a matter on which we feel it would be improper to speculate, and that counsel for the appellants having taken the point it is one on which he is entitled to succeed.".

The only difference between the two cases is that we are dealing with a second appeal from an order of the learned Judge dismissing the appeals summarily whereas in the case of four others of the convicted persons their appeals were admitted to hearing and came before a Bench of two Judges. We think, however, that had the learned Judge who dismissed the appeals summarily realized at the time that a portion of the record was missing he could not have given the certificate which he did. There is no indication that he did realize it and it is unlikely that he could have done so because it was not until the appeals of certain others of the convicted persons had been admitted for hearing that the typist in typing the record discovered the lacuna. In any event as we agree with the reasoning of the Court below, that it is impossible for an Appellate Court in such a case as this to be certain that an appellant has not been prejudiced in the prosecution of his appeal it follows that we must reverse the order of the learned Judge and allow this appeal.

In the experience of this Court the case is a unique one and we hope it will remain so. It is not, however, the first time that a Court in East Africa has acted on the same principle as we are acting now. In the case of Simpson $v$ . Nakuru District Council (XIX K. L. R. 27) the Supreme Court of Kenya quashed a conviction on the ground that as the record was indecipherable it was impossible for the Court to judge the merits of the appeal. In that case as well as in the recent case referred to supra the Appeal Court left it open to the prosecution to institute fresh proceedings de novo. We think a better order for an Appeal Court to make in such case would be to order a new trial since the quashing of the conviction without such order might well lead to a successful plea of autre fois acquit.

We should not hesitate to order a new trial in the present case were it not for the fact that all the appellants must by now have either served or nearly served the terms of imprisonment laid down in default of their non-payment of the fines imposed.

We quash the convictions entered against each of the appellants and order those of them who may still be in custody to be set at liberty forthwith. If any of them has paid the fine imposed or any part thereof the amount paid must be refunded. It follows also that the order requiring the first, third and fourth appellants (who were respectively the twelfth, the tenth and the eleventh accused before the learned Magistrate) to enter into a bond to keep the peace and be of good behaviour for two years must be rescinded.