[1938] EACA 125

## COURT OF APPEAL FOR EASTERN AFRICA

## BEFORE SIR JOSEPH SHERIDAN, C. J. (Kenya); KNIGHT-BRUCE, Ag. C. J. (Tanganyika) and HAYDEN, J. (Kenya)

REX, Respondent (Original prosecutor) v.

## JAMBI s/o AMASI AND MKINDIKI s/o NGIMBA, Appellants (Original accused)

## Cr. Apps. Nos. 80 and 81 of 1938

Appeals from convictions by H. M. High Court of Tanganyika.

Criminal law-Evidence-Accomplice-Extra judicial confession-Proof that confession was voluntary—Corroboration—Accessory after the fact.

Accused and two others were charged with murder of K. who had been thrown into a well after his throat had been cut. The cause of death was drowning. The appellants were convicted and the other persons accused were acquitted. A statement said to have been made by one of their co-accused was taken into consideration against both appellants though the co-accused did not in any way inculpate himself. As against Jambi the only other evidence was the statement of Mkindiki and the possession by Jambi of a cloth which the deceased wore and which Jambi said he had found the day after the-K.'s death and which he said he hid as he was afraid.

As against Mkindiki the evidence was an alleged extra judicial confession made to the magistrate who later conducted the preliminary inquiry. This confession was not proved at the preliminary inquiry but the interpreter, who could neither speak nor read in English gave evidence identifying it at the trial. At the preliminary inquiry Mkindiki stated that one of his co-accused hit K. with a stick and that the appellants and the other co-accused carried him out of a hut and that Jambi cut his throat.

Held $(20-8-38)$ .— (1) That the statement said to have been made by the coaccused should not have been considered against the appellants since it was not a confession.

(2) That assuming that the statement of Mkindiki could be taken into consideration against Jambi it would require corroboration and that the possession and hiding of the cloth in the circumstances was not sufficient corroboration.

(3) That the alleged extra judicial confession of Mkindiki was not proved by the evidence of the interpreter; that if the statement had been made there was no evidence that it had been made voluntarily. Such statements should be proved by the person to whom they had been made (in this case the magistrate) and he is also the person to prove that they were made freely and voluntarily.

(4) That at the time Mkindiki assisted in carrying the deceased the felony was not complete so that he could not be convicted of being an accessory after the fact. (Appeals allowed.)

*Inamdar* for the appellants.

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

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—These two appeals Nos. 80 and 81 of 1938 have been consolidated. The two appellants Jambi and Mkindiki with two others Mutau and Intenko were charged with the murder of a person named Kilojita. Mutau and Intenko were acquitted. Jambi and Mkindiki were convicted and As against both appellants the learned trial sentenced to death. Judge has taken into consideration the statement said to have been made by their co-accused Mutau. His doing so was in error for Mutau nowhere inculpates himself in his statement. As against Jambi the conviction rests upon the statement of Mkindiki and the possession by Jambi of a cloth which the deceased wore and which Jambi said he found the day after Kilojita's death and hid as he was afraid. We shall have occasion to refer later to the statement of Mkindiki but assuming that it can be taken into consideration against Jambi, it would require corroboration in a material particular before Jambi's conviction could stand. We do not consider that the possession and hiding of the cloth referred to in the circumstances narrated is sufficient corroboration and for that reason alone Jambi must be acquitted.

With regard to the conviction of Mkindiki the learned Judge said that he was "satisfied with Mkindiki's confession and I think this is corroborated by the facts". If the statement said to have been made extra judicially by Mkindiki can be looked at, it is we think sufficiently corroborated by the state of Kilojita's body when it was found and the place where it was found and the conviction of Mkindiki can stand, but it has been submitted by Counsel for the defence that this statement was not proved to have been made and in any event that no evidence was adduced to show that it was a voluntary statement. This statement was not proved before the magistrate seemingly because it was made extra judicially to the magistrate who commenced the preliminary inquiry. (Owing to illness ne was later succeeded in the proceedings by another magistrate). Why some other magistrate did not hold the preliminary inquiry does not appear. However that may be, the statement was admitted at the trial. The interpreter, Selemani, who is said to have interpreted the statement to Mr. Skinner from Kinyatura into Kiswahili was called as a witness and he said that he identified the statement and his signature thereon. This witness said that he could neither speak nor write English. It is not clear then how he could identify the statement which was written in English. The evidence of this witness did not prove the statement in our opinion. Then there is no evidence that the statement was made voluntarily and it is difficult to see how this witness could have given evidence on the point: Rex v. Chuma arap Kimenja (15 K. L. R. 102). The initial error in not having recorded in the proceedings before the magistrate the evidence of the magistrate to whom the statement was made placed the Crown at a serious disadvantage at the trial. The necessity for having such a statement properly provided in the magisterial proceedings should be obvious and the consequences of a failure to do so are well illustrated in this case. It follows from the decision in the case of Rex v. Chuma arap Kimenja (supra) that statements of the nature under consideration should be proved by the person to whom they were made (in this case the magistrate) and he is also

the person to prove that they were made freely and voluntarily. It does not suffice in our opinion for some other person to produce a. document purporting to be the statement and bearing on the faceof it a certificate that the statement was made freely and voluntarily.

Against Mkindiki then there remains the statement which he made at the preliminary inquiry. It reads:—

"Why does Jambi tell lies? We didn't kill his father: would we have been allowed to drink *pombe* at his house if we had? Jambi cut deceased's throat with his spear. Mutau did not assist. He staved in the house. The quarrel was because Mutau said deceased had seduced Mutau's wife. Mutau hit him on the head twice with a stick. Deceased fell down. Jambi. Intenko and I picked him up and carried him off outside the boma, where Jambi cut deceased's throat. Mutau was there. We took the body to the well, four of us. The spear exhibit A is the property of Mangule who lives with Jambi".

This statement cannot be construed as an admission of guilt to a charge of murder. It is argued by Crown Counsel that Mkindiki should be found guilty of manslaughter on it. From the medical evidence and the statement it is proved that the deceased met hisdeath by drowning, so that when Mkindiki helped to carry him to the well he was still alive though he may appear to have been dead. He must be taken to have admitted seeing a murder, as he thought. take place, and in his carrying the body to the well Crown Counsel has submitted that he was acting the part of an accessory after the fact. With this submission we cannot agree. In the case of an accessory after the fact it is necessary that the felony should be complete at the time the assistance is given: Rex v. Mutono $s/o$ Luigo and Another (3 E. A. C. A. 114 at p. 116). Mkindiki's appeal must also be allowed. The order is that both appellants are acquitted, their release directed, the convictions and sentences being quashed.