[1941] EACA 40

# COURT OF APPEAL FOR EASTERN AFRICA

# Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

#### REX. Respondent

#### $\mathbf{v}$ .

## 'OKITUI S/O EDEKE, Appellant

### Criminal Appeal No. 3 of 1941

# Appeal from decision of H. M. Supreme Court of Kenya.

Criminal Law-Corroboration of retracted confession-Evidence-Statutory statement in committal proceedings or extra-judicial confession taken through a police constable as interpreter.

Held $(7-2-41)$ .—(1) That in order to corroborate a retracted confession all that is required is some evidence aliunde which implicates the accused in some material particular and which tends to show that what is said in the confession is probably substantially true.

(2) That where an accused person makes an extra-judicial confession to a magistrate 'or, in committal proceedings a statutory declaration amounting to a confession, and<br>'in either case a policeman acted as interpreter, the confession or statement is probably<br>admissible on the ground that it was made not t the magistrate.

#### Appellant in person.

## Stacey, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—The learned trial Judge convicted the appellant on a retracted confession corroborated by the evidence of footprints and a bloodstained sheet.

This corroborative evidence is of course not conclusive inasmuch as it would not of itself be sufficient to justify a conviction, but as was pointed out by this Court in R. v. Wadingombe and others, 8 E. A. C. A. 33, it is not necessary that the evidence should go so far as that in order to afford adequate corroboration. All that is required is some evidence aliunde which implicates the accused in some material particular and which tends to show that what is said in the confession is probably substantially true. Viewed from this standpoint we think that the learned trial Judge was justified in finding sufficient corroboration in this evidence. It is true that the footmarks were not positively identified by measurements, moulds or other scientific tests as those of the appellant. Such tests which one might reasonably expect to be applied in England can seldom be available in remote parts of Kenya, but the facts of this case when pieced together seem to us to point irresistibly to the conclusion that they were the footmarks of the appellant. He says that he killed the woman; much blood was found by the body; the ground being wet after rain footmarks were easily visible leading away from the spot; neighbours traced these footmarks, which led them first to the appellant's house. where a bloodstained sheet was found (which appellant could not satisfactorily explain) and then to the spot in the bush where appellant was found hiding. But even though that evidence were regarded as not being sufficiently strong, we should still consider that the conviction was properly had. As has been pointed out by this Court in the case R. v. Sinoya (1939) 6 E. A. C. A. 155, and R. v. Keisheimeiza $w/o$ Tindikawa, 7 E. A. C. A. 67, where there is no corroboration of a retracted confession, the voluntary character of the confession coupled with a failure to give any satisfactory reason for its retraction may suffice to support a conviction.

In the present case the appellant in his statutory statement before the committing magistrate said, "I killed the woman". At his trial he said that he had made this admission because he had been beaten by her relatives who were present in Court and because he had already admitted his crime to them and that therefore it would have been worse for him if he changed his story. This seems to us a most unconvincing reason for, to persist in his confession if it really was untrue, was likely to bring upon him the penalty of death. Since he found corroboration the learned trial Judge did not record any specific finding as to the voluntariness or otherwise of the confession, but we are satisfied from his judgment that he was in fact of the opinion that it was voluntary and furthermore that on the evidence he could not reasonably have come to any other conclusion.

One other point we should like to mention and that is the fact that a tribal policeman acted as an interpreter when the statutory statement was made. The<br>point is unimportant in this case for the reason that the accused at his trial admitted having said in the statutory statement "I killed the woman", but in view of a decision in Supreme Court Criminal Case No. 82/40, Rex v. Tatia Ole Kapech and another, that because a policeman had acted as an interpreter in recording an extra-judicial confession, the confession was inadmissible, we should like to express our opinion that in such a case the confession would probably be admissible on the ground that it was made not to the policeman but through him to the magistrate.

The appeal is dismissed.