[1936] EACA 34
The Court held that the trial of the appellants was a nullity because, although separate informations were filed against each accused in respect of the same offence, all were tried together. This procedural defect is fatal under the applicable Criminal Procedure Code, as interpreted in authoritative case law,...
Source-derived case information.
- Citation
- [1936] EACA 34
- Parties
- Appellant: Saulos Ndima; Appellant: Kadzanja; Respondent: Rex
- Court
- East African Court of Appeal
- Jurisdiction
- Uganda
- Case Number
- Cr. App. Nos. 144 and 145/1935.
- Procedural Posture
- Criminal Appeal / Judgment
- Outcome
- convictions set aside; retrial ordered
- Judges
- Abrahamas, C.J. (Tanganyika), Hall, C.J. (Uganda), Horne J, Sheridan CJ, Webb, J
- Legal Topics
- Joint Trial Procedure, Separate Informations, Nullity of Proceedings
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Saulos Ndima
Appellant
Kadzanja
Appellant
Rex
Respondent
Procedural Posture
Criminal Appeal / Judgment
Legal Issues
- 1 Whether a joint trial based on separate informations against multiple accused persons in respect of the same offence renders the proceedings a nullity under the applicable Criminal Procedure Code.
- 2 Whether convictions resulting from such a trial should be set aside and a retrial ordered.
Ratio Decidendi
The Court held that the trial of the appellants was a nullity because, although separate informations were filed against each accused in respect of the same offence, all were tried together. This procedural defect is fatal under the applicable Criminal Procedure Code, as interpreted in authoritative case law, including Crane v. Director of Public Prosecutions and R. v. Dennis and Parker. The Court followed its previous decision in R. v. Kristofa Male, which established that such a trial is invalid and convictions must be set aside. The law in Nyasaland, Uganda, Kenya, and Tanganyika is identical on this point. The convictions were therefore quashed, and a retrial ordered in accordance...
Court Disposition
convictions set aside; retrial ordered
Orders
- The convictions of Saulos Ndima and Kadzanja are set aside.
- The appellants are to be tried according to law.
Full Case Text
Judgment text and source record
11 paragraphs
## COURT OF APPEAL FOR EASTERN AFRICA.
Before SIR JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and HALL, C. J. (Uganda) HORNE, J. (Kenya), and WEBB, J. (KENYA).
REX, Respondent (Original Prosecutor)
## SAULOS NDIMA and KADZANJA, Appellants (Original Accused).
Cr. App. Nos. 144 and 145/1935.
Criminal Procedure—Separate informations against two persons -Joint trial-Trial a nullity-Crim. Pro. Code (Nyasaland), Sec. 128A.
Held (18-2-36) - That, where separate informations were filed against two persons in respect of the same offence but both were tried together, the proceedings were a nullity and a re-trial was ordered.
(Crane v. Director of Public Prosecutions (1921 1 A. C. 299), R. v. Dennis and Parker (1924 1 K. B. 867), R. v. Kristofa Male s/o Nikodemu Kyononeka (1934 E. A. C. A. 151) followed.)
Appellants absent, unrepresented.
Harragin, K. C., A. G., Kenya, for the respondent referred to Archbold (28th Ed.) 210. R. v. Dennis and Parker (1924 1 K. B. 867), Crane v. Director of Public Prosecutions (1921 1 A. C. 299), R. v. Kristofa Male (1934 E. A. C. A. 151), R. v. McDonnell (20 Cr. App. R. 163), Kenya Order in Council, 1921, Art. 7. In the phrase, "such persons may be charged and tried together or separately," in Sec. 128A of the Nyasaland Crim. Pro. Code, the words "charged and tried" must be read together.
JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.)-Three separate informations were filed against three persons in respect of the same murder. Nevertheless all three were tried together and two of them were convicted, the third person being acquitted. Both convicted persons appealed and the Court has raised the question as to whether the trial was valid. The question being one of considerable importance it was deemed advisable to have it argued before a Bench of five judges. The Court had the advantage of having the question argued by the learned Attorney General of Kenya, who submitted that in view of the decisions in Crane v. Director of Public Prosecutions (1921 1 A. C. 299) and R. v Dennis and Parker (1924 1 K. B. 867) he was unable to resist the conclusion that the trial was a nullity, a submission with which we agree. This Court in the case of $R$ . $v$ . Kristofa Male s/o Nikodemu Kyononeka and another (1934 E. A. C. A. 151) following the English cases to which we have referred decided that where two persons committed for trial together were charged in separate informations but tried together and convicted, the proceedings were a nullity. The case was a Uganda case, but is authoritative for the reason that the law of Nyasaland on the point is identical with the law of Uganda, as is also the law of Kenya and Tanganyika. The present case cannot be distinguished from Kristofa Male's case (supra) which, assuming the Court of Appeal Law Reports to be available in Nyasaland, does not appear to have been brought to the notice of the learned trial judge. We set aside the convictions and order the appellants to be tried according to law. As to whether there should<br>be two separate trials or a joint trial on one information is a<br>matter for the Crown.