[1938] EACA 198

## APPELLATE CRIMINAL

BEFORE SIR JOSEPH SHERIDAN, C. J. AND THACKER, J.

## REX, Respondent (Original Prosecutor)

## NGANGA s/o KANJA, Appellant (Original Accused No. 1) MACHARIA KAMAU (Original Accused No. 2)

Cr. App. No. 95/1938 consolidated with Cr. App. No. 96/1938

Resisting and assaulting police officers in the execution of their duty --Criminal Law-Evidence-Penal Code, sec. 231 $(b)$ -Criminal Procedure Code, sec. 27.

The appellants appealed from a conviction of resisting and assaulting police officers in the due execution of their duties. The appellants resisted and assaulted four police officers who were attempting to arrest them at Ruiru without a warrant or an order from a magistrate. Evidence was given that the appellants were wanted on a charge of burglary at Nairobi but the learned magistrate excluded that evidence on the ground that it was most prejudicial to the appellants. There was no evidence on the record to show the ground on which the police officers claimed to be entitled to affect the arrest without an order from a magistrate and without a warrant of arrest.

Held $(14.7-38)$ .—That the evidence that the appellants were wanted on a charge of burglary was directly relevant to an ingredient of the offence charged and should not have been excluded. Nevertheless the magistrate having<br>deliberately excluded the evidence from the record there is no power in the Supreme Court to include it and the exclusion of this evidence was in the circumstances fatal to a conviction under the section founding the charge.

Appellants in person.

Dennison, Ag. Solicitor-General, for the Crown.

Sir Joseph Sheridan, $C. J.:$

In considering this appeal, we must shut our eyes to the previous bad record of the appellants; that is elementary. The appellants were convicted of resisting arrest and assaulting police officers in the due execution of their duties. The powers of the police to arrest without a warrant are set out in section 27 of the Criminal Procedure Code and one of these powers is that a police officer may, without an order from a magistrate and without a warrant arrest any person whom he suspects upon reasonable grounds of having committed a cognizable offence.

We have been informed by the learned Acting Solicitor General that in the present case the prosecution appreciated that it was necessary to prove that the police were acting in the due execution of their duty before a conviction could be had and that they had every reason to believe that they had done so. From information conveyed to us by the trial magistrate, we have reason to believe this to be correct. He has stated that evidence was given that the accused were

wanted on a charge of burglary at Nairobi but that he definitely excluded the evidence from the record as being most prejudicial to the accused. This was most unfortunate for the evidence was relevant to the proof of an ingredient of the offence charged namely that the police were acting in the due execution of their duty. The prosecution relied on this evidence as establishing that there were reasonable grounds for suspecting the appellants of having committed a cognizable offence and thus showing that there existed authority for arresting without warrant. As to whether the particular evidence would have discharged the burden of proof cast upon the prosecution would have been a matter for the magistrate to decide. The evidence referred to in the present case was just as necessary as say the evidence of the record of an habitual offender before directing that security for good behaviour should be given under section 43 Criminal Procedure Code. It was directly relevant to an ingredient of the offence charged and the magistrate having deliberately excluded the evidence from the record there is no power in this Court to include it. While there appears to us to have been nothing lacking in the manner in which the prosecution presented their case, the exclusion of the evidence referred to was fatal to a conviction under the section founding the charge. The convictions and sentences are quashed and the appellants directed to be set at liberty.

## THACKER, $J$ :--

I concur and have only this to add, that the magistrate should in such a case as this when he excludes evidence, inform the parties that he is in fact excluding or proposes to exclude such evidence, so that the parties may be given the opportunity of argument as to the correctness or otherwise of such exclusion. Unless the magistrate does in fact inform the parties of his intention to exclude, which, we are informed, was not so here, the parties are under the manifest disadvantage of being ignorant of the exclusion of the evidence.