[1948] EACA 80

## APPELLATE CRIMINAL

## Before SIR BARCLAY NIHILL, C. J.

$\mathbb{E}[\mathcal{O}^{\mathbb{C}}]$

## "REX, Respondent (Original Prosecutor) $v$ .

$\mathcal{M}^{\mathcal{A}}(\mathcal{M})$

$\mathcal{L}^{\mathcal{A}}(\mathcal{L})$

KIPKERICH ARAP KOECH, Appellant (Original Accused) Criminal Appeal No. 342 of 1948

Criminal Law-Stock theft-Penal Code, section 272-Practice-Court calling a witness after close of case for defence-Criminal Procedure Code, section 150—Sentence.

The appellant was convicted of theft of two heifers, the property of Lima arap Kessio, the complainant. At the trial before the Magistrate the complainant testified that his two heifers were stolen from his cattle *boma* on the night of the 30th January, and there was evidence that the appellant was seen in possession of them the following day when he set about disposing of them. The defence was an alibi. The appellant led evidence to show that he had spent the night of the 30th January at the dwelling of one Kipkolum. After reserving judgment the Magistrate found that he could not come to a decision without evidence of the distance between the respective abodes of Kipkolum and the complainant. He called the Chief of the area as witness who estimated the distance to be about half a mile.

The appellant was sentenced to 18 months' H. L. and to pay compensation of Sh. 125, in default, a further 4 months' H. L.

On appeal

Held (30-9-48).—(1) That a Judge at a criminal trial should not call a witness after the close of the defence unless something has arisen on the part of the prisoner ex improviso which no human ingenuity could foresee.

(2) That as the point as to distances arose from the evidence given on behalf of. the appellant, and neither the prosecutor nor the Court could have anticipated the nature of that evidence, this case came within the exception.

(3) That the sentence of 18 months' H. L. should be reduced to 15 months' H. L.

The reasons are set out in the judgment below.

Appeal dismissed.

Appellant in person, unrepresented.

Modi for the Crown.

JUDGMENT: The appellant was convicted of the theft of two heifers. On the evidence of the two principal prosecution witnesses, which the Magistrate accepted, his conviction is fully justified. The unusual point which arises in this case is, that the Magistrate after the close of the case for the defence, and after he had remanded the appellant in custody for the purpose of receiving judgment, re-opened the proceedings and called a witness. Under section No. 150 of the Criminal Procedure Code the Court may at any stage of any proceedings call a witness if it considers his evidence to be essential to a just decision of the case; but it is settled practice, both in this Colony and in England, that a Judge at a criminal trial should not call a witness after the close of the defence unless something had arisen on the part of the prisoner *ex improviso* which no human ingenuity could foresee. In the present case the prisoner's defence was an alibi, and he called several witnesses to prove that on the night that the cattle were stolen he slept in a certain house. None of these witnesses were asked in crossexamination to give the distance that this house lay from the scene of the theft, and the point does not appear to have occurred to the Court until after he had adjourned in order to read over the evidence.

The Magistrate has recorded that he then felt that it was essential for him to have reliable evidence on this question of distance in order, I assume, that he could test the materiality of the defence evidence on the question of an alibi. He accordingly, on a later day, called as a witness of the Court the Chief of the area. This Chief knew the house where it was alleged the appellant had slept that night, and knew the *boma* from which the heifers had been removed, and he was able to give evidence of the distance between them.

Although the witness was a witness of the Court whom the defence were not as of right entitled to cross-examine, the Magistrate has recorded that the accused had no questions he wished to put to him. I am quite satisfied therefore that the calling of this witness by the Court, which might have turned out to be just as much in the accused's favour as against him, cannot possibly have occasioned him any prejudice. Furthermore, the point as to distances did arise from the evidence given on behalf of the appellant, and neither the prosecution nor the Court could have anticipated the nature of that evidence.'I think, therefore, that this is a case which can be said to fall within the exception.

The appellant has also appealed against sentence, and asks for some reduction on the ground that he was kept for nearly three months in prison before his case was heard. It would appear that about the time subsequent to the commission of the offence which is the subject of this appeal he committed another stock theft for which he was sentenced to a term of imprisonment on the 12th April, 1948, and that he was serving that term on the day that he was convicted for this offence. Therefore there is no exact information as to precisely how long he remained in remand custody. It is, however, clear that this must<br>have amounted to several weeks. Taking this into account, and also the fact that his sentence in this case will not start to run until his sentence on the other case has been served, I am prepared to make some reduction, and I accordingly reduce the sentence of 18 months' to a sentence of 15 months' imprisonment with hard labour.

The appeal against conviction is dismissed.