[1946] EACA 25

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

## REX, Respondent (Original Prosecutor)

## LIFA s/o MAHEGA, Appellant (Original Accused)

## Criminal Appeal No. 307 of 1945

(Appeal from decision of H. M. High Court of Tanganyika) Criminal Law—Murder—Evidence—Accomplice—Accessory after the fact.

The appellant was convicted of murder on the uncorroborated evidence of deceased's wife. The appellant was the lover of the deceased's wife and finding them together in his house early one morning the deceased slapped the appellant. The latter seized a spear and fatally wounded the deceased. The woman was present when her husband was killed but at the instigation of the appellant and another woman she abstained for a few hours from reporting the murder. Eventually she did report to the local Chief.

Held (6-2-46).—That the deceased's wife was not an accomplice nor did her conduct. immediately after the murder constitute her an accessory after the fact. Appeal dismissed.

Appellant absent, unrepresented.

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

JUDGMENT (delivered by SIR G. GRAHAM PAUL, C. J.).—The appellant was convicted in the High Court of Tanganyika, at Tabora, of the murder of Mwandu s/o Mkumbula, and sentenced to death. He appeals to this Court against that conviction.

In his memorandum of appeal, the appellant sets out three grounds of appeal, the first of which is that the learned Judge in convicting the accused acted upon the uncorroborated evidence of a woman, Gigwa, the wife of the deceased Mwandu, who was an accomplice of the accused, and in any case "on her own telling" not a witness of truth.

The evidence as to Gigwa is that she was present when her husband Mwandu was killed in his own house and for a time—apparently a matter of hours she abstained from reporting that it was the accused who killed her husband. This she did at the instigation of the accused and of a woman, Hoga, a relative of the accused. Gigwa did eventually report the truth to a person in authority —the local Chief. $\Box$

The circumstances of the killing were that in the absence of her husband, the accused, who was already her lover, spent the night with Gigwa in her husband's house and had sexual intercourse with her. The husband returned unexpectedly in the early morning and discovered the guilty pair. He slapped accused, who immediately seized a spear and fatally wounded the husband.

In our opinion, on the evidence, the witness Gigwa was not an accomplice. nor in our opinion did the conduct of Gigwa immediately after the murder constitute her an accessory after the fact. It is true that, having seen the murder committed, she omitted to make any report and in fact did say to one witness that she did not know how her husband had met his death, and that he must

have committed suicide. All this, however, happened in a very short time and while she was under the influence of the accused, her lover, and a female relative of his. Not long afterwards, however, she reported the true facts to the Chief as a result of which the accused was arrested. The delay in reporting the matter was so short that we do not consider that it was sufficient in the circumstances to make her an accessory after the fact as defined in the Penal Code. Accordingly, we consider that the learned Judge and the Assessors were justified in accepting and acting upon Gigwa's evidence if they believed it, which they did.

The real defence of the appellant at the trial was an alibi. We agree with the learned Judge that the evidence of the appellant himself, as to the alibi, was most unsatisfactory and unconvincing, and he called no witnesses in support of his alibi. We think that the learned Judge and the Assessors were quite right in rejecting the appellant's story as to the alibi.

For these reasons the appeal is dismissed.