[1938] EACA 160

Before SIR JOSEPH SHERIDAN, C. J., LUCIE-SMITH, J. and THACKER, J.

## REX, Prosecutor

v.

## KAMONGO MASAKUYE, Accused

## Confirmation Case No. 191 of 1939

Transfer of cases between magistrates—Criminal Procedure Code, section $77(a)$ —Conviction of offence other than that charged— Criminal Procedure Code, section 174. The facts appear from the judgment.

**Held** $(7-10-39)$ .—(1) That a Magistrate holding a subordinate court of the first class may transfer a case even though it be part heard by him to another Magistrate under section 77 (a) of the Criminal Procedure Code.

(2) That the provisions of section 174 of the Criminal Procedure Code cannot be invoked so as to justify a conviction of being in possession of cattle contrary to section 10 of the Stock and Produce Theft (Levy of Fines) Ordinance, 1933, in a trial on a charge of cattle theft contra section 255 of the Penal Code

Accused in person.

## Spurling, Acting Crown Counsel, for the Crown.

JUDGMENT.—This case was put forward on confirmation by the learned Chief Justice for argument and consideration before two judges on the two following points:-

(1) Whether the transfer from the Resident Magistrate, Kisumu, under the provisions of section 77 of the Criminal Procedure Code to the Second Class Magistrate's Court of the District Officer, Kakamega, was valid; and

(2) Whether the conviction under section 10 of Ordinance 18 of 1933 of being in possession of stock in a Proclaimed District in circumstances which reasonably lead to the belief that such stock has been stolen can stand seeing that the charge against the accused was of stealing the stock contrary to section 255 of the Penal Code.

The Bench of two Judges, Lucie-Smith and Thacker JJ. again ordered the points to be argued and considered before a full Bench of three Judges.

As to the first point the record shows that the accused was charged before the Resident Magistrate, Mr. Connell, who took the evidence of one witness for the Crown. This Magistrate who had First Class jurisdiction then appears to have decided to transfer the case under section 77 of the Criminal Procedure Code to the Subordinate Court of the Second Class of the District Officer at Kakamega. Section 77 provides: $\rightarrow$

'Any magistrate holding a subordinate court of the first class—

$(a)$ may transfer any case of which he has taken cognizance for inquiry or trial to any magistrate holding a subordinate court empowered to inquire into or try such case within the local limits of such first class subordinate court's jurisdiction; and

(b) may direct or empower any magistrate holding a subordinate court of the second or third class or any magistrate holding a native subordinate court who had taken cognizance of any case, and whether evidence has been taken in such case or not, to transfer it for inquiry or trial to himself or to any other specified magistrate within the local limits of his jurisdiction who is competent to try the accused or commit. him for trial, and such magistrate may dispose of the case accordingly.

Mr. Connell appears to have informed the accused of his right to have the evidence of the one prosecution witness the complainant already heard re-heard before the Court to which the case was transferred, and the accused stated, as the record shows, that he did not so wish. The case then on transfer proceeded before Mr. Lockhart a magistrate holding a subordinate court of the second class to whom it had been transferred and the latter informed the accused of the substance of the evidence already taken before Mr. Connell. Nothing more could have been done than was done in this regard and the only question was whether the Magistrate of the First Class was in order in so transferring the case. He proceeded, as stated above, under the provisions of section $77(a)$ of the Criminal Procedure Code. The question arises as to the effect of the omission of the words in this subsection 'and whether evidence has been taken in such case or not' which appear in section 77 (b), C. P. C. We do not attach great importance or significance to these words. In our opinion, they are inserted in section 77 $(b)$ to make it quite clear that whether or not evidence has been taken before the lower Court, the Magistrate of the First Class may order a Subordinate Court of the Second or Third Class to transfer it to himself, etc. In connexion with this point it is of importance to observe that section $77$ (a) is in all material respects similar to section 192 (1) of the Indian Code of Criminal Procedure and the authorities referred to in Sohoni go to show that the mere fact of the transferring court having taken some evidence does not invalidate the transfer. One note in particular in page 438 of Sohoni's Code of Criminal Procedure (12th Edition), Note 7 reading: $\div$

'After transfer prosecution witnesses must be examined afresh-

When a case is transferred after the evidence for the prosecution has been recorded, the procedure to be followed is that the prosecution witnesses must be examined afresh. The Magistrate cannot act upon the evidence recorded already by another Magistrate.'

That is a note with which this Court respectfully agrees. The answer to it, however, in this case was that the accused was given every opportunity of having the one witness who had been heard recalled and declined to avail himself of the opportunity.

In this connexion also, section 188 of the Kenya Criminal Procedure Code is relevant. It is as follows: -

'Whenever any magistrate, after having heard and recorded the whole or any part of the evidence in an inquiry or trial, ceases to exercise jurisdiction therein and is succeeded, whether by virtue of an order of transfer under the provisions of this Code or otherwise.

by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may act on the evidence so recorded by his predecessor, or partly recorded by his predecessor and partly by himself, or he may resummon the witnesses and recommence the inquiry or trial:

- Provided that- - $(a)$ in any trial the accused may, when the second magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and reheard and shall be informed of such right by the second magistrate when he commences his proceedings;'

This section is in all material respects similar to section 350 of the Indian Criminal Procedure Code, the material portions of which we shall set out. They are as follows: $-$

'(1) Whenever any magistrate after having heard and recorded the whole of any part of the evidence in an inquiry or a trial, ceases to exercise jurisdiction therein and is succeeded by another magistrate who has and who exercises such jurisdiction, the magistrate so succeeding may act on the evidence so recorded by his predecessor or partly recorded by his predecessor and partly recorded by himself; or he may resummon the witnesses and recommence the inquiry or trial;

Provided as follows: -

- $(a)$ in any trial the accused may when the second magistrate commences his proceedings, demand that the witnesses or any of them be resummoned and reheard; - (b) the High Court or, in cases tried by magistrates subordinate $\frac{1}{2}$ to the District Magistrate, the District Magistrate may, whether there be an appeal or not, set aside any conviction passed on evidence not wholly recorded by the magistrate before whom the conviction was held, if such court or District Magistrate is of opinion that the accused has been materially prejudiced thereby, and may order a new inquiry or trial. - $(2) \ldots$

(3) When a case is transferred under the provisions of this Code from one magistrate to another, the former shall be deemed to ceare to exercise jurisdiction therein, and to be succeeded by the latter within the meaning of subsection (1).

To put it shortly whether the second proceedings be the result of one magistrate succeeding another or of an order of transfer the procedure to be followed is set out in sections 77 and 188 of the Criminal Procedure Code. We are of opinion that in this case the transfer was properly made and within the powers set out in sections 77 and 188 of the Criminal Procedure Code.

As to the second point the Magistrate acquitted the accused of the offence with which he was charged, namely theft of eight head of cattle, but convicted him of an offence with which he was not

charged, namely, being in possession of cattle contrary to section 10 of Ordinance 18/33. Under section 174, Criminal Procedure Code, it. is enacted: -

'When a person is charged with an offence, and part of the charge is not proved, but the part which is proved amounts to a different offence, he may be convicted of the offence which he is proved to have committed, although he was not charged with it."

It was proved to the Magistrate's satisfaction that the accused was in possession of stock in circumstances which reasonably lead to the belief that such stock had been stolen and the Magistrate further found that the accused had not discharged the onus of proof which was upon him that the possession was lawful. Admittedly, the record shows that the evidence supports such findings of fact. Indeed it might well be argued that the evidence would support a conviction for theft, as charged. The offence however is a different offence to theft under section 255 of the Penal Code, and section 174 of the Criminal Procedure Code cannot be called in aid.

Section 174 cannot be invoked to support a conviction under section 10 of Ordinance $18/33$ , where an accused is charged with theft under section 255 of the Penal Code. The omission to charge the accused with the offence of which he was found guilty is in this instance a fatal defect which vitiates the trial. See in this connexion R. v. Maganbhai Valabhbhai Patel and Another, reported in Law Reports of Kenya, 1934-1935, Vol. XVI, p. 130.

For this reason the conviction and sentence must therefore be set aside. The order leaves the Crown free to take such further proceedings as may be considered advisable provided of course that he shall not be liable to be convicted of the offence of theft on a charge of which he has been acquitted. The accused is ordered to be discharged.