[1946] EACA 73

# ORIGINAL CRIMINAL

Before DE LESTANG, AG. J.

## REX, Prosecutor

ν.

#### t all (1) MBAYEYO OLE MOLESHA, (2) KOTEMMO OLE SAKAYA, (3) KATITIA OLE PARMERIS, Accused

#### Criminal Case No. 40 of 1946

$law - Murder - Evidence - Retracted$ confession — Necessity $of$ Criminal corroboration.

A, B, and C were charged with murder. The only evidence against them was the extra judicial confessions of A and B, which they retracted both at the preliminary inquiry and at the trial on the ground that they had been obtained. by duress and an exculpatory statement inculpating A and B made by C and also retracted at the trial.

Held (15-5-46).—It is unsafe for a Court to rely on and act on a confession which has been retracted unless it is corroborated in material particulars by credible independent evidence<br>or unless the character of the confession and the circumstances under which it was taken indicate its truth. All accused acquitted.

Case referred to: Rex v. Keisheimeiza w/o Tindikawa 7 E. A. C. A. 67.

Stephen for the Crown.

$\cdot \cdot$

Wilkinson for the Accused.

JUDGMENT.—The three accused are charged jointly on two counts of murdering two Wakamba young men.

There can be no doubt on the evidence that those two Wakamba were brutally murdered while they were lying down in a small boma belonging to Mulinge on the Marwa Sisal Estate on the night of 24th October, 1945. The only question for decision is whether it was all three accused or any one or more of them who committed this foul deed.

The evidence against all three accused is contained in confessions made by accused 1 and 2 and in a statement made by accused 3 to the Magistrate about a month after their arrest, and also in footprints found leading away from the scene of the crime and which are alleged to have been made by the sandals worn by accused 2.

The confessions and statements of the three accused read as follows respectively: —

### Statement by First Accused.

"We were the people who killed these two people. We are three. We were in search of sheep. We entered the boma, and I was the first to enter. The other man, Kotemmo, killed the first man. The second man, Kotemmo and I killed together. The third man, Katitia, cut them while they were lying on the ground. We were not seen by anybody. When we returned to our. own boma we were not heard by anybody. That is all I want to say." $\overline{I}$

$T. M.$

#### Statement by Second Accused.

"It was we who killed these people. I and the other man, Bayeya, entered the boma. When we entered we saw the two people who were sleeping outside the house. When they started to wake up we killed them. The thirdman, Katitia, came and cut them. Then we returned home. We had been in search of sheep. That is all I want to say."

> $R. O. C.$ L. T. M.

# Statement by Third Accused.

"We left our boma and arrived at the place and two of us entered the boma. As we were listening, we saw two people. We killed them. I also entered the boma. I found two dead people lying down and I thought they were still alive, and I cut them. Then we returned. We were not seen by anybody. Nobody saw us there, or at our own home. When we were at our home three askaris came. They called all the moran and elders. And afterwards when there was a baraza we did not mention it was we who killed these people, but afterwards we admitted it. I have no more to say."

At the preliminary inquiry before the Magistrate in February this' year accused 1 and 2 retracted their confessions on the ground that they had confessed through fear. Accused 3, however, repeated more or less the statement which he had previously made insisting though that he had cut dead bodies. During the trial all three accused retracted their confessions and statements respectively on the ground that they had made them under duress after being beaten consistently and ill-treated by their guards.

The law regarding retracted confessions is discussed in Rex v. Keisheimeiza $w/o$ Tindikawa, VII E. A. C. A. p. 67, where at page 68 the following passage appears:-

"The law is concisely summarized in Woodroffe and Ameer Ali, 9th Edition, at page 277, in the following words: $-$

'It is unsafe for a Court to rely on and act on a confession which has been retracted, unless after consideration of the whole evidence in the case the Court is in the position to come to the unhesitating conclusion that the confession is true, that is to say, usually unless the confession is corroborated in material particulars by credible independent evidence or unless the character of the confession and the circumstances under which it was taken indicate its truth."

It is therefore, necessary in this case to consider whether there is any corroboration of the confessions of accused 1 and 2.

As regards the first accused I am unable to find any corroboration whatever. There was some evidence to show that round about the time of the murders all three accused were seen together trying to steal a sheep from one old man, Ole Legeneko. It is doubtful, however, whether this incident took place on the day of the murders and it does not in any way connect the accused with the murders. It might show motive and opportunity to a certain extent, but motive and opportunity however helpful they may be in a case do not constitute corroboration. Even if it were proved that one of the two sets of footprints found leading away from the scene of the crime were those of accused 2 that would not of itself or in conjunction with evidence of motive and opportunity be sufficient to constitute corroboration of the confession.

As regards accused 2 there are the footprints which I have referred to already and they would be complete corroboration of his confession and indeed they would be sufficient evidence by themselves to connect that accused with the crime, if they were proved to be his. The evidence, however, identifying

those prints with accused 2 is very unsatisfactory. The comparison of prints was made from memory by the witnesses and no actual comparison *in situ* was made until two weeks had elapsed. I felt very uneasy about that comparison and like the assessors think that impressions in sand exposed to the heat by day and dew by night and to wind on the plains could not possibly remain undisturbed and unaltered after such a long delay. Comparison made in this way carries no weight at all. I am unable to hold in the circumstances that it has been proved beyond reasonable doubt that the footprints leading from the corpses were made by the sandals worn by accused 2.

Even assuming for the sake of argument that they were caused by similar sandals it is abundantly clear from the evidence that a great number of Masai wear sandals and that many of them must be patched up like those of the accused.

There is also a very odd thing in this case and this is that the footprints of only two persons were seen and yet there are to-day three accused in the dock. Mulingo's wife, Bengo, said the murderers were three in number. She was greatly frightened and saw them from her house. Is it not quite likely that she may be mistaken? It is otherwise difficult to explain the tracks of only two persons if there were in fact three.

I must therefore hold that there is no corroboration of his retracted confession in the case of accused 2 also.

As regards accused 3 his statements were not confessions. They merely brought him to the scene of the crime where, if he is to be believed, he took no part in the actual killing. There is nothing, therefore, against him.

I find all three accused not guilty and acquit them.