[1948] EACA 31

## COURT OF APPEAL FOR EASTERN AFRICA

## Before SIR BARCLAY NIHILL, C. J. (Kenya), EDWARDS, C. J. (Uganda), and SIR JOHN GRAY, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

v.

## (1) SUMBUSO s/o RUHINDA, (2) MUKABAHIGI $\phi$ /o RUFWILE, (3) KAGUNJU s/o BIGENJE, (4) BUKWARI s/o KATALIWA, Appellants (Original Accused)

Criminal Appeals Nos. 128, 129, 130 and 131 of 1948 (Consolidated) (Appeals from decision of H. M. High Court of Tanganyika)

Criminal Law—Murder—Evidence—Statements made by co-accused implicating co-accused—Corroboration—Accessory after the fact—Practice—Witness's use of plural—Evidence of wife—Observations of Court.

The appellants were charged with the murder of the deceased Rwemera whose body was deposited in a nearby lake and except for a skull and some bones no body was ever recovered. The only eye-witnesses of the killing were those who participated in the crime and the case against the appellants rested to a great extent on statements made by them at the preliminary Inquiry implicating themselves and their co-accused, and supported by other evidence corroborating the statements in material particulars. Such evidence included that of the wives of appellants Nos. 3 and 4 respectively. All appellants were convicted of murder and sentenced to death.

On appeal.

Held (21-7-48).-(1) That the conviction of Appellants Nos. 1, 2 and 3 was justified on the evidence.

(2) That the only evidence against Appellant No. 4 which might be regarded as corroboration of the statements of his co-accused that he also took a hand in the killing was contained in an answer made by the wife of Appellant No. 4 to a question, in which<br>she used the word "They", but that it was not abundantly clear that it was meant to include Appellant No. 4.

Observations of the Court on the undesirability of a witness using the plural in describing things heard and seen.

(3) That there was abundant evidence that Appellant No. 4 was an accessory after the fact.

(4) That before a spouse gives evidence against her husband care should always be taken to ascertain that the marriage was not in fact monogamous, and had the Court been disposed to accept the evidence of the wife of Appellant No. 4 against him the point would have been of supreme importance.

R. v. Nyawa, 15 K. L. R. 99, and R. v. Andrea Edoru, 8 E. A. C. A. 87 referred to.

Appeals of Appellants Nos, 1, 2 and 3 dismissed. Conviction of murder against<br>Appellant No. 4 quashed and a conviction of being an accessory after the fact to murder (Tanganyika Penal Code, section 213) substituted. Sentence of seven years I. H. L.

Appellants absent, unrepresented.

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

JUDGMENT (delivered by SIR BARCLAY NIHILL, C. J.).—These four appeals which we have consolidated are from a joint conviction of murder in the High Court of Tanganyika.

So far as the appeals of the first, second and third appellants are concerned we are satisfied that the conclusion reached by the learned trial Judge, and with which the assessors agreed, was justified on the evidence. This evidence, although it was comprised primarily of statements made by the appellants before the committing Magistrate, which implicate the persons themselves and their coaccused, was also supported by other evidence which corroborated the statements. in material particulars.

We find, however, that as regards the fourth appellant, the position is different. Whilst parts of the statements made by the first and third appellants which implicated themselves also implicated the fourth appellant, there is littleif any corroboration on the essential matter as to whether he actually took part in the commission of the crime. On his own admission he did assist in the removal and hiding of the body but in his statement before the Magistrate he maintained. that at the time of the actual assault on the deceased he did his best to prevent it. The only evidence which might perhaps be considered as corroboration of the statements made by the first and third appellants that the fourth appellant also took a hand in the killing is contained in the last answer made by the witness P. W. 9 in the reply to a question put to her by the Court. Her answer is recorded. as follows: "They did say that they held Rwemera while Sumbuso (that is the first appellant) seized his throat". From the context it would appear that the word "they" was meant to include the fourth appellant, but it is not abundantly clear; neither is it clear as to when and under what circumstances the fourth appellant made such a statement, if in fact he spoke at all.

We believe that this Court has on other occasions commented adversely on the use of the plural when a witness is describing things heard or seen, and this is a good instance of its extreme undesirability. In any event, standing as it does, as the only piece of corroborating evidence, we do not think it safe to use it to maintain the conviction.

There is, however, abundant evidence, both from the fourth appellant's own statement and from other witnesses to make it clear that this appellant knew of the plot to kill the deceased and that he had even been prepared to take money in return for his assistance. The evidence, however, against him does fall short in our opinion of establishing that when the fatal moment came he was in fact an aider and abettor in the crime, but when murder had been done he was most certainly an accessory after the fact.

There is one further point which we feel we should mention. Witness P. W. 9 was the wife of the fourth appellant. On the reason she is described as a pagan but no questions appear to have been put to her as to the nature of her marriagestatus. As was said in Rex v. Nyawa wa Nyawa, XV, Kenya Law Reports 999, and approved by this Court in Rex v. Andrea Edoru, Vol. VIII, E. A. C. A., page 87, care should always be taken to ascertain that the marriage was not in fact monogamous before a spouse gives evidence against her husband. We think in the case before us that this was probably overlooked by error in the case of this witness, because, we note that in the case of P. W. 2 who is the wife of the third appellant questions appear to have been asked and answers taken which established that the witness had been married according to native custom, which permitted more than one wife. Had we been disposed to accept the evidence of P. W. 9 against the fourth appellant the point would have been of supreme importance.

In the result, therefore, we dismiss the appeals of the first, second and third appellants, and quash the conviction of murder entered against the fourth appellant. For that conviction we substitute a conviction under section 213 of the Tanganyika Penal Code and sentence the appellant to imprisonment for seven. years with hard labour.