[1955] EACA 330

## COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY, (Vice-President) and SIR ENOCH JENKINS. Justice of Appeal

# (1) MURIU s/o WAMAI, (2) MURETHI s/o GACHAGO, (3) NGARI s/o MWIMATHIRA. (4) GITHENJI s/o MWANGI. (5) KIMONDO s/o ITATA. (6) SIMEON s/o GACHAGO, Appellants (Original Accused)

### ν.

## REGINAM, Respondent

#### Criminal Appeals No. 1051 and 1052 of 1954

(Appeal from the decision of H. M. Supreme Court of Kenya, Cram, Ag. J.)

Murder—Accessory after the fact to murder—Whether person accused of murder may be convicted of being an accessory after the fact thereto—Judgment— Whether delivery of judgment an integral part of trial—Delivery of part of judgment in closed court—Impeding of defence by trial Judge—Right of trial Judge to put questions—Criminal Procedure Code, sections 77 and $168(1)$ .

The six appellants having been indicted and jointly tried for murder, only the first appellant was convicted of that offence, the others being acquitted thereof but convicted of being accessories after the fact thereto.

The trial Judge had excluded from the Court the public and the Press when he began to read his long judgment but he readmitted them after he had read about one third of the judgment.

It was submitted that the judgment had not been delivered in accordance with the provisions of section 168 (1) of the Criminal Procedure Code and that the delivery of the judgment was not a part of the trial. This argument was based on the wording in Criminal Procedure Code, section 168 (1) that a judgment follows the termination of the trial and it was contended that the power given by the proviso to section 77 of the said Code was thus spent, as the proviso only applies during some stage of the trial.

By Criminal Procedure Code, section 77:—"The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them: provided that the presiding Judge or magistrate may, if he thinks fit, order at any stage of the inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court."

And by section 168 (1) of the same Code:—"The judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties and their advocates, if any: provided that the whole judgment shall be read out by the presiding Judge or magistrate if he is requested so to do either by the prosecution or the defence."

It was said that the trial Judge had intervened so many times during the trial by his questions to witnesses that prejudice had been occasioned to the defence.

Held (1-3-55).—(1) A person who has been charged with, but acquitted of, murder cannot be convicted of becoming an accessory after the fact to such murder when he has not been charged with the latter offence, it not being minor to and cognate with the former offence.

Velezi Kashizha v. R. affirmed.

(2) The delivery of judgment is an integral part of the trial and the proviso to Criminal Procedure Code, section 77 is applicable thereto.

(3) The discretion given to Judges and magistrates under the proviso to section 77 aforesaid should be exercised only for a most compelling reason.

(4) If a trial Judge impedes the defence so that accused's counsel finds it impossible fairly to present the defence to the jury, a conviction will be quashed, but any Judge<br>may, and sometimes has the duty, to put questions to witnesses. In the instant case there was no improper or partial attitude on the part of the trial Judge.

Appeal of first appellant dismissed. Appeals of other appellants allowed.

Cases referred to: Velezi Kashizha v. R., 21 E. A. C. A. 389; R. v. Ndecho, 18 E. A. C. A. 171; R. v. Sumbuso, 15 E. A. C. A. 99; R. v. Clewer, 37 C. A. R. 37; Norman v. Matthews, (1916) 85 L. J. K. B. 857; Scott v. Scott, (1913) A. C. 4

Norman for appellants $1, 3, 4, 5$ and $6$ .

Gledhill for appellant 2.

Templeton (Kennedy with him) for respondent.

JUDGMENT (read by Nihill (President)).—These six appellants were indicted and tried jointly before the Supreme Court of Kenya sitting at Nyeri of the murder of one Mathenge. The first appellant was convicted of murder and sentenced to death. The other five appellants were acquitted of the charge of murder but were convicted of having become accessories after the fact to murder and were sentenced to undergo imprisonment. The learned trial Judge granted a certificate to all the appellants under section 378 (1) $(b)$ of the Penal Code.

When the appeal was called for hearing, Mr. Templeton for the Crownrespondent informed us that he could not support the convictions of the second, third, fourth, fifth and sixth appellants in view of the recent decision of this<br>Court in *Velezi Kashizha v. Reg.* 21 E. A. C. A. 389. In that appeal this Court approved the ruling of a Judge of the High Court of Uganda to the effect that a person who has been charged with but acquitted of murder cannot be convicted of the offence of becoming accessory after the fact to such murder when he has not been charged with this latter offence. The principle relied on in Velezi's case was that the power conferred upon a court by section 180 (2) of the Uganda Criminal Procedure Code to convict a person of an offence with which he has not been charged is limited to an offence which is not only minor to the offence charged but is also cognate with it: R. v. Ndecho 18 E. A. C. A. 171. There is no difference in this respect between the Procedure Codes of Uganda, Tanganyika or Kenya. We further held that the case of R. v. Sumbuso, 15 E. A. C. A. 99, could no longer be considered as an authority to the contrary.

The judgment of the trial court in the instant case was delivered on 10th December, 1954, and the decision of this Court in Velezi's appeal was not delivered until 13th December. No blame can, therefore, be attributed either to the learned trial Judge or to counsel for the Crown for having acted on the presumption that the law had been correctly applied in *Sumbuso's case* and in other reported decisions of this Court where conviction for a minor but noncognate offence was substituted for the conviction entered by the court of trial.

In Velezi's case the ruling on this point was not necessary to the decision on the appeal but was made at the invitation of the Crown-respondent. In the instant case, the propriety of the convictions is directly in issue and we must either affirm or resile from the view taken in *Velezi's* appeal. We are satisfied that that view is correct, indeed Mr. Templeton has not sought to controvert it,

and we therefore affirm it as correct and applicable to the appeals we are now. considering.

We are strengthened in this conclusion by the consideration that at common law a prisoner may not be convicted of an offence of an entirely different character from that charged in the indictment: see Archbold, 33rd Ed. 201. This rule is now subject in England to a number of statutory exceptions which are set out in *Archbold* op. cit. at p. 203 *et seq.* At common law, also, a prisoner may be convicted of a less aggravated felony or misdemeanour on an indictment charging a felony or misdemeanour of greater aggravation, provided that the indictment contains words apt to include both offences: Archbold op. cit. p. 202, e.g. upon an indictment for murder, if the prosecutor fails in proving the malice prepense, the prisoner may be convicted of manslaughter. But we are not aware of any exception which permits the conviction of a prisoner for an offence of a nature which is not cognate with that charged.

It is perhaps unfortunate that this complication of the accused persons, other than the first accused, becoming accessories after the fact was introduced. The case for the prosecution rested on facts which, in the end, were not in dispute. Briefly, it was this: the first accused (first appellant) was a headman in charge of a Home Guard post in the Kikuyu Reserve and the other accused were his underlings, the second accused being, as it were, his second in command. The deceased man Mathenge and another man named Marathe were arrested by, or on the orders of the first accused and detained at the Home Guard post, whether legally or illegally is now immaterial, for about 16 days. They were suspected of being Mau Mau adherents and because they refused to confess to this they were taken out and shot. That in its bare outlines is the story that lies behind this trial. The first appellant has confessed to having fired the fatal shots. The other appellants formed the armed party which escorted the two prisoners from the Home Guard post to the place of execution, they were present at the shooting and afterwards did their best to conceal it. The only question in their case was whether their participation in this event involved them in criminal liabilty and, if so, in what degree.

In view of the possibility that further proceedings may be instituted against these appellants we must refrain from expressing any indication as to our view of the effect of the evidence.

As regards the first appellant there can be no doubt as to the rightness of the conviction and as we have already indicated we have dismissed his appeal. We now give our reasons for so doing.

Mr. Norman has put forward three grounds of appeal on behalf of the first appellant, but on only one ground was he able to press his submission with any real seriousness, namely that the judgment of the court was not delivered in accordance with the provisions of section 168 (1) of the Kenya Criminal Procedure Code which reads as follows:-

"168. (1) The judgment in every trial in any criminal court in the exercise of its original jurisdiction shall be pronounced, or the substance of such judgment shall be explained, in open court either immediately after the termination of the trial or at some subsequent time of which notice shall be given to the parties and their advocates, if any:

Provided that the whole judgment shall be read out by the presiding Judge or magistrate if he is requested so to do either by the prosecution or the defence."

Although no note was made by the Judge on the record, counsel are agreed that the learned Judge excluded from the court the public, including Press representatives, when he began to read his long judgment which extends to some 32 pages. It appears that after he had read about a third of his judgment the Press and public were readmitted. Counsel have told us that the Judge gave out that he was adopting this course because in the first part of his judgment he would be dealing with certain important legal and constitutional issues, not strictly germane to the question of the guilt or innocence of the accused, but on which it would be necessary for him to discuss matters, which if publicized might have an adverse effect on public security. Having read this part of the judgment we are not surprised that the Judge felt a certain anxiety, and we think that if in law he had a discretion in the matter, it could not be said that he exercised it unjudicially, or on any improper ground. At the same time he should have recorded that the public were being excluded as well as reasons for his order.

The power given to a Judge or magistrate to exclude the public from court during the hearing of a case rests on section 77 of the Kenya Criminal Procedure Code which is in the following terms:-

"Court to be open

77. The place in which any criminal court is held for the purpose of inquiring into or trying any offence shall be deemed an open court to which the public generally may have access, so far as the same can conveniently contain them:

Provided that the presiding Judge or magistrate may, if he thinks fit, order at any stage of the inquiry into or trial of any particular case that the public generally or any particular person shall not have access to or be or remain in the room or building used by the court."

Mr. Norman's argument is that the delivery of judgment is not a part of a trial and he bases this submission on the words used in section 168 (1). If judgment follows the "termination of the trial", then the power given by the proviso to section 77 is spent because that can only be applied during some stage of the trial. On the bare words of the section it must be conceded that Mr. Norman has a point, yet we cannot believe that the result is as he suggests. A judgment in a non-jury criminal case is something that precedes and leads up to the decision to convict or acquit. To say that an accused before his conviction or acquittal is not still upon this trial is manifestly absurd. Section 168 (1) of the Kenya Criminal Procedure Code is a reproduction of section 366 (1) of the Indian Criminal Procedure Code. Mitra in his commentry on the Indian section cites a number of Indian decisions dealing with the term "judgment" which are in accord with the view we have expressed (Mitra 12th Ed. page 1468). Accordingly we are fully persuaded that the delivery of judgment must be regarded as an integral part of the trial and that therefore the proviso to section 77 cannot be excluded.

Having said this we must emphasize with all the powers at our command that the seemingly wide discretion given to a Judge or Magistrate under the proviso to section 77 should only be exercised for a most compelling reason Both sections 77 and 168 by the very wording used in them indicate that a court of law must ordinarily be open to the public at all times, and in exercising a discretion to exclude we hope that no Judge or magistrate will ever overlook the general principle that justice must not only be done but must be seen to be done. As we have already indicated in the present case we think that the learned Judge did exercise his discretion on good and sufficient grounds and certainly the fact that the public did not hear the opening pages of his lengthy

judgment occasioned no kind of prejudice whatever to the accused who were all present in court with their counsel. This being the case we cannot possibly accept Mr. Norman's submission that the course adopted by the trial Judge renders the trial a nullity.

As regards Mr. Norman's two other points his complaint that because as many as 13 additional witnesses were called by the Crown who had not given evidence at the preliminary investigation there was a denial of justice has no foundation, because he has conceded that proper notice was given to the defence. No objection was taken at the trial or any adjournment asked for on the ground of surprise. There is no merit in this submission.

Finally it is said that the learned Judge intervened so many times during the trial by his questions to witnesses that prejudice was occasioned to the defence. Mr. Norman invited our attention to certain passages in the record, but having studied them, all we can say is, that we detect no sign of any improper or partial attitude on the part of the trial Judge. He did put some searching questions to some of the witnesses but this any Judge is entitled to do, and oftentimes it may be his clear duty so to do. It has been said that a Judge must not descend into the arena so that his judgment becomes warped by the dust of conflict, conversely a Judge cannot sit in splendid isolation above the conflict, and not intervene even when he detects a lucuna or ambiguity in the evidence. The case of Brian Edward Clewer cited by Mr. Norman (37 C. A. R. 37) has no applicability because in that case it is evident that the Court of Criminal Appeal in quashing the conviction did so because it was convinced that the action of the Judge, although well meaning, had so impeded the defence that the accused's counsel had found it impossible fairly to present the defence to the jury. Nothing approaching this occurred in the instant case.

To conclude, the conviction of the first appellant of murder became inevitable once he had concluded his evidence, for after a long cross-examination, he suddenly changed his story and admitted that he shot and killed the deceased man Mathenge, because he being his prisoner, would not make a<br>confession to him in the terms he wanted. He said he knew the man was a Mau Mau leader and it may be that according to his standards he thought this gave him some kind of right to end his life. We have tried to explain to him in dismissing this appeal, that under any civilized code of law his action amounted to murder and nothing less than murder.

Finally it is impossible to read the record of this case, both evidence and judgment, without appreciating that much emerged to cause the gravest concern to the court. On this wide aspect of the case, which although relevant on the issue of the credibility of the Crown witnesses was not part of the res gestae, there is nothing which we can usefully add. We understand that the administration of justice in African native courts in certain areas is now under examination by a Commission of Inquiry appointed by Government. We can only trust that the investigation will be a most searching one.

The appeal of the first accused is dismissed; that of the other appellants is allowed. Their convictions are quashed and the sentences of imprisonment passed on them are set aside. So far as the present case is concerned they can no longer lawfully be detained in custody.