Wakilii

Dagamra v The Queen (Criminal Appeal No. 116 of 1956)

East African Court of Appeal · [1956] EACA 36 · 1956 Appeal Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from magistrate's conviction
Decision
Conviction and sentence quashed

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal allowed the appeal and quashed the conviction. While the statutory obligation under section 150 of the Criminal Procedure Code permits a court to recall witnesses at any stage if their evidence is essential to a just decision, the magistrate erred by failing to give the accused and prosecutor an opportunity to cross-examine the recalled witness on his additional evidence. The proviso to section 150 is mandatory on this point, and non-compliance may have occasioned a failure of justice.

Outcome

Conviction and sentence quashed

Facts

The appellant was convicted of conspiring with one Karisa to defeat justice. The prosecution case depended on the evidence of a witness named Joshua. After the close of the defence case, the magistrate, being doubtful whether Joshua was an accomplice, recalled him and heard further evidence on this point. No opportunity was given to the accused or the prosecutor to cross-examine Joshua on this additional evidence. The appellant appealed against the conviction.

Issues

  1. Whether it was proper for the magistrate to recall a prosecution witness after the close of the defence case to clarify whether the witness was an accomplice.
  2. Whether the magistrate was required to give the accused and prosecutor an opportunity to cross-examine on the additional evidence obtained from the recalled witness.

Orders

  • Appeal allowed.
  • Conviction and sentence quashed.

Rules and key headnotes

Criminal Procedure — Recall of Witnesses — Statutory Power Under Section 150
Section 150 of the Criminal Procedure Code places a statutory obligation on the court to call or recall a witness at any stage of a trial if the witness's evidence appears essential to the just decision of the case, and this statutory provision may render the English rule limiting recall of witnesses after the close of the defence to matters arising ex improviso not entirely applicable in Kenya.
Criminal Procedure — Recall of Witnesses — Right to Cross-Examination
Where a magistrate recalls a witness and hears additional evidence, the proviso to section 150 of the Criminal Procedure Code mandatorily requires that the accused and the prosecutor be given an opportunity to cross-examine on that additional evidence, and failure to comply with this requirement may occasion a failure of justice.
Evidence — Witnesses — Recall After Close of Defence Case
It is not proper or regular for a court to hear and record additional evidence from a recalled witness without giving the parties an opportunity to cross-examine upon it, even where the court has statutory power to recall witnesses at any stage of the trial.

Legislation cited (2)

  • Criminal Procedure Code s.150
  • Criminal Procedure Code s.381

Cases cited (9)

  • R v Harris (1927) 20 Cr App R 86
  • R v Liddle (1927) 21 Cr App R 3
  • R v Day (1940) 27 Cr App R 168
  • R v Browne (1943) 29 Cr App R 106
  • R v Owen (1952) 36 Cr App R 16
  • R v Mangatinda ole Dusiat (1953) 15 KLR 112
  • Newmark v Rex (1934) 1 EACA 162
  • Aw Deria Hussein v Reg (1953) 20 EACA 181
  • Frost (1839) 4 St Tr (NS) 86

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Dagamra v The Queen (Criminal Appeal No. 116 of 1956) [1956] EACA 36 (1 January 1956)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.