Wakilii

Daitayi and Others v Reginam (Criminal Appeal No. 369 of 1955)

East African Court of Appeal · [1950] EACA 493 · 1950 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for rape in the Supreme Court of Kenya
Decision
Convictions for rape upheld; sentences of three years, two years, and two years imprisonment with hard labour confirmed.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that a trial Judge does not exercise discretion unjudicially in refusing to grant a defence application for a view of the site where an offence was committed, particularly where the prosecution had called an investigating officer who testified about visibility from the relevant location. The Court further held that the decision whether to call a witness is within the discretion of prosecuting counsel, and a court will not interfere with that discretion unless the prosecutor has been influenced by some oblique motive. The appeals were dismissed.

Outcome

Convictions for rape upheld; sentences of three years, two years, and two years imprisonment with hard labour confirmed.

Facts

Three police constables were convicted of rape in the Supreme Court of Kenya. The complainant alleged they stopped her while on duty checking passes near the Thika River bridge and dragged her into bushes where the offence occurred. The main corroborative evidence came from a tribal policeman, Muli, who was on guard at the district commissioner's house across the valley and claimed to have witnessed the incident from approximately 400 yards away. Another tribal policeman, Wanyoike, was also on guard with Muli but was not called by the prosecution, though he was present at trial and available to the defence. The investigating officer testified that from the location indicated by the complainant, he could clearly see the district commissioner's house and a person at its gate. The defence applied for a view of the site to test whether Muli could have seen what he claimed, but the trial Judge refused the application.

Issues

  1. Whether the trial Judge exercised his discretion unjudicially in refusing to grant an application for a view of the locus in quo.
  2. Whether the prosecution was obliged to call a witness who was present at the scene and whether the failure to do so deprived the defence of an opportunity to cross-examine him.

Orders

  • Appeals dismissed.

Rules and key headnotes

Criminal Procedure — Trial — View of Locus in Quo — Judicial Discretion
A trial Judge does not exercise discretion unjudicially in refusing to grant an application by the defence for a view of the site where an offence was alleged to have been committed, particularly where the prosecution has adduced evidence from an investigating officer about the physical characteristics and visibility at the location.
Evidence — Witnesses — Prosecutorial Discretion — Duty to Call Witnesses
Whether a witness should be called by the prosecution is a matter within the discretion of prosecuting counsel, and a court will not interfere with that discretion unless it may be shown that the prosecutor has been influenced by some oblique motive.
Evidence — Witnesses — Failure to Call — Judicial Direction
Where neither the prosecution nor the defence elects to call a potential witness who is available to both sides, a proper judicial direction is to inform the jury that the witness is absent, that the prosecution could have called him perhaps for good reasons, and that the defence might have called him or not as they liked, without drawing a mandatory adverse inference against either party.
Criminal Procedure — Judge's Power to Call Witnesses — Section 150 Criminal Procedure Code
Under section 150 of the Kenya Criminal Procedure Code, a Judge is empowered to call any person as a witness, and any person so called may be cross-examined by the prosecution or by the defence, providing an alternative mechanism where neither party elects to call a potentially material witness.

Legislation cited (2)

  • Kenya Criminal Procedure Code s.150
  • Kenya Criminal Procedure Code s.378(1)

Cases cited (5)

  • Abdulla v Rex (1936) 3 EACA 51
  • Adel Muhammed v Attorney-General for Palestine [1944] AC 156
  • Ibrahim s/o Ludomia v Reginam (1953) 20 EACA 185
  • R v Bryant and Dickson (1946) 31 CAR 146
  • Rex v Katambo (1938) 5 EACA 141

Full judgment

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

Daitayi and Others v Reginam (Criminal Appeal No. 369 of 1955) [1950] EACA 493 (1 January 1950)
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.