Wakilii

Kaihara and Others v Rex (Cr.A. 59-1934 and 60-1934)

East African Court of Appeal · [1937] EACA 160 · 1937 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Supreme Court of Kenya against murder conviction
Decision
Appellants' murder convictions upheld

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal held that it is for the trial court to consider and decide whether there is evidence on which the accused should be called upon to enter their defence under section 289(3) of the Criminal Procedure Code, not for the appellate court to determine whether evidence actually existed. Where counsel submits no case to answer but then participates in subsequent proceedings, he cannot rely on that submission on appeal. Appeals dismissed.

Outcome

Appellants' murder convictions upheld

Facts

The appellants, who were brothers, were convicted of murdering their uncle. At trial, they elected to give evidence and admitted the killing. They claimed they acted under grave and sudden provocation after seeing their father beaten by the uncle. At the close of the Crown case, there was arguably insufficient evidence to call upon the appellants for their defence. However, counsel for the appellants participated in the subsequent proceedings after making a submission of no case to answer. The appellants gave evidence which incriminated them, leading to their conviction.

Issues

  1. Whether the trial court should have called upon the accused to enter their defence after the Crown case closed, given the state of the evidence.
  2. Whether counsel for the accused can rely on appeal on a submission of no case to answer if he participated in subsequent proceedings.

Orders

  • Appeals dismissed.

Rules and key headnotes

Criminal Procedure — No Case to Answer — Trial Court's Duty under Section 289(3)
Under section 289(3) of the Criminal Procedure Code, it is for the trial court to consider and decide whether there is evidence on which the accused should be called upon to enter their defence after the Crown case has closed, and not for the appellate court to decide whether there actually was evidence.
Criminal Procedure — No Case Submission — Waiver by Participation
Where counsel for the accused submits at the proper stage that there is no case to answer, but then takes part in the subsequent proceedings, he cannot on appeal rely on that submission.
Evidence — Sufficiency at Close of Prosecution Case — Appellate Review
An appellate court will not interfere with a conviction where, even if there was insufficient evidence at the close of the prosecution case, the accused elected to give evidence and thereby incriminated himself.

Legislation cited (3)

  • Penal Code of Kenya s.187
  • Criminal Procedure Code s.289(3)
  • Criminal Procedure Code s.289(4)

Cases cited (2)

  • Rex v George (1 Cr App R 168)
  • Rex v Power (14 Cr App R 17)

Full judgment

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

Kaihara and Others v Rex (Cr.A. 59-1934 and 60-1934) [1937] EACA 160 (1 January 1937)
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.