Wakilii

Kimani v Rex (Criminal Appeal No. 199 of 1950)

East African Court of Appeal · [1951] EACA 139 · 1951 Appeal Dismissed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from Supreme Court of Kenya dismissing appeal from conviction by Kiambu Magistrate
Decision
Conviction and sentence upheld; appellant to serve three years' imprisonment with hard labour

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that section 63 of the Penal Code as originally enacted operates only to preclude a person actually charged with taking an unlawful oath from raising compulsion as a defence unless the statutory declaration was made within the prescribed time. It does not render a person who took an oath under compulsion but was never charged an accomplice. The Court further held that a magistrate is bound to take judicial notice of a Government Notice declaring a society unlawful even if not formally produced in evidence, though proper practice requires production of the relevant Gazette at trial.

Outcome

Conviction and sentence upheld; appellant to serve three years' imprisonment with hard labour

Facts

The appellant was convicted by the Kiambu Magistrate of administering an unlawful oath contrary to section 62(1) of the Penal Code. The complainant Johanna testified that the appellant administered an oath to make him a member of the Kikuyu Central Association. Johanna reported the incident to police within hours. The appellant's appeal to the Supreme Court of Kenya was dismissed. On further appeal, the appellant contended that Johanna was an accomplice whose evidence was uncorroborated because he had taken the oath and failed to make the statutory declaration required by section 63 within fourteen days. The appellant also argued that the prosecution failed to prove that the Kikuyu Central Association named in the charge was the same body as the Kikuyu Central Association (1938) declared unlawful by Government Notice No. 465 of 1940.

Issues

  1. Whether the complainant Johanna was an accomplice whose evidence required corroboration under section 63 of the Penal Code as originally enacted.
  2. Whether the prosecution was required to prove in evidence that the Kikuyu Central Association named in the charge was identical to the Kikuyu Central Association (1938) declared unlawful by Government Notice No. 465 of 1940.

Orders

  • Appeal dismissed.
  • Sentence to commence from the date of judgment of the Supreme Court.

Rules and key headnotes

Unlawful Oaths — Accomplice Evidence — Section 63 Penal Code
Section 63 of the Penal Code as originally enacted operates only to preclude a person who has taken an unlawful oath and who is actually charged with an offence under sections 61 or 62 from setting up the defence of compulsion unless he has made the statutory declaration within the time prescribed. It does not render a person who took an oath under compulsion but was never charged an accomplice requiring corroboration.
Judicial Notice — Government Notices — Unlawful Societies
A magistrate is bound to take judicial notice of a Government Notice declaring a society to be dangerous to the good government of the Colony under section 69(2)(ii) of the Penal Code on becoming aware of it, even if the Gazette containing the Notice was not formally produced in evidence, though the proper practice is to produce the relevant Gazette at trial.
Unlawful Societies — Identity of Proscribed Organisation
Where an appellant is charged with administering an oath in connection with a proscribed society, failure to formally establish the identity of the society named in the charge with the society specified in the proscribing Government Notice will not vitiate the conviction if the appellant was not prejudiced or embarrassed by any ambiguity and it was never in doubt that the charge related to the proscribed society.

Legislation cited (6)

  • Kenya Penal Code s.62(1)
  • Kenya Penal Code s.63
  • Kenya Penal Code s.69
  • Kenya Penal Code s.64(2)(ii)
  • Indian Evidence Act 1872 s.57(1)
  • Indian Evidence Act 1872 s.133

Cases cited (3)

  • Mason, 5 Cr. App R., page 171
  • Baskerville, 12 Cr. App. R., page 16
  • George K. Ndegwa v Rex (Criminal Appeal No. 545 of 1948)

Full judgment

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

Kimani v Rex (Criminal Appeal No. 199 of 1950) [1951] EACA 139 (1 January 1951)
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.