Wakilii

Kisoi and Others v Reginam (Criminal Appeals Nos. 27-35 (inclusive) of 1955)

East African Court of Appeal · [1955] EACA 347 · 1955 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions by the High Court of Tanganyika for unlawful oath administration and attendance at unlawful society meeting
Decision
First appellant's conviction on count 2 quashed but conviction on count 4 upheld with reduced sentence. Ninth appellant acquitted and discharged. Other appellants' convictions and sentences upheld.

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Holding

The Court held that transferring an accused's name from one count to another count on which he was not charged, arraigned, or pleaded constitutes an improper amendment rendering the trial a nullity. Section 260(2) of the Criminal Procedure Code applies only to defective informations, not to lack of evidence. Where an accused attended an oath-taking ceremony as a police informer and the evidence did not establish mens rea at the time of the offence, conviction cannot stand. Where two counts rely on identical evidence, the second count should be treated as alternative and left on file without conviction if the first count results in conviction.

Outcome

First appellant's conviction on count 2 quashed but conviction on count 4 upheld with reduced sentence. Ninth appellant acquitted and discharged. Other appellants' convictions and sentences upheld.

Facts

Nine members of the Wakamba tribe in Tanganyika were charged with offences relating to a Mau Mau oath-taking ceremony. The first and fourth appellants were charged with administering an unlawful oath; the second, third, fifth, sixth, seventh and eighth appellants with being present at and consenting to oath administration; and the ninth appellant with taking an unlawful oath without compulsion. All were also charged with attending an unlawful society meeting. The main prosecution witness, Samwel, testified to the oath-taking ceremony. The ninth appellant initially acted as a police informer who arranged for Samwel to attend and for police to arrive at a certain time. After the ceremony, the ninth appellant withdrew cooperation with police and was prosecuted. At trial, the Judge amended the information by transferring the first appellant's name from count 1 to count 2. All appellants were convicted on all counts except the first appellant was convicted on the amended count 2 rather than count 1.

Issues

  1. Whether the trial Judge could properly amend the information by transferring the first appellant's name from count 1 to count 2 under section 260(2) of the Criminal Procedure Code.
  2. Whether the ninth appellant, who attended the oath-taking ceremony as a police informer, possessed the necessary mens rea for conviction.
  3. Whether the fourth count (attending unlawful meeting) should have been treated as alternative to the second count (being present at and consenting to oath administration) where both counts relied on the same evidence.

Orders

  • Appeal of first appellant from conviction on count 2 allowed; conviction quashed and sentence set aside.
  • Conviction of first appellant on count 4 upheld; sentence reduced from five years to three years.
  • Appeals of second, third, fifth, sixth, seventh and eighth appellants dismissed.
  • Appeal of ninth appellant allowed on both counts 2 and 4; convictions quashed and sentences set aside.
  • Ninth appellant released from lawful custody in respect of these proceedings.

Rules and key headnotes

Amendment of Information — Limits of Court's Power — Transfer of Accused Between Counts
Section 260(2) of the Criminal Procedure Code, which permits amendment of defective informations, applies only to informations on which the accused is named, arraigned, and has pleaded. The section does not authorise transferring an accused person's name from one count to another count on which he was not charged, not arraigned, and to which he never pleaded. Such an amendment is improper and renders the trial a nullity that cannot be cured by the curative provisions of section 346.
Amendment of Information — Defective Information Distinguished from Lack of Evidence
A case where the prosecution evidence cannot support the charge is not a case of a defective information but rather a defect in the evidence. Section 260(2) of the Criminal Procedure Code, which permits amendment of defective informations, has no applicability to such situations. The proper course is to enter a nolle prosequi and file a fresh information if appropriate.
Mens Rea — Agent Provocateur — Police Informer
Where an accused attended an oath-taking ceremony as a police informer playing a part for the police, and the evidence suggests he was still acting in that capacity at the time of the alleged offence, the prosecution must establish that he possessed the necessary mens rea. Subsequent withdrawal of cooperation with police does not establish an irresistible inference of guilty intent at the time the oath was taken.
Alternative Charges — Same Evidence Supporting Multiple Counts
Where no evidence is led to support one count other than the evidence relied upon for another count, the former count must be regarded as alternative to the latter. Where convictions are entered and sentences passed on the primary count, the alternative count should be left on file without convictions being entered or sentences passed thereon. Passing concurrent sentences on both counts may constitute sentencing twice for the same act.

Legislation cited (5)

  • Penal Code s.60(1)(d)
  • Penal Code s.60(2)
  • Societies Ordinance s.20
  • Criminal Procedure Code s.260(2)
  • Criminal Procedure Code s.346

Cases cited (3)

  • R v Hughes (1927) 20 CAR 4
  • R v Jennings (1949) 33 CAR 143
  • Cosma s/o Nyadago v. R.. ante page 450

Full judgment

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Kisoi and Others v Reginam (Criminal Appeals Nos. 27-35 (inclusive) of 1955) [1955] EACA 347 (1 January 1955)
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.