Wakilii

Ndecho and Another v Rex (Criminal Appeals Nos. 33 and 34 of 1951)

East African Court of Appeal · [1951] EACA 171 · 1951 Appeal Allowed — Conviction Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from conviction by H.M. Supreme Court of Kenya for wilfully obstructing police
Decision
Appellants acquitted of obstruction charges and released from custody

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court held that section 179(2) of the Kenya Criminal Procedure Code permits conviction of a minor offence only where that offence is cognate to the major offence charged — of the same genus or species. A person charged with murder cannot be convicted of an offence entirely unconnected with homicide such as obstructing police. The convictions were set aside as nullities. When the major offence is murder, courts should exercise discretion most warily before convicting of any alternative offence other than manslaughter, applying the test of whether the accused had a fair opportunity to defend against the alternative.

Outcome

Appellants acquitted of obstruction charges and released from custody

Facts

The appellants were tried with others on a charge of murdering a police constable named Chengo. The trial judge found the prosecution failed to prove common intention to kill or cause grievous harm. He convicted one accused (Obiyo) of murder as the person who administered the fatal blow. The trial judge then convicted three other accused persons, including these two appellants, of wilfully obstructing police in the execution of their duty under section 248(b) of the Penal Code. Robert Ndecho was sentenced to four years' imprisonment and Ogonyo Luora to two years' imprisonment. The Crown's suggestion that the accused might be convicted of obstruction came only during final submissions at trial. Some accused had admitted in evidence that they knew the deceased and his comrade, both in plain clothes, were police officers.

Issues

  1. Whether there was sufficient reliable evidence to convict the appellants of wilfully obstructing the police under section 248(b) of the Penal Code.
  2. Whether a court may convict a person charged with murder of an offence entirely unconnected with homicide under section 179(2) of the Kenya Criminal Procedure Code.
  3. Whether the minor offence under section 179(2) must be cognate to the major offence charged.

Orders

  • Appeals allowed.
  • Convictions under section 248(b) of the Penal Code set aside as nullities.
  • Sentences of imprisonment set aside.
  • Appellants ordered to be set at liberty forthwith.
  • Court will entertain appeal by Aloo Kacho (accused No. 3) if preferred and will give leave to appeal out of time.

Rules and key headnotes

Criminal Procedure — Alternative Convictions — Cognate Offences
Where an accused person is charged with an offence, he may be convicted of a minor offence although not charged with it only if that minor offence is of a cognate character, that is to say of the same genus or species as the major offence charged.
Criminal Procedure Code — Section 179(2) — Construction of 'Reduce'
Section 179(2) of the Kenya Criminal Procedure Code must be read so that the facts proved reduce the major offence to a minor offence. The minor offence must be cognate to the major offence charged. The section does not permit conviction of an offence entirely unconnected with the offence charged.
Murder — Alternative Convictions — Judicial Discretion
The wording of section 179(2) is permissive only. When the major offence charged is murder, a court should exercise its discretion most warily before convicting a person of any alternative offence, although cognate, other than manslaughter. The test to be applied is whether the accused person can reasonably be said to have had a fair opportunity of making his defence to the alternative offence.
Murder — Obstruction of Police — Non-Cognate Offence
A person charged with murder cannot be convicted of wilfully obstructing the police in the execution of their duty as that offence is not cognate to murder. Such a conviction is a nullity.
Fair Trial — Notice of Alternative Charges
It would be a denial of natural justice for a person charged with murder to be burdened with the fear that during the course of trial he might have to defend himself against other offences disclosed by the evidence of which he had received no notice and no particulars.

Legislation cited (7)

  • Kenya Criminal Procedure Code s.179(2)
  • Kenya Criminal Procedure Code s.169(2)
  • Kenya Criminal Procedure Code s.381
  • Kenya Penal Code s.248(b)
  • Kenya Criminal Procedure Code (Amendment) Ordinance 1939 s.13
  • Tanganyika Criminal Procedure Code s.173
  • Indian Code of Criminal Procedure s.238(2)

Cases cited (5)

  • Wallace Johnson v The King [1940] 1 All ER 241
  • Rex v Bantebura (1936) 3 EACA 117
  • Rex v Mupere 3 TLR 72
  • Rex v Home (1944) 11 EACA 107
  • Rex v Muhoja (1942) 9 EACA 70

Full judgment

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Ndecho and Another v Rex (Criminal Appeals Nos. 33 and 34 of 1951) [1951] EACA 171 (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.