Wakilii

Rex v Kibege and Others (Cr. App. Nos. 153 and 154-1935.)

East African Court of Appeal · [1936] EACA 43 · 1936 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from murder convictions
Decision
First appellant's conviction upheld; second appellant's conviction quashed and matter remitted for retrial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

The Court of Appeal dismissed the first appellant's appeal, finding sufficient corroborated evidence of instigation to murder. The Court quashed the second appellant's conviction and ordered a retrial, holding that the trial judge failed to properly consider the alibi defence. The Court held that a defence not manifestly false must be put to the assessors and considered by the judge, and that failure to do so constitutes a miscarriage of justice.

Outcome

First appellant's conviction upheld; second appellant's conviction quashed and matter remitted for retrial

Facts

The first appellant was accused of instigating the murder of Chija, his aunt's son, believing his aunt responsible for his children's deaths after consulting a witch doctor. He allegedly hired Kohaye to kill Chija for twenty shillings. Kohaye, the second appellant, and an unidentified third man went to Chija's hut at night. Kohaye attempted to break in but was speared by Chija and died shortly after. The unidentified man seized Chija from behind and the second appellant allegedly killed him with a spear. The prosecution's case against the first appellant rested primarily on testimony from Njabosi, Kohaye's wife, who described the murder plot in detail. The second appellant's mother and wife identified him as the killer. Both appellants raised alibi defences.

Issues

  1. Whether the trial judge erred in failing to consider and put the second appellant's alibi defence to the assessors and himself.
  2. Whether it was proper for the trial judge to refer to depositions that had not been put in evidence.
  3. Whether it was proper to allow the prosecution to call a witness for cross-examination after the defence had closed.

Orders

  • Appeal of first appellant dismissed.
  • Conviction of second appellant quashed.
  • Second appellant to be retried.

Rules and key headnotes

Criminal Procedure — Fair Trial — Duty of Trial Judge to Consider Defence
Where a defence is raised that is not manifestly false, the trial judge must put it to the assessors and to himself, and failure to do so constitutes a miscarriage of justice.
Evidence — Use of Depositions — Improper Reference to Depositions Not in Evidence
It is improper for a trial judge to refer to depositions for the purpose of contradicting defence witnesses when the witnesses have not been cross-examined on their previous statements and the depositions have not been put in evidence.
Criminal Procedure — Calling Witnesses — Improper Calling of Witness After Defence Closes
It is improper to allow the prosecution, after the case for the defence has closed, to call for the purpose of cross-examination a witness who gave evidence for the defence before the committing magistrate but was not called at the trial.
Evidence — Witness Credibility — Evidence of Near Relatives
There is no rule of law or practice which permits the evidence of near relatives to be discounted because of their relationship to an accused person.
Evidence — Corroboration — Accomplice Evidence
Evidence from a witness of questionable character who may be considered an accomplice should be scrutinized carefully and corroboration is desirable, though the court may accept such evidence if impressed by its veracity and if corroborated by other evidence.

Cases cited (2)

  • R v Newmark (1934 EACA 162)
  • R. v. Harris (20 Cr. App. R. 86)

Full judgment

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

Rex v Kibege and Others (Cr. App. Nos. 153 and 154-1935.) [1936] EACA 43 (1 January 1936)
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.