Wakilii

Rex v Kipkering and Another (Criminal Appeals Nos. 40 and 41 of 1949 consolidated)

East African Court of Appeal · [1949] EACA 35 · 1949 Appeals Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from conviction for murder in H.M. Supreme Court of Kenya
Decision
Both appellants acquitted and released

Observed later treatment

No later-treatment classification is recorded for this judgment.

Citator coverage is limited to judgments in the Wakilii corpus and source-matched treatment records. Absence of a signal is not an assertion that the case remains good law.

AI-generated summary. This summary was generated by AI from the full text of the judgment. It may contain errors or omissions—always read the source judgment before relying on it.

Holding

The Court held that circumstantial evidence must exclude any reasonable hypothesis of innocence, with the burden always remaining on the prosecution. An accomplice's evidence requires corroboration, but where a witness is utterly unreliable, no amount of corroboration can render it safe to rely on that evidence. The Court found Chepkwain's evidence highly unreliable and the alleged corroboration insufficient to connect the appellants to the crime. The appeals were allowed and both appellants released.

Outcome

Both appellants acquitted and released

Facts

The appellants were charged with murdering Murono, a night watchman at Ziwa Estate, on 17 October 1948. During a cinema show attended by estate employees, another watchman named Matuyo found the deceased unconscious near a broken-open hut belonging to storekeeper Anderea Lugando. The deceased died from a head injury hours later. Property had been stolen but none was recovered or traced to the appellants. The appellants were committed for trial jointly with one Chepkwain. Before arraignment, the Crown entered a nolle prosequi against Chepkwain, who was discharged and later called as a prosecution witness. The evidence against the appellants was purely circumstantial with no eyewitness to the fatal injury.

Issues

  1. Whether the circumstantial evidence was sufficient to prove the appellants' guilt beyond reasonable doubt.
  2. Whether the evidence of the accomplice Chepkwain was sufficiently corroborated to support a conviction.
  3. What procedure should be followed when making an application to call further defence evidence at appeal.

Orders

  • Appeals allowed.
  • Both appellants released.

Rules and key headnotes

Circumstantial Evidence — Standard of Proof — Exclusion of Reasonable Hypothesis
In order to justify on circumstantial evidence the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other reasonable hypothesis than that of his guilt, and the burden of proving facts which justify the drawing of this inference to the exclusion of any reasonable hypothesis of innocence is always on the prosecution and never shifts to the accused.
Accomplice Evidence — Corroboration Requirement
Where a witness is an accomplice it is wholly unsafe to accept his evidence without corroboration, and corroboration can only remove the taint of suspicion as to credibility from an otherwise credible witness.
Accomplice Evidence — Utterly Unreliable Witness
Whether by law or practice corroboration is needed or not, the testimony of a witness may be so utterly unreliable that no reliance whatever can be placed on his evidence, and in such case no amount of corroboration can render it safe to rely upon his evidence in support of a conviction. When a witness is of this character, a conviction can only be had on entirely independent and reliable evidence from another witness or other witnesses proving the accused guilty of the offence.
Corroboration — Nature and Sufficiency
Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. It must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it. Evidence which is consistent either with the story of the accused or with that of the accomplice is not corroboration.
Criminal Appeals — Application to Call Further Evidence — Procedure
An application to call further evidence at the hearing of an appeal is not granted as of right but is a matter entirely for the discretion of the Appellate Court and will only be granted in special circumstances. The Court requires to know the reason why the particular evidence was not given at trial, and the nature of the further evidence should be disclosed by way of proofs of the proposed witnesses, not affidavits, as the Court will generally not pay much regard to affidavit evidence unless an opportunity has been given to the other side to cross-examine the deponent.

Cases cited (7)

  • Wills' Circumstantial Evidence, 6th Ed. p. 311
  • R v Baskerville (1916) 12 Cr App R 81
  • R v Watson (1913) 8 Cr App R 249
  • R v Thorne (1925) 18 Cr App R 186
  • R v Hewson (1908) 1 Cr App R 47
  • R v Marcus (1923) 17 Cr App R 187
  • R v Hancox (1913) 8 Cr App R 176

Full judgment

↓ Download PDF

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

Rex v Kipkering and Another (Criminal Appeals Nos. 40 and 41 of 1949 consolidated) [1949] EACA 35 (1 January 1949)
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.