Wakilii

Rex v Koech (Criminal Appeal No. 342 of 1948)

East African Court of Appeal · [1948] EACA 80 · 1948 Appeal Dismissed; Sentence Reduced AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeal from conviction for stock theft
Decision
Conviction upheld; sentence reduced to 15 months' imprisonment with hard labour

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

Held that a judge at a criminal trial should not call a witness after the close of the defence unless something arises ex improviso which no human ingenuity could foresee. Where the point as to distances arose from the appellant's alibi evidence and neither the prosecution nor the court could have anticipated it, the case fell within the exception. The calling of the witness occasioned no prejudice to the accused. Sentence reduced from 18 to 15 months' imprisonment with hard labour to account for time spent on remand. Appeal against conviction dismissed.

Outcome

Conviction upheld; sentence reduced to 15 months' imprisonment with hard labour

Facts

The appellant was convicted of theft of two heifers belonging to Lima arap Kessio, stolen from the complainant's cattle boma on the night of 30 January. Prosecution evidence showed the appellant was seen in possession of the heifers the following day when he attempted to dispose of them. The appellant raised an alibi defence, calling witnesses to prove he spent the night at the dwelling of one Kipkolum. After reserving judgment, the magistrate found he could not decide without evidence of the distance between Kipkolum's dwelling and the complainant's boma. He recalled the case and called the Chief of the area as a court witness, who estimated the distance at about half a mile. The appellant was sentenced to 18 months' imprisonment with hard labour and ordered to pay compensation of Sh. 125, in default a further 4 months' imprisonment. The appellant had committed another stock theft around the same time and was serving a sentence for that offence when convicted in this case.

Issues

  1. Whether the trial magistrate erred in calling a witness after the close of the defence case.
  2. Whether the sentence of 18 months' imprisonment with hard labour was excessive given the period spent on remand.

Orders

  • Appeal against conviction dismissed.
  • Sentence reduced from 18 months' imprisonment with hard labour to 15 months' imprisonment with hard labour.
  • Compensation order of Sh. 125, in default 4 months' imprisonment with hard labour, remains.

Rules and key headnotes

Criminal Procedure — Court's Power to Call Witnesses — Exercise After Close of Defence
A judge at a criminal trial should not call a witness after the close of the defence unless something has arisen on the part of the prisoner ex improviso which no human ingenuity could foresee.
Court Witnesses — Calling Under Criminal Procedure Code s.150 — Circumstances Justifying Exercise of Power
Where a point as to distances arises from evidence given on behalf of the appellant in support of an alibi defence, and neither the prosecution nor the court could have anticipated the nature of that evidence, the court may properly call a witness under section 150 of the Criminal Procedure Code to give evidence on that point, as the case falls within the exception to the general rule against calling witnesses after the close of the defence.
Sentencing — Reduction on Appeal — Time Spent on Remand
Where an appellant has spent several weeks in remand custody before trial and his sentence will not commence until completion of a sentence for another offence, the appellate court may reduce the sentence to account for the period spent on remand.

Legislation cited (2)

  • Penal Code s.272
  • Criminal Procedure Code s.150

Full judgment

↓ Download PDF

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

Rex v Koech (Criminal Appeal No. 342 of 1948) [1948] EACA 80 (1 January 1948)
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.