Wakilii

Thuo and Another v Rex (Criminal Appeals Nos. 133 and 134 of 1951)

East African Court of Appeal · [1951] EACA 117 · 1951 Convictions Quashed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from convictions entered by Resident Magistrate's Court at Nyeri
Decision
All three accused persons' convictions and sentences set aside

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that when a witness is recalled under section 150 of the Criminal Procedure Code, unrepresented accused persons must be informed of their right to cross-examine such witness. The trial magistrate recalled prosecution witnesses after the close of the defence case and after the case had been adjourned for judgment, without informing the unrepresented accused of their right to cross-examine. The magistrate also recalled the second appellant and cross-examined him without the appellant's application or express consent. These failures rendered the trial unsatisfactory and fatal to the convictions. Convictions quashed and sentences set aside.

Outcome

All three accused persons' convictions and sentences set aside

Facts

The appellants were convicted by the Resident Magistrate's Court at Nyeri. At the conclusion of the evidence for the defence, the magistrate recalled the second appellant to the witness box and questioned him. The case was adjourned. On the adjourned date, the magistrate recalled a prosecution witness, Moya s/o Enjuile, and questioned him at length. The case was then adjourned for judgment. On the judgment date, the magistrate recalled another prosecution witness, Segan Bastard, and questioned him at some length. The three accused persons were unrepresented. It did not appear from the record that the accused were informed of their right to cross-examine the recalled witnesses, nor that the second accused applied for or consented to his recall. The court below attached considerable importance to the evidence of the two recalled prosecution witnesses in reaching its judgment.

Issues

  1. Whether the trial court properly complied with section 150 of the Criminal Procedure Code when recalling witnesses after the close of the defence case.
  2. Whether unrepresented accused persons must be informed of their right to cross-examine recalled witnesses.
  3. Whether it is proper for a magistrate to recall an accused person who has testified and cross-examine him without the accused's application or express consent.

Orders

  • Convictions entered against the two appellants quashed.
  • Sentences set aside.
  • In exercise of revisional jurisdiction, conviction of the third accused and sentence passed upon him also set aside.

Rules and key headnotes

Criminal Procedure — Recall of Witnesses — Section 150 Criminal Procedure Code — Duty to Inform Unrepresented Accused of Right to Cross-Examine
When a witness is recalled under section 150 of the Criminal Procedure Code, unrepresented accused persons must be informed of their right to cross-examine such witness and given the opportunity to do so.
Criminal Procedure — Recall of Witnesses — Timing and Circumstances — Recall After Close of Defence Case
The recall of prosecution witnesses after the close of the case for the defence, and particularly after the case has been adjourned for judgment, without any application by the prosecutor and without anything arising ex improviso, coupled with failure to comply with the proviso to section 150, renders a trial so unsatisfactory as to be fatal to the convictions.
Criminal Procedure — Recall of Accused as Witness — Cross-Examination by Court — Improper Use of Section 150
Although an accused who has testified is a person already examined within the meaning of section 150 of the Criminal Procedure Code, it is improper for a magistrate to recall an accused person who has already testified and been cross-examined by the prosecution, and then cross-examine him further, eliciting matter prejudicial to his case, without the accused's application or express consent.

Legislation cited (1)

  • Criminal Procedure Code s.150

Cases cited (1)

  • R v C Mkasa (1944-5) 21 KLR 111

Full judgment

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Thuo and Another v Rex (Criminal Appeals Nos. 133 and 134 of 1951) [1951] EACA 117 (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.