Wakilii

Wamai and Others v Reginam (Criminal Appeals No. 1051 and 1052 of 1954)

East African Court of Appeal · [1955] EACA 330 · 1955 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Criminal appeals from conviction for murder and accessory after the fact to murder from the Supreme Court of Kenya
Decision
First appellant's murder conviction and death sentence upheld. Other five appellants' convictions as accessories after the fact quashed and they were ordered released from custody.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A person charged with and acquitted of murder cannot be convicted of being accessory after the fact to that murder when not charged with the latter offence, as it is not minor to and cognate with murder. The delivery of judgment is an integral part of the trial, and the discretion to exclude the public under Criminal Procedure Code s.77 applies to judgment delivery but should be exercised only for compelling reasons. A trial Judge may put questions to witnesses without impropriety unless the intervention impedes the defence so that counsel cannot fairly present the case.

Outcome

First appellant's murder conviction and death sentence upheld. Other five appellants' convictions as accessories after the fact quashed and they were ordered released from custody.

Facts

Six accused were jointly tried for the murder of Mathenge. The first accused was a Home Guard headman; the others were his subordinates. They arrested and detained Mathenge and another man for approximately 16 days on suspicion of being Mau Mau adherents. When the prisoners refused to confess, the first accused took them out and shot them. The first accused admitted firing the fatal shots. The other accused formed the armed escort party, were present at the shooting, and attempted to conceal it. At trial, the first accused was convicted of murder and sentenced to death. The other five were acquitted of murder but convicted of being accessories after the fact to murder. During judgment delivery, the trial Judge initially excluded the public and press for about one-third of the judgment while discussing sensitive constitutional matters, then readmitted them.

Issues

  1. Whether a person charged with but acquitted of murder may be convicted of being an accessory after the fact to murder when not charged with that offence.
  2. Whether the delivery of judgment is an integral part of the trial for purposes of the Criminal Procedure Code s.77 proviso allowing exclusion of the public.
  3. Whether the trial Judge's interventions by questioning witnesses improperly impeded the defence.

Orders

  • Appeal of first appellant (Muriu s/o Wamai) dismissed.
  • Appeals of second, third, fourth, fifth and sixth appellants allowed.
  • Convictions of appellants 2-6 quashed.
  • Sentences of imprisonment on appellants 2-6 set aside.
  • Appellants 2-6 to be released from custody.

Rules and key headnotes

Criminal Law & Procedure — Alternative Convictions — Accessory After the Fact — Conviction for Non-Cognate Offence
A person who has been charged with but acquitted of murder cannot be convicted of becoming an accessory after the fact to such murder when he has not been charged with the latter offence, as accessory after the fact is not minor to and cognate with the offence of murder.
Criminal Law & Procedure — Alternative Convictions — Statutory Power — Cognate Offences
The power conferred upon a court by Criminal Procedure Code to convict a person of an offence with which he has not been charged is limited to an offence which is not only minor to the offence charged but is also cognate with it.
Criminal Law & Procedure — Judgment — Delivery in Open Court — Integral Part of Trial
The delivery of judgment is an integral part of the trial, and the proviso to Criminal Procedure Code s.77 permitting exclusion of the public at any stage of trial is applicable to judgment delivery.
Criminal Law & Procedure — Open Court — Discretion to Exclude Public — Principles
The discretion given to Judges and magistrates to exclude the public from court under Criminal Procedure Code s.77 should be exercised only for a most compelling reason, as justice must not only be done but must be seen to be done.
Criminal Law & Procedure — Trial — Judicial Intervention — Questions to Witnesses
A Judge may, and sometimes has the duty to, put questions to witnesses during trial. A conviction will be quashed only if the trial Judge impedes the defence so that accused's counsel finds it impossible fairly to present the defence to the jury.

Legislation cited (4)

  • Criminal Procedure Code s.77
  • Criminal Procedure Code s.168(1)
  • Criminal Procedure Code s.180(2)
  • Penal Code s.378(1)(b)

Cases cited (6)

  • Velezi Kashizha v Reginam (21 E.A.C.A. 389)
  • Reginam v Ndecho (18 E.A.C.A. 171)
  • Reginam v Sumbuso (15 E.A.C.A. 99)
  • Reginam v Clewer (37 C.A.R. 37)
  • Horman v Matthews (1916) 85 L.J.K.B. 857
  • Scott v Scott [1913] A.C. 417

Full judgment

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Wamai and Others v Reginam (Criminal Appeals No. 1051 and 1052 of 1954) [1955] EACA 330 (1 January 1955)
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.