Recall of witnesses by magistrate after close of case for defence-Criminal Procedure Code, section 150.
Case summary
The appellant was convicted of conspiring with one Karisa to defeat justice. The case for the prosecution depended upon the evidence of a witness Joshua. The Magistrate, being doubtful whether Joshua was an accomplice or not, called him at the end of the case for the defence and heard him further. No opportunity was given to the accused or the prosecutor to cross-examine on this additional evidence.
Held (27-6-56):
Having regard to the statutory obligation placed upon the Court by section 150 of the Criminal Procedure Code to call or recall a witness at any stage of a trial if his evidence appears to be essential to the just decision of the case, it is open to question whether the rule laid down in England in R. v. Harris, 20 Cr. App. R. 86, 89, and R. v. Day, 27 Cr. App. R. 168, 171, that the calling of fresh evidence by the Court after the close of the Defence should be limited to matters arising ex improviso which no human ingenuity could foresee on the part of the prisoner, is entirely applicable in Kenya.
In any event, it was not proper or regular for the Magistrate to hear and record the additional evidence without giving the accused and the prosecutor an opportunity of cross-examining upon it: the proviso to section 150 of the Criminal Procedure Code is mandatory on that point.
Appeal followed.
Cases referred to: R. v. Harris, 20 Cr. App. R. 86; R. v. Liddle, 21 Cr. App. R. 3; R. v. Day, 27 Cr. App. R. 168; R. v. Browne, 29 Cr. App. R. 106; R. v. Owen, 36 Cr. App. R. 16, 20; R. v. Mangatinda ole Dusiat, (1953) 15 K.L.R. 112; Newmark v. Rex, (1934) 1 E.A.C.A. 162; Aw Deria Hussein v. Reg., (1953) 20 E.A.C.A. 181.
[Editor’s Note:
See now R. v. Wallwork, 42 Cr. App. R. 153, 158, 159; and Manyaki d/o Nyaganya v. R., Cr. App. 98 of 1958, E.A.C.A. (unreported).]
Counsel:
O’Brien Kelly for the appellant.
Webber for the Crown.
