East African Court of Appeal - 1940

Criminal Law—Theft—Recent possession—Onus of proof—Application of the
rule in Rex v. Schama and Abramovitc/,—Sentence.

Appeal — Taxation — Whether an appeal lies from decision of a judge on a reference under Rule 7, Rules of Court (Advocate’s Remuneration and Taxation of Costs) No. 2 of 1916 — East Africa Order in Council, 1902, Article 22 —  East Africa Order in Council, 1906, Article 2.

Criminal Law—Criminal Procedure—Defence Regulations—Consolidated appeal
from sentences in two different cases—Application for leave to admit further
evidence—Offences arising out of the same transaction—Powers of petition
to His Excellency the Governor.

Limitation—Misjoinder—Suits by the Crown for recovery of Education Tax and
• Non-Native Poll Tax—Limitation Ordinance, 1934, section 5 (1)—Indian
Limitation Act, 1877, article 149.

Estate Duty—Gift—Entry in business books—Estate Duty (Consolidation)
Ordinance, 1926, section 12(1 )(h).

Criminal law—Defence (Cehsorship) Regulations, Regulation 3—Uttering infor-
mation calculated to create alarm and despondency—Appeal on finding of

fact.

Civil Procedure—Filing of written statement of defence—Proof of failure to

serve opposite party with a copy thereof—Application for judgment—Prac-
tice—Civil Procedure Rules, 1927, 0. VIII r. 19, 0. IX rr. 3, 4 and 9 (2).

Civil Procedure—Execution—Death of judgment creditor in India—No personal
representative—Application for execution made in deceased . judgment
creditor's name on instructions of his widow—Civil Procedure Rules Order
XXI, Rules 3, 4 and 11.

Defence Reulations—Seiling goods at an excessive and unjustified price-
Amending Regulatoru printed and published in the Official Gazette—In the

publication which is signed "C. R. Lockhart for Chief Secretary" a recital
that the amending regulation hs been made by His Excellency the
Governor—Question of sufficient proof—Sections 37 and 57 of Indian
Evidence Act—Definition of "paper manufactures".

Probate and Administration—Assignment of administration bond—Engagement of
bond not kept—Prima facie case of breach—Failure by administrator to file
accounts—Section 79, Probate and Administration Act, 1881.

Marriage—Native Christian male and minor Mohamedan female—Marriage
Ordinance, Cap. 167—Caveat by guardian.

Divorce — Domicil of choice — Acquisition of domicil in Kenya.

Execution proceedings—Objection to attachment of immovable property-
Institution of proceedings by objector to establish claim—Court in which

proceedings to be instituted—Order XIX, rule 58, Civil Procedure Rules, 1927.

Civil appeal—Practice—Procedure—Certification of judgment—Indian Evidence
Act, section 76—Civil Procedure Rules Order XXXIX, R. I.
Appellant appealed from a judgment of the Resident Magistrate, Kisumu,
who is the officer who normally has the custody of the documents of his court.
Owing to the temporary absence of the Resident Magistrate the copy of the
judgment accompanying the memorandum of appeal was certified by a district
officer holding a subordinate court of the second class for Central Kavirondo at
K isum u.

Obstructing a police officer in the execution of his duty—Powers of arrest-
Whether a police constable is empowered to arrest without warrant persOns

infringing the Nandi Pass Rules—Rule 29 of the Nandi Pass Rules ultra vires
the rule-making powers of the Governor in Council under section 2 of the
Native Passes Ordinance—Section 4 of the Native Passes Ordinance merely
labels Nandi Pass Rules offencés as "cognizable to the police"—No definition
of that phrase except that contained in section 2 of the Criminal Procedure
Code which deals only with certain scheduled offences—Whether conviction
of obstructing a police officer in the execution of his duty can be altered to a
conviction for common assault by virtue of section 174 of the Criminal
Procedure Code.

Mortgage suit—Suit including prayer for personal decree instituted by plaint-
Order 34, rule 3A, Civil Procedure Rules.

Divorce Jurisdiction—Desertion without cause—Questions for consideration by

Court—Factum of separation and anirnus deserendi—Section 7 (b) Matri-
monial Causes Ordinance, 1939.

Criminal Law and Procedure—Whether private pi osecutor •a party, to criminal
proceedings within the meaning of section 353 of the Criminal Procedure
Code—Withholding by the police of communications made to them in

official confidence—Section 124 of the Indian Evidence Act and its applica-
tion to private informers—Section 125 of the same Act.

Criminal Law—Section 36 of the Game Ordinance (Ordinance 38 of 1937)-
Illegal purchase of leopard skins—Evidence of accomplices—Necessity of
corroboration in the absence of exceptional circumstances.

Criminal Law—Criminal Procedure—Interpretation of Statutes—Section 1 (I)
Native Liquor Ordinance, 1930.

Criminal Law—Receiving stolen property—Presumption of dishonest possession-

Money-lending—Bond entered into by unlicensed money-lender in course of
business—Variance of documents—Illegality—Money-lenders Ordinance,
1932, section 5—Indian Evidence Act, section 92.

Criminal Law—Defence .(Lighting Control) Regulations, 1940, Regulations 3 (3)
and 7—Liability of manager of an hotel—Mens Rea.

Criminal Law — Entering a dwelling house with intent to commit a felony therein — Information should show the particular felony intended  — Failure to disclose the particular felony intended not necessarily a fatal defect.

Criminal Law—Section 295 (1) Penal Code—Charge of possession of stolen pro-
perty contra section 295(1) Penal Code—Evidence established theft and not

receiving—Conviction.

Criminal procedure — Evidence — Trial for murder — Statement by dying person recorded in writing extra-judicially by a magistrate — Admissible if proved by the magistrate who recorded it being called as a witness — Indian Evidence Act, section 32.

Criminal Law — Observation on failure to disclose defence before trial — Direction.
 

Criminal Law—Criminal Procedure—Imprisonment without the option of fine-
Conflict of laws—Section 52 (1) of the Game Ordinance (No. 38 of 1937) as

compared with section 26 (3) of the Penal Code of Kenya (as amended by
Ordinance No. 29 of 1933)—Section 52 (3) of the Game Ordinance and its
application considered.

Courts — Jurisdiction — Extended jurisdiction — Subordinate Court — Criminal Procedure Code (Tanganyika), section 14 — Interpretation Ordinance, section 18.

Criminal law — Manslaughter — Criminal negligence — Over-dose injection by experienced dresser in absence of precise measuring instruments — Error of judgment.

Criminal Law — Voluntary extra-judicial confession — No categorical retraction —  Corroboration.

Deaf mute—Order of Supreme Court on conviction by subordinate court-
Criminal Procedure Code, section 162.

The facts appear from the order.

Criminal Law — Murder — Provocation — Tanganyika Penal Code, section 192 —  Whether act not performed in the presence of accused may be provocative in law.

Criminal Law — Res gestae — Evidence — Murder.

Criminal Law — Death sentence — Infancy — Accused attained the age of 16 years in the interval between committing murder and his conviction and sentence therefore — Penal Code (Kenya), section 25(2).

Criminal Procedure — Evidence — Kenya Criminal Procedure Code, section 219 — Improperly certified statutory statement — Magistrate called to prove that the statement was taken in accordance with statutory requirements —  Admissibility.

Criminal Procedure — Separate informations against one person for two murders forming part of one transaction — Joint trial — Whether trial a nullity — Criminal Procedure Code (Tanganyika), sections 233 and 335.

Murder — Provocation — Witchcraft.

Kenya Criminal Procedure Code, section 219(4), certification of accused’s statutory statement in Preliminary Inquiry — Propriety of calling evidence at the trial to cure defect in certificate — Whether certificate must follow strictly the form prescribed — Observations on desirability of incorporating provisions of section 533 of the Indian Procedure Code in the Kenya Criminal Procedure Code.

Arrest without warrant—Officer in Charge Police Station deputing subordinate to
arrest without order in writing—Resistance to arrest—Criminal Procedure
Code, sections 27, 28 and 29.

Criminal Law — Confession — Onus of proof that confession was voluntary —  Evidence

Uganda Criminal Procedure — Theft by servant or agent — Theft of cattle by person entrusted with their care — Uganda Penal Code, sections 266 and 211(b) —  Charge — Meaning of gross sum in section 185, Uganda Criminal Procedure Code.

Criminal Law — Evidence — Onus of proof — Fact specially within the knowledge of accused — Indian Evidence Act, section 105, as amended and applied to Tanganyika — Proof of licence or absence thereof under the Gold Trading Ordinance, Chapter 104, Laws of Tanganyika.