Seuri v. R. Crim. App. 72-D-71; 21/7/71; Spry V. P.; Law Mustafa JJ. A.

Seuri v. R. Crim. App. 72-D-71; 21/7/71; Spry V. P.; Law Mustafa JJ. A.

The appellant was convicted of murder. The case against him was to the effect that on 7/6/69, he had confessed to his neighbor, one Joseph Mafole, that he had killed his father with a panga. A post-mortem examination revealed various cut wounds on the deceased’s body consistent with having been caused by a panga. On inspecting the appellant’s house, a panga, a shirt and a pair of shorts, all blood-detained were found. The blood group of both the appellant and the deceased was A Rht and the blood on the panga, shirt and shorts was of group ‘A’. In his summing up to the assessors, the learned Acting Judge did no tell the assessors, the learned Acting Judge did not tell the assessors about the burden of proof being on the prosecution to prove the guilt of an accused person

beyond reasonable doubt. in the judgment there was also this extract: - “On the contrary the case of R. v. Ibuto s/o Ndolo (1935) 11 E. A. C. A. 80 is so authoritative of the proposition that “where the accused is proved to have killed the deceased the presumption of murder arising under Section 190 remains unless it is rebutted b the facts of the case.” This was a Court of Appeal for Eastern Africa case originating from Uganda. It is binding authority on this court.” On behalf of the appellant it was argued that since the appellant had repudiated the confession, he should not have been convicted in the absence of corroboration, and that none of the exhibits had been identified as belonging to the appellant. The witness called to identify the three articles merely said that he identified the panga and shirt but he did not say that he identified them as being the property of the appellant.

            Held: (Spry V. P.) (1) “Section 190 referred to above has long since been repealed. It read- “Any person who causes the death of another is presumed to have willfully murdered him unless the circumstances are such as to raise a contrary presumption. The burden of proving circumstances of excuse, justification or extenuation is upon the person who is shown to have caused the death of another.” No such presumption as is referred to above now exists in the law of any of the East African States. As an authority, Ibuto’s case (supra) is now of historical interest only and has no value as a precedent. No presumption arises today against person who kills another; once he pleads not guilty it is for the prosecution to prove affirmatively, beyond all reasonable doubt, that the person charged has committed a criminal offence.” (2) “Whilst it is true that the evidence of identification was not satisfactory, we do not consider this submission to be well-founded. The witness called to identify the three articles, who was the appellant’s uncle, merely said, in his evidence in chief, that he identified the panga and the shirt. He did not say that he identified them as being the property of the appellant, or if he did, this has not been recorded. In cross-examination however he said – “The accused had only one panga in his house. The handle was eaten by white ants, to the left …… That was my special mark of identification.” The cell-leader, who accompanied the police when they searched the appellant’s house, described the blood-stained panga which was found there as follows- “One side of the handle was eaten by white ants.” Although the evidence on this point was not as clear as it should have been, we think it indicates that the blood-stained panga was the appellant’s property, and both counsel and the court appeal to have understood the evidence in this way. The discovery of this panga, in the appellant’s house, on the same day as his father was killed by blows from a panga, provides in our view the corroboration which is desirable before a repudiated confession made extra-judicially otherwise than to a magistrate or justice of the peace should be acted upon.” [Citing Lalasia v. Regem 3 E A L R 106, approved in Yohannis s/o Udinde and Another v. Reginam [22 E A C A 514]. (3)

“After careful consideration of all the matters urged before us, we are convinced that had the assessors received, and the trial judge given himself, proper directions as to the burden of proof, the appellant must inevitably have been convicted, in view of the strength of the case against him; and we are satisfied that notwithstanding the non-directions, misdirection’s and irregularities which marred the trial of this case, no failure of justice has in facts been occasioned.” (4) Appeal dismissed.