Eliud s/o Kuzwa v. R., Crim. App. 921-D-67, 16/2/68, Biron J.

Eliud s/o Kuzwa v. R., Crim. App. 921-D-67, 16/2/68, Biron J.

Accused was convicted of forgery, uttering and stealing. There was evidence that accused had been given shs. 100/- with which to purchase a butcher’s licence for a relative. Accused improperly obtained the licence for Shs. 50/- The was a direct conflict between the testimony of accused, who said that he had returned the remaining Shs. 50/- to complainant’s clerk, and the testimony of the clerk, who said that the money had not been returned. One Saudi Habib had witnessed the transaction, but he was not called as a witness at the trial.

            Held: (1) The English rule is that a witness may be called by the judge after the case for the defence has been closed only if some matter has arisen ex improvision in the course of the case. The court may depart from this procedure only in special circumstances. [Comparing R. v. Tregear, 51 Cr. App. R. 280, with R. v. Cleghorn, 51 Cr. App. R. 291.] (2) The limitations in the English Law have not been incorporated into Crim Proc. Code section 151 which provides, “Any court may, at any stage of an inquiry, trial, or other proceeding under this Code, summon any person as a witness …… and the court shall summon …. Any such person if his evidence appears to it essential to the just decision of the case.” The High Court stated that “the court … has an unfettered discretion in the recalling of a witness, or the calling of a witness of its own motion, and, where it appears essential to a just decision in the case before it to have the evidence of some witness, it is mandatory on the court to call such witness.” This rule is applicable though the testimony may weaken the defence. [Citing Manyaki d/o Nyaganya v. R., (1958) E. A. 495; Kulukana Otim v. R., (!963) E.A.253.] (3) In the present case the court had a duty to call the witness to the transaction. (4) However, even if an inference unfavorable to the prosecution is drawn from the failure of the prosecution to call the witness, there is sufficient evidence to support the conviction. Appeal dismissed.