Ngui v Rex (Cr.A. 47/1934.) [1937] EACA 152 (1 January 1937)

COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J. (Uganda), Ag. President, LUCIE-SMITH, Ag. C. J. (Kenya), and WEBB, J. (both of Kenya).

MONGELLA S/O NGUI (Appellant) (Original Accused)

REX (Respondent) '(Original Prosecutor). Cr. A. $47/1934$ .

Charge of murdering six persons by one act of arson—Charge laid in a single count of the information—Criminal Procedure Code, sections 132 and 243—Whether information bad and, consequently, whether conviction could be upheld—Whether one act of arson causing death of six persons constitutes six distinct offences—Penal Code, section 187.

- Held (20-6-34).—Following R. V. Thompson (1914), 2 K. B. 99, that, though an information was bad in that it charged more than one offence in each count, as the prisoner had not in fact been<br>embarrassed or prejudiced in his defence, the conviction ought to stand. Appeal dismissed. - Held Further.-That it is undesirable to try an accused person on more than one charge of murder.

Quaere.—Whether, if one act of arson causes death of six persons. this act constitutes six distinct offences.

Appeal from Supreme Court of Kenya.

Bruce (Solicitor-General, Kenya) for Crown.

Appellant absent served.

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*Bruce.*—The duplicity is imaginary rather than real. There was one act only. No prejudice. Rex v. Odda Tore and Guyo Halaki in Kenya. (Cr. Appeals 43 and 44 of 1934). Duplicity not prejudicial in that case. Confession before Mr. Vidal was properly taken. Mr. Vidal is not a police officer, but a district commissioner, and, therefore, a magistrate.

JUDGMENT.—The appellant was convicted of the murder of six persons by wilfully setting on fire the hut in which they were asleep. The charge of murdering the six was laid in a singlecount of the information.

There was ample evidence that the appellant set the hut on fire knowing that the persons who were destroyed were inside at the time, and it appears that he so acted out of a malicious feeling against one of the six. Our attention, however, has been directed to the inclusion of several murders in one count, and we feel it incumbent upon us to consider whether in view of the terms of sections 132, and 243 of the Criminal Procedure Code we can uphold the conviction. It has been held by the Court of Criminal Appeal in England in R. V. Thompson (1914) 2 K.. B. P. 99 that, though an indictment was bad in that it charged more

than one offence in each count, as the prisoner had not in fact been embarrassed or prejudiced in his defence the conviction ought to stand. Issacs, C. J., said "Whilst giving the right of appeal upon any question of law the object of the legislature was that justice should be done in spite of a wrong decision and that the Court should not interfere if it came to the conclusion that, notwithstanding the wrong decision, there had been no substantial miscarriage of justice. The Court must always proceed with caution when it is of opinion that a wrong view of the law has been taken by the Judge presiding at the trial but when it is apparent, and indeed undisputed, as it is and must be in this case, that no embarrassment or prejudice had in fact been suffered in consequence of the pleader having made the manifest error above mentioned, the Court must act upon the proviso in this section of the Act."

The saving words in section 367 of the Kenya Criminal Procedure Code correspond in substance to the proviso to section $4(1)$ of the Criminal Appeal Act. In the case of $\text{Re}x$ v. Odda Tore and Guyo Halake (Cr. Appeals 43 and 44 of 1934) this Court. citing $\text{Re}x$ v. Thompson in support of its decision, affirmed the conviction of two persons for the murder of two persons charged in one count. The Court held that the information was bad for duplicity but that no failure of justice had occurred. The judgment deals elaborately with misjoinder of charges, and utters a warning note in respect to the irregularity caused by duplicity, and we commend this case to the notice of draftsman of informations.

At the same time it should be observed by us that this case differs from $\text{Rev } v$ . Oddo Tore in that here only one act causing the death of six persons was charged. It is therefore distinctly arguable that if there were six offences they were, being the result of one single act of arson, not distinct offences, and it may be that any number of offences of precisely the same kind resulting from a single act are permitted by the terms of sections 132 and 243 of the Criminal Procedure Code to be charged in one count. A number of English cases cited in Archbold at p. 51 of the 1931 edition notably $\overline{R}$ . v. Giddings, C. and Mar. 634 do appear to support this suggestion. However, in view of the reasons justifying us in upholding the conviction in this case, we do not feel it incumbent upon us to rule upon the point.

We would add finally that it appears undesirable to try an accused person on more than one charge of murder; it is apparently the practise in England not to join murder charges. In this respect we would draw attention to the concluding words of the judgment of this Court in Rex v. Sowedi Kanta (Cr. Appeal 74 of 1933): "In our opinion it is not desirable that more than one offence should be charged when the punishment is death."

The appeal is dismissed.

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