Thairu v Reginam (Criminal Appeal No. 141 of 1955) [1955] EACA 340 (1 January 1955)

COURT OF APPEAL FOR EASTERN AFRICA

Before SIR BARCLAY NIHILL (President), SIR NEWNHAM WORLEY (Vice-President) and BRIGGS, Justice of Appeal

WANJIRU w/o THAIRU, Appellant (Original Accused)

REGINAM, Respondent

Criminal Appeal No. 141 of 1955

(Appeal from the decision of H. M. Supreme Court of Kenya sitting in Emergency Assize, Law, Ag. J.)

Consorting—Armed Mau Mau gang—Emergency Regulations, 1952, regulations $8c$ (1), $8c$ (2), $8e$ (2) and $8f$ (3).

The appellant was convicted of the offence of consorting with armed persons contrary to regulation 8c (1) of the Emergency Regulations, 1952, and was sentenced to death. The trial Judge had found that she had assisted an armed Mau Mau gang in its terrorist activities by associating with its members and by cooking for them.

- Held (18-4-55).—The mere existence of an armed gang of Mau Mau terrorists is, at the<br>present day in Kenya, prejudicial to public safety and the maintenance of public order<br>and any person consorting with and actively assist manner contravening regulation $8c(1)$ aforesaid. - Per Nihill P.—The Crown might well have charged the accused person with the lesser offence of knowingly consorting with armed persons, contrary to regulation $\&c(2)$ , or with harbouring members of the gang, contrary to regulation $\&c(2)$ , or with supplies, contrary to regulation $\&c(3)$ of the said r is a capital offnce.

Appeal dismissed.

Appellant present, unrepresented.

Brookes for respondent.

SIR NEWNHAM WORLEY (Vice-President) and BRIGGS, J. A.—The appellant herein, who is a Kikuyu woman, was convicted at an Emergency Assize of the Supreme Court of Kenya sitting at Nyeri of the offence of consorting with armed persons contrary to regulation 8c (1) of the Emergency Regulations, 1952, and was sentenced to death. The trial Judge granted her a certificate that the case was one fit for appeal on questions of fact or mixed law and fact and the appeal was set down for hearing by a Judge of this Court for consideration of the question as to whether the facts, accepted as proved, by the learned trial Judge disclosed circumstances which raised a reasonable presumption that the appellant intended to act or had recently acted with the armed persons in question in a manner prejudicial to public safety or the maintenance of public order.

These facts established that at about 6 a.m. on 6th January, 1955, the appellant intended to act or had recently acted with the armed persons in question terrorists and, as the learned trial Judge rightly held, the main issue in dispute was the appellant's status in relation to this gang. She claimed to have been their prisoner and to have been abducted by Mau Mau on 27th June, 1954. She said that she was with a gang whose chief activity appears to have been the manufacture of home-made firearms, and that she was guarded all the time and had no chance to escape. She also admitted that she used to cook for the male members of the gang. The learned Judge rejected this defence and found that

the appellant had been for many months a keen and active member of the gang which habitually engaged in terrorist activities. There was ample evidence to support this finding including the fact that the appellant at the time of her arrest said nothing about surrender, and the evidence of an ex-terrorist who had surrendered and who had previously been a member of the same gang with which the appellant was consorting. There was also evidence given by a headman to the effect that the appellant disappeared from her home in December, 1953, or January, 1954, and of another headman who testified that on 31st May, 1954, he arrested the appellant in company with a gang which was being fed in some huts, and that after three days' detention she escaped. This evidence was rightly admitted in view of the nature of the defence indicated in the appellant's voluntary statement made in answer to the police charge.

On these facts the learned trial Judge found that the appellant assisted the gang in its terrorist activities by associating with its members and by cooking for them, and found further that the presumption was clearly raised that she and the armed members of the gang consorted together for purposes prejudicial to the maintenance of public order. After consideration, the majority of the court came to the conclusion that this finding was correct. We accept the contention of Mr. Brookes, counsel for the Crown, that the mere existence of an armed gang of Mau Mau terrorists is at the present day in Kenya prejudicial to public safety and the maintenance of public order and that any person consorting with and actively assisting the gang in its activities is acting in a manner contravening the regulation. By her action in cooking food for the male members of the gang, some of whom were armed and some of whom were engaged in the manufacture of arms, the appellant was not only helping them in their own nefarious activities but also indirectly helping them to supply other terrorists with firearms. There was also the evidence above referred to that she had been seen with Mau Mau terrorists on a previous occasion and had escaped from lawful custody with the apparent purpose of rejoining them. For these reasons we considered that the appellant's conviction was correct in law, and dismissed the appeal.

SIR BARCLAY NIHILL (President).—At the conclusion of the hearing of this appeal I expressed my dissent with the conclusion then arrived at by the majority of the court that on the findings of fact arrived at by the learned trial Judge the conviction of this appellant of a capital offence under Emergency Regulation 8c (1) was clearly right in law. My difficulty was, that I thought, that on the fact established that this woman appellant's status in the gang was that of a cook only, the circumstances of her association with the gang were not sufficiently strong to raise a reasonable presumption that she herself had recently acted or intended to act, or was about to act with the gang in a manner prejudicial to public safety or the maintenance of public order. To my mind the evidence had clearly established that she had knowingly consorted with armed persons and that accordingly she could have been convicted under Emergency Regulation 8c (2) and sentenced to imprisonment not exceeding ten years. Alternatively she might have been charged with harbouring members of the gang or of furnishing them with supplies; in either case not a capital offence.

Having now had a further opportunity of considering the matter and having had the advantage of reading the judgment of the Court prepared by the learned Vice-President I am not prepared to say that my colleagues are wrong in law. I am still of the opinion that the Crown might well have charged this woman with the lesser offence only, but that was a matter resting in the Attorney-General's discretion.