Sangu Saba & Anor v. R. (K) Crim. App. 26 – E. A. C. A. – 71; 14-9-71; Law J.

Sangu Saba & Anor v. R. (K) Crim. App. 26 – E. A. C. A. – 71; 14-9-71; Law J.

            The appellants were convicted by a Resident Magistrate’s Court, Kenya, of robbery with violence, the first appellant who was found to be 16 years of age was sentenced to 3 years detention in a Borstal Institution and the second appellant who was found to be 18 years of age, was sentenced to fourteen years imprisonment with hard labour and 10 strokes of corporal punishment. The appellants appealed to the High Court. The first appellant intimated that he did not wish to be presented at the hearing of his appeal and was accordingly absent, while the second appellant was represented by an advocate who successfully applied to call additional evidence. The witnesses gave evidence but, owing to his absence, the first appellant had no opportunity of cross-examining them. In his judgment the learned judge stated that the additional witnesses had been called “on behalf of the appellants.”

                        Held: (1) “In Grey Likungu Mattaka & 5 Ors. v. R. (Cr. App. No. 32 of 1971; as yet unreported) this court laid down that where an accused wishes to cross-examine his co-accused, he should be permitted to do so as of right, and that the scope of such cross-examination should not be restricted. The same principles apply, in our view, to witnesses called on behalf of a co-accused. We see no difference in this respect in the case of witnesses called at the trial, or as additional witnesses on appeal. In either case an accused person who did not call these witnesses as his own witness has the right to cross-examine them. The first appellant in this case was not given the opportunity to do so. The question arises – what are the consequences of such an omission. The appeal must be allowed it there is a possibility that the omission resulted in a failure of justice. In the instant case we are satisfied that no such possibility exists. It is unlikely in the extreme that the first appellant would have had any relevant questions to put to the additional witnesses, whose evidence did not implicate him in any way.” (2) “A medical certificate was produced, presumably by the prosecution, to prove the age of the second appellant. This contains a

            reference which indicates that an E-ray photograph was taken, and the report itself reads – “Age 18 years. Head of radius united to shaft.” It is so well known as to be within the judicial knowledge of the Court that, even with the aid of X-rays, age cannot be assessed exactly. The medical officer was not called to give evidence and we do not know what would have been his answer had he been asked if he could exclude the possibility of the second appellant being under 18 years. This element of doubt is not excluded by reference to Taylor’s Principles and Practice of Medical Jurisprudence (12thy Edition). In Vol. 1 at page 141 the author states that by 16-17 years of age, the head of the radius should be joined to the shaft, but on the following page he says that in tropical climates ossification takes place earlier than in temperate zones. In India and Ceylon it is apparently about two years earlier. No information is given regarding Africa. We think that had the learned magistrate appreciated that on the evidence before him, there was a real doubt whether the second appellant was above or below the age of 18 years at the date of the offence, he would have given the benefit of that doubt to the second appellant, and accordingly that the finding of age must be regarded as a misdirection.”