Shabani v. R. E. A. C. A. Crim. App. 21-D-71; 19/5/71; Duffus P, Saidi C. J. and Lutta J. A.

Shabani v. R. E. A. C. A. Crim. App. 21-D-71; 19/5/71; Duffus P, Saidi C. J. and Lutta J. A.

            The appellant was convicted of murder and sentenced to death. At the trial the evidence was given by one Nuru Hamisi an accessory after the fact who had also been arrested for the murder.

                        Held: [Per Duffus P.] (1) “The learned trial judge was undoubtedly confused as to the evidence of Nuru Hamisi. He duly warned himself as to the danger of accepting his evidence, but he appeared to have been in some doubt as to whether he was an accomplice, thus he said – “I have already observed that Nuru would be an accomplice if his evidence was not corroborated both by his mother and by the statement which the accused made before the Justice of the Peace.” This is clearly wrong. In this case the judge should first decide on what was Nuru’s position; was he an accomplice? In this case he clearly was, he came up to the scene when the murder was actually being committed or had just been committed, and then helped the murderer to hide the body in the river. He was at least an accessory after the crime and accordingly an accomplice. (See judgment of this Court in Kamau v. R. (1965) E. A. 501 at 504 C. A.).” (2) “The judge’s next step should be to decide whether he accepted Nuru’s evidence, and then, and then only should he look for corroboration. (See Uganda v. Shah (1966) E. A. 30 C. A.).” (3) “In this evidence the appellant while admitting he did make the confession as recorded by the district magistrate, now stats that he did so because district magistrate, now stats that he did so because he was tortured by the  police, and he retracts the statement and now denies the offence. The learned judge did not direct himself as to the weight to be placed on such a confession along the lines set out in a number of cases. (See Tuwamoi v. Uganda (19670 E. A. 84 C.A.).”