Daudi s/o Othiambo v. R., Crim. App. 167-D-70; 29/4/70; Georges, C.J.

 

Daudi s/o Othiambo v. R., Crim. App. 167-D-70; 29/4/70; Georges, C.J.

The appellant in this case was charged with stealing contrary to section 265 of the Penal Code. the particulars alleged that on 21^st December, 1969 at a village in Kilosa he had stolen a Gazele bicycle, a pair of trousers, a coat, a necktie, a cloth belt and a pair of socks, all valued Shs. 671/-, the property of Humphrey Ravate. Humphrey testified that he had gone to a pombe shop and there had met the appellant. Humphrey invited the appellant home and there they had food and rinks. The appellant sad that he was a Kenya policeman investigating a case in the area and he would be there for a few days. He asked Humphrey to lend him some clothes as he wished to wash his. Humphrey gave him a pair of trousers, a coat, a necktie and a pair of socks. The appellant then asked Humphrey to lend him his bicycle to go to the village to buy cigarettes. He then rode off and failed to return as expected. After a search he was apprehended. He was charged with theft, and at the close of the case for the prosecution the following not appears:- “Charge read to the accused who pleads:- (1) I did not steal; (2) I agree I had no right to take it to Mzangasa. Entered as a plea of not guilty to 1^st count; guilty to 2^nd count”. The original charge sheet had only one count for sealing. The count to which it was noted that the appellant had pleaded guilty was one of conversion not amounting to theft contrary to section 284 of the Penal Code. The record does not show the power under which the trial magistrate was purporting to act when he added this new count to the charge sheet.

            Held: (1) “There is power under section 209 (1) of the Criminal Procedure Code to amend a charge…… There are two provisos to this subsection, the first requiring the Court to call upon the accused person to plead to the altered charge and the second giving the accused person the right to demand that witnesses who had already given evidence be recalled to give evidence afresh or to be further cross examined. I think it can be presumed that he magistrate was purporting to act under this section when he added the count to the charge sheet. There was, in my view, no need for him to have done this.  If he was

Satisfied at the close of the case for the prosecution that a charge of stealing had not been made out but that a charge of conversion not amounting to theft had been made out he could have called upon the appellant to answer such a charge without any amendment of the charge sheet. This is made possible by sections 181 and 206 (1) of the Criminal Procedure Code ….. Stealing and conversion not amounting to theft are offences which fall within the category defined in this section [s. 181(1)]. Conversion not amounting to theft fits into the definition of theft as set out in section 258(1) of the Penal Code except that the person converting cannot be held to have done so fraudulently because none of the intents set out in section 258(2) can be established. A person charged with stealing can, therefore, be convicted of conversion not amounting to theft under section 181(1). Section 206(1) of the Penal Code (as amended by Act 48 of 1963, to add the words underlined) reds:- “At the close of the evidence in support of the charge, if it appears to the court that a case is made out against the accused person sufficiently to require him to make a defence either in relation to the offence with which he is charged or in relation to any other offence of which, under the provisions of sections 181 to 189 (inclusive) of this Code, he is liable to be convicted, the Court shall again explain the substance of the charge to the accused and shall inform him that he had the right to give evidence on oath from the witness box …. 

To make a statement not on oath from the dock … and the Court shall then hear the accused and his witness’s ad other evidence if any”. The law has thus been specifically amended to make it clear that the Court does have the power to call upon the accused, without amending the charge, to answer a case made out not on the original charge, but on a charge on which the accused could be convicted on the original charge. The amendment in the case was quite unnecessary and the conviction on the substituted charge is sound since it is quite firmly founded on the evidence”. (2) “In his submissions advocate for the Republic contended that the addition of the charge was bad in law because it was a prerequisite of the exercise of the powers conferred by section 209(1) that the charge originally laid must be defective and this charge was not defective. It was a perfectly sound charge for stealing. The evidence led by the Republic had not been sufficient to establish it. The evidence had tended to establish another charge but this failure could not make the original charge defective. In view of the reasons I have given above for supporting the conviction it is not strictly necessary to examine this argument but it may be useful to do so for future guidance. When there is a variance between the charge and the evidence le in support of the charge, it can be said that the charge is for that reason defective. This view was adopted by the Court of Criminal Appeal in England in the case of Rex v. People [1951] 1 K.B. 53. Humphreys J. reading the judgment of the Court (which had been reserved) stated: - “The argument for the appellants appeared to involve the proposition that an indictment, in order to be defective, must be one which in law did not charge any offence at all and therefore, was bad on the face of it. We do not take that view. In our opinion any alteration in matters of description, and probably in many other respects, may be made in order to meet the evidence in the case so long as the amendment causes no injustice to the accused person.” The emphasis has been supplied. This view retains the flexibility which section 209 seeks to provide so that matters of form need not be unduly stressed once essential justice is done – the discretion resting with the trial court which can be trusted to evaluate the situation impartially bearing in mind both the interests of the public as represented by he prosecution and those of the accused. 

There have been two cases decided in East Africa in which amendments to bring in a new charge have been disallowed on appeal. In Mbithi and 7 others v. Reg. (1955) 22 E.A.C.A. 484 the appellant, Mbithi, was charged on count I jointly with the fourth appellant for administering an unlawful oath. On count 2 the other appellants were charged with being present at and consenting to the administration of an unlawful oath. The trial Judge found that there was no evidence on which to convict the appellant, Mbithi. He amended count 2, however, by adding Mbithi’s name and convicted him thereon. The trial judge in that case was acting under section 260(2) of the Criminal Procedure Code. this deals with the powers granted to the High Court to amend in formations and appears to be somewhat narrower in scope than section 209(1). This is not surprising since it would be expected that in trials in the High Court the information would be expected that in trials in the High Court the information would have been subjected to some professional scrutiny while in the subordinate courts this was far less likely …. It will be noted that [in s. 260] there is no clear specification of a power to amend by way of “substitution or addition of anew charge”. The word “defective” is, however, used in both sections and the view expressed by the Court in the Mbithi case could be said to be relevant to section 209(1). The Court there stated: - “Mr. Summerfield, for the Crown, sought to rely on the provisions of section 260 of the Tanganyika Criminal Procedure Code, but this section has no applicability to what happened here. That section confers in subsection (2) discretion on the court of trial to order on its own motion the amendment of defective information must be one in which the accused person is named or on which he has pleaded. In the present case the appellant was not charged on the information with the offence specified in the second count. He was not arraigned on this count and never pleaded to it”. These reasons seem cogent enough to support the conclusion that section 26(2) did not apply to an amendment of the kind ordered by the trial judge in that case. The Court went on, however, to add: - “In fact this is not a case of defective information at all. 

The defect was not in the information but in the prosecution evidence which could not support the charge that the appellant had administered an unlawful oath at the oath taking ceremony. The Crown might have entered a nolle prosequi on the second count an filed a fresh information charging this appellant with being present at and consenting to the administration of an unlawful oath but his course was not adopted. As it is the proceedings against the appellant on the second count were clearly incompetent …..” this clearly suggests that a variance between the charge and the evidence led to support it does o made the charge defective so as to made amendment possible. This decision does not seem to me to have been necessary for the purpose of the case as it would have been enough to hold that the section did not contemplate amending a charge by adding thereto the name of an accused person not originally charged there under – a contention which seems eminently reasonable. The other case, Maulidi Chengo v. Republic [1964] E.A. 122, is a decision of this Court, and is clearly quite correct. The appellant there was charged with stealing by a servant. The evidence led supported the charge but could also have supported a charge of housebreaking and stealing, which attracted a stiff minimum sentence. The trial magistrate at the close of the defence amended the charge to one of housebreaking and having complied with the proviso to section 209(1) he convicted the appellant. Windham C.J. rightly held that the charge was not defective merely because the evidence led in support could also have established another charge. He did not hold that variance between he charge ad the evidence led to support it did not make the charge defective. He quoted, without dissenting from it, the passage from Rex v. Pople (supra) set out above. I would hold, therefore, that variance between a charge and the evidence led in support o it can make a charge defective under section 209(1) so as to justify the exercise of the power to add or substitute another charge if it appears in the interests of justice so to do”. (3) “As I have already indicated it was unnecessary in the circumstances of this case to make any amendments at all. The appeal against conviction is dismissed”.