R. v. Giliba, Jarmo, Crim. Sass. 57-A-69; 12/2/70; Platt J.

R. v. Giliba, Jarmo, Crim. Sass. 57-A-69; 12/2/70; Platt J.

The accused was charged with the murder of Lohay Ami. The deceased’s body was not found intact, but, sometime after the deceased was reported missing, some charred bones – said to be human – and some burnt cloths were found in a pit near the deceased’s house. The accused happened to be the deceased’s nearest neighbour. As a result of suspicion, the accused was arrested by the Village Executive Officer and taken to the police station. While in custody, the accused made an extra-judicial statement to the Administrative Secretary, who had powers of a justice of the peace. The statement was made in a local language and translated into Kiswahili by one Musa, the boma head messenger, and subsequently recorded in English by the Administrative Secretary. At the time, Musa was also a police officer. The statement was to the effect that fifteen days before the bones were discovered on the night he had been asleep at home. He heard some one making a noise near his cattle Kraal. It was in the middle of the night and he opened his door slowly and quietly. He saw somebody lying down near his cattle. When he saw this he beat the person with a stick on the neck four times until he died. When he saw that the man was dead he took his body and put it in a ditch, covered it with firewood and set the wood alight. He had done so because he was afraid. He recognized him after his death and he confirmed that the deceased was Lohay Ami. In his defence statement he continued to admit that he killed the man but in slightly different circumstances.

            Held: (1) “Having considered the authorities I held on the strength of OKITU EDEKE v. R. (1941) 8 E.A.C.A. 40 that the use of a police officer as an interpreter would not debar confession. The practice is clearly undesirable and should not be repeated as R. v. SIDIKI KYOXO &OHERS (1943) 16 E.A.C.A. and GOP S. ONYAKI v. R. (1953) 20 E.A.C.A. 333 both show; nevertheless the authorities do not show that the confession is thereby inadmissible. On the other hand, it must still be clear that the accused was not compelled to make the confession. In the first place section 38 of the Evidence Act states that a confession made by an accused in custody in the presence of a Magistrate. Secondly It was proved that the accused and Musa did not know each other before. When Musa is on duty at the District Office he wears ordinary messenger’s uniforms. It did not appear therefore that the accused could have been disturbed by the messenger’s other duties. Moreover, the accused had generally repeated in his defence the same story. There seems no reason to doubt that the statement was voluntary and properly recorded.” (2) “From these statements and the surrounding circumstances I am satisfied that accused killed the deceased. The defence raised the point that the medical evidence had been impossible to get and that therefore it was not clear whether the deceased had died through the beating or through burning …. But in the circumstances of this case I hope to demonstrate that whether the death was due to beating or burning is immaterial. Suppose that it was the beating which caused his death. The issues would be whether the accused intended to cause, at least, grievous harm without and lawful excuse as the prosecution contends, secondly whether he had acted reasonably in self defence, and thirdly whether it was an intermediated position arising from the excessive use of force in self defence. On this supposition the fact that the body was burnt later would have nothing to do with the case. It would be evidence of other offences. The burning would only be relevant if the death occurred in that way and then the directions in R. v. CHURCH (1965) 49 Cr. App. R. 206 would be relevant. In the absence of any other evidence to the contrary Lohay must be taken as a

trespasser, likely to carry out a theft of cattle at least. He was lying down near the cattle…… as the accused claims in his defence that he feared for his life, and that of his family or property, it seems that he must have known that some person was there to endanger him. He made the point clear in his statement Ex. A that he knew a man was there. I find therefore that he did see a person lying down in the cattle boma and it was the presence of this person which alarmed him. He would naturally think that his cattle were in danger and he was entitled to use such reasonable force to expel Lohay or arrest him. In a trespass such as this he could justify beating Lohay to cause him to desist from taking the cattle as Lohay was in the cattle boma, but to kill him would be Manslaughter. (In Archbold 36^th Ed. Para 2513). Another aspect of the case would be whether the accused used unnecessary force. It is a case very much like Yoweri Damulira v. R. (1956) 23 E.A.C.A. 501 except that in Yoweri’s case he did call out as to who was there and there was some conversation during the beating. Even so the use was held to be excessive. In this case the accused simply beat the man he found near the cattle. Moreover, it seems to have been a severe assault, which the accused says caused his death. In that case I think the accused’s offence would be manslaughter. He was justified in using force, but the force was excessive. On the other hand, if Lohay had merely been unconscious and then acting on a different impulse altogether, the accused tried to destroy what he thought a corpse, I would follow the view taken in CHURCH referred to above at page 214. The court held: “We adopt as sound Dr. Glanvill Williams’ view …. That ‘if a killing by a first act would have been manslaughter, a later destruction of a supposed corpse would also be manslaughter’” I do not think that this is a case such as YAKOBO JAMBO s/o NAMBIO (1944) 11 E.A.C.A. 97. Although that was again a case of the disposal of a living body probably thought to have been dead, in that case it was held that the first of assault was all one series of transactions with the disposal of the body, a murderous intent having persisted throughout the transaction. In the present case, I accept that the accused’s intent was to safeguard his property but that he exercised unnecessary force in the execution of his plan. Then a different intent accompanied his act in destroying the body. As far as one can judge, the accused had not been activated by the intent to cause grievous harm throughout; therefore following the direction in CHURCH, I would hold that even if the death occurred during the burning, it was manslaughter only and not murder.” (3) Acquitted of murder, convicted of manslaughter.