R. v. Makuzi Zaidi and Another, Crim. App. 469-D-69, 15/10/69, Georges C. J.

 R. v. Makuzi Zaidi and Another, Crim. App. 469-D-69, 15/10/69, Georges C. J.

The accused were charged with causing grievous harm c/s 223 P.C. it was alleged that they had jointly caused grievous harm to one George Okumu by hitting his mouth with their heads, thereby causing him to suffer the loss of a tooth. The driver

Of a taxi, the complainant, his friend Opio – all of them Jalous – and a certain woman, Lucia, who was not a Jaluo drove up to a petrol station and saw two persons approaching abusively calling out “These Jalous have administered us here in Irinaga for a long time and to-day they will see.” The complainant alighted and the first accused immediately began beating him. The second accused joined in and held the complainant by the waist while the first accused “headed” him. Opio went out to intervene and was also assaulted. The complainant meanwhile broke away and went to hide. According to the lady, the fight had taken place 4 paces from the taxi and had lasted 20 minutes; she had seen it all as she had been sitting in the taxi all the time. She had seen the complainant coming towards her spitting blood with a tooth in his hand. The driver claimed he had stopped only for about 2 minutes and all his passengers alighted after which he had driven off but he had seen the fight as he made a turn and gone to report to police. The area was well lit with electric lights an Opio claimed he had recognised their attackers whom he later that night identified at the Police station. Medical evidence showed complainant was bleeding from the mouth and the tooth had come from his upper jaw. The District Magistrate found there was no case to answer as a prima facie case had not been made out according to the criteria set out in Ramaulal Prambakali Bhatt v. R. [1957] E.A. 332. He disbelieved the lady and pointed out the discrepancy, between her timing (20 minutes) and the driver’s (about 3 minutes). Opio’s evidence could not be relied upon as he had also been attacked and moreover had had complainant as his witness on the same issue in another court. An identification parade would have been held to identify accused as there had been other persons around the scene.

            Held: (1) “On the law I am satisfied that the Magistrate directed himself correctly when he followed the criteria laid down in Bhatt’s case. The Court there clearly stated that they did not agree that a case was made out where at the close of the prosecution the case was merely one: - “which on full consideration might possibly be thought sufficient to sustain the conviction”. There must be some evaluation of the evidence for credibility. The case to be called prima facie must be such that:-“a reasonable tribunal properly directing its mind to the law and the evidence could convict if no explanation is offered by the defense.” (2) “This is, as far as I am aware, the first case in which the Republic has exercised its right to challenge a conviction on what is in effect a question of mixed law and fact. As in all appeals it is the duty of the court to weigh the evidence and drow its own conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in that respect. (Binkerrel Namkushan Pandya v. R. [1957] E.A. 336 quoting with approval from The Glannibante (1876) 1. P. D. 203). It must be borne in mind, however, that the appellate court in exercising its jurisdiction to review evidence and determine whether the conclusions of the trial judge should stand should do so with caution. Where it is clear that the trial judge has plainly gone wrong and had failed to appreciate the weight or bearing of circumstances admitted or proved the appellate court should not hesitate to interfere (Peters v. Sunday Post Limited [1958] E.A. 424).” (3) “It would appear in this matter that the District Magistrate could not have evaluated the evidence correctly if he reached the conclusion that a prima facie case had not been made out. There were discrepancies in the evidence for the prosecution but they are not such as to make

the evidence totally unworthy of belief. Whenever witnesses testify about quickly moving events there are likely to be discrepancies. Indeed if there are none that would be, of itself, cause for some suspicion that the story had been rehearsed …….. On the facts of this case it would seem that once the evidence of the complainant had been accepted there was enough evidence to call upon the accused person. They could have been convicted on the evidence to call upon the accused persons. They could have been convicted on the evidence before the Court if they had decided to remain quiet, though they need not necessarily have been. Of course had they given evidence, then with both stories before him the Magistrate would have been in a position to decide finally on credibility and conclude whether or not he felt sure and certain of the guilt of the accused.” (4) Case remitted to magistrate with instructions to call upon the defence.