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Rex v Kala (Criminal AppealNo. 71 of 1941) [1941] EACA 66 (1 January 1941)
- Citation
- [1941] EACA 66
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Thacker J, Webb, J, Whitley CJ
- Case number
- Criminal AppealNo. 71 of 1941
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Thacker J, Webb, J, Whitley CJ
- Case number
- Criminal AppealNo. 71 of 1941
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The Court held that a second appeal is only permissible on a matter of law, not on questions of fact. The appellant failed to demonstrate any legal issue arising from the lower courts' decisions, as both the magistrate and the Supreme Court had considered the evidentiary presumption regarding the cheque counterfoil and found sufficient factual evidence to support the conviction. Therefore, the application for leave to appeal was refused, reaffirming the principle that findings of fact by the second court are final unless a point of law is involved.
Court disposition
leave to appeal refused
Orders
- Leave to appeal is refused.
02
Material facts
Parties
H. M. Kala
Appellant Counsel: TrivedyRex
Respondent Counsel: Spurling03
Procedural history
Posture
Criminal Appeal / Application for Leave to Appeal (second Appeal)
04
Questions and positions
Legal issues
- 01
Whether a second appeal can be entertained on a question of fact.
- 02
Whether the omission to produce the counterfoil of the cheque raises a presumption under section 114 of the Evidence Act.
Party arguments
- Applicant
- The appellant argued that the prosecution's failure to produce the counterfoil of the cheque should raise a presumption under section 114 of the Evidence Act that no such counterfoil existed, and that this omission affected the factual findings supporting the conviction.
- Respondent
- The respondent, represented by Crown Counsel, maintained that both the magistrate and the Supreme Court had duly considered the issue regarding the cheque counterfoil and found ample other evidence to support the conviction, making the case dependent entirely on facts and not law.
05
Court’s reasoning
Legal principles
- 01
Ramgopal v. Shamskhaton 20 Cal. 93 at p. 99
A second appeal cannot be entertained unless it is on a point of law; questions of fact are not reviewable at this stage.
- 02
Evidence Act, section 114
Presumptions under section 114 of the Evidence Act may be considered, but where ample other evidence exists, findings of fact are final.
06
Ratio, limits and disposition
Ratio decidendi
The Court held that a second appeal is only permissible on a matter of law, not on questions of fact. The appellant failed to demonstrate any legal issue arising from the lower courts' decisions, as both the magistrate and the Supreme Court had considered the evidentiary presumption regarding the cheque counterfoil and found sufficient factual evidence to support the conviction. Therefore, the application for leave to appeal was refused, reaffirming the principle that findings of fact by the second court are final unless a point of law is involved.
Obiter and limits
- The ingenuity of counsel cannot convert a question of fact into a question of law for the purposes of a second appeal.
- Even if the evidence is unsatisfactory, the decision of the second court on facts must stand final.
Court disposition
leave to appeal refused
- Leave to appeal is refused.
Source and reliance status
East African Court of Appeal
This page organises the available record for research. Confirm quotations, current status, and subsequent treatment against the official source before relying on the case.
Judgment reading view
Judgment text
The complete available source text.
East African Court of Appeal
Judgment
COURT OF APPEAL FOR EASTERN AFRICA
Before SIR NORMAN WHITLEY, C. J. (Uganda), SIR HENRY WEBB, C. J. (Tanganyika). and THACKER, J. (Kenya)
REX. Respondent
v H. M. KALA, Appellant
Criminal Appeal No. 71 of 1941
Appeal from decision of H. M. Supreme Court of Kenva
Application for leave to appeal from judgment of Supreme Court of Kenya in its appellate jurisdiction on question of fact.
Appellant was originally convicted in a subordinate court. His appeal to the Supreme Court of Kenya having been dismissed appellant sought leave to appeal to this Court. There was evidence to support the conviction and leave was sought. to appeal on a question of fact.
Held (15-8-41).—That a second appeal could not be entertained unless it was on a point of law. Ramgopal v. Shaniskhaton 20 Calc. 99 followed.
Leave refused.
Trivedy for the appellant.
Spurling, Crown Counsel, for Crown.
ORDER (delivered by SIR NORMAN WHITLEY, C. J.).—This being a second appeal it cannot be entertained unless it is on some matter of law. Mr. Trivedy in his ingenious argument has been unable to show that any matter of law isinvolved. As the Privy Council observed in Ramgopal v. Shamskhaton 20 Cal. 93 at p. 99, "It has now been conclusively settled that the third Court cannot: entertain any appeal upon any question as to the soundness of findings of fact by the second Court; if there is evidence to be considered, the decision of the second Court however unsatisfactory it might be if examined must stand final".
In the present case it is argued that the omission of the prosecution to produce the counterfoil of the cheque raises a presumption under section 114 of the Evidence Act that no such counterfoil existed. But that point was duly considered. both by the learned magistrate and the Supreme Court and there being ample other evidence, if believed, before them they were satisfied that the case against the appellant was established. The case depended entirely on the facts and we accordingly refuse leave to appeal.
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