Rex v Mvumba (Cr.A. 114/1936.) [1936] EACA 112 (1 January 1936)

COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JOSEPH SHERIDAN, C. J. (Kenya); HEARNE and BATES, JJ. (both of Tanganyika).

REX, Respondent'(Original Prosecutor) $\boldsymbol{v}$ .

MUKAMA MVUMBA, Appellant (Original Accused). Cr. A. 114/1936.

Criminal Procedure—Leave to appeal out of time—When granted —Use of depositions in assessing sentence.

The accused was charged with manslaughter and pleaded guilty and was sentenced to four years imprisonment with hard labour. He applied for leave to appeal against sentence, forty-five days after the time for appealing had expired. The trial Judge examined the depositions with a view to assessing the sentence.

Held (21-10-36).—That, the Court will not grant leave to appeal out of time, unless good reasons "therefor are established by the applicant. Further that, the Judge had acted correctly in ex-<br>amining the depositions. \*Rex v. Manywele s/o Kaziwlaya, Cr.<br>App. No. 118/35 (unreported), Rex v. Mashamba bin Mbola<br>(1 . EA. C. A. 180) and Rex v. Kaluna Seguja ( referred to.

Appellant, absent, unrepresented.

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Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-This is an application for leave to appeal out of time; it is six to seven weeks out of time, and there are no good reasons given, why it should be admitted. Besides, were it admitted, there would be no reason warranting the interference of this Court as to the sentence, for it is not excessive. A point was brought to our notice by Crown Counsel, that the learned trial Judge consulted the depositions for the purpose of assessing sentence and that his doing so much appear to contravene, what was laid down in Rex v. Mashamba bin Mbola, (1 E. A. C. A. 180). What was said in that case was obiter and it is clear from the decision of this Court in the case of \*Rex v. Manywele s/o Kaziulaya, Cr. App. No. 118/35, that the learned Judge acted correctly in consulting the depositions. It was also held by this Court in Rex v. Kaluna Sequia (2 E. A. C. A. 85), that section 280 of the Criminal Procedure Code (Uganda )was an enabling section. The application : is refused.

NOTE.—The judgment in \*Rex v. Manywele s/o Kaziulaya, Cr. App. No. 118/35, before a Court consisting of Sir Joseph Sheridan, C. J. (Kenya); S. S. Abrahams, C. J. (Tanganyika), and [Fretz, J. (Zanzibar) given on $25{\text -}10{\text -}35$ is appended:

JUDGMENT.—This is an appeal against sentence. Had the $\mathcal{C}_{\mathcal{A}}$ learned Judge considered the evidence in the depositions in this case for the purpose of assessing sentence, he could not in our opinion have failed to come to the conclusion, that a sentence of three years was excessive for the criminal act of the accused. Before sentencing the \*accused he was bound either to consider the depositions or take evidence for the purpose of arriving at a proper sentence under section 279 of the Criminal Procedure Code (Tanganyika). True death resulted but then so far as we can judge there was but one kick on a fatal spot and that the spleen which was enlarged abnormally according to the medical evidence, and further that evidence stated that it would not require a hard blow to rupture it. A sentence of six months in our opinion is adequate and we accordingly reduce the sentence.

\*Accused had pleaded guilty.-Ed.