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Rex v Nsiyaleta (Cr. App. No. 32/1936.) [1936] EACA 50 (1 January 1936)
- Citation
- [1936] EACA 50
- Status
- Judgment
- Jurisdiction
- Uganda
- Court
- East African Court of Appeal
- Panel
- Abrahamas, C.J. (Tanganyika), Hall, C.J. (Uganda), Sheridan CJ
- Case number
- Cr. App. No. 32/1936.
- Language
- English
More details
- Court
- East African Court of Appeal
- Panel
- Abrahamas, C.J. (Tanganyika), Hall, C.J. (Uganda), Sheridan CJ
- Case number
- Cr. App. No. 32/1936.
- Language
- English
On this page
Professional case brief
Research organized from the available case record
01
Holding and result
The court held that the deposition of a deceased witness cannot be admitted in evidence unless there is formal proof of the witness's death as required by section 266(a) of the Criminal Procedure Code. A mere statement by counsel for the prosecution that the witness is dead, or an absence of objection by defending counsel, does not satisfy the statutory requirement. However, in this case, the court found that the conviction was supported by other credible evidence, including the testimony of an eye-witness and corroborating physical evidence, and therefore the irregularity did not affect the outcome. The appeal was dismissed and the conviction for murder upheld.
Court disposition
appeal dismissed; conviction for murder upheld
Orders
- The appeal is dismissed.
02
Material facts
Parties
Musa Nsiyaleta
Appellant Counsel: Appellant in personRex
Respondent Counsel: Mathew, Ag. S. G.03
Procedural history
Posture
Criminal Appeal / Appeal Judgment
04
Questions and positions
Legal issues
- 01
Whether the deposition of a deceased witness can be admitted without formal proof of death as required by section 266(a) of the Criminal Procedure Code.
- 02
Whether consent by defending counsel to the reading of the deposition cures the irregularity of not proving the witness's death.
Party arguments
- Applicant
- The appellant argued that the deposition of the deceased witness, Timuteo, was improperly admitted in evidence in the High Court because there was no formal proof of his death as required by section 266(a) of the Criminal Procedure Code. The appellant contended that this irregularity affected the fairness of the trial and the admissibility of the evidence.
- Respondent
- The respondent, represented by the Acting Solicitor General, argued that the deposition was properly admitted since the defending counsel did not object to its admission and the prosecution stated that the witness was dead. The respondent maintained that the conviction was supported by other credible evidence and that the irregularity did not prejudice the appellant.
05
Court’s reasoning
Legal principles
- 01
Section 266(a), Criminal Procedure Code
Where it is desired to put in evidence the deposition of a witness who has died, his death must be proved as provided by section 266(a) of the Criminal Procedure Code.
- 02
Court of Appeal judgment
Consent of defending counsel to the reading of a deposition without proof of death does not cure the irregularity or sanction non-compliance with statutory requirements.
06
Ratio, limits and disposition
Ratio decidendi
The court held that the deposition of a deceased witness cannot be admitted in evidence unless there is formal proof of the witness's death as required by section 266(a) of the Criminal Procedure Code. A mere statement by counsel for the prosecution that the witness is dead, or an absence of objection by defending counsel, does not satisfy the statutory requirement. However, in this case, the court found that the conviction was supported by other credible evidence, including the testimony of an eye-witness and corroborating physical evidence, and therefore the irregularity did not affect the outcome. The appeal was dismissed and the conviction for murder upheld.
Obiter and limits
- A statement by counsel for the prosecution that a witness is dead is not a compliance with section 266(a) of the Criminal Procedure Code.
- The absence of objection by defending counsel does not sanction the irregularity of admitting a deposition without proof of death.
Court disposition
appeal dismissed; conviction for murder upheld
- The appeal is dismissed.
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 JOSEPH SHERIDAN, C. J. (Kenya), SIR SIDNEY ABRAHAMS, C. J. (Tanganyika), and HALL, C. J. (Uganda).
REX, Respondent (Original Prosecutor)
MUSA NSIYALETA, Appellant (Original Accused)... Cr. App. No. 32/1936.
- Criminal Procedure—Evidence—Deposition of deceased witness read-No proof of death of witness-Consent of defending Counsel—Irregularity—Criminal Procedure Code Section $266$ (*a*). - Held (6-5-1936).—That where it is desired to put in evidence the deposition of a witness who has died, his death must be proved as provided by section 266 (a) of the Criminal Procedure Code, and the fact that the advocate for the accused consents to the deposition being put in evidence without such proof does not sanction the irregularity.
$Appellant$ in person.
Mathew, Ag. S. G., for the Crown.
JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-There is the evidence of an eye-witness, the woman Ejulieri, that the appellant is the person who speared the deceased Enoka causing his death. This witness was living with Enoka at the time. Previously she had lived with the appellant and she said that he was jealous of the transfer of her affection to Enoka. She 'also said that she had filed a case against him. Her evidence is corroborated by other witnesses that the shaft of the spear for which she struggled with the assailant is the property of the This shaft is clearly identifiable by the distinctive appellant. marks it bears; there is also evidence that a spike which fits the shaft and was usually fitted to it was found in the possession of the appellant. The evidence, is such that in our opinion the learned Judge came to the only possible conclusion in finding the appellant guilty of murder. We have excluded from our consideration the medical evidence, for its admissibility depended on the body being identified to the doctor. The body was identified to the doctor by a witness, Timuteo, in the lower Court and, this witness having died prior to the hearing, his deposition was read and admitted in the High Court but without proof of his death as required by S. 266 (a) of the Criminal Procedure Code. $\mathbf{A}$ statement by counsel for the prosecution that this witness was dead is not a compliance with the Section, nor does a statement by defending counsel that he does not object sanction the irregularity. The appeal is dismissed.
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