Rex v Henry (Cr.A. 156/1936.) [1936] EACA 119 (1 January 1936)

## COURT OF APPEAL FOR EASTERN AFRICA.

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

## REX. Respondent (Original Prosecutor) $\overline{a}$ LENI alias HENRY. Appellant (Original Accused).

## Cr. A. 156/1936.

Leave to appeal—Grant of certificate of leave to appeal—Practice.

The appellant having been convicted of murder made application to the learned trial Judge for a certificate of leave to appeal. The learned trial Judge being of opinion, that the said application did not disclose any ground for the grant of such certificate, after consulting the Attorney General, refused the certificate and wrote to the President of the Court of Appeal asking that this matter be dealt with in the judgment in this case.

Held (10-11-36).—That the grant or refusal of the certificate is entirely in the discretion of the trial judge and that where a native appellant is unrepresented it is the practice of the Court of Appeal to treat the case as an appeal irrespective of whether leave to appeal has been granted or not by the trial judge.

Appellant, absent, unrepresented.

Branigan, Crown Counsel (Tanganyika), for Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—This is a clear case of murder and the appeal is dismissed. On the question of the grant or refusal of a certificate referred to by the learned Judge in his letter to the President, our view is that the grant or refusal is a matter entirely in the discretion of the trial Judge and one with which the Attorney General has no concern. In the Court of Appeal, where a native appellant is unrepresented the practice is for the Court to deal with the case as an appeal irrespective of whether leave to appeal has been granted or not by the trial Judge.