Rex v Kala (Criminal AppealNo. 71 of 1941) [1941] EACA 66 (1 January 1941)

## 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.