Rex v Mimbi (Criminal Appeal No. 292 of 1945) [1946] EACA 21 (1 January 1946)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda), and SIR G. GRAHAM PAUL, C. J. (Tanganyika)

REX, Respondent (Original Prosecutor)

## MIMBI s/o IPOPO, Appellant (Original Accused)

Criminal Appeal No. 292 of 1945

## (Appeal from decision of H. M. High Court of Tanganyika)

Evidence—Statement as to cause of death—Section 221 Criminal Procedure Code (Tanganyika)—Irregularity—Section 223 Criminal Procedure Code (Tanganyika)-Indian Evidence Act Section 32 (1).

On the question whether the statement of a dying person as to the cause of his death not taken in accordance with the provisions of the Criminal Procedure Code could be used in evidence.

Held (18-1-46).—That while such a statement cannot be used in evidence under the provisions of section 223 Criminal Procedure Code it is relevant under section 32 (1) of the Indian Evidence Act.

Appeal dismissed.

Appellant absent, unrepresented.

Phillips, Crown Counsel (Kenya), for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).—We have had the advantage of a very close and helpful examination of the evidence by Mr. Phillips and have come to the conclusion that the judgment appealed from is in accordance with the evidence and the probabilities. There is one question of law to which we would refer. The learned Judge excluded the statement made by the dying woman to Mr. Gawthorne for the reason that certain procedural requisites were not complied with, such for instance as the failure to give the notice prescribed by section 221 Criminal Procedure Code. We agree that because of the failure to comply with those requisites the statement could not be used in evidence under the provisions of section 223 Criminal Procedure Code—that is it could not be read at the trial as for instance in the case of the statutory statement or depositions of an accused person or the deposition of a witness who was dead or couldn't be traced made before a Magistrate at a preliminary inquiry. But the provisions of section 32 (1) of the Indian Evidence Act were apparently overlooked. The section provides:-

"When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.

Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceedings in which the cause of his death comes into question."

The statement of the dying woman was duly proved to have been made by the evidence of Mr. Gawthorne and Musa s/o Saidi who interpreted from Kinyaturu into Kiswahili. We have taken the statement into consideration and its effect is to strengthen the Crown case. The assessors gave commonsense opinions when they believed that the murder was not the work of outsiders.

The appeal is dismissed.