Rex v Nsiyaleta (Cr. App. No. 32/1936.) [1936] EACA 50 (1 January 1936)

## 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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