Rex v Nyakililo (Cr. App. No. 89 of 1938.) [1938] EACA 116 (1 January 1938)

## COURT OF APPEAL FOR EASTERN AFRICA

## Before Sir JOSEPH SHERIDAN, C. J. (Kenya); KNIGHT-BRUCE, Ag. C. J. (Tanganyika); and HAYDEN, J. (Kenya)

REX, Respondent (Original Prosecutor)

NYAKILILO, Appellant (Original Accused)

Cr. App. No. 89 of 1938.

Appeal from conviction by H. M. High Court of Uganda.

Evidence—Criminal Procedure Code (Uganda), section 217 (4)—

Preliminary inquiry—Certification of accused's statement.

The accused appealed from a conviction of murder. His statement at the preliminary inquiry was not put in evidence against him by the prosecution as on the submission of Counsel for the accused it was doubted that the certificate had been properly certified under section 217 (4) of the Uganda Criminal Procedure Code which provides inter alia that "the statement shall be attested by the Magistrate who shall certify that such statement was taken in his presence and hearing and contains accurately the whole statement made by the accused person."

The statement in this case was certified in these terms: "Certified a true and accurate account of the accused's statement and that it was read over to him and found correct by him." The learned trial Judge indicated in his judgment that in the event of the case coming before the Court of Appeal he would welcome an expression of opinion on this point although it was not material for the decision of the case since the statement in fact was not put in evidence.

**Held** (2-8-38).—That if the certificate complies substantially with the pro-<br>visions of section 217 (4) of the Criminal Procedure Code, the statement may be admitted provided always that where the statement contains something favourable to the defence it should not be excluded by reason of the failure of the magistrate to comply with the provisions of this section. (Appeal dismissed.)

Accused, absent, unrepresented.

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

JUDGMENT (delivered by Sir Joseph Sheridan, C. J.).—There is ample evidence to support the view taken by the learned Chief Justice and accordingly the appeal is dismissed. In regard to the question of the statutory certificate raised by the Chief Justice although a decision of the point is unnecessary for the determination of this appeal, we think that we may express our opinion in general that provided the certificate complies substantially with the provisions of section $217$ (4) it may be admitted and provided always that where the statement contains something favourable to the defence it should not be excluded by reason of the failure of the magistrate to comply with the provisions of this section. This latter point has already been decided by this Court.

Editorial Note.-Neither the appellant's statement at the preliminary inquiry, nor the certification of it were considered or commented on by<br>the Court of Appeal in this case. The judgment merely expresses the opinion of the Court as to the general guiding principles relating to the admissibility of such statements considered in respect of their certification.