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Rex v Msyaga and Others (Criminal Appeals Nos. 70, 71 and 72 of 1943 (Consolidated))

East African Court of Appeal · [1943] EACA 31 · 1943 Appeal Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Consolidated criminal appeals from conviction for murder in the High Court of Tanganyika
Decision
First and second appellants' convictions for murder upheld. Third appellant's conviction for murder set aside and substituted with conviction for accessory after the fact to murder; sentenced to two years' imprisonment with hard labour.

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that under section 265(a) of the Criminal Procedure Code, where a witness cannot be found or his attendance cannot be procured without delay or inconvenience, no sworn evidence is necessary to establish this fact; the court need only be satisfied by a statement from prosecuting counsel or other means. Evidence of a co-accused given at preliminary inquiry who later retracted cannot be used against other accused as they had no opportunity to cross-examine. The appeals of the first and second appellants were dismissed. For the third appellant, the court substituted a conviction for being an accessory after the fact to murder under section 203 of the Penal Code.

Outcome

First and second appellants' convictions for murder upheld. Third appellant's conviction for murder set aside and substituted with conviction for accessory after the fact to murder; sentenced to two years' imprisonment with hard labour.

Facts

The three appellants were tried for murder. The first appellant, Msyaga, made an extra-judicial confession admitting he killed the deceased at the instigation of the second appellant, Kakombe. He retracted this confession at trial. The confession was recorded by Mr. Lawrence, a magistrate who proved it at the preliminary inquiry. At trial, which took place at Kigoma, Mr. Lawrence was not called as he had been transferred to Bukoba as District Commissioner. Crown Counsel applied to have his deposition admitted under section 265(a) without calling evidence of his whereabouts. Defence counsel raised no objection. A witness, Kipyoka, found the body with a bullet wound as described in Msyaga's confession. Evidence showed Kakombe offered money to the deceased's family, saying he had killed the deceased. The third appellant, Msiala, was alleged to have been involved in the instigation and later concealed the deceased's blanket and participated in offering money to procure the family's silence.

Issues

  1. Whether a deposition of a witness recorded at preliminary inquiry may be admitted at trial under section 265(a) of the Criminal Procedure Code without evidence being called as to the whereabouts of the absent witness who has been transferred to another district.
  2. Whether evidence given by a co-accused at preliminary inquiry who later retracted and was acquitted is admissible against other accused persons.
  3. Whether the extra-judicial confession of the first appellant was properly admitted and whether there was sufficient corroboration.
  4. Whether there was sufficient evidence to convict the second appellant of murder.
  5. Whether there was sufficient evidence to convict the third appellant of murder or a lesser offence.

Orders

  • Appeals of Msyaga (first appellant) and Kakombe (second appellant) dismissed.
  • In the case of Msiala (third appellant), conviction for murder set aside.
  • Finding of guilty of being an accessory after the fact to murder under section 203 of the Penal Code substituted for Msiala.
  • Msiala sentenced to two years' imprisonment with hard labour.

Rules and key headnotes

Criminal Procedure — Admissibility of Depositions — Section 265 Criminal Procedure Code — Proof of Witness Unavailability
Under section 265(a) of the Criminal Procedure Code, where a witness cannot be found or his attendance cannot be procured without delay, expense or inconvenience which would be unreasonable, no sworn evidence is necessary to establish this fact; all that is required is that the court should be satisfied that the witness cannot be found or procured without such delay, and a statement from prosecuting counsel may be sufficient or the court may ask for something more such as evidence on the point.
Evidence — Co-Accused Statements — Admissibility Against Other Accused — Preliminary Inquiry Evidence
Evidence given by a co-accused at preliminary inquiry who later retracted that evidence at trial and was acquitted cannot be taken into consideration against other accused persons, firstly because it was not evidence given at the trial and secondly because the co-accused were given no opportunity of cross-examining him.
Evidence — Confessions — Extra-Judicial Confessions — Corroboration — Retracted Confessions
Where an extra-judicial confession is retracted at trial, it is desirable though not necessarily obligatory to find corroboration before acting upon it.
Criminal Law — Accessory After the Fact — Substitution of Conviction — Section 173 Criminal Procedure Code
Under section 173 of the Criminal Procedure Code as amended, it is competent for the court to substitute a finding of guilty of the minor offence of being an accessory after the fact to murder under section 203 of the Penal Code where the evidence is insufficient to support a conviction for murder but establishes that the accused, having knowledge of the killing, associated herself with trying to procure silence and concealed evidence.

Legislation cited (5)

  • Criminal Procedure Code s.265
  • Criminal Procedure Code s.219
  • Criminal Procedure Code s.173
  • Indian Evidence Act s.30
  • Penal Code s.203

Cases cited (2)

  • Rex v Sinoya (6 E.A.C.A. 155)
  • R v Muhoja s/o Manyenye (9 E.A.C.A. 70)

Full judgment

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Rex v Msyaga and Others (Criminal Appeals Nos. 70, 71 and 72 of 1943 (Consolidated)) [1943] EACA 31 (1 January 1943)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.