Adam v. R. PC) Crim. App. 667-M-70; El-Kindy, J.

Adam v. R. PC) Crim. App. 667-M-70; El-Kindy, J.

Appellant was convicted of cattle theft contrary to Sections 268 and 265 of the Penal Code and sentenced to 3 years’ imprisonment but was not ordered to suffer the statutory corporal punishment because he was 46 years old. However he was ordered to pay Shs. 25/= as compensation to the complainant for the alleged stolen goat. The facts were that on 23^rd May,1970 at 5.30 p. m. the appellant was found behind his house in his shamba cutting up the carcass of the stolen goat assisted by two juveniles, one 13 years old and the other 12 years, both of whom gave evidence against the appellant. The issue on appeal was whether the evidence of these young children was properly admitted. The learned Judge referred to the Primary Court Criminal

Procedure code, 3^rd schedules the magistrates’ courts Act, Cap. 537 and to the Magistrates’ Courts (Rules of 1964 and in particular to Rule 15 of the latter which reads: “(1) In both criminal and civil cases the evidence of young persons must be supported by other evidence” and to Rule 30 (2) of the former which reads: “The evidence of the complainant, the accused person and all other witnesses shall be given on affirmation save in the case of a child of tender years who, in the opinion of the court, does not understand the nature of the affirmation.”

            Held: (1) “When these two rules are read together, it is inferable that the evidence of young children and/or, child of tender years cannot be admitted until the court is satisfied as to the capacity of such witnesses to give evidence. So that in effect although there is no specific provision, the primary courts have, by some form of assessment, to decide whether (a) such evidence should be received and (b) if so, whether affirmed or unaffirmed. ……… In my view, therefore, the evidence of such witnesses as Moris and Zakari cannot be admitted without the trial court satisfying itself that such witnesses were capable witnesses. The evidence of these two juveniles was improperly admitted and therefore ought not to be taken against the appellant.” (2) “The next issue is whether, in excluding the evidence of the two juveniles, there was still adequate evidence against the appellant. The learned state Attorney submitted that there was adequate evidence.” [After reviewing the evidence for the prosecution and the defence], “On the evidence, I cannot say that the lower courts erred in accepting the prosecution’s evidence. The conclusion was reasonable. I find nothing on record which would justify the setting aside of this finding.” (3) Appeal dismissed.