Jisho and Another v. R. Crim App. 770 and 771 – M – 70; 19/2/71; Kisanga Ag. J.

Jisho and Another v. R.  Crim App. 770 and 771 – M – 70; 19/2/71; Kisanga Ag. J.

The two appellants together with one Kabulabujo Jisho were jointly charged with doing grievous were based on the evidence of the complainant and that of a child aged about 13 years who gave evidence on affirmation. The complainant testified that on the material date he went to the house of one Luzaguza where he met the accused persons drinking pombe. The owner of the house however turned him out and as he was leaving Kabulabujo Jisho struck him with a fist and then the second appellant strock him with a stick which fell him to the ground causing a fracture on the arm and rendering him unconscious. After this fall the complainant could not remember whether the first appellant inflicted any blow on him, and the only evidence against him was that of the child who said he saw the first appellant hit the complainant as well. The question was whether the child’s evidence could form the basis for convicting the first appellant.

Held: he rule as laid down by the Court of Appeal in the case of KIBANGANY ARAP KOLIL v. R. (1959) E. A. p. 92 is that before a child is  sworn in order to  give evidence the court must investigate in order to ascertain whether that child understands the nature of oath.” In the present case the young boy, as stated earlier, gave evidence on affirmation. Before he was sworn the learned trial magistrate noted “…… he (the boy) knows about the oath ……..” and immediately after that the boy was affirmed. It would seem clear that the procedure as laid down in the case of KIBANGENY cited above was not followed, since there is no record of investigation as made by the trial magistrate, and on that account I am of the view that the evidence of this child was in- admissible.” (2) “Even assuming that the evidence of this child was admissible the conviction would still be unsupportable on another ground. In the case of PETRO MANGONGO KATWA v. R. (1944) E. A. p. 100 it was held that although the evidence of a child given on affirmation does not strictly speaking require corroboration, yet the court should be very careful before acting upon such evidence. In the present case the learned trial magistrate found that the evidence of the child witness was corroborated by that of the complainant. It seems that this finding is not supported by the evidence.” (3) “Having made that finding which as I have tried to show, is not supported by the evidence the learned magistrate did not  scrutinise the evidence of the child witness before acting on it as required under the rule in Petro’s case. His failure to do so was a misdirection which I think amounted to a ground on which the conviction of Erikado could also be said to be bad.” (4) Conviction on first appellant set aside. Appeal of second appellant is dismissed.