Nyakisia v. R. E. A. C. A. Crim. App. 35-D-71; -/5/71; Duffus P., Spry v. P. & Lutta J. A.

 

Nyakisia v. R. E. A. C. A. Crim. App. 35-D-71; -/5/71; Duffus P., Spry v. P. & Lutta J. A.

The appellant was convicted of murder and sentenced to death. The prosecution case depended on the evidence of two witnesses; that of Warioba Matutu, a brother of the accused who was an eye-witness to the whole incident. There were apparent inconsistencies in the evidence of the witnesses before the trial court and the statements they had previously made to the police particularly on the identity of the witnesses. The question then was whether the learned judge had correctly directed himself and the assessors on the effect of the inconsistency between the first prosecution witness (Warioba Matutu) and his statement to the police. There was also evidence which contradicted certain portions of the evidence by the main prosecution witnesses and also supported portions of the evidence of the appellant.

            Held: (1) “Each case must be considered on its own particular circumstances. There are cases where the inconsistency is so minor that a clearly it will be of little effect and certainly does not necessarily mean that the witness is lying or that his testimony cannot be relied

            on.  The judge and the assessors must take all the evidence and all the circumstances of the case into account in deciding whether to accept a witness’s evidence or any part of his testimony……… Clearly there were discrepancies butt he learned judge directed both the assessors and himself fully in this matter and…….. were satisfied that the witness had been truthful in his evidence and had correctly identified the appellant as the person who had struck the deceased the blow on the head which caused his death ……………” (2) Appeal dismissed.