R. v. Mwebeya Crim. Rev. 30-M-71, 22/6/71; Ag. J.
The appellant was convicted of defilement of a girt under 12 years of age c/s (1) of the Penal Code. He was sentenced to 18 months imprisonment and the record was remitted to the High Court for confirmation of sentence. No evidence of the age of the complainant was adduced although in his judgment the Magistrate referred to “the chief witness P. W. 3 as a child of 8 years.” The complainant is recorded as replying “No” when asked if she knew the difference between telling the truth and telling a lie. The Magistrate further recorded that “The witness is not intelligent enough to speak the truth. She is not sworn.”
Held: (1) “Although the learned Magistrate did not say so expressly, it would seem that he did find that the complainant was aged 8 years. That finding was based on his observation after seeing the child who was before him in court and I think that this was sufficient notwithstanding that no witness testified as to the age of that child.” (2) “On reading (Section 127 (2) of the Evidence Act) it would seem that the evidence of a child of tender years can be received in the following circumstances only;- (a) If the child understands the nature of an oath, then its evidence should be received on oath or affirmation. (b) If the child does not understand the nature of an oath, hen its evidence should be received not on oath or affirmation, provided that the child is possessed of sufficient intelligence to justify the reception of its evidence and it understands the duty of speaking the truth. I think that on a true construction of this subsection where a child does not satisfy either of the two conditions, and then its evidence should not be received at all. In the present case the complainant child (P. W. 3) is not shown to know the nature of an oath and the trial magistrate expressly stated that the child was not intelligent enough to speak the truth. In these circumstances I am of the vie that there could be no basis for receiving the evidence of such a child.”
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