Lubundki Mkaga s/o Malunde v. R., Crim. App. 876-M-68, 31/1/69, Seaton J.

Lubundki Mkaga s/o Malunde v. R., Crim. App. 876-M-68, 31/1/69, Seaton J.

                        The appellant was convicted of robbery c/s 286, Penal code, and sentenced to two years imprisonment with 24 strokes corporal punishment. It was averred that the appellant stole 15 head of cattle and immediately after stealing them shot an arrow at the herdboy in order to obtain them. The conviction was based on the evidence of the herdboy, P.W. 1, who was aged 10 years. He gave his evidence unsworn apparently because the magistrate considered that this is the common practice for children of tender years.

            Held: “In accordance with section 152(3) of the Criminal Procedure Code which is to the same effect as section 127 (2) of the Evidence Act 1967, the learned magistrate should have ascertained by a voir dire examination before P.W. 1 entered upon his evidence, whether he understood the nature of an oath. If P.W. 1 did, he should have been sworn. If he did not, the learned magistrate should then have proceeded to satisfy himself as to P.W. 1’s intelligence and understanding of the duty of speaking the truth. Only after being satisfied on these matters – and recording his satisfaction in the record of proceedings – should the learned magistrate have received P.W. 1’s evidence unsworn or un affirmed. In the present case, it is clear from a perusal of the record that P.W. 1 was a highly intelligent boy and that his evidence was given in a clear and responsible manner. Nevertheless, learned State Attorney has submitted the conviction should be quashed as the evidence of P. W. 1 was admitted without the prescribed preliminaries.

being followed by trial court. The problem of child witnesses has persistently troubled courts in East Africa. {The court here reviewed the following cases: Nyasani s/o Bichana v. R. (1958) E.A. 190; Erukana Kyakulagira v. A. –G. (1959) E.A. 152; Gabriel s/o Mahali v. R. (1960) E.A. 159; and Fransisco Matovu v. R. (1961) E.A. 260]. It is, I think, clear from the preceding brief review of East African precedents, that a conviction may be sustained, despite the non-compliance with statutory rules for the admission of the evidence of child witnesses, proved there is other sufficient evidence to support the conviction. Was there such evidence in the present case? The only other evidence is that of P. W. 1’s elder brother, P.W.2, who was an adult and gave evidence on affirmation. P.W. 2 testified that after receiving a report of the robbery from P.W.1, he followed him to the scene where he saw the appellant armed with a knife, how and arrows driving the cattle away ……. Learned State Attorney concedes that while he evidence of P.W. 2 could suffice as corroboration had the unsworn evidence of P. W. 1 been properly admitted, it is insufficient of itself to support a conviction for robbery. With respect, I would agree. I have given consideration to the possibility of convicting the appellant of the minor offence of theft, but since the property involved is cattle, the offence would automatically fall within the province of the Minimum Sentences Act and result in a longer term of imprisonment than that imposed for the present conviction for robbery …. In all the circumstances, it appears that the interests of justice will best be served by a re-trial.” Appeal allowed and retrial ordered.