Azaria s/o Mbuya v. R., (PC) Crim. App. 11-D-67, 2/12/67, Seaton J.

Azaria s/o Mbuya v. R., (PC) Crim. App. 11-D-67, 2/12/67, Seaton J.

Accused, a teacher, was convicted of assault. [P.C s. 240.] There was evidence that he had questioned the complainant, a girl of 12 years of age, concerning her relations with a boy in the school. Accused claims that she lied to him, and as a result she was caned. Complainant testified that she was caned on the thighs as well as the hands and that accused attempted to pull her pants down. A doctor testified that there were swellings on her hands and thighs. The complainant gave unsworn testimony, ad it did not appear that the magistrate had attempted to ascertain whether she understood the nature of an affirmation.

            Held: (1) The caning of another person may constitute assault, but the use of force against another person is justified if exercised during lawful correction. (2) Corporal punishment may be administered for serious breaches of school discipline. However, female pupils may receive corporal punishment from male teachers only if no female teacher is at the school and such punishment is administered by the head of the school or with his written authorization. [Regulations 3(a) and 4(b) of G.N. 40 of 1965, made under section 38(p) of the Education Ordinance, Cap. 446.] In this case the manner in which the punishment was carried out exceeded the permissible bounds. (3) In primary court all evidence is to be given on affirmation “save in the case of a child of tender years who …… does not understand the nature of the affirmation.” [Primary Courts Criminal Procedure Code, s. 30(2), (Third Schedule to Magistrates’ Courts Act, Cap. 537).] If the child does not understand the nature of an affirmation, his evidence may still be received if he has the capacity to understand the duty to speak the truth. It should appear in the record that the court has determined that he has such capacity, but the failure to do so was not prejudicial in this case. (4) The unsworn testimony of a child must be corroborated, but there was such corroboration in the present case. Appeal dismissed.