R. v. Wambura Makindi, Crim. Sass. 150-M-67, 9/11/67, Mustafa J.

R. v. Wambura Makindi, Crim. Sass. 150-M-67, 9/11/67, Mustafa J.

Accused was charged with murder. A witness stated that he had seen the accused and the deceased together at 4 P.M on the day of the homicide; At about 7 P.M., the mother of the deceased, being a child of 9.5 years, raised an alarm because the deceased was missing. The same witness and several other persons went to the spot where he had seen the deceased with the accused, and they soon found the body of the deceased. He had been stabbed several times. The witness quoted him as identifying “Wambura Makindi” as his assailant; the boy’s mother remembered that he had mentioned the name “Wambura.” On the way to the dispensary, a Divisional Executive Officer recorded a statement in which the deceased again identified “Wambura Makindi” but placed the time of the assault at 2 P.M. Accused claimed that another man in the community also has the name “Wambura  Makindi.” He explained the wounds found on his body at the time of his arrest, the day after the homicide, as the result of another fight. He alleged that he had been in another place throughout the day in question.

            Held: “(T)he dying declaration of the deceased needs corroboration because as a dying declaration it was not made in such circumstances as can exclude corroboration and also because it was made by a child of tender years.” The prosecution did not establish that accused is the only man in the community named “Wambura Makindi”; and the deceased’s own account of his murder conflicts, as to the time of the assault, with the report of the witness. Thus, there is no corroboration “sufficiently linking the accused with the person who attacked the deceased.” Accused acquitted.