Buru and Another v Rex (Cr.A. 127/1934.) [1937] EACA 183 (1 January 1937)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before ABRAHAMS, C. J., Ag. P. (Uganda), LAW, C. J. (Zanzibar), and McDougall, Ag. C. J. (Tanganyika).

> SOLU WA TUTU alias SHORA WA BURU $(Appellant)$ (Original Accused)

> > $\mathbf{r}$

## REX (Respondent) (Original Prosecutor).

Cr. A. 127/1934.

Evidence—The only evidence was that of a person accepted for the purpose of the judgment as an accomplice and the unsworn testimony of a small boy—Whether a witness who himself requires corroboration can corroborate—Murder— Penal Code (Kenya) section 187—Whether conviction on such evidence could be sustained.

Held.—That the conviction could not be sustained, as a witness who himself requires corroboration cannot corroborate, and it mattered not whether the witnesses were in the same or a different category and, as there was no independent corroboration, the conviction was quashed.

Trivedi for Appellant.

Smith, Ag. Crown Counsel (of Tanganyika) for Crown.

Trivedi.—Two accused originally charged. Applied for separate trials, this granted-Second accused stood down. After three witnesses had been examined a nolle prosequi was entered against the second accused who gave evidence. The principal witness was a child who required corroboration. Is the corroboration of a child by an accomplice enough? Children Act, 1908, section 30, as amended by Administration of Justice Act, 1914.

Rex v. Festo Cr. A. 63/1933.

Smith.—Unless Rex v. Festo Mulamago Gr. A. $63/1933$ is in my favour, I cannot support this.

JUDGMENT.-In this case the appellant was convicted of murder on the evidence of a witness, accepted for the purpose of the judgment as an accomplice, and the unsworn testimony of a small boy. The learned Acting Chief Justice of Kenya who tried the case believed the child to be truthful but agreed that the unsworn testimony of a child of his age must be corroborated in some material particular implicating the accused. He went on to say that "as regards the law of accomplices it is laid down that it is most unsafe to convict on the uncorroborated testimony of an accomplice, and that an accomplice's evidence cannot be corroborated by another accomplice or accomplices. ... An accomplice's evidence can be corroborated by any person who is not an accomplice, and I know of no rule of law or practice which precludes such corroboration being the testimony. of a witness who by reason of immaturity or ignorance the Court does not think should be sworn". The learned Acting Chief Justice found the appellant guilty of murder.

We are of opinion that this conviction cannot be sustained. A witness who himself requires corroboration cannot corroborate, and in our view it matters not whether the witnesses are in the same or a different category. It would appear that this was the view of this Court in Rex v. Festo Mulamago Cr. A. 63/1933. In that case the appellant had been convicted in the High Court, Uganda, of murder. The murder had been witnessed by a boy of seven and by a woman. Both gave evidence but the child was not sworn. The trial Judge was of the opinion that independent corroboration of these witnesses was required as the testimony of the child was unsworn and the woman, if not actually an accomplice, had admittedly aided the murderer in disposing of the corpse and her evidence had therefore to be accepted with reserve. This Court in affirming the conviction approved the view of the trial Judge observing that "the learned Chief Justice . . . appreciated that the evidence of both the woman Nabainda and the child Takamagire required corroboration before convicting and this corroboration he found ..."

We think that if it had been necessary to elaborate this judgment the Court would have explained that accomplices and children require corroboration because their evidence is regarded as unreliable, and though this unreliability may spring from different reasons, the reasoning which logically renders one accomplice unable to corroborate another obtains equally as between accomplice and child.

As there is no independent corroboration in this case we quash the conviction and acquit the appellant.