Rex v Asani (Cr. App. 63/1930.) [1932] EACA 29 (1 January 1932)

## COURT OF APPEAL FOR EASTERN AFRICA.

Before SIR JACOB BARTH, C. J. (Kenya); SIR CHARLES GRIFFIN, C. J. (Uganda), and PICKERING, C. J. (Zanzibar).

## REX

(Respondent) (Original Prosecutor) $\mathcal{V}$

## MWAKIO ASANI s/o MWANGUKU (Appellant) (Original Accused).

## Cr. App. $63/1930$ .

Indian Evidence Act, section 122—Testimony of "wife."

$Held$ (16-12-30):—(Following Rex v. Amkeyo, 7 E. A. L. R. 14) that<br>although a witness was married to the appellant according to native custom her evidence was admissible, notwithstanding absence of consent of appellant.

Davies for Crown.

Appellant unrepresented.

JUDGMENT.-At the trial of the appellant the case for the prosecution rested to a great extent upon the testimony of a woman who made the following statement when she entered the witness box. She said: "I know the accused. I knew Mbala. She was a wife of the accused. He had three wives altogether. Accused gave one bull and one sheep for me." In later portions of her evidence this witness purported to repeat communications made to her by the appellant. It was objected for the appellant that at the time when the communications were made the woman was married to him within the meaning of that word in section 122 of the Evidence Act, and that in so far as the woman purported to repeat communications made to her by the appellant her evidence was inadmissible except with the latter's consent. The decision of the High Court of East Africa in the case of $\text{Rev } v$ . Amkeyo (L. R. 7, E. A. 14) was cited by the prosecution as an authority for the admission of the whole of the woman Ushambala's evidence; but for the appellant reliance was placed upon a decision of the same Court in the case of $\text{Re}x$ v. Doudi Odongo (L. R. 10. E. A. 49). The learned trial Judge doubted whether the earlier decision could be regarded as still binding; for he was inclined to the opinion that the latter decision was inconsistent with the reasoning in the case of Rex v. $Amkeyo$ . In our opinion, however, there is no inconsistency between these two decisions. In $\text{Re}x$ v. Amkeyo the High Court was considering what meaning should be attributed to the word "married" in a section which imposes an exception upon the general competency of married persons to give evidence in all

cases. The reasons why the exception introduced by section $122$ should not be regarded as applicable to persons living with each other after the delivery of cattle to the male relations of the female were fully set out in the judgments delivered in the High Court, and we have been asked to follow the conclusion then reached. In Criminal Appeal No. 3 of 1929 this Court considered the decision in Rex $v$ . Amkeyo and expressed the opinion that "the case is authority for holding that the evidence of a wife by native custom against her husband is admissible." We can perceive no reason for differing from that opinion. In the later case of Rex v. Doudi Odongo the High Court was considering what meaning should be attributed to the word "wife" in section 497 of the Indian Penal Code. That section is one of a series which includes the definition of the offence of bigamy. By reason of provisions contained in the Marriage Ordinance (East Africa), 1902, the High Court felt constrained to regard the word "wife" in those sections of the Indian Penal Code as applicable to a woman who is cohabiting with a male after a transaction locally described as a native marriage. That decision has no bearing upon the matters raised in this appeal, and we do not propose to say anything concerning that case except that the decision does not impinge upon the ground covered in the earlier case.

For these reasons we are of opinion that the whole of the evidence of the woman Mshambala was rightly regarded as admissible. In these circumstances it is manifest that the judgment at the trial was amply supported by the evidence and the appeal stands dismissed.