Rex v Makamu (Criminal Case No. 64 of 1944) [1944] EACA 8 (1 January 1944)

## ORIGINAL CRIMINAL

### Before BARTLEY, J.

## REX, Prosecutor

#### $\nu$ .

# MOKOTO s/o MAKAMU, Accused

## Criminal Case No. 64 of 1944

Evidence of Christian child of immature age taken without oath or affirmation-· Criminal Procedure Code, section 151—Indian Oaths Act, 1873, section 6.

The facts appear sufficiently from the following extract from the judgment of Bartley, J.

Held (14-4-44).—(1) That the decision of the Court of Appeal for Eastern Africa in R. $v$ . A CHAPTER AND THE COURT OF APPEAR TO EASTER ATTICATION AND A RECEIVED ATTICATION AND A RECEIVED ATTICATION AND A RECEIVED ATTACK IN A RECEIVED ATTACK IN A REPORT ATTACK IN A REPORT AND A RECEIVED ATTACK IN A REPORT ATTACK apply to Kenya.

(2) That under the provisions of section 151 of the Kenya Criminal Procedure Code the Court is authorized to dispense with an oath or affirmation in the case of a witness who is a child of immature age.

Spurling, Crown Counsel, for the Crown.

EXTRACT FROM JUDGMENT.—Before dealing with the evidence on the second count there are two preliminary matters I wish to deal with-one is my taking the evidence of Jennifer Adams without putting her on oath or affirming her ...

Jennifer is only six years and nine months old. She is a Christian and I was satisfied that by reason of immature age she ought not to be admitted to give evidence on oath. I duly considered the decision in R. v. Bitashubirwe 10 E. A. C. A. where it was held by the Court of Appeal for Eastern Africa that section 146 of the Tanganyika Criminal Procedure Code although providing that a child of tender years need not be sworn did not exempt the child from giving evidence on affirmation and I came to the conclusion that that decision did not apply in this Colony. My reasons for coming to this conclusion are as follows. Section 136 of the Tanganyika Criminal Procedure Code reads:

"146. Every witness in any criminal cause or matter shall be examined upon oath or affirmation and the Court before which any witness shall appear shall have full power and authority to administer the usual oath or affirmation:

Provided that the Court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring the taking of any oath whatever is according to his religious belief unlawful or who by reason of immature age or want of religious belief ought not, in the opinion of the Court, to be admitted to give evidence on oath: the fact of the evidence having been so taken being also recorded in the proceedings."

It is clear that the proviso to that section only authorizes the Court to exempt the child from giving evidence on oath but does not authorize any exemption from affirmation and the section commences by declaring that every witness in any Criminal Case shall be examined on oath or affirmation. In Kenya, however, the law is different. The corresponding section of the Kenya Criminal Procedure Code is section 151 which reads:

"151. Every witness in any criminal cause or matter shall be examined upon oath and the Court before which any witness shall appear shall have full power and authority to administer the usual oath:

Provided that the Court may at any time, if it thinks it just and expedient (for reasons to be recorded in the proceedings), take without oath the evidence of any person declaring that the taking of any oath whatever is according to his religious belief unlawful, or who by reason of immature age or want of religious belief ought not, in the opinion of the Court, to be admitted to give evidence on oath: the fact of the evidence having been so taken being also recorded in the proceedings."

The difference in the law is obvious. Section 151 lays down that every witness in any criminal cause or matter shall be examined on oath and the proviso authorizes the court to dispense with the oath in the case of a child of immature age. Even reading the word oath in that section as including affirmation in accordance with the definition of "oath" in the Interpretation and General Clauses Ordinance the proviso would authorize the Court to dispense with an affirmation. To turn then to the Indian Oaths Act, 1873, section 6 of that Act provides:

"Where the witness, interpreter or juror, is a Hindu or Mohamedan, or has an objection to making an oath, he shall, instead of making an oath, make an affirmation. In every other case the witness, interpreter or juror shall make an oath."

It is clear that under that Act a Christian cannot make an affirmation unless he has an objection to making an oath. In my view, therefore, Jennifer cannot he affirmed under the laws in force in Kenya. I had no hesitation therefore in following the English law and practice in admitting Jennifer's evidence after warning her to speak the truth ...