Rex v Mkutihu (Criminal Appeal No:1 of 1941) [1941] EACA 27 (1 January 1941)

# COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya), Sir Norman Whitley, C. J. (Uganda) and SIR HENRY WEBB, C. J. (Tanganyika)

#### REX, Respondent

## MWEREKE S/O MKUTIHU, Appellant

### Criminal Appeal No. 1 of 1941

### Appeal from decision of H. M. High Court of Tanganyika.

## Evidence—Indian Evidence Act, section 157.

Appellant appealed from a conviction of murder. The only eye-witness of the. killing was a child of tender years who as soon as possible after the killing had made a report of the matter to one Bwamku. This led to the finding of the body and the investigation of the matter.

Held (16-1-41).—That the evidence of what the child had said to Bwamku would have been admissible and was obviously important as showing the child to be consistent.

Appeal dismissed. $\cdot$

#### Appellant absent unrepresented.

, Stacev. Crown Counsel, for the Crown.

<sup>1</sup> JUDGMENT (*delivered by Sir Joseph Sheridan*, C. J.).—Although no reference is made by the trial magistrate or the learned confirming judge to the essential evidence corroborative of the unsworn testimony of the child of five years (Solu wa Tutu v. Rex (1934) 1 E. A. C. A. 183) that evidence is to be found on the record. It consists of evidence that the arrow found in the body of the deceased was identified as the appellant's, that at or about the time of the killing the appellant, when he was chased and captured by his brother, was possessed of a bow and that the appellant admitted to his brother that he had killed his wife, the deceased.

We should like to draw attention to the passage in the evidence of Bwamku bin Mbunda, "Acting on information given me by the child", and to say that what the child actually did say was admissible evidence (section 157 Indian Evidence Act) and such evidence is obviously important as showing the child to be consistent, thus adding greater weight to her evidence.

The appeal is dismissed.