Rex v Njoki (Cr. App. No. 61/1939) [1939] EACA 130 (1 January 1939)

## COURT OF APPEAL FOR EASTERN AFRICA

Before Sir Joseph Sheridan, C. J. (Kenya); Whitley, C. J. (Uganda); and Sir Charles Law, C. J. (Zanzibar)

## REX, Respondent (Original Prosecutor)

ν.

## NJEROGE s/o NJOKI, Appellant (Original Accused)

## Cr. App. No. 61/1939

(Appeal from decision of H. M. Supreme Court of Kenya) Criminal Law—Evidence—Corroboration—Indian Evidence Act, section 157.

Appellant appealed from a conviction of murder. The deceased was attacked by a panga and died from multiple injuries. The evidence against the appellant rested to some extent upon the unsworn statement of the deceased's daughter Wanjiru a child of some five or six years and it was proved under section 157 of the Indian Evidence Act that at the time of the assault this child had called for help and said "Njoroge is attacking us". There was other evidence connecting the accused with the crime. Section 157 of the Indian Evidence Act provides that "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place or before any authority legally competent to investigate the fact may be proved".

Held (17-7-39).—That although the word "corroborate" is used in section 157 of the Indian Evidence Act and some weight must be attached to it, yet where it would be improper to convict on evidence without such evidence being corroborated by other evidence in regard to material particulars and<br>involving the accused the "corroboration" referred to in section 157 would not be adequate.

Appellant absent unrepresented.

Phillips, Crown Counsel, for the Crown.

JUDGMENT (delivered by SIR JOSEPH SHERIDAN, C. J.).-This case has been very carefully tried and we find ourselves in agreement with the finding of the learned Judge supported as it is by the well-reasoned opinions of the assessors. The learned Judge succinctly sums up the case when he says "I am content to rest my judgment and I do with confidence on the evidence of Wanjiru, of Ngahu and most important of all, on the corroboration of the human blood-stains on the accused's overcoat and shorts". Reference has been made in the course of the case to the "corroboration" afforded by the evidence of Ngahu that the child Wanjiru called out at the time of the attack "Njoroge is attacking us". While we appreciate that the word "corroborate" is used in section 157 of the Indian Evidence Act and that some weight must be attached to such evidence our view is that in a case where

it would be improper to convict on evidence without such evidence being corroborated by other evidence in regard to material particulars and involving the accused, the "corroboration" referred to in section 157 would not be adequate. There might however well be cases where evidence adduced as corroborative evidence as to material particulars and involving the accused receives additional weight from evidence of a previous statement made by the person to be corroborated and such evidence might turn the scales against the accused person. In the present case the evidence of Ngahu as to what the child Wanjiru said at the time of the attack at least goes to show that the story told by her was not a concocted one.

The appeal is dismissed.