Competence and compellability

Dr. Francis Kariuki, C.Arb

 Introduction
• Competence-capability of a witness to be called to give evidence;
 all persons are competent to testify unless they are in the opinion of the court:
 Unable to understand the questions put to them; or
 To give rational answers to those questions owing to: tender years; extreme old age; disease
of mind or body or any other such cause-s125;
• Compellability-witness can be obliged to testify;
 All competent witnesses are compellable except for the following:
 Children of tender years;
 Person of defective intellect;
 Spouses;
 Person with statutory immunity.
 A competent witness may be relieved of the duty to give evidence if they can claim
privilege.
• If a compellable witness refuses to be sworn, ignores a witness summons,
refuses to testify or produce a document, court can adjourn for 8 days and
commit him to prison-s152, CPC.
 Spouses
• In civil proceedings the parties to the suit, and spouse of any party to
the suit, are competent witnesses-s127(1);
• In criminal proceedings, wife or spouse of person charged is a
competent witness for the defence-s127(2);
• Accused himself can call the spouse to testify;
• In criminal proceedings, a spouse of the person charged is a
competent and compellable witness for the prosecution or defence,
where the charge is-s127(3);
a) Bigamy;
b) Offences under the Sexual Offences Act (No.3 of 2006);
c) In respect of an act or omission affecting the person or property of the wife
or husband of such person or children of either of them;
 …spouses
• Accused person’s spouse can only be permitted
to testify against another where the deceased is
a spouse of the accused, or is their child.
• In R v Maxwel Mwaingolo [2021] wife was
incompetent to testify since the deceased was
the brother to his wife.
• Judicially separated spouses? Cohabitees?
former spouses?
 Children
• Need for preliminary inquiry (voir dire or trial within a trial)-s19,
Oaths and Statutory Declarations Act, Cap.15.
• Court finds out whether child understands nature of oath;
• what are the consequences for telling lies or telling the truth? i.e. when
you tell lies you go to hell etc.
• If the child understands the nature of an oath, then the child may be
sworn.
• If child does not understand the nature of an oath, court must satisfy
itself that the child appreciates the duty of telling the truth and can give
sensible answers to the questions. In that case, the child will be
affirmed.
• Court records that that has been done;
• Who is a child of tender years?
• In Patrick Kathurima v R [2015] eKLR the term ‘tender years’ was given
a wide meaning and not limited to the 10 years stipulated under the
Children Act.
 Corroboration of evidence of children of tender years
• Corroboration means confirmation, ratification, verification or
validation of existing evidence coming from another independent
witness (s);
• Corroborative evidence must connect or tend to connect accused
with the crime, confirming that the crime has been committed but
also that the accused committed it.
• If the evidence of a child is admitted on behalf of the prosecution
against an accused, the latter shall not be convicted on such evidence
unless it is corroborated by other material evidence-s124;
• Ideally, the evidence of a child of tender years in criminal proceedings
should always be corroborated; notwithstanding the voir dire
examination of the child.
• If the only evidence in a sexual offence is that of the victim, the court
can receive the evidence and proceed to convict the accused person
if, for reasons to be recorded in the proceedings, the court is satisfied
that the child is telling the truth-s124.
• However, if a child of tender years gives sworn testimony or is
affirmed, corroboration is unnecessary-see Sahali Omar v R [2017]
eKLR and Patrick Kathurima v R (supra)
 Children..
• Power to clear court where a child is called as a witness in any
proceedings in relation to an offence against or by a child, or any
conduct contrary to decency or morality-s75, Children Act No.8 of
2001.
• In any proceedings concerning a child, their name, identity, home or
last place of residence or school, particulars of the child’s parents or
relatives, any photograph or any depiction or caricature of the child,
must not be published or revealed, whether in any publication or
report (including any law report) or otherwise-s76(5), Children Act.
• Appointment of a guardian ad litem-appointed by a court especially
where that child is not legally represented to safeguard its interests
during the proceedings-s79.
 Accomplices
• An accomplice is a competent witness against an accused person-
s141;
• A conviction is not illegal because it proceeds upon the
uncorroborated evidence of an accomplice.
• Court must warn itself of the dangers inherent in relying on
accomplice’s evidence because:
a) He/she is likely to swear falsely in order to shift the guilt from himself;
b) a participator in the crime is an immoral person who is likely to disregard
the sanctity of an oath; and
c) he gives his evidence under promise of pardon or in expectation of an
implied promise of pardon and is therefore liable to favour the prosecution
(see Emperor v Maganlal [1949] 14 Bom 119; R v Patrick Ong’au Okioma
[2021] eKLR)
 Persons of unsound mind
• A person of unsound mind is competent to testify unless he is
prevented by his condition from understanding the questions put to
him and giving rational answers to them-s125(2);
• If a witness is unable to understand the nature of an oath because his
intellect is temporarily impaired by reason of drink or drugs, he may
be competent after an adjournment of suitable length.
 Intermediaries
• Dumb witnesses-s126;
• Can give evidence in any other manner in which he can make it intelligible-
writing or by signs;
• However, the writing must be written and signs made in open court;
• Dumb and deaf witnesses;
• Can give evidence through an intermediary;
• Intermediary must understand how the person communicates;
• Intermediary must be sworn;
• Court record must show process followed to receive evidence;
 Number of witnesses
• No particular number of witnesses required to proof any fact-s143;
• Except in the following cases:
• Treason-need for at least 2 witnesses to prove offence-s45, Cap.63;
• Perjury offences-no conviction on evidence of 1 witness for perjury or
subornation of perjury-s111, Cap.63;
• Offences relating to speed-no conviction on evidence of 1 witness-s43(3),
Traffic Act, Cap.403;
 Oath and affirmation
• All witnesses give their evidence on oath or on solemn
affirmation;
• The effect of an oath and affirmation is the same.
• Believers are usually sworn by swearing to the holy book and
indicate that they will tell the truth and nothing but the truth.
• If a believer objects to be sworn they are affirmed;
• With affirmation you just raise your right hand and indicate that you will tell the
truth.
• If an atheist swears by a holy book, it is seen as binding;
• If atheists object to be sworn, then they are affirmed.
• It is an offence of contempt of court to refuse to be sworn or affirmed-
s27(d), Contempt of Court Act No.46 of 2016.