Wakilii

Rex v Makamu (Criminal Case No. 64 of 1944)

East African Court of Appeal · [1944] EACA 8 · 1944 Application Granted AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Original criminal trial before the High Court
Decision
Court ruled on preliminary evidentiary matter and proceeded with trial

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

Held that under section 151 of the Kenya Criminal Procedure Code, the court is authorized to dispense with both oath and affirmation in the case of a witness who is a child of immature age. The decision in R v Bitashubirwe from Tanganyika, which held that a child could not be exempted from affirmation, does not apply to Kenya because the Kenyan statute differs materially from the Tanganyika provision. A Christian child cannot make an affirmation under the Indian Oaths Act 1873 unless objecting to an oath. The court properly admitted the child's evidence after warning her to speak the truth.

Outcome

Court ruled on preliminary evidentiary matter and proceeded with trial

Facts

The accused was charged in a criminal case. A preliminary issue arose concerning the admissibility of evidence from Jennifer Adams, a Christian child aged six years and nine months. The prosecution sought to call her as a witness. The court had to determine whether her evidence could be taken without oath or affirmation given her immature age. The child was a Christian. The court considered the applicability of a Court of Appeal for Eastern Africa decision from Tanganyika which held that while a child need not be sworn, the child was not exempt from giving evidence on affirmation. The court examined the differences between the Tanganyika and Kenya Criminal Procedure Codes and the provisions of the Indian Oaths Act 1873.

Issues

  1. Whether a Christian child of immature age can give evidence without oath or affirmation under section 151 of the Kenya Criminal Procedure Code.

Orders

  • Evidence of Jennifer Adams, a Christian child aged six years and nine months, admitted without oath or affirmation after warning to speak the truth.

Rules and key headnotes

Evidence — Child Witnesses — Oath and Affirmation — Immature Age
Under section 151 of the Kenya Criminal Procedure Code, the court is authorized to dispense with both oath and affirmation in the case of a witness who is a child of immature age, and may take the child's evidence after warning the child to speak the truth.
Evidence — Child Witnesses — Christian Child — Affirmation
A Christian child cannot make an affirmation under the Indian Oaths Act 1873 section 6 unless the child has an objection to making an oath, as that Act provides that in every case other than a Hindu, Mohamedan, or person with objection to oath, the witness shall make an oath.
Statutory Interpretation — Comparative Legislation — Tanganyika and Kenya
A decision of the Court of Appeal for Eastern Africa interpreting section 146 of the Tanganyika Criminal Procedure Code does not apply to Kenya where section 151 of the Kenya Criminal Procedure Code differs materially in its wording, particularly where the Tanganyika provision refers to oath or affirmation while the Kenya provision refers only to oath.

Legislation cited (3)

  • Criminal Procedure Code s.151
  • Indian Oaths Act 1873 s.6
  • Interpretation and General Clauses Ordinance

Cases cited (1)

  • R v Bitashubirwe bin Culwire (10 E.A.C.A.)

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Rex v Makamu (Criminal Case No. 64 of 1944) [1944] EACA 8 (1 January 1944)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.