LESSON FIVE—COMPETENCE & COMPELLABILITY OF

WITNESSES
• ©Muthomi Thiankolu

– Branton Court, Maisonette A6

– Ndemi Lane, Off Ngong Road
– P. O. Box 19893-00100 Nairobi Kenya
– Tel: +Tel: +254-20-2467-437
– Cell: +254-720-781-449
– Email: [email protected]
 LESSON 5—COMPETENCE & COMPELLABILITY OF
WITNESSES
• SCOPE OF THE LESSON:
1. Meaning of “Competence” and “Compellability”
2. General Rule as to Competence and
Compellability;
3. Historical Development of the law on competence
& compellability of witnesses;
4. Exceptions to the general rule as to Competence
and Compellability:
Accused persons;
Spouses;
Children;
Persons of unsound mind
Sovereigns and diplomats;
Bankers.
• A witness is said to be competent if he/she may be
called to give evidence, i.e. if, as a matter of law, they
are qualified/permitted to give evidence.
• A witness is said to be compellable if, being
competent, he may be compelled (by the court) to give
evidence.
• A witness must first be shown to be competent before
they can be compelled to give evidence.
• A competent and compellable witness may
nonetheless be entitled, on grounds of public policy or
privilege, to refuse to answer some or all of the
questions put to them.
 At common law, there were numerous rules which
operated to prevent a wide variety of persons from
giving relevant evidence.
 The are still some persisting qualifications on the
competence of certain categories of persons to give
evidence, which will form the main focus of this
lesson.
We highlight, in the ensuing few slides of this
presentation, the development of the rules as to
the competence and compellability of—
non-Christians and atheists;
Parties;
persons interested in the outcome of legal proceedings,
Convicts; and
spouses of parties to proceedings.
1. Non-Christians & Atheists:
At common law, the evidence of non-
Christians and atheists was excluded by
virtue of the requirement that witnesses
testify on oath on the Gospel.
The rule was modified in the 18th Centure for
Non-Christians. Atheists, on the other hand,
were allowed to testify for the first time vide
the Evidence Further Amendment Act 1869.
(See Adian Kean at p. 99).
In Kenya, the modern law on the issue (of oaths,
which rendered non-Christians and Atheists
incompetent) is set out in section 15 of the
Oaths and Statutory Declarations Act (Cap. 15)
which empowers a court to administer:
 an oath (to those witnesses who subscribe to
a religious belief and who have no objection
to taking an oath); or
a solemn affirmation to those witnesses who
are atheist or for religious or other reason
are opposed to taking an oath.
2. Convicts:
 At common law, persons who had previously been
convicted and sentenced for certain infamous
crimes were not allowed to testify.
 The incompetence of convicts was modified by the
Civil Rights Act 1828 and abolished by the Evidence
Act 1843.
3. Persons Interested in the Outcome of
Proceedings:
 At common law, persons who had personal
pecuniary or proprietary interest in the outcome of
legal proceedings were incompetent to testify in
such proceedings. The incompetence was
abolished by the Evidence Act 1828.
4. The Parties & their Spouses:
Parties to legal proceedings were incompetent
to testify at common law, in both civil and
criminal proceedings. In criminal cases, the
incompetence of the accused person to testify
was justified on the risk of his being compelled
to incriminate himself.
The spouse of a party to either civil or criminal
proceedings was also incompetent to testify at
common law, whether the evidence in question
related to events which occurred before or
during the marriage.
 The incompetence of spouses was justified on (inter
alia) the following assumptions:—
 the spouse of a party to legal proceedings had an
interest in the outcome of the proceedings;
 a spouse would tend to be biased in favour of the
other spouse;
 the harshness of compelling one spouse to give
evidence against the other;
 allowing spouses to testify would disturb marital
harmony; and
 the theoretical unity of the spouses (it being
assumed that they were one and the same person,
the husband).
 A spouse’s incompetence survived the termination
of the marriage in so far as the evidence in
question related to events which occurred during
the marriage.
 The disability of parties to testify in legal
proceedings was abolished by the Evidence Act
1851 and the Evidence Further Amendment Act
1869.
 The disability of spouses to testify in civil proceedings
was abolished by section 1 of the Evidence
Amendment Act 1853.
 The rule as to the incompetence of spouses to testify
in criminal proceedings was modified by the Criminal
Evidence Act 1898, which made distinctions between
the spouse of the accused person giving evidence for
the defence and for the prosecution.
 Section 1 of the Criminal Evidence Act 1898 (which
seems to be pari materia with section 127 of the
Kenyan Evidence Act) made the accused’s spouse
competent (but not compellable) as a witness for the
accused and for any person jointly charged with the
accused subject to the consent of the accused.
 Progressive developments over the years (mostly in the
form of statutory interventions) have wilted down most of
the common law exclusionary rules that tended to
disqualify many people from giving evidence.
 Today, broadly speaking, there are two general rules on
competence and compellability of witnesses:
 the first (which relates to competence) is that any
person is a competent witness in any proceedings (see
section 125 (1) of the Evidence Act).
 the second (which relates to compellability) is that all
competent witnesses are compellable.
 The ensuing parts of this presentation will explore the
modern law on the competence and compellability of
selected categories of persons.
 Section 125 (1) of the Evidence Act sets out the
following general rule as to the competence of
witnesses:
“all persons shall be competent to testify unless
the court considers that they are prevented from
understanding the questions put to them, or
from giving rational answers to those questions,
by tender years, extreme old age, disease
(whether of body or mind) or any similar cause.”
 Section 128 of the Evidence Act, on the other hand,
provides the following general rule as to the
compellability of witnesses:
 “A Witness shall not be excused from answering any
question as to any matter relevant to the matter in
issue in any suit or in any civil or criminal proceeding
upon the ground that the answer to such question will
incriminate, or may tend directly or indirectly to
incriminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a
penalty or forfeiture of any kind, but no such answer
which a witness is compelled to give shall subject him
to any arrest or prosecution, or be proved against him
in any criminal proceeding, except a prosecution for
giving false evidence by such answer”
In Kenya, the modern law on the competence
and compellability of parties and their spouses
is set out in section 127 of the Evidence Act.
For criminal cases, some additional and
important rules are also to be found in Article
50 of the Constitution of Kenya 2010.
Section 127 (1) of the Evidence Act states that:
“In civil proceedings the parties to the suit, and
the husband or wife of any party to the suit,
shall be competent witnesses.”
• Section 127 (2) of the Evidence Act states that :
– “In criminal proceedings every person
charged with an offence, and the wife or
husband of the person charged, shall be a
competent witness for the defence at every
stage of the proceedings, whether such
person is charged alone or jointly with any
other person.”
Under section 127 (3) of the Evidence Act, the accused
person’s spouse is a competent and compellable
witness for the prosecution, without the accused’s
consent, in cases where the accused is charged with—
bigamy;
offences under the Sexual Offences Act; or
an act or omission affecting the person or property
of the spouse or the children of either of them.
In all other cases, according to the second paragraph
to the proviso to section 127 (2), the accused person’s
spouse can only be called as a witness upon the
application of the accused person.
 In summary, today—
1. any party to civil proceedings may give evidence
himself and, if he wishes, compel any other party to
those proceedings to give evidence.
2. an accused person and his spouse are now
competent, but not compellable, witnesses for the
defense (see section 127 (2) of the Evidence Act).
3. an accused person’s spouse is generally not a
competent witness for the prosecution, save for cases
where the accused is charged with any of the offences
listed in section 127 (3) of the Evidence Act. For the
cases listed under section 127 (3), the accused’s
spouse is both a competent and compellable witness
for the prosecution.
 NB:
1. paragraph (iii) of the proviso to section 127 (2) of
the Evidence Act states that the failure of the accused
person or his/her spouse to testify shall not be made
the subject of any comment by the prosecution
2. under Article 50 (2) (i) of the new Constitution, an
accused person has the right to remain silent and
not to give evidence at the trial.
3. Where a party or his spouse elects or is compelled to
give evidence, they are liable to be cross-examined
by the adversary just like any other ordinary
witness.
4. At common law, and contemporary English law, the
word “spouse” for purposes of any rules as to
competence and compellability of witnesses is
normally understood to refer to a wife or husband of
a monogamous and de jure (as opposed to de facto)
marriage (See R v Khan (1986) 84 Cr App Rep 44,
CA). The rules in section 127 of the Kenyan
Evidence Act as to the competence and
compellability of spouses, however, apply to spouses
of both monogamous and polygamous marriages, as
well as spouses to a party married under native or
tribal custom (for a controversial pre-independence
decision on this on this, see R v Amkeyo).
At common law, an accomplice (that is a person who
participates criminally in the commission of the crime
charged) was a competent witness for the prosecution,
subject to the requirement that their evidence be
corroborated.
The common law requirement for corroboration n of
accomplice evidence was based on the assumption that
the accomplice would almost inevitably tailor the
evidence to exonerate himself.
In Kenya, the modern law on the competence of
accomplices is set out at section 141 of the Evidence Act.
Section 141 of the Evidence Act provides that an
accomplice shall be a competent against an accused
person, and a conviction shall not be illegal merely
because it proceeds upon the uncorroborated evidence
of an accomplice.
NB: Although section 141 allows a court to convict on
the uncorroborated evidence of an accomplice,
appellate courts will normally overturn a conviction
solely or substantially based on such evidence.
In Mwangi v Republic [2008] 1 KLR 1134, the
appellants were jointly charged with the offences of
robbery with violence and rape contrary to sections
296 (1) and 140 of the Penal Code respectively.
A woman who had been arrested and charged with
robbery in connection with the occurrences of the
material night testified that the second appellant
had told her that he had a plan and asked her to find
out if the complainant’s husband was present.
The trial magistrate took into account the
woman’s evidence as that of a reliable witness.
Held (on second appeal):
1. The trial court should have treated the woman’s
evidence as that of an accomplice, and it had been a
serious misdirection to treat her evidence as that of a
reliable witness;
2. The woman’s evidence should have been held to be
untrustworthy for the reason that she was likely to
swear falsely in order to shift blame from herself and
being a participant of the crime, she could easily
disregard the sanctity of the oath to tell the truth.
At common law, the competence of children to
give sworn evidence depended on “the sense and
reason they entertain of the danger and impiety
[i.e. sinfulness or wickedness] of falsehood” (see
Adrian Kean 4th Edition at p. 110).
The requirement that at section 19 of the Oaths
and Statutory Declarations Act that children of
tender years be shown to understand “the nature
of an oath” before they can give sworn evidence
(see ensuing slides), therefore, is arguably
informed by the religious importance attached to
an oath in the common law days.
In England, the courts have recognized that
contemporary societies may not attach much divinity to
the oath. In R v Hayes [1971] WLR 234, for instance, it
was held that the important consideration is not whether
the child understood the nature of an oath but rather—
“whether the child has sufficient appreciation of the solemnity of
the occasion and the added responsibility to tell the truth, which is
involved in taking an oath, over and above the duty to tell the truth
which is an ordinary duty of normal social conduct.”
In England, the requirement that a child witness should
be shown to understand the duty to speak the truth is
also now understood to mean the duty to tell the truth as
a matter of normal social conduct rather than the duty to
tell the truth as a matter of piety (see Adrian Kean, 4th
Edition at p. 111).
The modern law on the competence and
compellability of children is set out in
sections 124 and 125 (1) of the Evidence Act
as read with section 19 of the Oaths and
Statutory Declarations Act.
In summary, the effect of the above sections
is that:-
1. A child of tender years who is incapable of
understanding the questions put to them or
giving rational answers thereto is not a
competent witness (s. 125);
2. Where any child of tender years called as a
witness does not in the opinion of the court
understand the nature of an oath, his evidence
may be received if, in the opinion of the court,
the child is possessed of sufficient intelligence to
justify the reception of the evidence, and
understands the duty of speaking the truth (s. 19
of Cap. 15).
3. Where the unsworn evidence of a child of tender
years is admitted (under s. 19 of Cap. 15), the
accused shall nonetheless not be convicted on
such evidence unless it is corroborated by other
material evidence in support thereof implicating
him (s. 124);
4. Where in a criminal case involving a sexual
offence the only evidence is that of the alleged
child victim of the offence, the court shall 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
alleged child victim is telling the truth (proviso
to s. 124);
 In Oloo v Republic [2009] KLR 416, trial magistrate
had convicted the appellant on a charge of robbery
with violence contrary to section 296 (2) of the penal
code.
 The trial magistrate had relied, in arriving at the
convicted, on the evidence of three child witnesses
aged between 13 and 17 years.
 The Appellant appealed to the High Court. The state
counsel appearing for the prosecution conceded the
appeal in the High Court, stating in part that the
evidence against the appellant was inadequate and
suspect.
 The High Court nonetheless disagreed with the
appellant and the state counsel and dismissed the
appeal, prompting the appellant to file a second and
final appeal to the Court of Appeal.
 The second appeal was based partly on the
contention that both the trial magistrate and
the High Court had erred in convicting him on
the uncorroborated evidence of a child.
 Held (by the Court of Appeal):
1. The Children Act at section 2 defined a child
of tender years as a child under the age of ten;
2. Section 19 of the Oaths and Statutory
Declarations Act provided that the evidence
of a child of tender years called as a witness,
who in the opinion of the Court did not
understand the nature of an oath, could be
received if in the opinion of the Court such a
child was possessed of sufficient intelligence
to justify the reception of the evidence and
understands the duty of telling the truth.
3. The trial court should have, out of caution, formed
an opinion on a voire dire examination whether the
child understood the nature of an oath before she
could be sworn. Failure to do so could have
occasioned a miscarriage of justice had that been the
only witness on the issues that were before the
Court.
4. Where a witness who did not understand the nature
of the oath was made to swear, her evidence would
have higher probative value than if the same
evidence was given unsworn.
5. Corroboration of the evidence of a child of tender
years was only necessary where such a child gave
unsworn evidence (Johnson Muiruri v Republic
[1984] KLR 445).
6. In law, the evidence of a child of tenders years
given on oath after a voire dire examination
required no corroboration but the court had to
warn itself that it should in practice not base a
conviction on it without looking and finding
corroboration for it.
7. The evidence of a child of tender years not given
on oath had, in law, to be corroborated.
8. Even if the evidence of one of the children was
inadmissible, there was still evidence from the
other witnesses. Accordingly, the appeal would
be dismissed.
The combined effect of the case law, section 119 of the
Oaths and Statutory Declarations Act and sections 124
and 125 of the Evidence Act, therefore, is that:
1. an ordinary child (i.e. a child other than one of
tender years and who in the opinion of the court is
possessed of sufficient knowledge to understand
the nature of an oath) is a competent witness, to
be sworn like any other ordinary witness. No
corroboration is required in respect of the
evidence given by such a child;
2. a child of tender years who is not possessed of sufficient
knowledge to understand the nature of an oath is a competent
witness if in the opinion of the court he is possessed of
sufficient intelligence to justify the reception of his evidence,
and understands the duty of speaking the truth. Such a child
is to give unsworn evidence, but their evidence requires
corroboration if a conviction is to be entirely founded on it;
3. a child of tender years who (i) is not possessed of sufficient
knowledge to understand the nature of an oath; (ii) is not
possessed of sufficient intelligence to justify the reception of
his evidence; and (iii) does not understand the duty of
speaking the truth is not competent as a witness;
4. Except in the case of sexual offences, an accused person
cannot be convicted solely on the unsworn evidence of a child
witness. As regards sexual offences, an accused person can be
convicted on the uncorroborated evidence of a child victim “if,
for reasons to be recorded in the proceedings, the court is
satisfied that the alleged victim is telling the truth.”
In practice, courts determine, at the earliest possible
moment, whether a child is possessed of sufficient
knowledge to understand the nature of an oath or to
justify the reception of their evidence by asking the child
preliminary questions (e.g. “How old are you?” “Do you go
to church?” “Do you go to school?” “What class/grade are
you in?” etc.).
Normally, a trial judge/magistrate will record that he has
examined the child and formed the view that the child is
possessed of sufficient knowledge to justify the reception
of their evidence, understands the nature of an oath or
the duty to speak the truth and is telling the truth.
Where this is not done, an appellate court will most
likely overturn the decision reached by the trial
judge/magistrate if the decision is solely or largely based
on the child’s evidence.
NB: although the modern law of evidence
requires that certain types of evidence be
corroborated, the general rule is that there is no
requirement for corroboration of evidence.
The general rule that corroboration of evidence
is not necessary is implicit in section 143 of the
Evidence Act, which provides:
“No particular number of witnesses shall, in the
absence of any provision of law to the contrary,
be required for the proof of any fact”
At common law, the proper test of the
competence of a mentally handicapped
person is whether that person has a sufficient
appreciation of the seriousness of the
occasion and a realisation that taking the
oath involves something more than the duty
to tell the truth in ordinary day to day life
(see Adrian Kean, 4th Edition at p. 114).
Lunacy or mental handicap/illness will not,
therefore, necessarily make a person
incompetent as a witness.
An interesting question might arise with regard
to the competence of a witness persons who is
not medically ill or permanently insane but
whose mental capacity is temporarily impaired
by drink or drugs.
According to Adrian Kean (4th Edition, p. 114), a
witness whose intellect is temporarily impaired
by reason of drink or drugs (and thereby
rendered unable to understand the nature of the
oath) may become competent after an
adjournment of suitable length (to permit the
effect of the drink or drugs to wear off).
In Kenya, the rule on the competence of
lunatics as witnesses (which appears to be
based on the common law) is to be found at
section 125 (2) of the Kenyan Evidence Act,
which provides that:-
“A mentally disordered person or a lunatic
is not incompetent to testify unless he is
prevented by his condition from
understanding the questions put to him and
giving rational answers to them”
In R v Hill (1851) 2 Den 254 (discussed at p. 114
of Adrian Kean, 4th Edition), a lunatic, labouring
under a delusion that he had a number of spirits
about him which were continually talking to him,
but with a clear understanding of the obligation
of the oath, was held competent to give evidence
for the prosecution on a charge for
manslaughter.
 The case of R v Hill (1851) 2 Den 254 (discussed at p. 114
of Adrian Kean, 4th Edition) established the following
three principles with regard to the competence of
persons of unsound mind to give evidence:
1. if in the opinion of the judge a proposed witness, by
reason of defective intellect, does not understand the
nature and sanction of an oath, he is incompetent to
testify;
2. a person of defective intellect who understands the
nature of an oath may give evidence and it will be left
to the jury to attach such weight to his testimony as
they see fit; and
3. if the evidence of a person of defective intellect is so
tainted with insanity as to be unworthy of credit, the
jury may properly disregard it.
Generally, heads of foreign sovereign states
and diplomatic officials enjoy immunity from
criminal, civil and administrative jurisdiction
of receiving states. The immunity, however,
can be waived by the sending state.
As a general rule, heads of foreign sovereign
states and diplomatic officials are competent,
but not compellable, to give evidence.
In Kenya, the rules as to the competence and
compellability of diplomatic officials is to be
found in Articles 31 and 32 of the Vienna
Convention on Diplomatic Relations (c.f. section
4 and the First Schedule to the Privileges and
Immunities Act, Cap. 179).
The rules as to the competence and
compellability of of consular officials, on the
other hand, are to be found in Articles 41-44 of
the Vienna Convention of Consular Relations (c.f.
section 5 (1) and the 2nd Schedule to Cap. 179).
Article 31 (1) and (2) of the Vienna Convention on Diplomatic
Relations provides for diplomatic immunity as follows:
“1. A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving state. He shall also
enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
(a) a real action relating to private immovable property
situated in the territory of the receiving State, unless he
holds it on behalf of the sending State for the purposes of the
mission;
(b) an action relating to succession in which the diplomatic
agent is involved as executor , heir or legatee as a private
person and not on behalf of the sending State;
(c) an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a
witness.”
Article 32 of the Vienna Convention on Diplomatic
Relations provides for waiver of diplomatic immunity in
the following terms:
“1. The immunity from jurisdiction of diplomatic agents and of
persons enjoying immunity under Article 37 may be waived by the
sending State.
2. The waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a
person enjoying immunity from jurisdiction under Article 37 shall
preclude him from invoking immunity from jurisdiction in respect
of any counter-claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary.”
Article 43 of the Vienna Convention on Consular Relations, on
the other hand, provides for immunity of consular officers and
employees:
“1. Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative
authorities of the receiving state in respect of acts
performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not,
however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular
officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the sending
State; or
(b) by a third party for damage arising from an accident
in the receiving State caused by a vehicle, vessel or
aircraft.”
Article 44 of the Vienna Convention on Consular
Relations (titled “liability to give evidence”) provides as
follows:
“1. Members of a consular post may be called upon to attend as
witnesses in the course of judicial or administrative proceedings.
A consular employee or a member of the service staff shall not,
except in the cases mentioned in paragraph 3 of this Article,
decline to give evidence. If a consular officer should decline to do
so, no coercive measure or penalty may be applied to him.
2. The authority requiring the evidence of a consular officer shall
avoid interference with the performance of his functions. It may,
when possible, take such evidence at his residence or at the
consular post or accept a statement from him in writing.
3. Members of a consular post are under no obligations to give
evidence concerning matters connected with the exercise of their
functions or to produce official correspondence and documents
relating thereto. They are entitled to decline to give evidence as
expert witnesses with regard to the law of the sending State.”
The general rule in both civil and criminal cases
is that the evidence of any witness should be
sworn, the only major exception being the
evidence of children-which may be received
unsworn (see section 17 of the Oaths and
Statutory Declarations Act).
A witness is sworn by taking either an oath or an
affirmation.
An affirmation is normally made by a witness
who objects to be sworn, either because they do
not have a religious belief or because their
religious belief forbids them from taking an oath
(see section 15 of the Oaths and Statutory
Declarations Act).
The format of an affirmation is prescribed at
section 16 of the Oaths and Statutory
Declarations Act in the following terms:
“I, A.B., do solemnly, sincerely and truly
declare and affirm that….,”
An affirmation is, for all intents and
purposes, of the same effect as an oath (see
section 15 of the Oaths and Statutory
Declarations Act).
1. At common law, a witness called only to produce a document
may give unsworn evidence provided that the identity of the
document is either not disputed or can be established by other
witnesses. Also, counsel acting for one of two parties who
have reached a compromise may give unsworn evidence of its
terms;
2. Save for the limited exceptions where witnesses are allowed to
give unsworn evidence, a conviction or judgment founded on
unsworn evidence may be set aside as a nullity (see Adrian
Kean, 4th Edition at p. 115).
3. A witness who having taken an oath or affirmation willfully
makes a statement material to the proceedings in question
which he knows to be false or does not believe to be true
commits the offence of perjury. Under section 108 of the Penal
Code, however, one may still be charged with the offence even
where the false evidence is not given on oath.
4. Witnesses usually take the oath upon such holy
book as is appropriate to their religious belief.
5. Although the requirement of the oath at common
law was based on religious assumptions as to its
effect on a witness’ conscience, the validity of the
modern oath is not affected by absence of
religious belief. Put differently, once a witness
accepts to take the oath, and proceeds to take it,
it remains valid notwithstanding that the
witness who took it had no religious belief (see
section 21 of the Oaths and Statutory
Declarations Act).
6. In England, it has been held that the validity of an
oath does not depend on the intricacies of the
particular religion which is adhered to by the
witness but on whether the oath is one which
appears to the court to be binding on the conscience
of the witness and, if so, whether it is an oath which
the witness himself considers to be binding on his
conscience. Accordingly, in R v Kemble [1990] 3 All
ER 116 CA, where a Muslim had taken an oath using
the New Testament, the oath was held valid
notwithstanding that under the strict tenets of Islam
no oath taken by a Muslim is valid unless taken on a
copy of the holy Koran in Arabic.