KABARAK UNIVERSITY LECTURE NOTES

COURSE: EVIDENCE II

COMPETENCE AND COMPELLABILITY

INTRODUCTION

The purpose of litigation is to apply available evidence to establish the truth. As a

consequence, it is always desirable that all relevant evidence on a matter be placed
before the tribunal to foster a just outcome of the case. Hence, in law, it is presumed
that all witnesses are not just competent but as well compellable to testify.

But it is not always that this happens. Sometimes, individuals who hold information
may decline to provide it for reasons such as public policy which outweigh the overall
goal of the search for truth in judicial proceedings. The law may shield them from
being compelled to testify.

The questions to be asked are when can this be allowed? And why should it be
allowed? These are the considerations under this topic.

At the close of the discussion we should be able to define and discuss:-

a) Compellability of witnesses.

b) Public Policy and Privilege.

c) The various forms of privilege.

COMPETENCE AND COMPELLABILITY OF WITNESSES

Competence of a witness to testify is undergirded by the question of whether an

individual can be heard to give evidence at all. A witness is competent to testify if a
court or other tribunal can lawfully receive his/her evidence.

Compellability on the other hand relates to whether one has a legal duty to testify
which can be enforced by a court or other tribunal. A witness is said to be compellable
if the court or other tribunal can lawfully force him/her to take to the witness box
against his/her will. Such witness runs the risk of being punished for contempt of
court if he/she declines to comply with a summons to testify.

Under section 125 (1) of the Evidence Act, all persons shall be competent to testify
unless they are prevented from understanding the questions put to them or from
giving rational answers to those question by reason of tender age, extreme old age,
disease or similar cause. Under section 128 of the Act, a witness cannot be excused

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from answering questions on any relevant matter in court merely because to do so will
incriminate him/her. However, the answers given by such witnesses cannot be used
as a basis of mounting prosecutions or investigations against them.

The import of this provision is that all such witnesses are competent and compellable
to testify in court. The general law is that every individual is a competent and
compellable witness. Therefore, all witnesses whether expert or otherwise are both
competent and compellable. This rule was stated in the case of Ex P Fernandez
[1861] 10 CBNS 3, 39 where the court said everyone, except the sovereign may be
called upon and is bound to give evidence to the best of his knowledge upon any
question of fact material and relevant to an issue tried in any of the Queen’s courts,
unless he can show some exception in his favour.

However, the law may allow other witnesses not to testify because of the concept of
privilege. Competence of a witness to testify is pegged on the ability of the witness to
appreciate the duty to tell the truth in court. Hence, the concept of swearing
witnesses. It follows that witnesses who are not able to appreciate the duty to tell the
truth are considered as generally incompetent. These are individuals of tender age or
of unsound mind.

a) Accomplice Evidence

The term accomplice refers to an individual who has been charged, tried and convicted
of or admitted committing the same offence that an accused person on trial is charged
with. Under section 141 of the Evidence Act, accomplices to a crime are competent
and compellable witnesses. And their evidence can, in law, sustain a conviction
notwithstanding that it was not corroborated. However, as a matter of practice, courts
usually require that accomplice evidence be corroborated. For this see Dominic
Gichovi Alias Councilor v Republic [2014] eKLR.

The general position is that for an accomplice to testify, it is desirable that the case
against him should have been dropped or he should have pleaded guilty and convicted
or he should have been tried separately and convicted. Where he has been convicted,
the court should first pass a sentence against him before he is put in the witness box.
According to the court in R v Payne [1950] 1 All E. R 102, this is necessary to
prevent the witness from coloring his evidence as he has nothing to hope for.

Theoretically, an accused person can testify on behalf of his co-accused. This is

because when an accused is giving defense evidence and he says something that will
benefit his co-accused, it is taken in favour of the co-accused.

However, in practice, it is hardly likely to find an accused testifying for a co-accused.

This is because as a witness on oath, he exposes himself to the rigors of cross-
examination which he would rather avoid.

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 b) Evidence of a Spouse

A spouse is a competent witness against an accused person in a criminal trial.

However, he/she is not compellable except in certain cases. These include cases
involving an offense against the person, property or children of the spouse compelled
to testify. Thus, if a husband assaults his wife or children, the wife can testify against
him. In Range v R [2003] KLR 692, the court said while a spouse was a competent
witness, she/he should only testify upon the request of the accused. The rule in the
Range case is of course subject to the exceptions relating to offences against the
spouse, her property and the children of the marriage. A spouse is also compellable in
a bigamy case and in relation to offenses under the Sexual Offenses Act.

With regard to giving evidence for the spouse, one is a competent witness. Thus a wife
can testify in favor of a husband facing a criminal charge and vice versa. It should be
noted that where a spouse is a co-accused, her/his evidence as an accomplice must
be handled in the same way the evidence of other accomplices is handled.

In civil cases section 127 (1) of the Evidence Act declares husband or wife as a
competent witness. Spouses in civil cases are able to freely give evidence for or against
each other. Although the section declares spouses as competent, it does not say
whether they are compellable. S G A Ouma suggests that it should be construed that
spouses are competent but not compellable witnesses in civil matters.

Where the marriage has been dissolved by divorce, individuals formerly bound by it
become competent and compellable witnesses as if they had never been married
before.

c) Young Persons

A person is not competent to testify if it appears to the court that he cannot

understand questions put to him as a witness and cannot give answers to the
questions that can be understood. This inability to understand or answer questions
may be due to infancy.

The Evidence Act does not define who a child of tender years is for purposes of
procuring evidence. However, the general practice has been that any child of the age of
14 years and below is considered as of tender age. This supposition was raised in the
case of Sserembe and another v Uganda [2009] 2 EA 394. This question is left to the
court to determine upon assessment of every case. The Children Act (section 2) defines
a child of tender years for purposes of the Act as one below 10 years.

Although children are considered to have no motivation to lie, their evidence could
easily be manipulated by grownups. Besides, owing to their unsophisticated minds,
children could easily misunderstand questions put to them in evidence. Thus, courts
must as a general rule take their evidence with caution. In Samuel Warui Karimi v
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Republic [2016] eKLR, the court said before a child can testify, the court must
determine whether she has the capacity to appreciate the questions. If she cannot, she
is considered incompetent.

Under section 124 of the Evidence Act, evidence of children of tender years requires
corroboration. The court as a general rule, should not base its finding on the
uncorroborated evidence of very young children. However, if a child is of a reasonably
grown age of 14 years and above, the court may convict on the basis of the
uncorroborated evidence of a child so long as it has warned itself of the danger of
doing so. This was the position expressed in Njoki v R [1988] KLR 342.

It should be pointed out however that the proviso to section 124 above removes the
need for corroboration of the evidence of a child for offenses under the Sexual Offenses
Act. Thus, evidence of a child would sustain a conviction for a sexual offense even
though it is not corroborated.

Because children of tender years are not considered competent, the court must
investigate a child’s capacity to testify before his/her evidence is taken. Usually, the
court would do this by asking the child general questions to test whether the child
appreciates the concept of giving evidence on oath. The court will ask the child
whether he/she appreciates the duty to tell the truth and whether she/he appreciates
it is wrong to lie under oath. The child may be asked question about his/her belief in
God.

It should be remembered that the questions asked at this stage are not to test the
child’s general knowledge. Rather, they are to test whether the child appreciates the
duty to be honest while on oath.

If after testing the child’s capacity to appreciate the nature of an oath it is clear that
the child appreciates it, the court will swear the child and take his/her evidence on
oath. If it turns out that the child does not appreciate the oath but is sufficiently
intelligent and appreciates the need to tell the truth, the court will take his/her
evidence as unsworn testimony. If the child does not appreciate the duty to tell the
truth and does not appreciate the oath, the court will declare him/her incompetent.

The rule of the thumb therefore is that children whatever their age are competent
witnesses so long as they appreciate the duty to tell the truth and or appreciate the
oath.

d) Mentally unstable Persons

As a general guide, persons of unsound mind are considered not competent to testify.
In law, there is always a presumption of sanity. If it is alleged a person is of unsound
mind, this must be proved to the court’s satisfaction.

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In civil cases, a person of infirm mind may testify depending on the severity of the
infirmity. The test as to the person’s ability to testify will be guided by his/her ability
to appreciate the sanctity of an oath and whether he/she can give intelligible and
coherent responses to questions raised. This test is laid out in R v Hill [1851] 82 Cr
App R 222, where the court found that the witness could testify because even though
he suffered from delusions of conversing with spirits, he was able to comprehend what
happened in his presence and appreciated the need to be truthful. It should be noted
that in civil proceedings, there is no provision for taking unsworn evidence. Therefore
a witness of infirm mind can only testify if he is able to be sworn. This means he must
be able to appreciate the nature of an oath.

In criminal cases, such witness may be sworn if he appreciates the nature of oath. If
he does not but is sufficiently intelligent, he may give unsworn testimony.

Some witnesses may suffer temporary incapacity to testify. In this case they suffer
temporary incompetence. For example, a person who is too drunk may not be able to
comprehend the duty to give evidence and may be incoherent. In this case the court
has the power to adjourn the case until the witness regains his/her capacity.

Persons who are deaf and dumb are not incompetent to testify. Section 126 (1) of the
Evidence Act recognizes them as competent so long as they can be assisted to
appreciate the proceedings. This is usually through aids such as writing the evidence
down. He must do this in open court. Such evidence shall be taken as oral evidence.

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