The accused was convicted of burglary and stealing. The only evidence connecting the accused with the crime was that of a child of 10 years. The child testified that she recognised the accused at the time of the offence but there was no evidence that she had identified him until the following day, possibly after she had heard he was suspected.
Held: (1) In the absence of special circumstances a child under the age, or apparent age, of 14 years is a child of tender years. [Citing Kibangeny Arap Kolil v. R., (1959) E.A. 92]. The testimony of a child need not, as a matter of law, be corroborated, but the magistrate should warn himself of the risk of acting upon the uncorroborated evidence of such a child. [Citing; Oloo s/o Gai v. R., (1960) E.A. 86].
2. Where there is a question of the identity of the accused, evidence of there having been a description given and the terms of that description are of great importance. [Citing: Mohamed bin Allui v. R., (1942) 9 E.A.C.A. 72]. This evidence should be given first by the person who gave the description and purported to identify the accused, but also by the person to whom the description was given. The latter evidence is admissible under s. 166, Evidence Act. Conviction quashed.
2. Where there is a question of the identity of the accused, evidence of there having been a description given and the terms of that description are of great importance. [Citing: Mohamed bin Allui v. R., (1942) 9 E.A.C.A. 72]. This evidence should be given first by the person who gave the description and purported to identify the accused, but also by the person to whom the description was given. The latter evidence is admissible under s. 166, Evidence Act. Conviction quashed.
