May V Republic  EKLR
|Criminal Appeal 24 of 1979||17 Dec 1979|
Eric John Ewen Law, Cecil Henry Ethelwood Miller, Kenneth D Potter
Court of Appeal at Nairobi
May v Republic
May v Republic  eKLR
May v Republic
Court of Appeal, at Nairobi December 17, 1979
Law, Miller & Potter JJA
Criminal Appeal No 24 of 1979
Evidence - election by accused to make an unsworn statement - adverse inference for doing so - evidential value of unsworn statements - duty of prosecution in calling witnesses of defence - witness who do not show confirmation of alibi.
Criminal Law - neglect and abandonment contrary to the Prevention of Cruelty to Animals Act (Cap 360) - ingredients of the offence of neglect - is owner or is the person whom she left in charge of the animals guilty.
This was a second appeal against a conviction for offences under Prevention of Cruelty to Animals Act (Cap 360). The facts were undisputed.
The appellant travelled overseas and during her absence her animals were grossly neglected, hence the charges. The appellant’s defence was that she had left the animals in the care of another and her employees. This she said in an unsworn statement. The two lower courts found her guilty. She has appealed to the Court of Appeal on the ground that the judge erred in considering her evidence as hearsay and in not giving weight to her unsworn statement.
1. An unsworn statement is not, strictly speaking, evidence and the rules of evidence cannot be applied to an unsworn statement. It has no probative value, but it should be considered in relation to the whole of the evidence. Its potential value is persuasive rather than evidential. For it to have any value it must be supported by the evidence recorded in the case.
2. No adverse inference can be drawn against the appellant for electing to make an unsworn statement, as she was exercising her right conferred upon her by Section 211(1) of the Criminal Procedure Code - (and no adverse influence was drawn by either court below).
3. It is not the duty of the prosecution to investigate possible defences, except in the case of a disclosed alibi. There is no merit in the submission that the Mr Holmes should have been called by the prosecution.
4. The prosecution fully discharged the onus of proving that, the undisputed suffering of the appellants animals arose without sufficient cause or without reasonable cause or excuse on the part of the appellant, which cause or excuse would be necessary to exonerate her from her primary responsibility as the owner. Even if the appellant was let down by her employees and friends whom she left in charge of the animals, there is no sufficient or reasonable cause or excuse for the commission of the offences from the evidence on record and therefore the appellant was rightly convicted.
1. Wiston s/o Mbaza v Republic  EA 274
2. Hale (48 Cr App R 284)
3. John Joseph Coughlan’s case (64 Cr App R 11)
1. Prevention of Cruelty to Animals Act (Cap 360) Sections 3(1) & 26
2. Criminal Procedure Code (Cap 75) Section 211(1)
3. Criminal Evidence Act of England 1898 Section 1(h)
Mr Mervyn Morgan for Appellant