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Court of AppealDismissedSecond Appeal from Resident Magistrate's Court at Nairobi (Criminal Appeal to Court of Appeal)

Amber May v Republic [1979] KECA 6 (KLR)

Court of Appeal of Kenya
17 December 1979
1,896 words in judgment
View original judgmentRead on Kenya Law Watch case
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·~8 min to read original · ~4 min brief

The bottom line

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Kenya's Court of Appeal confirmed that an accused's unsworn statement is not evidence and animal owners cannot escape cruelty liability by simply delegating care.

What this practically means

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Executive summary

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The appellant, proprietor of Amber May Safaris, was convicted in the Resident Magistrate's Court at Nairobi on four counts of cruelty to animals under the Prevention of Cruelty to Animals Act, arising from the neglect of some fifty horses, twelve mules, six zebroids and four dogs at her Nanyuki establishment while she holidayed in Europe in 1978. The facts were undisputed: the animals were starved, wounded, and vermin-ridden; some had to be destroyed. Her first appeal to the High Court (Todd J) failed, and she brought this second appeal, contending that her unsworn trial statement showed she had entrusted the animals to her brother-in-law Mr Holmes, that an unsworn statement is evidence, that Todd J erred in excluding part of it as hearsay, that the prosecution should have called Holmes, and that sufficient cause or reasonable excuse was established. The Court of Appeal, dismissing the appeal, adopted persuasive English authority to hold that an unsworn statement is not evidence in the generally understood sense, has no probative value, and is persuasive only; accordingly the rules of evidence do not strictly apply to it and the hearsay question need not be decided. It held that the prosecution has no duty to investigate possible defences except in a disclosed alibi, and that the prosecution had discharged the onus of proving the sufferings arose without sufficient cause or reasonable excuse, the appellant's delegation to employees and a neighbour being neither sufficient nor reasonable. The convictions on all counts were affirmed and the appeal dismissed.

Questions the Court framed

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The issues the Court set itself to decide, in its own words.

  1. 1.Whether an unsworn statement made by an accused person is evidence with probative value
  2. 2.Whether Todd J erred in treating part of the unsworn statement as hearsay and excluding it
  3. 3.Whether the prosecution was under a duty to call Mr Holmes as a witness
  4. 4.Whether the evidence rebutted the allegations that the offences were committed without sufficient cause or reasonable cause or excuse

Key legal issues

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01

Whether an unsworn statement is evidence

Holding

An unsworn statement is not evidence in the generally understood sense; it has no probative value and is persuasive only, to be considered in relation to the whole of the evidence.

Reasoning

Relying on persuasive English authorities (R v Frost, R v Hale; R v Coughlan), the court held that an accused making an unsworn statement is not a witness, cannot be cross-examined, and the statement cannot prove facts not otherwise proved. It may, however, influence the tribunal of fact in weighing the proved facts. This aligned with the High Court's approach and disposed of Mr Morgan's foundational submission.

p. 3
02

Whether the hearsay ruling of Todd J was erroneous

Holding

It was unnecessary to decide whether the words were hearsay, since the rules of evidence do not strictly apply to an unsworn statement which lacks probative value.

Reasoning

The appellant's contention that Mr Holmes had agreed to look after the animals was raised at the last moment in a statement that could not be tested by cross-examination and had no probative value. Even considered in the appellant's favour, it was unsupported by the evidence and of little weight in raising a doubt.

p. 3
03

Whether the prosecution was obliged to call Mr Holmes

Holding

The prosecution has no duty to investigate possible defences except in a disclosed alibi; Holmes was no part of the prosecution case.

Reasoning

Whether Holmes had agreed to look after the animals was a matter for the defence, not the prosecution. The submission that the prosecution should have called him was rejected as surprising and meritless, since the defence itself had never sought to have him called nor cross-examined witnesses who had spoken to him.

p. 3
04

Whether the offences were committed without sufficient cause or reasonable cause or excuse

Holding

The prosecution discharged the onus of proving there was no sufficient cause or reasonable excuse; the appellant's delegation to employees and a neighbour was neither sufficient nor reasonable.

Reasoning

The facts were undisputed: the animals starved, were wounded, vermin-ridden, and had to be destroyed. The employees were untrustworthy and irresponsible; as to Holmes, the only admissible evidence was that he was asked to keep an eye on things. The owner's primary responsibility required more to exonerate her. Both courts below so found and the Court entirely agreed.

p. 3

Legal principles established

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  • An unsworn statement by an accused is not evidence with probative value; it is persuasive only and cannot prove facts not otherwise proved by sworn evidence.
  • No adverse inference may be drawn from an accused's election to make an unsworn statement, it being a statutory right.
  • The rules of evidence do not strictly apply to an unsworn statement.
  • It is not the prosecution's duty to investigate possible defences, except in the case of a disclosed alibi.
  • An owner bears primary responsibility for the welfare of her animals and must show sufficient cause or reasonable excuse to be exonerated.

Court orders

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  1. 1.Appeal dismissed

The bench

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One judgment of the whole court — no separate or dissenting opinions.

majority
majority
majority
On appeal from
High Court of Kenya
null (not stated)
Jurisdiction invoked
Second appeal to the Court of Appeal (not expressly stated; appeal on law from first appeal to High Court)

Relief refused

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Conviction quashed / acquittal on all four counts

Both courts below correctly found the appellant's steps were insufficient and no reasonable cause or excuse emerged from the evidence

p. 3

Submission that an unsworn statement is evidence

The court held an unsworn statement is not evidence in the generally understood sense

p. 3

Claim that prosecution was obliged to call Mr Holmes

Investigating possible defences is not the prosecution's duty except in disclosed alibi cases

p. 3

Costs

No costs order stated in the judgment.

Quotable passages

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Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.

Appeal dismissed.
p. 3Final orders/disposition
Dated and delivered at Nairobi this 17th day of December 1979.
p. 3Final orders – delivery and date
an unsworn statement is not evidence as that expression is generally understood. It has no probative value, but should be taken into consideration in relation to the whole of the evidence.
p. 3Weight of unsworn statement
It is not the prosecution’s duty to investigate possible defences, except in the case of a disclosed alibi.
p. 3Duty of prosecution
No adverse inference can be drawn against the appellant for electing to make an unsworn statement.
p. 2Right to make unsworn statement

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Amber May v Republic [1979] KECA 6 (KLR)", Case Analysis (1979). Second Appeal from Resident Magistrate's Court at Nairobi (Criminal Appeal to Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/6/eng@1979-12-17

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.