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Court of AppealDismissedSecond Appeal from Nairobi RM's Criminal Appeal, High Court Criminal Appeal (Todd J)

May v Republic [1979] KECA 24 (KLR)

Court of Appeal of Kenya
17 December 1979
1,893 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 unsworn statement from the dock is not evidence, and animal owners remain responsible for neglected animals even when others care for them.

What this practically means

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Executive summary

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This is a second appeal to the Court of Appeal by the proprietor of Amber May Safaris, convicted in a Nairobi Resident Magistrate's Court on four counts under the Prevention of Cruelty to Animals Act (Cap 360): underfeeding twenty horses, abandoning animals, failing to procure veterinary treatment for an elderly dog, and keeping a horse in a grossly verminous condition. During the appellant's absence on holiday, some fifty horses, twelve mules, six zebroids and four dogs at her Nanyuki property were neglected; five horses and a mule had to be destroyed, and the animals were removed under a custody order obtained by the Kenya Society for the Protection and Care of Animals. The facts were undisputed; the High Court (Todd J) dismissed her first appeal. On second appeal, Mr Mervyn Morgan argued that her unsworn statement was evidence, that the trial judge erred in treating the words 'he answered me that he would do so' as inadmissible hearsay, that the prosecution should have called her brother-in-law Mr Holmes, and that sufficient cause or reasonable excuse for the offences arose from her arrangements with employees and Holmes. The Court of Appeal, per Law JA with Miller and Potter JJA concurring, held that an unsworn statement is not evidence and has no probative value, though it may be considered with the whole of the evidence; that the rules of evidence cannot strictly apply to it; that the prosecution need not investigate possible defences except a disclosed alibi; and that the appellant's steps were insufficient, leaving her primary responsibility as owner intact. The appeal was 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 under Section 211(1) of the Criminal Procedure Code constitutes evidence
  2. 2.Whether the words in the appellant's unsworn statement that her brother-in-law had agreed to look after the animals were hearsay or otherwise usable
  3. 3.Whether the prosecution was under a duty to call Mr Holmes as a witness to investigate the appellant's suggested defence
  4. 4.Whether the evidence rebutted the allegation that the offences were committed 'without sufficient cause' or 'without reasonable cause or excuse'

Key legal issues

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01

Evidential status of an unsworn statement from the dock

Holding

An unsworn statement is not evidence; it is persuasive rather than evidential, has no probative value, cannot prove facts not otherwise proved, but may be considered alongside the whole of the evidence.

Reasoning

Following persuasive English authority in Hale and Coughlan, the court held that a person making an unsworn statement is not a witness and cannot be cross-examined. Such a statement may throw light on the proved facts and influence the tribunal's assessment, but it cannot itself prove facts, and it carries less cogency and weight than sworn evidence. Consequently the rules of evidence, including hearsay, cannot strictly be applied to it.

p. 2
02

Whether the accused's contention that Holmes had agreed to look after the animals raised a reasonable doubt

Holding

No: the contention was raised at the last moment in an unsworn statement of no probative value, was untested by cross-examination, and was unsupported by the evidence; the rules of evidence cannot strictly be applied to an unsworn statement so the hearsay question need not be decided.

Reasoning

The court declined to decide whether the words about Holmes were hearsay because an unsworn statement is not strictly evidence. No cross-examination was directed to two prosecution witnesses who had spoken to Holmes. The contention, being untested and without probative value, was too lacking in weight and cogency to raise any doubt in the appellant's favour.

p. 3
03

Whether the prosecution was obliged to call Holmes as a witness

Holding

No; whether Holmes had been asked or had agreed to keep an eye on things formed no part of the prosecution case, and the prosecution need not investigate possible defences except a disclosed alibi.

Reasoning

The court found the submission surprising. The only admissible evidence was that Holmes was asked to keep an eye on things. The prosecution's case concerned the owner's failure to provide sufficient cause or reasonable excuse for the animals' suffering, not the arrangements she may have made; therefore no duty arose to call Holmes.

p. 3
04

Sufficiency of the appellant's steps to ensure the welfare of her animals

Holding

Leaving employees in charge and asking a neighbour to keep an eye on things did not amount to sufficient cause or reasonable excuse; the owner's primary responsibility remained and the conviction on all counts was proper.

Reasoning

Both courts below had found the steps insufficient, and the Court of Appeal agreed. The employees were untrustworthy and irresponsible, allowing the animals to starve, suffer wounds and become vermin-ridden, and no evidence showed what instructions they were given. The prosecution discharged the onus of proving the sufferings arose without sufficient cause or reasonable excuse on the owner's part.

p. 3

Legal principles established

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  • An unsworn statement by an accused is not evidence in the generally understood sense; it has no probative value but may be considered in relation to the whole of the evidence
  • No adverse inference may be drawn against an accused who elects to make an unsworn statement, as that is a statutory right
  • 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 leaving them with employees and a casual watcher does not constitute sufficient cause or reasonable excuse where the animals are neglected

Court orders

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  1. 1.The second appeal is dismissed

The bench

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

majority

Wrote the judgment

majority
majority
On appeal from
High Court of Kenya
Jurisdiction invoked
Second appeal to the Court of Appeal from a decision of the High Court on first appeal (Criminal Procedure Code appellate jurisdiction)

Relief refused

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The appellant's appeal against conviction on all four counts

Both courts below found her steps to ensure the animals' welfare insufficient or unreasonable; no sufficient or reasonable cause or excuse for the offences emerged from the evidence

p. 3

Costs

No order as to costs is recorded 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.

We order that this appeal be dismissed. As Miller and Potter JJA agree, it is so ordered.
p. 3Disposition - appeal dismissed
we are satisfied that 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. 3Evidential status of unsworn statements
No adverse inference can be drawn against the appellant for electing to make an unsworn statement. She was exercising a right conferred upon her by statute (Section 211(1) of the Criminal Procedure Code)
p. 2Right to make an unsworn statement
It is not the prosecution’s duty to investigate possible defences, except in the case of a disclosed alibi.
p. 3Scope of the prosecution's duty
the prosecution fully discharged the onus of proving that the undisputed sufferings of the appellant’s 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 owner.
p. 3Owner's primary responsibility and burden of proof

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, "May v Republic [1979] KECA 24 (KLR)", Case Analysis (1979). Second Appeal from Nairobi RM's Criminal Appeal, High Court Criminal Appeal (Todd J). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/24/eng@1979-12-17

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