Why courts treat evidence from a dead person with a lot of caution

Tuesday July 23 2019

The admissibility of a dying person’s declaration need not depend on the declarant being in a hopeless expectation of death. PHOTO | FILE | NATION MEDIA GROUP.


Josphat Maina Kamura was a hard-working man. Besides being the headmaster of Tetu School in Laikipia County, he ran a pub called New City Bar.

Mr Kamura also operated a matatu named Busy. Friends and neighbours nicknamed him Busy while others referred to him as Baba John.


After work, Mr Kamura would pass by his pub to supervise work before heading home. On June 27, 2012, he passed by the bar and met Purity Nyaguthii Kabiri, one of his employees.

After inquiring on whether all was well, he left. It had rained heavily and because it was muddy, Mr Kamura couldn’t use his motorbike. He decided to walk home.

A neighbour, identified as Samuel Mwangi Kibata, said he was tethering his cows for the night when he heard a man talking to himself. He recognised the man as Mr Kamura and concluded that he was drunk.


Shortly afterwards, a motorbike approached and the rider offered Mr Kamura a lift. 

As soon as the motorbike left, Mr Kibata heard screams. He and another neighbour ran to the scene of the screams and found Mr Kamura bleeding profusely from his head.

He said some young men had attacked him and identified one of them as the husband of Grace, a neighbour. He was pronounced dead on arrival at a local hospital.

Three people were arrested, among them a man identified as George Mwani Kabira, the husband of Grace.

In his defence, Mr Kabira said Grace was married to many people. Justice Mary Kasango agreed and acquitted him.

“Since the dying declaration of the deceased was that it was Grace’s husband who had attacked him, that single evidence against the accused was indeed very weak,” the judge said.

Justice Kasango concluded that there can be no justification for convicting him simply because his wife’s name was Grace. “If that was to be so, then one could convict many people whose wives are called Grace for the murder of the deceased,” the judge said.

Four days to Christmas Day in 2011, Mr David Chipolu was seated outside a shop at Kasidi market, Rabai district, in Kilifi County.


Mr Philip Nzaka, who lived in the same neighbourhood, greeted him. Mr Mwambu Chiruu Mwambui, another neighbour, joined them. Mr Mwambui was speech-impaired and communicated in sign language.

Mr Chipolu saw Mr Nzaka hold Mr Mwambui by the hand and the two walked away, conferring in private.

The next moment, Mr Chipolu saw Mr Mwambui lying down with his intestines out. There was no one else in the vicinity save for Mr Nzaka, Mr Chipolu and Mr Mwambui. Mr Mwambui’s wife, Betty Chivizi, happened to have been at the market buying paraffin.

She was told that her husband had been stabbed. She rushed to the scene and found him lying in a pool of blood. They had been married for 40 years and had six children. Ms Chivizi said her husband identified his killer. “Bye, I’m going. I’m dying because I have been stabbed by Nzaka,” he told her.

The Court of Appeal noted that the attack was very quick because the assailant did not even have the time to retrieve the murder weapon from the body. Mr Chipolu did not even see the stabbing.

Justice Martin Muya found Mr Nzaka guilty of murder and sentenced him to death. The appellate court later dismissed the ruling.

The judge said no one saw Mr Nzaka stab Mr Mwambui and hence the so-called evidence was hearsay. Additionally, he said, the accused was not in possession of the murder weapon.


The court heard that Mr Chipolu blocked Mr Nzaka from fleeing the scene. “The appellant’s attempt to flee the scene is indicative of his guilt and may be relied on as evidence that corroborates the prosecution case,” justices William Ouko, Asike Makhandia and Kuthirima M’Inoti said.

Over the years, courts have held that notwithstanding section 33(a) of the Evidence Act, the evidence of a dying declaration must be admitted with caution because it is not subject to the test of cross-examination and the circumstances leading to the person’s death may have caused confusion in him and rendered his perception questionable.

“While it is not a rule of law that a dying declaration must be corroborated to find a conviction, nevertheless the trial court must proceed with caution to get the necessary assurance that a conviction founded on a death declaration is indeed safe,” the Court of Appeal said.

Courts have also held that the general principle on which a dying declaration is admitted as evidence is that it was made in extremity when the maker is at a point of death and the mind is induced by the most powerful considerations to tell the truth.

But in Kenya, the court said, the admissibility of a dying person’s declaration need not depend on the declarant being in a hopeless expectation of death. Although the court can solely rely on such evidence, there is a rule that a dying declaration must be satisfactorily corroborated to justify a conviction.