A dying declaration is admitted as evidence in court, but it is treated with a lot of caution and needs some corroboration.
1. The guiding principle is that it was made in extremity when the maker declaration is at a point of death and the mind is induced by the most powerful considerations to tell the truth.
2. The maker of the declaration cannot be put under cross-examination.
Case 1. Josphat Maina Kamura
One evening, Mr Kibata heard a motorbike drop his neighbour Josphat Kamura. 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.
Before passing out, Mr Kamura narrated to them that he had been attacked by some young men including Grace’s husband. They took Kamura to hospital. However, he was pronounced dead on arrival.
Three people were arrested, among them a man identified as George Mwani Kabira, the husband of Grace.
In his defence, Mr Kabira argued that Grace is a common name among women and many have husbands. 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.
Case 2: Mwambu Chiruu Mwambui
Mr David Chipolu was seated outside a shop at Kasidi market, at Rabai when he was joined by Philip Nzaka, who lived in the same neighbourhood. Moments later, Mwambui joined them. After a while, Nzaka led Mwambui by the hand as the conversed. The next moment, Mr Chipolu saw Mr Mwambui lying down with his intestines protruding and a knife stuck in his belly. There was no one else in the vicinity save the three. Mr Chipolu prevented for Mr Nzaka from freeing and raised an alarm.
When Mwambui’s wife, Betty Chivizi, arrived from the market, she was told that her husband had been stabbed. She rushed to the scene and found him lying in a pool of blood. He told her, “Bye, I’m going. I’m dying because I have been stabbed by Nzaka”.
Nzaka was convicted for the murder by Justice Martin Muya and sentenced to death. However, on appeal, the Court of Appeal noted that Mr Chipolu did not see the stabbing
The judge said although the Mwambui’s attempt to flee the scene is indicative of his guilt and may be relied on as evidence that corroborates the prosecution case, 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 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 dying person’s declaration is indeed safe.
A dying declaration must be satisfactorily corroborated to justify a conviction.