48 Evidence Cap 80 [2009] to testify unless he is prevented by his condition from understanding the questions put to him and giving rational answers to them. Dumb witnesses. 126. (1) A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as, for example, by writing or by signs; but such writing must be written, and the signs made, in open court. (2) Evidence so given shall be deemed to be oral evidence. Competency of parties and spouses. 3 of 2006. 127. (1) In civil proceedings the parties to the suit, and the husband or wife of any party to the suit, shall be competent witnesses. (2) In criminal proceedings every person charged with an offence, and the wife or husband of the person charged, shall be a competent witness for the defence at every stage of the proceedings, whether such person is charged alone or jointly with any other person: Provided that (i) the person charged shall not be called as a witness except upon his own application; (ii) save as provided in subsection (3), the wife or husband of the person charged shall not be called as a witness except upon the application of the person charged; (iii) the failure of the person charged (or of the wife or husband of that person) to give evidence shall not be made the subject of any comment by the prosecution. (3) In criminal proceedings the wife or husband of the person charged shall be a competent and compellable witness for the prosecution or defence without the consent of such person, in any case where such person is charged (a) with the offence of bigamy; or (b) with offences under the Sexual Offences Act; or (c) in respect of an act or omission affecting the person or property of the wife or husband of such person or the children of either of them, and not otherwise. (4) In this section “husband” and “wife” mean respectively the husband and wife of a marriage, whether or not monogamous, which is by law binding during the lifetime of both parties unless dissolved www.kenyalaw.org