credibility of the evidence of PW4 as she appears to me a total stranger
to the accused.
The evidence led by the prosecution was fraught with further
contradictions. For example, while the other witnesses all said the
accused ran into a nearby house, which PW2 referred to as Nyanga’s
residence, PW5 said the accused ran across a swamp into a street called
Mauritani. This piece of evidence leaves me with the impression that
whilst the accused ran into Nyanga’s residence some other person ran
into Mauritani Street. What this piece of evidence has created in my mind
is that the person whom PW5 said she saw running into Mauritani Street
could as well be the person wearing a green shirt and having a blue
bicycle. My mind is further clouded with doubts!
PW2 and PW3 who were purportedly the only persons around when PW2
was taken away are all kids under the age of 10 years. The evidence of
these two kids is contradicting at several points. Whilst PW2 said she was
alone when she was picked up by the man with a bicycle, PW3 said she
was with PW2 and was the person who ran home to alert PW2’s parents.
So what value should I attach to the evidence of these two kids? In UCHE
V. REX (2006) 2 LC 758 the Appellant was acquitted by the Court
because, the trial judge in the Court below failed to warn the jury on the
nature of the evidence of children of tender years. I would have warned
myself on the weight to be attached to the evidence of these children,
but I recalled that their evidences were received in terms of Section 185
of the Evidence Act. The proviso to Section 185 (2) of the Evidence Act
11
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