Amber May v Republic [1979] KECA 6 (KLR)
The bottom line
#Kenya's Court of Appeal confirmed that an accused's unsworn statement is not evidence and animal owners cannot escape cruelty liability by simply delegating care.
What this practically means
#Executive summary
#Questions the Court framed
#The issues the Court set itself to decide, in its own words.
- 1.Whether an unsworn statement made by an accused person is evidence with probative value
- 2.Whether Todd J erred in treating part of the unsworn statement as hearsay and excluding it
- 3.Whether the prosecution was under a duty to call Mr Holmes as a witness
- 4.Whether the evidence rebutted the allegations that the offences were committed without sufficient cause or reasonable cause or excuse
Key legal issues
#Whether an unsworn statement is evidence
An unsworn statement is not evidence in the generally understood sense; it has no probative value and is persuasive only, to be considered in relation to the whole of the evidence.
Relying on persuasive English authorities (R v Frost, R v Hale; R v Coughlan), the court held that an accused making an unsworn statement is not a witness, cannot be cross-examined, and the statement cannot prove facts not otherwise proved. It may, however, influence the tribunal of fact in weighing the proved facts. This aligned with the High Court's approach and disposed of Mr Morgan's foundational submission.
Whether the hearsay ruling of Todd J was erroneous
It was unnecessary to decide whether the words were hearsay, since the rules of evidence do not strictly apply to an unsworn statement which lacks probative value.
The appellant's contention that Mr Holmes had agreed to look after the animals was raised at the last moment in a statement that could not be tested by cross-examination and had no probative value. Even considered in the appellant's favour, it was unsupported by the evidence and of little weight in raising a doubt.
Whether the prosecution was obliged to call Mr Holmes
The prosecution has no duty to investigate possible defences except in a disclosed alibi; Holmes was no part of the prosecution case.
Whether Holmes had agreed to look after the animals was a matter for the defence, not the prosecution. The submission that the prosecution should have called him was rejected as surprising and meritless, since the defence itself had never sought to have him called nor cross-examined witnesses who had spoken to him.
Whether the offences were committed without sufficient cause or reasonable cause or excuse
The prosecution discharged the onus of proving there was no sufficient cause or reasonable excuse; the appellant's delegation to employees and a neighbour was neither sufficient nor reasonable.
The facts were undisputed: the animals starved, were wounded, vermin-ridden, and had to be destroyed. The employees were untrustworthy and irresponsible; as to Holmes, the only admissible evidence was that he was asked to keep an eye on things. The owner's primary responsibility required more to exonerate her. Both courts below so found and the Court entirely agreed.
Legal principles established
#- An unsworn statement by an accused is not evidence with probative value; it is persuasive only and cannot prove facts not otherwise proved by sworn evidence.
- No adverse inference may be drawn from an accused's election to make an unsworn statement, it being a statutory right.
- The rules of evidence do not strictly apply to an unsworn statement.
- 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 must show sufficient cause or reasonable excuse to be exonerated.
Court orders
#- 1.Appeal dismissed
The bench
#One judgment of the whole court — no separate or dissenting opinions.
- On appeal from
- High Court of Kenya
- null (not stated)
- Jurisdiction invoked
- Second appeal to the Court of Appeal (not expressly stated; appeal on law from first appeal to High Court)
Relief refused
#Conviction quashed / acquittal on all four counts
Both courts below correctly found the appellant's steps were insufficient and no reasonable cause or excuse emerged from the evidence
Submission that an unsworn statement is evidence
The court held an unsworn statement is not evidence in the generally understood sense
Claim that prosecution was obliged to call Mr Holmes
Investigating possible defences is not the prosecution's duty except in disclosed alibi cases
Costs
No costs order stated in the judgment.
Quotable passages
#Verbatim from the judgment, each located to the page it appears on in the official PDF — so these can be cited and checked directly.
Appeal dismissed.
Dated and delivered at Nairobi this 17th day of December 1979.
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.
It is not the prosecution’s duty to investigate possible defences, except in the case of a disclosed alibi.
No adverse inference can be drawn against the appellant for electing to make an unsworn statement.
Key timeline
#Practical implications
#Frequently asked questions
#Cite this brief
#Cite this brief
Caselaw, "Amber May v Republic [1979] KECA 6 (KLR)", Case Analysis (1979). Second Appeal from Resident Magistrate's Court at Nairobi (Criminal Appeal to Court of Appeal). Source: https://new.kenyalaw.org/akn/ke/judgment/keca/1979/6/eng@1979-12-17
Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.