| General.

The evidence Act does not define corroboration. But the term refers to evidence which supports some other evidence that an accused has committed the offence with which he is being charged. It is evidence which is relevant, admissible, and credible and independent and which implicates the accused person in a material particular. And this is definition given by Keane in his book, The Modern Law of Evidence, 1994 Edition


In the case of DPP v Kilbourne 91973) 1 ALL ER 440; (1973) AC 720, Lord Reid asserts that ‘there is nothing technical in the idea of corroboration when in the ordinary affairs of life one is doubtful whether or not to believe a particular statement. One naturally looks to see whether it fits in with other statements or circumstances relating to the statement. The

better it fits in, the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in.”


And he goes on to say that, “Any risk of conviction of an innocent person is lessened if conviction is based upon the test of more than one acceptable witness.


Essentially what all we are trying to do here is to define what corroboration is. And we are saying that it is evidence which is offered to strengthen other evidence. And all these things we are saying about it fitting in with others are basically fortifying that statement. And the reason that you would need fortification for evidence is if that particular evidence is given in dubious circumstances or it is given by a category of witnesses who may not be very creditworthy. And basically that is just the context within which we discussing this issue.


What were the facts in the DPP v Kilbourne? And this will help us to see instances in which the need for corroboration might arise. The respondent was convicted of one offence of buggery, another offence of attempted buggery and five counts of indecent assault on two groups of boys. The first four counts related to offences in 1970 and it was with regard to one group of boys and the second set, that is the three others, were committed in 1971 against a second group of boys. The defence put forward was one of innocent association. In essence what the accused was saying is that he didn’t indecently assault the boys; he didn’t behave towards them in an untoward manner, that he innocently associated with them.


The judge directed the jury that they would be entitled to take the uncorroborated evidence of the second group of boys if they were satisfied that the boys were speaking the truth as supporting evidence given by the first group of boys. So here you have two sets of evidence. The one set given by one group of boys. Remember we said that offence was committed in 1970, the other one in 1971. An what the judge is telling the jury here is that if they are convinced that the second group of boys are telling the truth, then they can use that evidence to support the evidence that was given by the first group of boys. In essence that the evidence of the second group of boys could corroborate the evidence of the first group of boys.


The accused was convicted. The Court of Appeal however quashed the conviction and the

matter went to the House of Lords. And the House of Lords held that the judge’s direction was proper and the respondent was properly convicted since the sworn evidence of a child victim could be corroborated by evidence of another child victim of alleged similar misconduct. And this is so where the evidence is admissible and indicative of the accused person’s guilt.


I should point out that this is not the position in this country. In this country the evidence of one child cannot corroborate the evidence of another child. The Criminal Law Amendment Bill, which I believe has been published again this year, seeks to get to the position where the evidence of a child victim can be corroborated by the evidence of another child victim. And this has been as a result of campaigns by different actors and especially FIDA in a case they had where a man was accused of having defiled his twin daughters and the court ruled that the two girls could not corroborate each other’s evidence, which meant that because there was no other independent testimony to fortify the evidence of the one child or the other child, the accused could not be convicted . The evidence was seen as not sufficient to sustain a conviction. Of course other issues were raised in that case as to whether you could look for corroboration in other circumstances. For instance, there was evidence that the two girls were found to have a venereal disease that their father had which would offer the corroboration, other than just the evidence of the children.


In the same case, Lord Hailsham stated that the word corroboration means no more than evidence tending to corroborate other evidence. And he goes on to says that in his view it is evidence which is partly admissible and also relevant. It is evidence that is credible and relevant. And it is evidence which if believed confirms the available evidence in the required parts. And here the assumption is that not all evidence is going to need corroboration. But the evidence that needs corroboration, the evidence that is going to corroborate it has to be evidence that is admissible and evidence that is relevant and also it has to be evidence that is believed confirms what evidence you have before the court. It is supposed to confirm support or strengthen other evidence rendering that other evidence more probable than it is standing on its own.


The same point on what corroboration is, is discussed in DPP v Kilbourne (1973) 1 ALL ER 440; (1973) AC 720 (1916) 2 KB 658, where Chief Justice Read says, “Evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is which confirms in some material particular not only had the evidence that the crime has been committed but also that the prisoner committed it.”


And right there then in the rendition of DPP v Kilbourne, R v Baskerville and in think in DPP v Hester, right there you have a clear definition of what corroboration is.


So will now move to discuss what the rationale is. But even before the court goes on to answer the question whether evidence needs to be corroborated, it has to consider firstly whether the evidence it has before it is credible. Before you begin to look for fortifying, strengthening, confirming evidence, you have to be convinced that the evidence you have before you is credible because no amount of corroboration can render incredible evidence credible. That is a principle of law and you should look the case of R v Jipkering arap Kosgey. It is authority for the proposition that no amount of corroboration would render incredible evidence credible. So the court has first to inquire as to whether the evidence that it has before it is credible before it even goes on to look for fortifying evidence, strengthening or confirming evidence.


Secondly, the corroborating evidence must also be credible. It should be credible. And again of course remember we said it has to be independent. It has to be credible and independent and should not be mere repetition of the evidence on record. And here again the principle to look out for is the principle at section 143 of the Evidence Act to the effect that “no particular number of witnesses shall, in the absence of any provision of law to the contrary, be required for the proof of any fact.”



So essentially you can prove your case by the evidence of one witness. You do not need a requisite or specific number of witnesses. That being the case then you do not just come to court to rehash evidence that is has been stated before. The evidence that is coming in to corroborate has to be independent, it has to be credible on its own. It shouldn’t be a mere repetition of the evidence on record.


And thirdly, except where statutes provide otherwise, each case stands on its own facts and it is therefore not possible to say in advance which evidence will go to corroborate the other in a particular case. Because every case except where a statute expressly says otherwise, will stand on its own facts. It is not possible to predetermine or to know in advance which evidence will go to corroborate the other in a particular case. It is all a matter of practice and experience, turning on the facts of each particular case.


As a general rule, there is no requirement that evidence be corroborated or that a tribunal of fact be warned of the danger of acting on uncorroborated evidence. So as a generally rule really there is no requirement for corroboration. And remember again we are going back to the principle at section 143 that there is no requirement that you bring in the evidence of a specific number of witnesses. You can just have one witness carrying the day.


A person is free to adduce evidence corroborating other evidence tendered and this may help especially where their case is weak. But the court has the jurisdiction to prevent administration of superfluous evidence for reason of cost and time. Essentially what we are saying is, as a general rule there is no requirement for corroboration or that the judge should warn the jury that it shouldn’t convict, or on the dangers of convicting on corroborated evidence. That being said, a person can bring in evidence to strengthen other evidence tendered especially where their case is weak. But even in those circumstances, remember the court does not have forever to sit and listen to people. So it has jurisdiction to say that that matter has already been testified to and in the interests of saving time and money could actually stop you from bringing in evidence especially where that evidence is superfluous.


And all this is going to betray the main principle that we are making or that we are stating that there is no requirement for corroboration. And in fact corroboration is going to be in many cases a waste of the court’s time, which then would lead to the point that you only ask for corroborating evidence where that is absolutely necessary. And asking for corroboration or requirement is an exception to the general rule. Like all rules of evidence the rule is larger than life but the exceptions are even larger. There are exceptions to this rule that corroboration is not required. And this falls generally into three categories:


  1. firstly where corroboration is required as a matter of law. So there may be instances where the law requires that certain kinds of evidence be corroborated. And in those cases it will be because of the nature of the evidence or because of the person that brings that evidence before the court.


  1. Where corroboration is not required as a matter of law but the tribunal of fact or jury must be warned as a matter of law of the danger of acting on uncorroborated evidence. Examples are where you have accomplices testifying for the prosecution, where you have evidence of complainants in sexual related offences.


  1. There are those cases where corroboration is not required as a matter of law but courts have evolved practice to warn themselves of the dangers of acting on uncorroborated evidence. Examples are confessions which are retracted or repudiated. It also covers confessions by mentally handicapped persons and methods of identification. It is the nature of the evidence that is being tendered that has made courts evolves this practice.




  1. Offence of procuration; (S.47 48 Penal Code) for prostitution and other immoral purposes; Prostitution is not an offence but procuration and leaving off benefits of prostitutions. Since the offences of procuration are easily alleged and difficult to refute, a person shall not be convicted of such an offence upon the evidence of one witness only. That evidence has to be corroborated in some material particular which implicates the accused… Section 147 of the Penal Code. Under S. 148 which provides for procuration of defilement by threat or fraud or administering drugs, a person shall not be convicted upon the witness of one person only. In dealing with procuration it is required that the corroborating evidence must be implicating the accused. Evidence which leads the accused person to the offence charged. R. V. Goldstein (1914) 11 CAR 227


  1. Speeding: The opinion of evidence of non-expert is as a general rule not admissible. One of the exceptions to this general rule however relates to speed. With speed you can opine even though you are not an expert because the opinion is linked up to what you perceiver. Section 43(3) of Traffic Act it is recognised that allowing for admission of opinion evidence is opening up doors for wrong convictions, there is danger in convicting on opinion evidence of non experts. This Section provides that a person charged under the section shall not be liable to be convicted solely on the evidence of one witness to the effect that in the opinion of the one witness, the person charged was driving the vehicle as such great speed. The assumption of the law is that the opinion of one or two persons that a vehicle has exceeded the speed limit is sufficient to justify a conviction under this provision. It is required that their evidence should relate to the speed of the vehicle at the same place and time. Brightly V. Pearson 1938 4 AER 127, there is also the case of Nicholas V. Penny, 1950 2 KB 46 which held that the court could convict on the evidence of a Police Officer who had checked a vehicle speed from a speedometer of his own car which was driven at an even distance behind the defendant’s care, i.e. there is no need for corroboration. CROSSLAND V. DPP (1988) 3 AER 712 where it was stated at page 714 that it is plain that the subsection is intended to prevent the conviction of defendant on evidence given by a single witness of his unsupported visual impression of the defendant’s speed. In this case an accident reconstruction expert had inspected the scene of the accident and had even carried out tests on speed; the court held that this was not solely the opinion witness of one witness because the witness had also carried out other tests…


  1. PERJURY: Under Section 111 of Penal Code a person cannot be convicted of committing perjury or subornation of perjury solely upon the evidence of one witness. It is not just in judicial proceedings but also where person makes false statements on oath. The corroboration need only relate to the falsity of the statement in question. Under this Section corroboration need not involve a second witness or that it takes any particular form.


  1. TREASON: No person charged with treason or any such felony may be convicted except on his own plea of guilty or on the evidence in open court of two witnesses at least to one to one overt act of the kind of treason or felony charged or alleged or the evidence to one witness to one overt act or one other witness to one overt act of treason or the same kind of felony.


  1. CHILDREN OF TENDER YEARS – under Section 124 of the Evidence Act, notwithstanding the provisions of Section 19 of Cap 15 Laws of Kenya where the evidence of a child of tender years is admitted, in accordance with that Section. Where the court considers that a child understands the nature of the oath, the child will be sworn. This section is dealing with instances where a child is sworn…. The accused shall not be liable to be convicted on such… Who is a child of tender years, this was defined in the case of Kibageni V. R The Appellant here was convicted of murder, the conviction was based on the evidence of two young boys who had been affirmed and they were between the ages of 9 and 14. There was no admission of the offence although the fact was assumed at the trial. There was no corroborating evidence and no warning was given as required. On Appeal, it was held that the evidence of the two boys was of so vital a nature that the court could not say that the trial judges failure to comply with the requirements for corroboration was one which could not have occasioned a miscarriage of justice. The second finding was that the failure of the trial judge to warn either himself or the assessors of the danger of convicting on the evidence of the two boys without corroboration was an additional ground for allowing the appeal. At page 94 the court stated, ‘there is no definition in the Oaths and Statutory Declarations Act of the expression child of tender years for the purpose of Section 19 but we take it to men any child of any age or apparent age of under 15 years in the absence of special circumstances. This definition is important when looking at competence and compellability. Oloo s/o Gai V. R.,


Maganga Msigara V.R the Appellant here was convicted of murder, the prosecution case depended on 3 witnesses included the sworn evidence of a child. The judge did not warn either the assessors or himself of the desirability of the evidence of child being corroborated. On Appeal it was held that where there has been proper direction as to corroboration, the court will allow the Appeal even if there was no corroboration unless it considers that no substantial miscarriage of justice has occurred. The court also held that it would be unsafe to allow the verdict of murder to stand in this particular case and allowed a conviction of manslaughter to be substituted instead.




The law on accomplices for example does not require corroboration. In this circumstance you have judicial authority or judge made law requiring that warning be given even though the statutes don’t require.



DAVIS V. DPP is the landmark case on Accomplice Evidence. It classifies as accomplices the following persons

(a) Parties to the offence in question;

(b) Handlers of stolen property in case of thieves from whom they receive being on trial for the theft;

(c) Parties to another offence committed by the accused in respect of which evidence is admitted under the similar fact evidence rule.


The rule with regard to corroboration was stated in this case by Lord Simmons as follows: Where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn the jury that although they may convict on this evidence, it is dangerous to do so unless corroborated. Where the judge fails to warn the jury in accordance with this rule, the conviction will be quashed even if there be ample corroboration of the evidence of the accomplice.




The rationale is that the accomplice may have a purpose of his own to serve, he may give false evidence against the accused out of spite or to exaggerate or even invent the accused role in the crime in order to minimise his own culpability. Section 141 provides that an accomplice shall be a….. The accomplice may be doing this to shield himself from liability.


Davies V. DPP


The defendant with other youths attacked another group of youths with fists. One of the youths in the other groups died subsequently of stab wounds. Six youths were charged with the murder but only the defendant was convicted. Ell was one of the six youths charged but he was convicted of the lesser charge of common assault. At the trial of the defendant, L testified for the prosecution as to the admission by the defendant of the use of knife by him. The trial judge did not warn the jury of the danger of accepting this evidence without corroboration. The Defendant’s conviction was affirmed by the court of Appeal. On Appeal to the House of Lords, it was held that in a criminal trial, where a person who is an accomplice gives evidence for the prosecution, it is the duty of the court to warn that although it may convict upon this evidence it is dangerous to do so unless it is corroborated. Secondly the court stated that this rule, although a rule of practice now has the force of law and thirdly where the judge fail to warn as above, conviction will be quashed. It is in this case where the court defined as to who an accomplice is.


The court addressed its mind to the question of who is an accomplice and opined that from the cases

  1. Parties who are participles criminals in respect of the actual crime charged whether as principles or accessories before or after the fact.
  2. Receivers of stolen goods : R V Jennings (1912) 7 CAR 242
  3. Accomplices, parties of another offences committed by the accused in respect of which evidence is admitted under the similar evidence rule. R. v Farad (1945) 30 CAR 168


R V Moorings

R V Hasham Jiwa – these cases are to the effect that an agent provocateur is not an agent i.e. a person sent by the police as an agent provocateur is not an accomplice and their evidence does not require corroboration.


What evidence amounts to corroboration

It has to be relevant and admissible

It has to be independent

Has to implicate the accused or link the accused with the offence – visit the case of R v Baskerfield.


The requirement of corroboration warning in the case of accomplice evidence extends to matrimonial evidence Galler V. Galler which held that in divorce proceedings an adulterer who gives evidence of his own adultery is in the same position as an accomplice in a criminal case and hence the requirement for corroboration.


Wilson Kinyua & Another V. R (1980) KLR


The Appellant and another person were charged with murder. Kinyua denied involvement but the second appellant confessed to his guilt and stated that Wilson Kinyua was also involved. At the trial, the second Appellant objected to the admission of the confession after a trial within a trial the 2nd Appellant confession was admitted even though the maker had disowned it earlier. Kinyua was convicted on the basis of the confession even though the trial court did not get corroboration for the confession. On Appeal, the court held that the 2nd Appellant confession was accomplice evidence which needed corroboration. The court went on to say that repudiated confessions should not form the basis of conviction without corroboration.


SEXUAL OFFENCES – corroboration has become the rule of law.

The rule is that in cases where the accused is charged with a sexual offence, the jury should be directed that it is not safe to convict upon the uncorroborated testimony of the complainant but that if they are satisfied of the truth of such evidence, they may after paying attention to that warning nevertheless convict. The corroboration requirement in sexual offences stems from the fact that the charge is easy to make and difficult to refute, there is the very present danger that the complainant may make a false accusation owing to sexual neurosis, jealousy, fantasy, spite or a girl’s refusal to admit that she consented to an act which she is now deeply ashamed. (the effect is to protect the perpetrator against the would be malicious accusations levelled against a defenceless male although while trying to do this you have more guilty people going free.


Maina V. R


Kongwea V R

The complainant was a middle aged lady who give evidence that while she was going home, she was ambushed and raped. After the incident she said that the rapist fell asleep and she escaped while the rapist was sleeping and went to complain to her sister, the sister said that when the complainant came to her, she was trembling, had grass on her hair and she gave a description of the accused including the clothes he wore and a scar he had on the thigh whereupon the accused was arrested and charged. He was convicted and on appeal the question was whether there was sufficient corroboration. The court held that there was no sufficient corroboration but that it would sustain the conviction because the complainant appeared a truthful witness.


Njuguna Wangurimu V. R


The complainant here was a young girl who had gone to fetch firewood when she was raped. She testified that prior to the incident that she was a virgin. There was medical evidence of blood on her petticoat and the shorts of the accused person had some blood with traces of semen. There was no evidence that the blood on the accused shorts was the same group as that on the petticoat. A medical examination on the girl showed that the complainant had been used to having sex, contrary to her assertion that she was a virgin. The question was whether there was sufficient corroboration. The court held that there was insufficient corroboration of the complainant’s evidence and consequently the court could not convict.


R V. Ogendo (1940) 10 KLR 25

Where a young gal was found to suffer from the same sexually transmitted disease as the alleged rapist it was held that that medical evidence was sufficient corroboration of the assertion that one was raped.


Margaret V. R (1976) KLR 267


Where it was held that though it is not a rule of law that a person charged with a sexual offence cannot be convicted on the uncorroborated evidence of a complainant, it has long been the custom to look for and require corroboration before a conviction for such an offence is recorded.




Corroboration is not ordinarily required and where required –

  1. Identification by single witness at night;
  2. Repudiated and retracted confessions.