INTRODUCTION

The general rule is that oral evidence must be direct i.e. evidence referring to a fact which could
be seen, heard or perceived by our senses. According to section 62(1) 1 it provides that oral
evidence must be given by the person who perceives the fact by his or her own sense. If the
person given the evidence about the fact which did not perceive by his or her own sense, that
evidence will be hearsay evidence.
Hearsay evidence can be defined as third person's assertions narrated to a court by a witness for
the purpose of establishing the truth of that which he asserts. Or a statement which is given by
the person who did not perceive the fact which is given to prove the truth of matter contained in
the statement.
In R v. Sharp2 Lord Havers, said hearsay evidence is ``an assertion other than one made by a
person while giving oral evidence in the proceedings is inadmissible as evidence of any fact
asserted.''
A section 62(1)3 provides the general rule on the admissibility of hearsay evidence. Provide that
oral evidence must in all cases be direct. Whatever that is not direct is hearsay and therefore not
admissible as direct evidence. Generally hearsay evidence is not good evidence. The term
hearsay does not appear in section 62(1)4 although the courts refer to it as hearsay.

In Subraminium V Public Prosecutor5, it was held that hearsay evidence is an assertion of a

person other than the witness testifying offered as evidence of the truth of that assertion rather
than as evidence of the fact that the assertion was made. The rule is that a statement given in
proceedings about something other than that by the person who directly perceived it is
inadmissible. The rule against hearsay is thus exclusionary in the sense that it excludes hearsay
evidence in the course of proceedings.
An example of what could amount to hearsay evidence in court can be seen in the case of Njunga
V R6. In this case an informer revealed information to the police that led to the apprehension and
charging of the accused person for the offence of being armed with intent to commit a felony. In
the course of judgment the court stated:
1
The Evidence Act [Cap 6 R.E 2019].
2
[1988] 1 WLR 7 (HL) (at p. 11).
3
The Evidence Act [Cap 6 R.E 2019].
4
Ibid
5
[1956] 1 WLR 965 (PC) at p. 970
6
[1965] EA 773
“…the knowledge which the court below had of this felonious enterprise was derived from what
a sergeant of police told the court an uncalled, unnamed and unsworn individual had told him.
Without this hearsay evidence the court below very clearly would have found it difficult, if not
impossible, to have determined whether the appellant had the intent to commit the felony and if
so what felony.”
On this ground this piece of evidence was rejected.

The inadmissibility of hearsay evidence was held in the case of Kilongo v. R7, where the accused
had retained poll-tax money and then, fearing prosecution had handed it over to one
Mwinyipembe to take to Wakili Mzee refused to accept the money, the accused handed
Mwinyipembe more money telling to go back to Mzee and offer this to him so that Mzee would
refrain from reporting the matter. Mzee gave evidence as to what had occurred and had been said
to him. The appeal court held: “The when Mzee deposed to Mwinyipembe’s coming to him with
the sh. 500/- and latte with sh. 1000/-. It was not hearsay evidence, but we think that it was
hearsay when he deposed to what Mwinyipembe had told him the accused had told
Mwinyipembe to say to him (Mzee).”

In Haji Ibrahim v. R8 the court said that the testimony of a police witness about information
supplied by third party who is not called as a witness is hearsays and inadmissible.

There are several reasons as to why hearsay evidence is regarded as not good evidence and
therefore not admissible.
Firstly, is not given under oath. In the case of Teper v R9 it was held hearsay evidence is not the
best evidence and it is not delivered on oath. The truthfulness and accuracy of the person whose
words are spoken to by another witness cannot be tested by cross-examination, and the light
which his demeanor would throw on his testimony is lost.
Secondly, No opportunity of cross-examination thus you cannot test the credibility of witness, In
R v. Sharp10 Lord Havers said of the rule that `I suspect that the principal reason that led the
judges to adopt it many years ago was the fear that juries might give undue weight to evidence
7
(1958) E.A.C.A. 152
8
(1975) L.R.T.N. 56
9
[1952] AC 480, 486, cited with approval by Lord Oliver of Aylmerton in Kearley [1992] 2 AC 228, 259, and in
Blastland [1986] AC 41, 54, by Lord Bridge of Harwich, with whom Lords Fraser of Tullybelton, Edmund-Davies,
Brightman and Templeman agreed.
10
[1988] 1 WLR 7 (HL) (at p. 11):
the truth of which could not be tested by cross-examination, and possibly also the risk of an
account becoming distorted as it was passed from one person to another.'

Thirdly, It pre-suppose that there is a better evidence somewhere, that means the original maker
of the statement is the good person to produce evidence rather than that third person.
Accordingly, the rationale for the rule is: that it is not the best evidence; that it is not delivered
on oath; that inaccuracy may have arisen through repetition; that the demeanor of the maker
cannot be seen; that the veracity of the maker cannot be tested in cross-examination; and that the
accuracy of the maker cannot be tested in cross-examination.
In the case R v. Blastland11 it was held that `The rationale of excluding it . . . is a recognition of
the great difficulty . . . of assessing what, if any, weight can properly be given to a statement by a
person whom the jury have not seen or heard and which has not been subject to any test of
reliability by cross-examination.'
The maker could have fabricated the evidence or been mistaken and yet he is unavailable for
cross-examination on his statement; and where the statement is heard and passed on by someone
who is himself unavailable for cross-examination the problem is multiplied.
However there some special circumstance where by hearsay evidence can be admissible and
accepted by the court as evidence it is exceptional to the general rule that hearsay evidence is
inadmissible.

The Tanzania Evidence Act makes provision that under certain circumstances hearsay evidence
is admissible. These cover admissions and confessions, statements made by persons who cannot
be called as witnesses, statements made in special circumstances.
According to section 3412 the provision makes admissible statements of persons: who are dead
or unknown; who cannot be found or who cannot be summoned owing to diplomatic immunity
or other privilege; those who have become incapable of giving evidence or persons whose
attendance cannot be procured without delay or expense which is unreasonable.
These statements are admissible only in circumstances specified in section 34 13 and no others.
Statements made by the mentioned people are admissible in the following circumstances;

11
[1985] 3 WLR 345 (HL) at p. 350
12
The Evidence Act [Cap 6 R.E 2019].
13
The Evidence Act [Cap 6 R.E 2019].
 a) when the statement is made by a person as to the cause of his death or circumstances
leading to death – dying declaration
b) When it is made in the ordinary course of business or duty.
c) When the statement is against the pecuniary or proprietary interests of the maker.
d) When it gives the opinion of such person on the existence of any public right or custom.
e) When it relates to the existence of any relationship by blood, marriage or adoption
between persons.
f) When it relates to family affairs.
g) When it is contained in any deed or document relating to a transaction mentioned in.
h) When it is made by a number of persons and expressing feelings or their part relevant to
the matter in question.

Dying declaration as an exceptional to hearsay general rule.

Dying declarations are admitted as an exception to the hearsay rule when they are made by
declarants who are dead at the time of trial, 14 and who, at the time they made the declaration,
believed that their death was near and certain. 15 The evidence that the declarant believes that his
death is near and certain may come from his own statement. 16 But it will usually come from the
circumstances surrounding his death. Circumstances which would tend to show that the declarant
believed his death to be near and certain would include the fact that the declarant had received
the last rites, or the type of wound from which the declarant was suffering. 17 It must also appear
that the declarant, if living, would have been competent to testify. 18That means the declarant may
be impeached in the normal manner.
Dying declaration as an exception to the hearsay rule finds its basis 19 in the “legal maxim nemo
moriturus praesumitur mentire” which means “a man will not meet his Maker with a lie in his
mouth. Apart from evident religious underpinnings, the rationale suggests that “the last
moments” of a person “are attended by an involuntary desire to unburden the conscience.

14
Kennecott Copper Corp. v. Industrial Comm'n, 4 Ariz. App. 327, 420 P2d 194 (1966). 5 J. Wigmore, Evidence,
1431 (3d. ed. 1940)
15
Shepard v. United States, 290 U.S. 96 (1933); People v. Beier, 29 Ill. 2d 511, 194 N.E.2d 280 (1963) ; Connor v.
State, 225 Md. 543, 171 A.2d 699, cert. denied, 368 U.S. 906 (1961).
16
Miller v. Goodwin, 246 Ark. 540, 439 S.W.2d 308 (1969)
17
J. Wigmore, Evidence, 1431 (3d. ed. 1940)
18
Hutcherson v. State, 40 Ala. App. 77 (1958).
19
Roderick Munday, Musings on the Dying Declaration, 22 Anglo-Am. L. Rev. 42, 42 (1993).
The rules applicable in dying declaration and its application common law.
Under common law, a dying declaration is a statement made by a declarant, relating “to what the
declarant believed to be the cause or circumstances of his impending death. Moreover, dying
declarations are admissible only in trials for homicide, where the accused is charged with the
death of the declarant.20
At early common law, the English courts made no distinction between receiving dying
declarations in criminal or civil cases.21 A good example of the early view is the case of Wright
v. Littler,22 in which Lord Mansfield admitted a dying declaration in an action of ejectment.
Although no authority was cited in case of King v. Drummond23, (defendant Indicted for
robbery) by Serjeant East' for his assertion that dying declarations were peculiar to homicide
cases, and even though the early common law view was to the contrary, his position.

The common law position, which adopts a narrower scope and allows "admissibility only in
cases of homicide,where the death of the deceased is the subject of the charge." 24 In Rex v.
Mead25, the court "refused to admit the dying declaration of the woman on whom an abortion
was performed, holding that even though the declaration at issue related to the cause of death,
such statements are admissible only when the death of the party is the subject of the inquiry (an
implicit finding that an abortion prosecution was not such a case)." 26 Even though the cause of
death, which was illegal abortion, was in question, the dying declaration relating to the cause was
still not admissible in the English court.

If the accused has been charged with the murder or manslaughter of the declarant, the declarant's
oral or written statement as to the cause of his death is admissible to prove those circumstances,
so long as he had a settled hopeless expectation that he would die within a short time when his
statement was made R v. Perry27, and in R v. Austin.28 However, a dying declaration which is

20
Cummings v. Illinois Cent. R.R., 364 Mo. 868, 269 S.W2d 111 (19S4).
21
Ryan, Dying Declarations in Civil Actions, 10 B.U.L. Rev. 470, 485-87 (1930); Smith, Dying Declarations, 3 Wis. L.
Rev. 202,(1925);
22
97 Eng. Rep. 812 (K.B. 1761)
23
168 Eng. Rep. 271 (Cr. 1784)
24
Henry Roscoe, A Digest of the Law of Evidence in Criminal Cases, 28 (1839).
25
(1824) (Eng.).
26
Peter Nicolas, 'I’m Dying to Tell You What Happened': The Admissibility of Testimonial Dying Declarations Post-
Crawford, 37 Hastings Const. L.Q. 487, 525 (2009).
27
[1909] 2 KB 697 (CCA)
28
(1912) 8 Cr App R 27 (CCA).
incomplete is inadmissible on the ground that it is impossible to tell what the declarant would
have added to his statement. In Waugh v. R29 the deceased started to make a statement but slipped
into a coma (from which he never recovered) just as he was about to explain why the accused
bore him a grudge. It was held that the statement ought not to have been admitted. If a dying
declaration is admitted it is incumbent upon the judge to remind the jury that it has not been
tested by cross-examination and that it ought to be scrutinised with care, but there is no
requirement that the jury should be directed that it would be dangerous for them to convict on
that evidence alone in Nembhard v. R..30

A recent example is provided by the case of R v. Lawson31. The deceased had been found badly
burnt and unconscious at the scene of a fire following an argument with her husband, the
accused. On the way to hospital she began to regain consciousness and said, `You have really got
me now.' At the hospital she managed to dislodge her oxygen mask to say `Murder, murder!' She
died the next afternoon. The Court of Appeal held that her words were prima facie admissible as
dying declarations, subject to the judge's inherent discretion to exclude the evidence if it was so
unreliable or ambiguous that it would be unfair to invite the jury to consider it. (It was noted that
the words were also admissible under the `excited utterance' res gestae exception.) In addition to
the necessity of admitting dying declarations to ensure justice is done, the rationale underlying
this exception has traditionally been based on the assumption that a person is highly unlikely to
lie about the cause of his death once he has realised that his involvement in worldly affairs is
soon to end R v. Woodcock32.

It is for this reason that the law requires a settled hopeless expectation of death within a short
time. However, although it has been said that the declarant's sincerity can be assumed from his
realisation that he would soon be in the `presence of his Maker' R v. Osman33 it is no longer
necessary to prove that the declarant had any particular religious belief for his declaration to be
admissible;

29
[1950] AC 203 (PC)
30
[1981] 1 WLR 1515 (PC)
31
[1998] Crim LR 883
32
(1789) 1 Leach 500 (CCC).
33
(1881) 15 Cox CC 1
Indeed in Mills v. R34 the Privy Council expressly rejected the rationale based on religious belief.
Despite this trend it may still be the law that if the declarant could not possibly have been able to
understand the meaning of death on account of his tender years or mental condition his statement
will be inadmissible.

In R v. Pike35 a four-year-old girl's dying declaration was ruled inadmissible on this ground. It is
the declarant's belief at the time his statement was made which is relevant, so if he believed he
would die from his injuries, and subsequently regained hope of recovery before dying, his
declaration will still be admissible R v. Austin36.

Indeed, dying declarations have been admitted even though the declarants died some
considerable time after making their statements; in R v. Bernadotti37 the intervening period
between the declaration (`Be quick, or I shall die') and death was nearly three weeks. Conversely,
if there was some hope of survival at the time the statement was made it will be inadmissible.

In R v. Jenkins38 the deceased had the original words `with no hope of my recovery' in her written
statement amended to read `with no hope at present of my recovery.' This indication of some
slight hope rendered her statement inadmissible also in R v. Gloster.39 Evidence of what the
declarant was told at the time by the persons around him, or what he himself said, is admissible
to show his state of mind on the ground that it is either original evidence or hearsay forming part
of the res gestae, but in the absence of such evidence appropriate inferences will need to be
drawn from the circumstances to prove the declarant's state of mind.

In R v. Woodcock40 the deceased's statement was left to the jury even though the only evidence of
her belief that she was soon to die was the inference which could be drawn from her awareness
of the severity of her wounds. However, other cases suggest a reluctance to draw such an
inference. In R v. Bedingfield41 for instance, the judge refused to admit the deceased's statement

34
[1995] 1 WLR 511
35
(1829) 3 C & P 598
36
(1912) 8 Cr App R 27 (CCA)
37
(1869) 11 Cox CC 316
38
(1869) LR1 CCR 187 (CCCR)
39
(1888) 16 Cox CC 471 (CCC).
40
(1789) 1 Leach 500 (CCC)
41
(1879) 14 Cox CC 341.
as a dying declaration even though her throat had been severely cut and she died just 10 minutes
later.

The dying declaration exception is of limited use in practice. It allows a deceased's statement to
be admitted at the trial for his murder or manslaughter only if he believed that he was soon to die
and if the statement relates to the circumstances of his death. Thus, if a dying declaration relates
to the commission of another offence against the declarant, or to the murder or manslaughter of
another person, it is inadmissible despite the assumed sincerity of the declarant at that time.

Moreover, the rule is based entirely on the supposed sincerity of those who believe in divine
retribution. The rule prevents the admission of a declarant's statement, no matter how probative it
is of the accused's guilt or innocence, unless the declarant was completely convinced he would
soon die; and the very real possibility of the declarant's being mistaken or confused is
disregarded for the purposes of determining admissibility. In Mills v. R42 the Privy Council
favoured a more flexible test, based on probative value, so that other statements made by
deceased persons could be admitted.

Application of dying declaration in Tanzania

In Tanzania, dying declarations are admissible in both civil and criminal cases alike provided
that the cause of death of the person giving the dying declaration is in the issue.
Section 34(a)43 provides When a statement is made by person as a cause of his or her death or as
any of the circumstances of the transaction which resulted into his or her death, in cases in which
the cause of death of that person come into question and the statements are relevant whether the
person who made them was or was not at the time when they were made under the expectation of
death and whatever may be the nature of the proceeding which the cause of his or her death
comes into question, it is admitted as evidence of the truth of that statement.
A dying declaration therefore is a statement n uttered by a since deceased person the purpose of
which is to establish the cause of death of that person. Ordinarily, this would amount to hearsay
because the maker is dead and therefore not in court.

42
[1995] 1 WLR 511
43
The Evidence Act [Cap 6 R.E 2019
Dying declaration is the statements which is made by dying person at the time of his death
explaining the cause of his death or the circumstance which lead to his death. (It give the picture
about the cause of his death).
According to section 34(a)44 will be admissible and acceptable if meet the following
considerations
 It must be made by the person who dead,
 The statement must be made by deceased person immediately before his death,
 The statement must relate with cause of the death of deceased person,
 The cause of the death of deceased person must be at issue or be in question.

The circumstances which lend strength and assurance to a dying declaration.

The Cause of Death, It is required that dying declaration must relate to the cause of death of the
maker (declarant) and not the cause of another’s death. When the victim is not proved to have
died as a result of the injuries received in the incident his dying declaration cannot be said to be
the statement as to the cause of his death or to any of the circumstances which resulted in his
death. In the case of R. v. Abedi bin Kasanga 45
the appellant was charged with murdering
Sowedi. Bushiri in a dying declaration stated that he (Bushiri) had been instigated by the
appellant to shoot Ali and had in fact shoot Sowedi. Mistaking him for Ali. This was held to be
inadmissible.

R. v. Kayanda Alias Msila s/o Mkuyu and Others46, a dying declaration by one Rubogi who was
in fact murdered on the same occasion as Mfanye for whose murder the appellants had been
charged, though the two murders were not made the subject of a single information, was held to
be inadmissible since it was not Rubogi’s death which was in question.

Circumstances of Transaction, Dying declaration may be admissible if they are made as to any
circumstances which resulted in the deceased’s death. In the case of Swami v. Emperor47, the
court extended the suggestion that the statement must be made after the transaction has taken
place that the person making it must be at any rate near death, that the circumstances can only

44
The Evidence Act [Cap 6 R.E 2019].
45
(1938) 5 E.A.C.A 120
46
(1943) 10 E.A.C.A. 117
47
[1939] 1 All E.R. 396
include the acts done when and where the death was caused. Thus the statement may be made
before the cause of death has arisen or before the deceased has any reason to anticipate being
killed.

In the case of Kabateleine s/o Nchwamba48 the appellant was convicted of the murder of his
mother by setting fire to the hut in which she was sleeping at night. The evidence against him
was entirely circumstantial and consisted inter alia of a complaint made by the deceased to a
headman two days before the fire the appellant was threatening to burn her hut because he said
she had caused the death of his father by witchcraft. The appeal court held that the complaint
made to the headman two days before the fire was admissible in evidence under section 32(1)
Indian Evidence Act (34(a)49 as it was directly related to the occasion of the deceased’s death and
was a circumstance which resulted in her death.

In Swami’s case the court said that the circumstances must be circumstances of the transaction,
general expression indicating fear or suspicion whether of a particular individual or otherwise
and not directly related to the occasion of the death will not be admissible. In the case of Antonio
Barugahare and Others v. R50 the only point in the appeal was the admissibility of certain
evidence by a friend of the deceased woman. The witness gave evidence that the deceased had
told her some week before her death that the first defendant had asked her to marry him and to
lend him some money to pay his poll tax. The appeal court held that the admission of such
statement by the trial court was irregular. It further stated that: “The statements of the deceased
indicating motive would have been rightly admitted if made after the attack, and perhaps even if
made in clear reference to an imminently expected attack which later took place; but we think
that in the present circumstances they were neither statements as to the cause of death nor as to
the circumstances of transaction which resulted in the death. In one sense a murder may be said
to result from a long-nurtured grudge, and the source of the grudge may be said to be a
transaction which itself results in the death; but we emphasis the requirements laid down by the
Privy Coucil that there must be ‘some proximate relation to the actual occurrence.’ Whether or
not facts here alleged bear a relation to the murder, there was certainly no proximate relation.”
Thus we see that circumstances must have some proximate relation to the actual occurrence,

48
(1946) 13 E.A.C.A 164
49
The Evidence Act [Cap 6 R.E 2019].
50
[1957] E.A. 149,
though as for instance in a case of prolonged poisoning they may be related to the dates of the
actual fatal dose.

Manner of eliciting the Statement, In the case of Pius Jasunga s/o Akum v. R51, among other
issues raised on appeal was the admissibility of dying declaration taken by asking leading
questions. The court said that this does not make the statement inadmissible, but it will affect the
weight to be given to it.
In R. v. Mitchell52, the court said that declaration must be in the actual words of the deceased and
that if questions had been put, both questions and the answers must be given; furthermore since
questions might be leading ones, there always a very great danger of each question being
answered without their force and effect being full comprehended.
Incomplete Statements, Incomplete statements are not admissible. In the case of Cyril Waugh v.
R.53, the deceased fell into a coma while making the statement and never recovered. The court
held that: “The dying declaration was inadmissible because on its face was incomplete and no
one can tell what the deceased was about to add; that it was in any event a serious error to admit
it in part, and that it was further and even more serious error not to point to the jury that it had
not been subjected to cross-examination.”

In the case of R. v. Charles Daki54 the deceased was interrupted by the doctor when he was
making his statement to the police officer, whereas later he died without completing his
statement. The court held that—on the face of the recorded statement and footnote there to the
deceased was interrupted by the doctor; the deceased might or might not have added something.
Thus the statement was held to be inadmissible.

In the case of Pius Jasunga the deceased did not sign his statement and thus the court said that
since the statement was unacknowledged it was inadmissible. “The statement was
unacknowledged and there was no means of knowing whether the deceased would have
acknowledged its correctness or would have wished to alter or add to it had he been able to do
so.”

51
(1954) 21 E.A.C.A. 331
52
(1892) 17 Cox 503
53
[1950] A.C 203
54
[1960] E.A. 34
Weight, In order to test the reliability of a dying declaration, the court has to keep in view the
circumstances like the opportunity which a person on the point of death had for observation,
whether his capacity to remember the facts stated by him had not been impaired at the time he
was making the statement that the statement was made at the earliest opportunity. The weight to
be attached to a dying declaration will depend on a number of circumstances. It is very important
to determine whether or not the declarant was really certain of his assailant.

In the case of Mdiu alias Mnyambwa Mande v. R55 the deceased had in a dying declaration said
to the appellant “Why are you killing me?” and when the accusations had been denied, he asked
“if you did not kill me, let us shake hands.” They had then shaken hands and the deceased had
then said “if you did not kill me, God knows.” The appeal court said: “Could not exclude the
possibility that up to the moment that the deceased died there was a certain amount of doubt
lingering in her mind. It would also appear that those who were present and heard the declaration
were not entirely convinced by it, because before the arrival of the police no one made any
attempt, as is usual in these circumstances, to arrest the appellant…the attack took place at night
in a room lit by a feeble light and, in our view, where the identification of the assailant was a
narrow issue between the prosecution and the appellant, a particular caution must be exercised
and the evidence of the prosecution must be so cogent as to exclude any possibility of a doubt.”
The weight to be accorded to a dying statement must also depend to a great extent, upon the
circumstances in which it is given.

In the case of Pius Jasunga, the deceased was suffering from a terrible head wound when he
made the statement was (according to hospital employee who was present at the time) very
unconscious. He made the statement with difficult though apparently his mind was clear.
Although he spoke strongly at first he get weaker and was unable to sign the statement. The
unsatisfactory nature of the statement was held to be inadmissible because the effects of wound
may dim the memory or weaken or confuse the intellectual powers.

Corroboration, Since the weight to be attached to a dying declaration under Tanzania Evidence
Act is less than that in England, evidence of such declarations falls into the class of testimony for
the acceptance of which corroboration is highly desirable. Yet it is not to say that corroboration
is always necessary to support conviction. Corroboration would not always be necessary if the
55
[1965] E.A. 193
dying declaration is complete in its accusation and there is nothing to show that the maker of the
statement had anything further to add.

In the case of Eligu s/o Odel and Epong s/o Ewunyu56, the deceased had stated in his dying
declaration that the two accused had attacked him. The deceased came along a road near the
second accused and was singing. This annoyed the second accused, who bound the deceased
with a rope and later after unbinding him, beat him to death with a stick. The principal evidence
against the accused was contained in a certain statement made before his death by the deceased
to four different people as to what happened and who assaulted him.

In the case of the first accused the deceased’s statement receives corroboration in the evidence
that prior to his death the accused’s stick had been taken from him by the second accused and
was found near the place of the first accused’s house where the deceased met his death. As
regard second accused, he was associated with the first accused in arresting the deceased earlier
in the evening of his death for the trivial act of singing. It was held that whilst corroboration of a
statement as to the cause of death made before his death by the deceased is desirable it is not
always necessary in order to support a conviction. To say so would be to place such evidence on
the same plane as accomplice evidence and would be incorrect. The court said:

“In quoting this evidence our object is to show that the earlier happenings of the evening the
second accused was associated with the first accused in such a way as to point to the second
accused being the second assailant when the deceased was later attacked by two men. It would
not be reasonable to assume that a stranger to the earlier events had identified himself with a
later attack on the deceased. Besides there is point that the deceased in his identification of his
assailants would be less likely to be mistaken than if he had been suddenly set upon by persons
with whom he was unacquainted. Here not only were the accused known to the deceased, but he
had been in their company in circumstances we have set out earlier in the same evening, this fact
making the deceased’s statement more credible.”
Apart from exceptional cases where the statement of the deceased was admitted without
corroboration, courts have from time to time insisted on the need of corroboration as was said in
the case of Pius Jasunga: “we have examined the decisions of this court on the subject of dying
declarations since 1935 and we have been unable to find a single case where conviction has been
56
(1943) 10 E.A.C.A 90
upheld which was based upon a dying declaration without satisfactory corroboration unless in
Epungu’s case there was evidence of circumstances going to show that the deceased could not
have been mistaken in his identification of the accused.” Sometimes corroboration may be
circumstantial, as was in the case of R. v. Said s/o Abdalla alias Said s/o Mangombe.
In this case a witness had seen the deceased being pursued by a man who she could not identify
carrying a panga. The deceased named the appellant as his assailant. Corroboration was held to
lie in the fact that earlier in the day the deceased and the appellant had a dispute over the
ownership of a sheet and had been seen going off together in the direction of the place where the
deceased’s body was found, the appellant carrying a panga, a bottle and the sheet and was
wearing a cap. Later he was seen without the cap, bottle or sheet, wet with sweat and with his
eyes red. Where a dying declaration is made in the presence of the accused, corroboration of a
dying declaration may be found in the accused’s conduct at the time.

The general principle is that a dying declaration once believed to be true, free from falsehood,
consistent, coherent and where no likelihood of prompting is present can be accepted and acted
upon. It is not necessary that the same be corroborated. However there are only a few
declarations of such good quality. In view of this where a dying declaration is accepted in
evidence corroboration is highly desirable though not always necessary to support a conviction.

Corroboration is thought necessary because the deceased may have been uncertain or mistaken
on the identity of the assailant. In the case of R.v. Muyovya Bin Msuma57 the Court held:

(i) Mere repetition by the accused of a substantially identical statement on a number of different
occasions that the accused was his assailant, while it is evidence of consistency of his belief that
such was the case, is no guarantee of accuracy.

(ii) Where there are circumstances which show that the deceased could not have mistaken in his
identification then a conviction arising from an un-corroborated dying declaration may stand.

In the case of Africa Mwambogo v R58 the appellant was charged with and convicted of murder.
In convicting, the trial judge relied on a dying declaration in which the deceased persistently

57
(1939) 6 EACA 128
58
[1984] TLR 240 (CA)
implicated the appellant as his assailant. He also relied on identification evidence that was not
corroborated. The high court decision was attacked on appeal. The Court of Appeal held:
(i) the deceased's persistence in implicating the appellant was mere evidence of
consistency and honesty but not of correctness;
(ii) in the circumstances of this case the deceased could have been honestly mistaken in
his belief that it was the appellant who shot at him;
(iii) Since the conditions of identification were not ideal it was unsafe to convict in the
absence of corroborative evidence.

In the same way in the case of R. v Mohamed Shedaffa and Three Others59 the High Court court
held:
(i) It is possible for a conviction to proceed upon evidence consisting of a dying declaration
only, although it is a rule of practice that a dying declaration requires corroboration
before it can be acted upon;
(ii) The mere fact that the deceased consistently made precise and substantially identical
statements on several occasions is not evidence that such statements are accurate but
only that the deceased was consistent in his belief that the accused had assaulted him.

In the case of Pius Jasunga v. R 60 the Court of Appeal for East Africa stated clearly that a dying
declaration must be corroborated unless there is evidence of circumstances showing that the
deceased could not have been mistaken in his identification of the accused. This being the case
the question, now, is what should be the type of corroboration required in such cases? In
practice a dying declaration may be oral or written and in both cases evidence of its being made
must be adduced first. The test for a dying declaration could, therefore, be based on two
questions:

(i) Whether the statement/declaration was made and

(ii) Whether it was accurately made.

There is no dogmatic rule on how a dying declaration should be corroborated. Such

corroboration can either be circumstantial as was the case in R V Saidi Abdallah61 or through the

59
[1984] TLR 95 (HC)
60
(1954) 21 EACA 331
61
(1945) 12 EACA 67
conduct of the accused if the declaration is made in the presence of the accused or by direct
evidence. It all depends on the circumstances of each case. Corroboration of a dying declaration,
if it is made in the presence of an accused, may be found in the accused’s conduct at the material
time.
In case of R.v. Saidi62. What is important to understand is that such circumstantial evidence
sought to be used to corroborate a dying declaration must clearly point to the guilt of the
accused.
In addition a declaration made while deceased was in fluctuating capacity to talk is not reliable
and a conviction cannot be based upon it without corroboration. In the case of Hamisi Said
Mchana v R63 the appellant was charged with and convicted of murder. The trial judge based the
conviction on a dying declaration and corroborative circumstantial evidence. On appeal it was
argued in favor of the appellant that the dying declaration was made in answer to leading
questions and was therefore inadmissible in evidence. The trial judge's finding of corroborative
evidence was also attacked. The Court of Appeal held:

(i) the dying declaration was admissible because the questions put to the deceased were
not of such a kind as to be likely to mislead him into making a false statement;
(ii) since the declaration was made while the deceased was in a fluctuating capacity to
talk it would be unsafe to base conviction upon it without corroboration;
(iii) In this case there is importance in the circumstantial evidence such that it falls short
of the standard required of corroborative circumstantial evidence.

It is important to remember that basing a conviction on a dying declaration requires that such
declaration must be sufficiently reliable. Where the circumstances in which the declaration was
given make it unsafe to convict without further proof corroboration is necessary. Such
corroboration, as indicated above, may either be by direct evidence or circumstantial evidence.

Whether the rules applicable in dying declaration under common law applies mutatis
mutandis in Tanzania.
Section 34(a)64 constitutes what is called “dying declaration” at common law. A dying
declaration is defined in the Oxford Companion to Law to mean:
62
(1945) 12 EACA 67
63
[1984] TLR 319 (CA)
64
The Evidence Act [Cap 6 R.E 2019].
“A verbal or written statement made by a dying person, which although not made on oath or in
the presence of the accused, is admissible in evidence on an indictment for murder or
manslaughter of that person, provided the person making it had a belief, without hope of
recovery, that he was about to die shortly.”

This definition explains the English position of the law. In Tanzania a dying declaration is
relevant if it is made by a person regarding the cause of his death or it relates to any of the
circumstances of the transaction which resulted in his death where the question of death is in
issue. In such circumstances the dying declaration is relevant and admissible whether or not the
deceased was under the expectation of death. There are two main differences in the legal
position in English and Tanzania law.

(i) In England such declarations are only admissible in homicide cases while in Tanzania
dying declarations may also be used in civil cases where the cause of death of the
person who made the statement comes into question.
(ii) In England a dying declaration is admissible only where the person making it was in
actual expectation of death but in Tanzania whether or not the declarant was under
expectation of death is immaterial.

CONCLUSSION
While dying declarations still hold admissible in courts of the three common law jurisdictions, it
has become increasingly hard to justify the age-old admissibility. The common law, throughout
the years, has maintained its narrow scope for admissibility of the dying declarations. While
there is a belief in the sanctity of a dying man’s words, such evidence is also held in high
scruples.
The declarant is subject to no cross-examination. No oath needs to be administered. There can be
no prosecution for perjury. There is always a danger of mistake which cannot be corrected. Thus,
placing heavy restrictions on admissibility ensures that such a piece of evidence is administered
in the interests of justice.
However, one can argue that with “the increasing disbelief in divine vengeance, the obvious
security from human retribution afforded by approaching death, and the great variety of motives
to falsehood which may operate even upon a dying man, make it still more difficult to justify the
admission of dying declarations on any reasoning which does not call for the admission of all
apparently honest declarations of persons whose testimony has become unavailable through
death.
A piece of evidence whose veracity remains unchecked due to inherent belief in its
trustworthiness, being admitted in a homicide case without any need for corroborating evidence,
sounds highly unfair to the accused who is being charged. In light of an approach similar to
where the truth behind the statement is checked before making it admissible. A broader
approaches that in most of the requirements for admissibility. One of the important things that it,
however, has failed to consider is the rationale behind the admissibility, i.e., the expectancy of
death, which makes the accused more inclined towards speaking the truth. Since there is no such
requirement of settled hopelessness, believing death to be imminent, it seems wrong to admit the
words uttered by the declarant as something so solemn as being placed under oath. Nevertheless,
this is offset by the added requirements for the dying declarations to be wholly reliable,
voluntary, and truthful before it can form the sole basis for conviction.

BIBIOGRAPHY

STATUTE

The Evidence Act [Cap 6 R.E 2019].

BOOKS

Fordham, L. The Admissibility of Dying Declaration, 38. Rev. 509 (1970).

Henry, Roscoe. A Digest of the Law of Evidence in Criminal Cases, 28 (1839).

Peter Nicolas, 'I’m Dying to Tell You What Happened': The Admissibility of Testimonial Dying
Declarations Post-Crawford, 37 Hastings Const. L.Q. 487, 525 (2009).

Roderick, Munday. Musings on the Dying Declaration, 22 Anglo-Am. L. Rev. 42, 42 (1993).

Ryan, Dying Declarations in Civil Actions, 10 B.U.L. Rev. 470, 485-87 (1930);

Smith, Dying Declarations, 3 Wis. L. Rev. 202,(1925);

Saumya Chowdhary, Dying Declaration - Meaning, Explanation and Case Laws Legal Bites –

Law and Beyond (2018)

William Durfor English, Evidence - Dying Declaration - Preliminary Questions of Fact, 15 B.U.

L. Rev. 380 (1935).

CASES

Africa Mwambogo v R [1984] TLR 240 (CA)

Antonio Barugahare and Others v. R [1957] E.A. 149

Connor v. State, 225 Md. 543, 171 A.2d 699, U.S. 906 (1961).

Cyril Waugh v. R. [1950] A.C 203

Eligu s/o Odel and Epong s/o Ewunyu (1943) 10 E.A.C.A 90

Haji Ibrahim v. R (1975) L.R.T.N. 56

Hamisi Said Mchana v R [1984] TLR 319 (CA)

Hutcherson v. State, 40 Ala. App. 77 (1958).

King v. Drummond 168 Eng. Rep. 271 (Cr. 1784)

Kabateleine s/o Nchwamba (1946) 13 E.A.C.A 164

Kennecott Copper Corp. v. Industrial Comm'n, 4 Ariz. App. 327, 420 P2d 194 (1966)
Kilongo v. R (1958) E.A.C.A. 152

Mdiu alias Mnyambwa Mande v. R [1965] E.A. 193

Miller v. Goodwin, 246 Ark. 540, 439 S.W.2d 308 (1969)

Mills v. R [1995] 1 WLR 511

Nembhard v. R. [1981] 1 WLR 1515 (PC)

Njunga V R [1965] EA 773

People v. Beier, 29 Ill. 2d 511, 194 N.E.2d 280 (1963) ;

Pius Jasunga v. R (1954) 21 EACA 331

Pius Jasunga s/o Akum v. R (1954) 21 E.A.C.A. 331

R.v. Saidi (1945) 12 EACA 67

R V Saidi Abdallah (1945) 12 EACA 67

R. v Mohamed Shedaffa and Three Others [1984] TLR 95 (HC)

R.v. Muyovya Bin Msuma (1939) 6 EACA 128

R. v. Charles Daki [1960] E.A. 34

R. v. Mitchell (1892) 17 Cox 503

R. v. Abedi bin Kasanga (1938) 5 E.A.C.A 120

R. v. Kayanda Alias Msila s/o Mkuyu and Others (1943) 10 E.A.C.A. 117

R v. Bedingfield (1879) 14 Cox CC 341.

R v. Woodcock (1789) 1 Leach 500 (CCC)

R v. Gloster. (1888) 16 Cox CC 471 (CCC).

R v. Jenkins(1869) LR1 CCR 187 (CCCR)

R v. Bernadotti (1869) 11 Cox CC 316

R v. Austin (1912) 8 Cr App R 27 (CCA).

R v. Pike (1829) 3 C & P 598

R v. Lawson [1998] Crim LR 883

R v. Osman (1881) 15 Cox CC 1

R v. Perry [1909] 2 KB 697 (CCA)

R v. Blastland [1985] 3 WLR 345 (HL)

R v. Sharp [1988] 1 WLR 7 (HL)

Rex v. Mead (1824) (Eng.)

Teper v R [1952] AC

Waugh v. R [1950] AC 203 (PC)

Wright v. Littler 97 Eng. Rep. 812 (K.B. 1761)

Shepard v. United States, 290 U.S. 96 (1933);

Swami v. Emperor [1939] 1 All E.R. 396

Subraminium V Public Prosecutor [1956] 1 WLR 965 (PC)