Evidence Law: Competency of Witnesses in Kenya

Below is Section 125-127 the Kenya Evidence Act deals with competency of witnesses
125. Competency generally
(1) All persons shall be competent to testify unless the court considers that they
are prevented from understanding the questions put to them, or from giving rational
answers to those questions, by tender years, extreme old age, disease (whether
of body or mind) or any similar cause.
(2) A mentally disordered person or a lunatic is not incompetent to testify unless
he is prevented by his condition from understanding the questions put to him and
giving rational answers to them.
126. Dumb witnesses
(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.
127. Competency of parties and spouses
(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) of this section, 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 (No. 3 of 2006);
(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 according to law, and includes a marriage
under native or tribal custom.