ILLEGALLY OBTAINED EVIDENCE

Law of Evidence II Lecture 1

20.1.03
ILLEGALLY OBTAINED EVIDENCE
Its evidence obtained by;
-Breach of a defendants rights.
-Telephone tapping
-Breach of contract
-Tortious action
Common Law: All evidence provided it is relevant is admissible in
American jurisdiction.4th amendment outlaws illegally obtained
evidence-illegal seizure.
Kenyan Law: Silent on illegally obtained evidence.
Sec 76 of the constitution deals with illegal searches, entry and seizure.
76(1) Except with his own consent no person shall be subjected to
the search of his person or his property or the entry by others on
his premises.
(2) Nothing contained in or under the authority of any Law shall
be held to be inconsistent with or in contravention of the section
to extent that the Law in question makes provision
(a) That is reasonably required in the interest of defense, public
safety, public order, public morality, public health, town and
country planning, the development and utilization of any other
property in such a manner as to promote the public health
(b) That is reasonably required for the purpose of promoting the
rights or freedoms of the person(s)
(c) that authorizes an officer or agent of the government of Kenya,
or of a local government authority, or of a body corporate
established by Law for public purposes, to enter on the premises
of a person in order to inspect those premises or anything thereon
for the purpose of a tax, rate or in order to carry work connected
with property that is lawfully on those premises and that belongs
to Gov, authority or body corporate, as the case may be or
(d) that authorizes for the purpose of *********or in order of a
court in civil proceedings, the entry upon premises by order of a
court
and except so far as that provision or, as the case may be, anything
done under the authority thereof is shown not to be reasonably
justifiable in a democratic society.
Also Sec 118 Criminal Procedure Code provides police with power to
issue a search warrant:
Where it is proved on oath to a court or a magistrate that
anything upon, with or in respect of which an offence has been
committed, or anything which is necessary for the conduct of an
investigation into an offence, is, or is reasonably suspected to be
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in any place, ship, building, aircraft, vehicle, box or receptacle, the

court or magistrate may by written warranty (called a search
warrant) may authorize a police officer or a person named in the
search warrant to search the place, building, ship, aircraft, vehicle,
box or receptacle (which shall be named or described in the
warranty) for that thing and if the thing may be found, to seize it
and take it b4 a court having jurisdiction to be dealt with according
to law.
Section 20 (Police Act Cap24)
Officer of police station, where reasonable grounds exist, for
purposes of investigation, is likely to be found and unreasonable
delay may be there; he can proceed without a search warrant: ie
the discretion is the polices. In the famouse case of
Evidence which is obtained by means or acts which are illegal or against
the law.
How does a court faced with illegally obtained evidence deal with the
evidence, for example evidence obtained in violation of the constitution?
It could also be evidence obtained in breach of other statutes
A common way in which evidence is obtained illegally is through illegal
searches and illegal seizures e.g. breaking into somebodys house and
obtaining evidence, through deception, threats, bribes inducement or
trickery.
The issue has to be looked at in two ways
1.
Section 20 of Police Act
2.
Section 118 of Criminal Procedure Code
S. 118 of the Criminal Procedure Code deals with the power that is given
to search places. The power that a Magistrate or police officer may be
permitted to search any place, building, ship, aircraft, vehicle, box or
receptacle but they have to do this through a certain procedure i.e.
Search warrant. Essentially if you search and find something you are
allowed to seize it. It could be a thing or document. If you do not have
a search warrant the search may be said to be illegal.
Section 20 of the Police Act empowers police officers investigating
offences to search any place that they believe has material necessary
for the purposes of the investigation. The requirement to get a search
warrant may be dispensed with in instances where a police officer
believes that the process of getting the warrant is going to cause
unreasonable delay. In these instances what is required is that the
officer should record in writing the basis upon which they form the
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opinion that if they go looking for a search warrant there is going to be

inordinate delay.
There are two approaches to illegally obtained evidence
1.
Mandatory inclusion;
2.
Mandatory Exclusion
Under common law jurisprudence there is mandatory inclusion whereas
under US Jurisprudence there is Mandatory Exclusion.
In common law the status is accurately represented by the following
words it matters not how you get it, if you steal it even, it
would be admissible in evidence statement by Justice Crompton
in R V. Leatham The only exception that is entertained under common
law is where the evidence consists of a confession which has been
obtained in consequence of some inducement or oppression. Even
though Crompton says it does not matter how you get it, it will matter if
there is inducement or oppression.
A confession that is obtained as a consequence of the deception or
inducement of the person confessing is not admissible even though it be
relevant. E.g. a confession made to a colleague to a person in jail has
been held not to be confessed to a person in authority.
In civil cases there is no discretion to exclude admissible evidence. But
even in criminal cases there is a conflict between 2 positions i.e. where
you admit all relevant evidence to ensure that the guilty are punished
and then there is the view that to admit improperly obtained evidence
condones and encourages impropriety on the part of the police. i.e. why
go through proper channels if you can obtain evidence illegally. There is
no provision in the Evidence Act to guide us. For instance if somebody
got evidence through phone tapping is it admissible?
We look to the constitution which protects persons against being
subjected to the search of their person or property without their consent.
It also protects against entry to your property by others without your
consent.
Under common law, there is the proposition that all relevant evidence is
admissible regardless of the fact that it was obtained illegally. Is this a
good way to view evidence in light of sometimes the excesses that
police can be prone to? A person may be accused but they still have
certain rights. It is better that 99 guilty people go free than one
innocent person to be found guilty. It is much better that one occasional
criminal go free than to condone illegal procuring of evidence.

Evidence which is relevant to a fact in issue is relevant no matter how it

was obtained.
Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says
that the test to be applied in considering whether evidence is
admissible is whether it is relevant to the matters in issue. If it is, it
is admissible and the court is not concerned with how the evidence
was obtained. This case was quoted with approval in the case of
Kuruma s/o Kaniu v. R 1955 1 AELR 236 The Appellant was convicted
with being in unlawful possession of two rounds of ammunition
contrary to Regulation 8 of the emergency regulations of 1952.
Under the Emergency Regulations only a police officer or an officer
above the rank of assistant inspector was empowered to stop and
search an individual. The appellant was an employee of a European
settler farmer and had been granted leave of absence to go to his
rural home in the reserve. He was stopped at a roadblock, a police
constable stopped him and on searching him found him with the two
rounds of ammunition and a penknife. 3 persons witnessed the
search but were not called to testify. The accused was charged and
convicted of this capital offence and sentenced to death. He
appealed contending that the evidence used to convict him was
illegally obtained. The court held that the evidence was properly
obtained in line with Justice Crompton statement in Lloyd v. Mostyn.
King V. R 1969 1 AC 304
Police obtained a search warrant to search a house belonging to one
Joyce Cohen looking for Ganja and this was under the Dangerous Drugs
Act. They read the warrant to Joyce Cohen but apart from Joyce Cohen,
there was the Appellant in Joyce Cohens House when the police came
and they did not read the warrant to the visitor. The police however
searched the appellant and another man in the house and they found
the appellant with the drug. The Appellant was tried and convicted for
possession of dangerous drugs and he appealed arguing that the
warrant was not directly read to him and thus he was not legally
searched. The court should have excluded the evidence found on his
person because the evidence was unfair to him. The court held that
there was no way of interfering with the way in which the court
exercised its discretion and the court went further to say that this was
not a case in which evidence had been obtained by conduct which was
irreprehensible insinuating that if the conduct had been irreprehensible
the court would have allowed the appeal. There was a bit of discussion
about constitutional rights concerning illegal searches.
The court in R V. King referred to the case of R v Payne [1963] 1 AER 848
Where illegally obtained evidence was excluded but it refused to be
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guided by this case. The facts of this case are that the defendant was
taken to a police station following a traffic accident. He was asked
whether he wanted to see a doctor, he agreed to see a doctor. At no
time had he been told that the results of the examination might be used
in evidence against him. It was not made clear to him that the doctor
would enquire on whether he was fit to drive. At the trial for drunk
driving the doctor gave evidence that the driver was driving under the
influence of alcohol and the defendant was convicted. He appealed.
The appeal court quashed the conviction on the ground that even
though the evidence was admissible, had the accused realised that the
doctor would give evidence on the matter of driving under the influence
of alcohol, he might have refused to submit himself for examination and
in refusing to be guided by this case, the court in King v R stated that
there was no evidence in the Kings case of oppressive conduct or
trickery on the part of the police. The court essentially seems to be
saying that illegality is graded, ie. That there is illegality that can be
allowed to pass but there are cases when it is reprehensible.
Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police
officers of the drug squad for stealing a sandwich from a public house.
The officer improperly searched his home and found Cannabis and the
defendant was subsequently charged with possession of drugs. The
accused put up in his defence that his house was searched illegally. The
first court ruled out the evidence of the search as inadmissible having
been illegally obtained. The prosecution appealed and the appeal was
allowed. The Appeal court held
1.
That the mere fact that evidence is obtained in an irregular
fashion does not of itself prevent that evidence from being
relevant and acceptable to court;
2.
Any court has the discretion to decline to allow any evidence
brought by the prosecution if they think it will be unfair or
oppressive to allow it.
R V. Sang [1979] 2 AER P 1222
The Appellant was charged with conspiracy to utter forged US Bank
Notes. He pleaded not guilty before the case opened. Counsel for the
Appellant applied for a trial within a trial to show that the Appellant had
been induced to commit the offence by a police informer acting on the
instructions of the police. The appellant was averring that for the
inducement, he would not have committed the offence. Counsel was
hoping to persuade the judge to exercise his discretion to disallow the
evidence of the commission of the offence. The Judge however ruled
that he had no discretion to exclude the evidence. The appellant
changed his plea to guilty and was convicted and sentenced. He
appealed against the judgment and the appeal was allowed by the court
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of appeal and then the state appealed to the House of Lord. The House
of Lord held that
1.
A Judge in a criminal trial always has discretion to refuse to
admit evidence if its prejudicial effect outweighs its probative
value;
2.
Except in the case of admissions, confessions and evidence
obtained from an accused after the commission of an offence, a
Judge has no discretion to refuse to admit relevant admissible
evidence merely because it had been obtained by improper and
unfair means.
3.
The use by the police of an agent provocateur or an informer to
obtain evidence was not a ground on which the discretion
should be exercised. Such a factor may however be considered
in mitigating the sentence imposed on the accused.
4.
The defence of entrapment had no place in English Law and
could not be accepted by a Judge as a ground for exercising the
discretion to exclude the prosecutions evidence of the
commission of the crime.
It would appear that the R v. Sang articulates the common law stand
succinctly if evidence is relevant to a fact in issue it is admissible
provided it is not obtained under inducement, confession or after the
commission of an offence. The common law position is almost the
opposite of the position which exists in the US Today. The US
Jurisprudence tries to run away from the law. The law that is used to
exclude illegally obtained evidence is the 4th Amendment which reads as
follows:the right of the people to be secure in their persons, houses, favours
and effects against reasonable searches and seizures shall not be
violated and no warrant shall issue but upon probable cause
supported by oath or affirmation and particularly describing the place
to be searched and the persons or things to be seized.
The question as to whether illegally obtained evidence is admissible in
the US has been debatable.
Weeks V. United States 232 US 283
The police went to defendants house without warrant, they searched
and took possession of various papers and articles that they found in
that house and these were turned over to the courts. The police later
went to the premises hoping to get more evidence and carried away
more letters and this second search was also without a warrant. The
whole question as to whether evidence obtained by the police and the
prosecutor was admissible was discussed and the judges stated if
letters and private documents can thus be seized and held and used in

evidence against a citizen accused of an offence, the protection of the

4th Amendment is of no value.
This was a Supreme Court Decision .
In Wolfe V. Colorado it was suggested that there was need for a uniform
rule, even after the Weeks case the courts had continued to apply
common law rules and in this case of Wolfe the court decided to have a
uniform rule.
In Map V. Ohio 367 US P 643 The defendant was convicted in an Ohio
state court for possession of obscene literature. The conviction was
affirmed by the Ohio Court of Appeal and later by Ohio state supreme
court. The obscene materials were discovered during a search that was
not subject to a warrant on the defendants house. The Ohio supreme
court held that evidence obtained by an unlawful search and seizure is
admissible in a criminal prosecution. The court continued to state that
under the Supreme Court of United States in Wolfe v. Colorado a state
was not prevented by federal constitution from adopting the rule as it
prevailed in Ohio. On appeal to the US Supreme Court it was held that
as a matter of due process evidence obtained by a search and seizure in
violation of the 4th amendment is inadmissible in a state court as it is in
a federal court. If the supreme court holds evidence to be inadmissible
it should apply across the board.
The US Courts have gone even further and held that even if the
evidence is not obtained illegally, where such evidence is obtained in
such a manner as to be reprehensible according to the spirit of the
constitution, such evidence shall not be admissible. Note the
importance that jurisprudence attaches to peoples rights.
In Kenya the reigning position is that in Kuruma s/o Kaniu v. R. This
Case has been criticised in the context within which it was decided. It
was decided during emergency regulation times not withstanding
provisions of S. 76 of the Constitution. The position seems to be that
the end justifies the means.
DOCUMENTARY EVIDENCE
Read Sections Part Three Section 64 106
Sections 65, 66 79 - the whole question of how proof of documentary
evidence differs from oral evidence. How do you prove a private
document from a public document. When is secondary evidence of
documents permissible
Use of extrinsic evidence in interpretation of documents.

What is a document?
No definition of document in Kenya Evidence Act
As a general definition, OSBORN defines document as:Something on which things are written, printed or inscribed and which
gives information; any written thing capable of being evidence.
India Evidence Act
any matter expressed or described upon any substance by means of
letters, figures or marks, or by more than one of those means, intended
to be used, or which may be used, for the purpose of recording that
matter.
Tanzania Evidence Act
Document means any writing, handwriting, typewriting, printing,
Photostat and every recording upon any tangible thing, any form of
communication or representation by one of those means, which may be
used for the purpose of re-cording any matter provided that such
recording is reasonably permanent and readable by sight.

EVIDENCE 2
1. DOCUMENTARY EVIDENCE
There is no definition document in the Kenyan Evidence Act. As a
general definition Osborn defines it as:
Something, in which things are written, printed or inscribed
which gives information; any written thing capable of being
evidence.
Interpretations and general provisions act cap 2
Section 3(1)
....it includes any publication and any matter written,
expressed or described upon any substance by means of letters,
figures or marks or by more than one of three means which is
intended to be used or may be used for the purpose of recording
that matter. It may be any communication in permanent form.
Classification of documents.
All documents without exception are divided into 2 classifications: public
documents and private documents and the distinction is important
owing to the different rules governing the admissibility of documents in
the different categories
79(1) the following documents are public documents:
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Documents forming the Act or records of the Acts

of the sovereign authority; or
of official bodies or of tribunals ; or
public officers, legislative, judicial or executive whether of
Kenya or any other country ;
Public records kept in Kenya of private documents

The test for determining into which a document falls is prima facie an
easy one; If the documents doesnt fall within the list of documents
found in sec 79 (1a), (b) and (c)which lists public documents then it a
private document
The distinction between public and private documents is important coz
of the differences in the rules governing admissibility and the
procedures to be followed; for example, secondary evidence may be
given of the existence, condition or contents of a public document under
the provisions of Sec 68(1) Kenya Evidence Act whereas the rules
concerning secondary evidence of private documents are more
restrictive.
Sarkar in 1686 notes how Blackburns definition of a public document in
Sturla v Freccia 5 AC 541 as a
document that is made for the purpose of the public making
use it and being able to refer to it; it is meant to be where there is
a judicial or quasi-judicial duty to inquire
Note the importance of this right of inspection in Tootal Broadcast Lee
quotation commencing P 173 in Mercer v Denne 1904 2 Ch. 538
Farwell J said
The test of publicity as put by Lord Blackburn is that the public
are interested in it and entitled to see it, so that if there is
anything wrong in it they would be entitled protest In that sense, it
becomes a statement that would be open to the public to
challenge or dispute, and therefore it has a certain amount of
authority.
The test of publicity attains importance under Sec 80 certified copies.
Among the many kinds of public documents there are the following
listed in Sec 82 K.E.A:
Proceedings of the East African Central Legislative Assembly or
the legislature of any country in the commonwealth;
Acts orders or notifications of the executive government of
Kenya, the High Commission, any local authority, or a ministry
or a department of any of the foregoing;
Proceedings of a local authority or of any corporate body
created by the Act or ordinance;
Proclamations, treaties and other acts of states or any foreign
country or any part of the commonwealth;

Judgments, decrees, orders and other judicial proceedings of

any court of justice in such country;
Affidavits, pleadings and other legal documents filed or
deposited in such court as required by Sec 7 of the Evidence
Act 1857 of the United Kingdom;
Public documents of any other class in a foreign country
Note how these examples meet the requirements listed in subs a (i) - (ii)
of Sec 79 (1)
Tootal Broadcast Lee Co. Ltd v Alimohamed Haji Ahmed and
Sons Ltd1957 24 KLR (2) 31
This was a case for damages or equitable relief for infringement of
design registered in Great Britain. The plaintiffs relied on a document
bearing the seal of the patent office of Great Britain, purporting to be a
copy of the certificate of registration of the designs together with a
certificate bearing the seal of the patent office of Great Britain
One of the questions considered was in fact, a public document so that
the rules regarding admission of certified copies applied.
The court quoted Sec 74 (i)(iii) IEA, Sec 791(e) KEA, Sec 76 and 77
IEA, Sec 79-81 KEA and Sec 82 IEA, Sec 84 KEA and said
The documents on which the plaintiffs rely on purport to be
copies of the registration certificates issued in respect of each
design by the controller general of Patents and Designs under the
authority of Law (Sec 18 Registered Designs Act 1949 which
reproduces Sec 57 of the Patents and Designs Act 1947) It seems
to me, therefore, that the certificates of registration being a
document issued by authority of Law by a public officer must
necessarily be a public document.
The court then went on to discuss questions of admissibility
.Subsection 79 (i) (b) states that public records of private documents
kept in Kenya are Public documents. The fact that a document is
registered doesnt make the document itself a public document; only the
record of registration in a public document.
The registration referred to is that provided for by Law e.g. Cap 285
Registration of Documents Act (Pertaining to Land).The theory is that
these registrations are in the public interest, and the statements in the
registers concerning the documents registered are made by authorized
and competent agents of the public in the course of their official duty
Entries of this kind have been classified as falling under the
classification of statements made under special circumstances Sec 38
KEA
Proof of Documents By Certified Copies.
The proof of public documents differs from proof of private documents,
generally by certification of a copy of the document, or in certain
instances by authentication

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Section 80(1) Every public officer having the custody of a public

document which any person has a right to inspect shall give that
on demand, a copy of it on payment of legal fees therefore,
together with the certificate written at the foot of such copy that it
is a true copy of such document or part thereof as the case may
be and such certificate shall be dated and subscribed by such
officer with a name and official title and shall be sealed whenever
such officer is authorized by law to make use of a seal and such
copies so certified shall be called certified copies
(2)Any officer who by the ordinary course of official duty is
authorized to deliver copies of a public document shall be deemed
to have the custody of such document within the meaning of this
section.
S (*) certified copies of public documents may be produced in
proof of the contents of the document or part of the document of
which they purport to be copies.
Note that the right to receipt of a certified copy of the document
depends upon public right of inspection as well as the document falling
under the definitions in Sec 79.
The importance of the accurate compliance with these requirements is
shown in the Tootal Broadcast Lee case; the court said
It is not, however, all public documents that can be proved by
means of certified copies but only those which any person has a
right to inspect; There is no evidence b4 me and I can see nothing
in the law to the effect that the Registrar of Designs keeps or is
bound by Law to keep a copy of every certificate of registration
which he issues for inspection by the public. He has to keep a
register in which he must enter certain prescribed particulars
concerning every registered design which is open to public
inspection but I cant see how a certificate of registration itself
which can only be given to the proprietor of the registered designs
can be inspected by any member of the public. It seems to me,
therefore that a certificate of registration doesnt come within the
category of public documents which can be proved by means of
certified copies. There is another objection to the admissibility of
the document produced. It is one of form only but never the less
valid for that. Section 76 Indian Evidence Act requires a
certificate to be written at the foot of the copy and not on a
separate sheet of paper as has been done here. In my view,
therefore, the documents on which the plaintiff relies to prove
their ownership of the designs arent admissible under Sec74 to
77 I. E A.
Sec 79 -81 K.E.A
Owing to the simpler procedures for the proof of the contents of public
documents under Sec 80-81 KEA that those procedures required for the
proof of private documents, its important that the requirements laid
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down in Sec 79-81 be strictly proved b4 a document tendered in

evidence be tendered as a public document by means of certified copy
*NB* THERE WAS A SECTION OF NOTES THAT WAS NOT CLEAR AND IS
THEREFORE BYPASSED:-Proof of certain public documents
-jurisdiction over property abroad
(a) the principal (Pen v Low Baltimore,
Ewing v Orv Ewing
(b) Application
(c) Jurisdiction excluded
Evidence II- Lecture 3
HEARSAY
Hearsay refers to testimony given in court by a person other than the
one who perceived it. As a general rule hearsay is inadmissible. For you
start from the premise that reporting in court what you heard another
person say is not going to be admitted in court as evidence. And this
draws from section 63 of the Evidence Act, which explicitly provides that
oral evidence must be direct. So you are not allowed to go to court to
say this is what another person said. Oral evidence must be direct. And
when you are dealing with documents it is going to be required that the
author of the document presents that document in court. And the reason
that we are saying that the author of the document should come to
court is so that if you want to cross-examine them you have the
opportunity to cross-examine them.
The rule against hearsay is stated as follows:A statement made by a
person not called as a witness which is offered in evidence to
prove the truth of the fact contained in the statement is hearsay
and it is not admissible. If however the statement is offered in
evidence, not to prove the truth of the facts contained in the
statement but only to prove that the statement was in fact
made it is not hearsay and it is admissible- Justice De Silva
So essentially then what determines whether hearsay is hearsay or not
is going to be pegged around the purpose for which the statement is
given. If you are giving the statement to prove the truth of the contents
of the statement, you are giving the statement made by another person
seeking to get people to believe that which is contained in the
statement, that is hearsay. But on the other hand if you state what
another person said, not to prove the truth but to establish that those
people actually made the statement, that is not hearsay. Because
essentially then what you are doing is just reporting what another

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person said and you did perceive of what that other person said because
you heard them. Is this clear?
When you are using the statement to prove that the statement was
made, here you are attesting to something that you perceived of
because you heard it had taken place. But where you are giving a
statement to prove the truth of what was contained in the statement
which somebody else had perceived of, that is hearsay. So for instance if
a person comes and says, James told me Peter stole the till from the
bank. If you are trying to prove the fact that Peter stole from the bank
then you can see there that you will not have direct perception of what
happened. If in fact you did hear James say that Peter stole, you
perceived of that fact because you did hear James say that Peter stole. Is
that clear?
The case that you should read that concerns this rule of hearsay
is the case of Subramanium v Public Prosecutor (1956)
WLR 965. And the facts of this case were as follows: The
appellant was charged and convicted of being in
possession of firearms without lawful excuse. In his
defence, he asserted that he was acting under duress in
consequence or a result of threats uttered to him by
Malayan terrorists. When he attempted to state the
contents of the threats, he was overruled by the judge. He
appealed against conviction arguing that the judge should
actually have listened to what the import of the threat
was. And of course the judge would have argued that if he
was allowed to say what the terrorists had told him that
would be hearsay. The court of appeal held that the
conviction had to be quashed because what the terrorists
told the appellant should have been admitted as original or
direct evidence. It would have shed light on subsequent
actions of the appellant.
So essentially here what the court is saying is that the appellant should
have been allowed to utter the threat because they would not have been
threatening-may be he was told if you dont fire the firearm we will kill
your mother. So the fact that the statement was uttered is one thing, but
the truth of what was in the statement is another thing. Whether the
terrorists had the capacity to kill his mother or whatever else they
threatened to do is not what we are seeking to hear. What we are
seeking to find out is whether a reasonable person would have behaved
in the same way as the appellant did in the circumstances. And you
should note in this case the statement I was reading to you on what is
hearsay and what is not hearsay was stated. In the judgment of Justice
De Silva at page 959 to 970. That is where that statement that we are
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talking about, what is and what is not hearsay is stated by this particular
judge:
A statement made by a person not called as a witness which is offered
in evidence to prove the truth of the fact contained in the statement is
hearsay and it is not admissible. If however the statement is offered in
evidence, not to prove the truth of the facts contained in the statement
but only to prove that the statement was in fact made it is not hearsay
and it is admissible
The other case that we should look at getting to what is hearsay is the
case of Myers v DPP 1964 2 All ER 881. This is a case you must read.
The appellant in this case was charged and convicted of receiving a
stolen motor vehicle. He was in the business of buying wrecked motor
vehicles for repair and resale. The chief prosecution witness was the
person in charge of the records department of the relevant motor
vehicle factory. He testified that every time that a car was manufactured
a workman would note down the engine number and the chassis number
of the car amongst other details and these would be marked on some
card. He also testified that the cylinder head number would be indelibly
struck on the cylinder head block so as to be inerasable. The card would
then be microfilmed and stored. At the trial the microfilms were
produced on oath by the witness and schedules were prepared from this
microfilm. The schedules showed that the cylinder block numbers of the
car in question belonged to the car allegedly stolen. The appellant was
convicted on the basis of this evidence. The court of appeal affirmed the
conviction and the appellant appealed to the House of Lords. The House
of Lords held that the trial court and the court of appeal improperly
admitted hearsay evidence in the form of the microfilm and Lord Reid at
page 884 stated: The witness would only say that a record made by
someone else showed that if the record was correctly made a car had
left the workshop bearing three particular numbers. He could not prove
that the record was correct or the numbers which it contained were in
fact the numbers on the car when it was made.
Do you see the argument here? That essentially the basis of the
microfilm was not something that the witness could testify to because
he did not put in the particular entry. He did not actually author the
document. Remember we said by dint of section 63 of the Evidence Act,
the person that authors the document should produce that document.
So here the vehicle had left the workshop with some numbers. Those
had now been reduced into microfilm and you have a third person
seeking to produce that as evidence. And essentially what the court is
saying here is that the only thing the witness can say is that some
record had been made of a car that left with some numbers. But he
could not actually vouch for the veracity of the truth of what was
14

contained in those documents. And for that reason, that was hearsay.
This is why we are saying the House of Lords said the trial court and the
court of appeal had improperly admitted hearsay evidence. And because
this became a bit technical, Lord Reid ends his statement by saying:
This is a highly technical point but the law regarding hearsay evidence
is technical and I would say absurdly technical
The other case that it would be a good thing to look at just to illustrate
how hearsay presents itself, is the case of Patel v Comptroller of
Customs [1965] 3 All ER 593. The appellant here imported from
Singapore into Fiji some coriander seeds shipped in bags. He correctly
engrossed (filled) the customs import entry form and on investigation at
arrival five bags of what he had imported were found to be contained in
within another outer bag. So essentially here you have double bagging.
The outer bag of these five bags was marked with the appellants trade
name but it had marked on it Produce of Morocco. In the important
entry form the appellant had filled that the coriander was a product of
India. So in respect of the five bags that had Produce of Morocco, the
appellant was charged and convicted in making a false declaration in a
customs import form, on a customs import entry. And we are saying that
he had stated that the seed originated from India when in fact it
originated from Morocco.
On appeal, it was held that the evidence of the writing on the bag was
inadmissible. It was hearsay. And this was because the court could not
ascertain that in essence the coriander seed had actually come from
morocco even though the bags were marked Produce of Morocco.
There were actually saying nobody knew who and when those markings
on the bags, Produce of Morocco, were made. And essentially then
nobody could speak to them testifying to the fact that the particular
coriander seed had originated from Morocco. So they could not be the
basis of conviction for making a false entry because the person who
wrote them could not be called to vouch for the truth.
The other case that would illustrate the same point is Junga v R (1952)
AC 480 (PC). The accused was charged and convicted with the offence of
being armed with the intent to commit a felony. The police witness gave
evidence at the trial, saying that they had been told by a police informer
of the alleged attempted offence. The informer was not called to give
evidence and his identify was not revealed. The accused was convicted.
On appeal it was held that the trial magistrate had before him hearsay
evidence of a very damaging kind. Without the hearsay evidence the
court below could not have found the necessary intent to commit a
felony and that being the case the Court of Appeal allowed the appeal
against conviction. Given that here was hearsay evidence, you didnt call
15

the informer who would have actually given first-hand knowledge of the
fact that led to the conviction of this person. And that being the case,
the Court of Appeal says that in all fairness the conviction should be
quashed.
Another case is the case of Tenywa v Uganda (1967) EA 102(U). The
accused was accused of having stolen a bicycle. The bicycle was seized
by police officers acting on this information. On examination the bicycle
was found to have a forged number plate. The accused was convicted of
the offence but appealed and on appeal it was held that the police
report from Kampala suggesting that the original number on the bicycle
was altered was hearsay. It should not have been admitted. Because
essentially there was nobody to say this was the number. When you say
there was a fake number on the bicycle you are basically saying that it is
not the number that was on it, so you should have a person to testify to
what was actually the original number. But just to say that it has been
changed, even saying that what has been found is what was. Because
essentially the person that marked the number on the bicycle was not
called to give evidence.
The learned trial magistrate was wrong in law to have admitted in
evidence the report alleged to have been obtained from Kampala, which
suggested that the original number of the (stolen) bicycle had been
altered. That piece of evidence was hearsay and should not have been
admitted unless the expert who had examined the bicycle had
testified before the court and been cross-examined on the point as to
how he arrived at his conclusion.
Over and above those cases you should also look at the cases of
Magoti s/o Matofali v R (1953) EACA 232.
A plan of the locus was made and produced in evidence by a police
corporal. Various points on the plan are marked with letters and it bears a
legend showing what these points represent as to what each point
represented he merely said I got the information from Antonia, (P.W. 2), as to
positions and ownership. This, of course, was merely hearsay and his
evidence should have been supported by the evidence of the witness Antonia
to the effect that she had, subsequent to the event, pointed out to the corporal
the places where the various incidents, to which she had testified, had taken
place.

R v Gutasi s/o Wamagale (1936) 14 EACA 232

We note that the statement made by the appellant (Ex.P.1) to Mr. Harwich,
Superintendent of Police, was admitted, although the two interpreters who had
carried out a double interpretation were not called as witnesses. Without their

16

evidence this statement was strictly inadmissible since Mr. Harwich could only
speak to have taken down what he was told by the second interpreter.

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

And basically these cases also discuss instances where courts are faced
with hearsay evidence and how they treat them. And it would be useful
to read those to begin to understand what kind of information, the court
is really going to take into account in determining whether a particular
piece of evidence is hearsay or not. And essentially that is about the rule
that is you should not go to court to say what you heard another person
say to establish the truth of that which you are saying.
There are exceptions to the hearsay rule and actually the exceptions are
many more than the rule itself:
1. The first one would be admissions, formal and informal
admissions. And these are covered at sections 17-24
2. confessions are another exception to the hearsay rule covered at
sections 25-52
3. Thirdly, statements made by persons who cannot be called as
witnesses are an exception to the hearsay rule. And these are laid
out at section 33 of the Evidence Act.
4. Evidence given in previous judicial proceedings is also an
exception to the hearsay rule. And that is covered at section 34 of
the Evidence Act.
5. Statements made under special circumstances are also an
exception to the hearsay rule. And a number of these are laid out
in from section 37 through to 41.
6. Statements in documents produced in civil proceedings are also an
exception to the hearsay rule. Section 35 and 36
7. Res Gestae is also an exception to the hearsay rule.
8. Affidavit statements especially where they are based on
information are also an exception to the hearsay rule.
9. Statements taken from sick persons who are about to die are also
an exception to the hearsay rule. And these are hazards(?) under
the Criminal Procedure Code.

17

10.
78.

And also evidence by certificate covered at sections 77 and

We will begin by looking at statements made by persons who cannot be

called as witnesses:
Statements by persons who cannot be called as witnesses
Section 33 lays out what those statements might be. It actually has 8
examples of such statements and these are all, in their own right,
exceptions to the hearsay rule. And therefore I could not agree more
with Lord Reid that the rule against hearsay is technical and absurdly
technical.
The opening paragraph at section 33 gives the context within which
those exceptions covered at that section apply:
Statements, written or oral, of admissible facts made by a person who
is dead, or who cannot be found, or who has become incapable of giving
evidence or whose attendance cannot be procured, or whose attendance
cannot be procured without an amount of delay or expense which in the
circumstances of the case appears to the court unreasonable, are
themselves admissible in the following cases-
So it is not all the time that you have, for instance, under section 33 (a)
a dying declaration or whatever else, that it is going to be used in
evidence. What is detailed at section 33 introduction will have to apply.
So essentially the statement will be admissible if the person make them
is dead, cannot be found, has become incapable of giving evidence,
their attendance cannot be procured. Or even if it can be procured that
would actually occasion expense and delay which in the view of the
court is unreasonable. If those circumstances apply then (a), (b),
through to eight would be admitted. Is it clear?
So each of these eight exceptions there is that rider: cannot be found, is
dead, the attendance cannot be procured without delay or cannot be
procured at all. So if it is alleged that a person is dead, do you think that
this statement that a person is dead, is enough? It is not. The fact of the
death has to be ascertained. How do you prove that a person is dead?
By a death certificate, the presumption of death, by people who
participated in their burial can be called to testify to the fact of death.
But essentially the fact of death is a fact that needs to be proved until
you have proved that the person is dead through the screening, then
you couldnt actually bring any of these statements . And if a person
cannot be found the fact of not being found must relate to the time that
he is required to give evidence. So you cannot just say that you have not
18

been seeing the personif no effort has been made to procure them to
come and give evidence. So the fact of not being found must relate to
time during which you are sought to give evidence.
And the authority for this supposition is the case R v Ndolo (1926) 10
KLR 11.
The court considered the meaning of cannot be found in connection with S.
33 India Evidence Act and Section 34 of Kenya Evidence Act where the
language is identical. Here the witness left his place of employment and was
not served with a summons for the date of the trial. The trial was adjourned
and assistance from the Registration Department was of no avail, as his
movements could not be traced. It was contended that his deposition should
be read. The defence argued tht has the prosecution taken reasonable steps to
discover his whereabouts in preparation for the first date of hearing he would
have been available. The court held that the words cannot be found refer to
the time when the witness is sought to attend the trial, and do not refer to the
state of affairs at some earlier period. There was no question as to whether
the search had been a diligent one, and the words appear to imply that such a
diligent search should be required before the condition is held to have been
fulfilled.

And also the case of Thomhill v Thornhill (1965) EA 268 (CA), would be
authority for the proposition that the fact of not being found has to be
proximate to the time you require the person to give evidence.
What is an unreasonable delay, or unreasonable expense is a matter
within the discretion of the court, dependent upon the circumstances of
a particular case.
In this case the learned trial judge also stated in his judgment that the
cost and inconvenience of bringing a witness from the United Kingdom
would not be great in these days of rapid and inexpensive air travel.
With great respect, I disagree that air travel in these days is
inexpensive, although I agree that it is rapid. But the question seems to
be this is it justifiable legally to put the petitioner to the expense of
bringing a witness from the United Kingdom to testify about a fact which
is not denied and in respect of whose evidence the court has a discretion
to accept on affidavit, particularly as the petition is not defended and no
application was made to have the witness orally examined?
Having satisfied those introductory matters, the first category of
statements made by persons who cannot be called as witnesses, are
dying declarations. Section 33(a) states:
when the statement is made by a person as to the cause of his death,
or as to any of the circumstances of the transaction which resulted in his
death, in cases in which the cause of that persons death comes into
question and such statements are admissible whether the person who
made them was or was not, at the time when they were made, under
19

expectation of death, and whatever may be the nature of the proceeding

in which the cause of his death comes into question;
So when the cause of death of a person is in issue and this could be in
either civil or criminal proceedings, the statement made by such a
person which deals with the circumstances of the cause of the death is
going to be relevant. And the case to look at here is the case of Terikabi
v Uganda (1975) EA 60. The deceased in this case gave or made a
statement giving the cause of his death but no evidence of the
circumstances relating to the death. And of course the question was:
would this be admissible? Because essentially people are looking at it as
being that he has to give both cause and circumstances. So this case
was testing whether if a statement gave only cause, would it be
admissible? If it gave only circumstances but no cause, would it be
admissible? And the court here held that the statement was admissible,
that it was not necessary that the statement refer to both the cause and
circumstances. Mention of either cause or circumstances was sufficient.
In certain jurisdictions it is required that for a dying declaration to be
admissible the person making it must have haven in imminent
expectation of death. And the assumption here is that if you are in
imminent expectation of death, you are unlikely to tell lies because you
are expecting to be going to your maker and you do not want to go
tainted by untruth. But of course you know that it fallacious as well
because you may be revengeful against a particular person that you do
not mind if after you are dead they spend all their lives behind bars,
accused of having killed you. In Kenya, however that is not a
requirement. So it is not required in this country that for a dying
declaration to be admissible one would have to be in imminent
expectation of death. And that is actually contained at section 33(a), if
you look at the sentence beginning, such statements are admissible
whether the person who made them was or was not, at the time when
they were made, under expectation of death.
And the case to look at here is a case that we will look at again when we
look at confessions. The case of Swami v King-Emperor (1939) 1 All ER
396 (PC). In this case the court considered the admissibility of evidence
by a widow that the deceased had told her that he was going to a
particular place on the invitation of the appellants wife and that the
appellants wife had asked the deceased to go and receive payment of
his dues at that place. So the court was considering whether evidence of
a statement by a widow that the deceased had told her he was going to
a particular place on the invitation of the appellants wife to pick up
payment of his dues. And this statement was held to be admissible even
though it was made before the cause of death had arisen. So the
deceased here was not in imminent expectation of death. But they had
20

made a statement that shed light into the circumstances that led to the
death that he was going to pick up his due.
Again on the same point you should look at the case of Kaluma v R
(1968)EAR 349. In this case, three appellants were convicted of the
murder of two women in Kenya. The three appellants happened to be
wanted by the Uganda police and the two women they were accused of
having murdered were part of a search party which had been sent to
Kenya to find and arrest the appellants. Evidence was admitted at the
trial that one of the two women had made inquiries about the
appellants whereabouts and this had been reported to the appellants.
This evidence was admitted on the grounds that it was relevant as to the
motive or reason for the murder. The appellants were convicted and
they appealed challenging the admission of the evidence about the
inquiries and the court held that evidence about the inquiries was
admissible under section 33 of the Kenya Evidence Act as a statement
made by a person who is dead as to the circumstances of the
transaction, which resulted in the death. So it was not in the category
that would be hearsay and inadmissible. It was an exception to the
hearsay rule. So the person was dead and under section 33 (a) a
statement made by a person who is dead on the circumstances of their
death would be admissible as an exception to the hearsay rule.
So essentially then what would be the requirement under section 33 (a)
for admission of a statement as a dying declaration:
1. It has to relate to the cause and or circumstance of the death of
the maker and not to any other person. So it has to relate to your
death as the maker of the statement, not to the death of other
people. And the authority for that preposition is the case of
Mohamed Warsama v R.(1956) 23 EACA 576. In this case the
deceased had made a series of dying declarations which were
precise and detailed and if true conclusive. He had in his
declaration also stated the cause of death of another person and
the question was whether that part of the dying declaration that
identified another person was admissible. And the court held, no,
it was not admissible. The question was whether that part of the
dying declaration that pointed to the cause of death of another
person was admissible. Remember we said that the deceased
made many dying declarations of a precise and detailed and if
true conclusive. But in those dying declarations did not just talk
about the cause of his own death. He actually talked about the
cause of death of another person. And the court was enquiring as
to whether that part of the statement that talked about the cause
of death of the other person was admissible. And the court held,
no. the dying declaration has to relate to the cause and or
circumstances of the death of the maker, not of other people. So
21

they would admit what was pertaining to his death, not to the
death of other people.
2. The second rule is that the statement must be proximate to the
death. So if you had made a statement about your death in the
year 2000 and then you die this year, the whole question of the
proximity of the statement to your death is going to arise. And the
authority here is Antonio v Barugahare v R (1957) EA 149 (CA).
The witness here had given evidence that the deceased woman
had told her six weeks earlier before she died that the accused
had asked her to marry him. So the deceased had confided to the
witness, six weeks prior to her death, that the accused had asked
her to marry him. The deceased had also asked the deceased
according to the report to lend him money to pay his tax. She had
refused to yield to either demand. And she was found dead six
weeks later. And the question was whether what she had confided
to the witness was a dying declaration. Was the information that
he had passed to the witness that she had been asked to marry
the accused and lend him money a dying declaration. The court
held, not, it was not a dying declaration because the facts alleged
were not proximate or related to the death and the circumstances
were not those of the transaction resulting in the death. You
should compare that holding to the holding of the case R v
Kabateleine s/o Nchwaba (1946) 13 EACA 164. In this case, a
complaint made by a deceased person to her headman two days
before the house in which she was sleeping was burned, was held
directly related to the occasion of the deceaseds death and was a
circumstance that resulted in her relevant. Essentially here you
are looking at two days and 50. So while six weeks are seen as not
proximate, not close enough, here the complaint had been done
two days earlier and that is the duration between the complaint
and when the death occurred, is what makes the ruling that it is
part of the transaction that resulted in death.
The dying declaration must be complete. And we should here revisit the case of
Beddington. You should also look at the case of Waugh v R (1950) AC 203 (PC). R v
Beddington (?), you looked at that when we were looking at res gestae or was it similar
facts? In Waughs case, the declaration was held to be inadmissible because it was not
complete on its face. The deceased in this case fell in a terminal comma when he was
making the statement leaving it incomplete. So basically what the court is saying is that
you dont know what the person might have said if they had had the opportunity to
complete the statement, and for that reason, being incomplete, then you could not say it is a
statement that should be admitted. The same point is made in the case of R V. Charles Daki
s/o Daki (1960) EAR 34. The deceased was in this case admitted into hospital suffering
from gunshot wounds. When he was asked who shot him, he said, Charles Daki has killed
me, he shot me with a gun. I saw him with a gun. He was on a motorcycle. A friend of mine
had visited me and I went to the garage with him. At this point the doctor intervened and
22

the deceased died subsequently. Daki was charged and convicted on the basis of the
statement, despite his counsels objection. On appeal the statement was held inadmissible
on the grounds that the deceased might or might not have added something And
essentially because this statement was not complete, on appeal it was held that this
statement could not be used as basis of conviction because for a dying declaration to be
admissible it had to be a complete statement. For example, if he had stopped at, Charles+
Daki killed me. He shot me with a gun. And then he did not express willingness or desire
to say other things. Basically he had gone on to sayhe was now going off on a tangent.
What was he going to say when he said a friend visited him, we went to the garage? May
be the friend started quarreling with Charles Dakinobody knows what this person wanted
to say which means the statement was incomplete because you dont know what he
might have said if he had not expired at that point. Let us also look at the case of Pius
Jasunga s/o Akumu v R (1954) 21 EACA 331. In this case, a witness who was an assistant
police inspector gave evidence that he saw the deceased lying on the road with a wound in
his chest. When asked who had injured him the deceased replied, Pius Jasunga had stabbed
me. Later at the hospital, the deceased made a statement to the superintendent of police
during the cause of which he got weaker and weaker and he was unable to sign the
statement. There was no corroboration of this story and it had been made in the absence of
the accused by a man who was suffering from a terrible wound, from which he died
subsequently. And the court here held that even though as a rule of law it is not required
that a dying declaration should be corroborated, as a matter of practice you should not
convict on uncorroborated dying declaration, even though as a matter of law there is no
requirement that there be corroboration or independent credible evidence fortifying a
particular statement, and in this case a dying declaration. There is no requirement of law.
But here one of the points they noted was that as a matter of practice the court should
always require corroboration. And they said that the weight of a dying declaration that is
made in circumstances suggesting that the person might have said something more, must be
less than the one that is fully made. A dying declaration that is made in circumstances that
suggest that the person may have said other things but he was prevented from saying those
other things because he expired, the weight attached to that dying declaration must
essentially be less than one that appears to be complete. And over and above that the
principle that even though law will not require you to corroborate a dying declaration, as a
matter of practice the court should always require that such be corroborated. And that is
going to be the final requirement of a dying declaration. A dying declaration requires
corroboration as a matter of practice. When you look at rules on corroboration, you will see
that the law on evidence requiring corroboration is generally divided into two. There are
those circumstances where the law actually requires that you get corroboration. Like when
you have evidence of children of tender years. There are a number of cases where the law
requires thatI think evidence of the complainant in rape case is required by law to be
corroborated. But over and above that, courts in exercising cautionand again being
guided by the need to be fair to the accused personhave devised instances where even
though the law does not require corroboration they will ordinarily require corroboration.
And a good example is where you have a dying declaration. That a dying declaration
should not form the basis of conviction if it is not corroborated and corroboration here is
talking to bringing in credible, independent, strong evidence to fortify that which is being
state in the evidence requiring corroboration. It is also required for confessions that are
repudiated or retracted, where a person has made a confession and they later say that either
23

they never made it or that they only made it because they were tortured or they were
coerced into making it. That kind of confession, even should the court the court decide to
admit it, it will ordinarily as a matter of practice required that it be corroborated.
Statements made in the ordinary course of business
The second category of statements under section 33 are statements
made in the ordinary course of business.
Section 33(b) states:
when the statement was made by such person in the ordinary
course of business, and in particular when it consists of an entry or
memorandum made by him in books or records kept in the ordinary
course of business or in the discharge of professional duty; or of an
acknowledgement written or signed by him of the receipt of money,
goods, securities or property of any kind; or of a document used in
commerce, written or signed by him, or of the date of a letter or other
document usually dated, written or signed by him.
So for a statement to satisfy the requirements of 33(b) it has to be a
statement being in the ordinary course of business. And section 33
(b) gives examples of those to include entries or memorandum in
books or records, and these have to be regularly kept. For instance,
books of account, ledgers, journals. It could also be
acknowledgements that are written and signed for the receipt of
money, receipt books, or documents used in commerce. These would
be admissible as an exception to the hearsay rule. And the
assumption here is that the person making them has no motivation to
falsify them. They are kept in the ordinary course of business; they
would actually be entered. But remember in the case of Myers v the
DPP what seems to have been record that were kept in the ordinary
cause of business were actually ruled to be hearsay because the
person making them did not actually come to testify to them. And
this is again to talk to the introductory part of section 33, that it has
to be that the person is dead, cannot be found, is incapable of giving
evidence, cannot be procured or even they can be procured it will be
as a consequence of delay and expense which is unreasonable. So in
Myers v the DPP it was not established that a person had died, or
could not be found. So essentially for this book to be admissible it is
not for all time. The exception comes in because what is contained at
the introduction at section 33 is already applicable, that there is a
problem in getting this person here because they are dead, etc.
And the cases to look at there are

24

Commissioner of Customs v SK Panachand (1961) EA 303 (CA)

The company imported some blankets allegedly from West Germany,
No import license was required for goods from West Germany,
although a license was required for goods from other countries. The
Customs seized the blankets acting on information that they, in fact,
had come from East Germany. The company, seeking the return of
the blankets, in order to support its case produced two documents,
an invoice, and a document signed by a Mr. Blok in which it was
stated that the invoice, on which appeared the words Country of
Origin West Germany, was correct. The Company claimed that
these documents satisfied the burden placed upon the Customs Acts,
i.e. to prove the country of origin of the blankets.
The decision involved S. 33 of Evidence Act covering cases where the
attendance of a witness cannot be procured without unreasonable
delay and expense, subs. (b) dealing with statements or documents
made in the ordinary course of business. The main issue was
whether the invoice and document signed by Mr. Blok were
admissible in evidence to prove country of origin.
The court held basically that the any person who will give
evidence of any other fact in this case, as set forth in S. 110 I.E.A
was Mr. Blok, who by means of his signed document would give
evidence of the other fact, i.e. that the blankets came from West
Germany. Before Mr. Blok could give evidence through the media of
the documents, S. 110 placed the burden upon the Company of
proving:
(a) that Mr. Bloks attendance at the trial could not be procured
without unreasonable delay of expense,
(b)that Mr. Bloks signed document was used in the course of
business, and
(c) that the document was actually signed by Mr. Blok, the person
whose attendance it was unreasonable to procure.
Since the Company had failed to meet its burden of proving these
conditions precedent to the admission of the documents they were held
not admissible in evidence and the court ordered condemnation of the
blankets.
You should also look at the case of R v Masalu (1967) EA 355 (T).
You should also look at Gichunge v R (1972) EA 546.
And all these cases would be illustrating what might be statements
made in the ordinary course of business. The cases of Masalu and
Gichunge are particularly interesting because they deal with post25

mortem reports and would seem to indicate that fact report can
technically be admitted as a statement made in the ordinary course
of business if they constitute a statement of fact, rather than a
statement of ones opinion, when you are talking about the cause of
death, when you are talking about either a statement of fact rather
than an expression of opinion, that would be admissible.
You should also look at the case of R v Magandazi and four Others
(1967) EA 84 (CA), which would also talk to documents made in the
ordinary cause of business.
The accused were employed in Uganda to carry loads to the Congo.
On a charge of theft of a portion of the loads by the accused, a letter
from an agent of the complainants firm resident in the Congo was
placed in evidence, but the writer was not called. The Court said:
a letter was produced by the same witness purporting to
come from the agency of the complainants firm in the Congo and
showing shortages in the goods received. (Section 30(2) quoted).
The provision of the Section should in my opinion be only sparingly
applied and rarely, if ever, be used where the statement goes to the
root of the whole matter before the Court, as in the present case.
Further the letter, although it may be said to have been written in the
ordinary course of business to report a loss, appears also to be in the
nature of a special letter written with a view to the present
prosecution. The letter was not admitted.
Another case might the case of Idi bin Ramadhan v R (1914) 2 ULR
108.
The statement of a police constable was put in evidence during the
course of the trial after it had been proved that the constable in
question had proceeded on leave. Presumably the statement
purported to be put in evidence under s. 32(2) of the Evidence
Decree. GRAY C.J. quoted from Magandazis case and from Ningawa
v. Bharmappa I think in using the phrase in the ordinary course of
business the legislature intended to admit statements similar to
those, admitted in England, as coming under the same description.
The subject is clearly dealt with in Chapter XII of Mr. Pitt Taylors
Treatise on the Law of Evidence, and the case(s) which he has
collected show that this execution to the general rule against hearsay
tends only to statements made during the course, not of any
particular transaction of an exceptional kind such as the execution of
a deed or mortgage, but of business, or professional employment in
which the declarant was ordinarily or habitually engaged. The phrase
was apparently used to indicate the current routine of business which
was usually followed by the person whose declaration it is sought to
introduce.
26

Statements against the interests of the maker

The next category of statements admissible under section 33 are
statements against the interests of the maker.
Statements against the interests of the maker
Section 33 (c) reads:
When a statement against the pecuniary or proprietary interests of
the person making it, or when, if true, it would expose him or would
have exposed him to a criminal prosecution or to a suit for damages;
So essentially a statement which is against the interests of the maker
would be admissible as an exception to the hearsay rule. But
remember against the introductory part of section 33 has to apply
before you admit that it makes an exception to the hearsay rule. And
over and above that you have to look at: Is it really against the
interests of the maker? And the interests of the maker might be
pecuniary or relating to money, proprietary where it affects property
or the ownership of the property of the maker, or it could also be one
that exposes a person to a claim for damages or to prosecution. And
the rationale here is that in the ordinary course of life a person is not
going to make a statement against their own interests and would only
make such a statement if it is true.
Case to look at is the case of Marie Ayoub v Standard Bank of SA
(1961) EA 743 (CA).And the statement here was made by the
deceased. There was a statement in a letter where the deceased was
said to be owed for the running of his estate. A statement in a letter
in which it was said that the plaintiff were indebted to the deceased
for the running expenses of an estate. The question arose as to
whether the statement would be an exception to the hearsay rule
under section 33(c) and it was held not admissible because the
maker was not dead. The person who had made the statement saying
they were indebted to the deceased for the running of the estate was
not dead. So the prerequisite for the operation of section 33 (c) had
not been satisfied.
The other case you could look at is the case of Dias v R (1927) 3
Uganda Law Reports 214, where the accused was charged with the
offense of falsifying books of account and the prosecution relied on a
letter written by a deceased clerk to the head of the department
which charged the accused with having ordered him to make the
false entries. So the question was, could such a statement be
admitted under section 33 (c) as one against the interests of the
27

maker. Who was maker of the statement here? The deceased clerk.
And who was the accused? He was not the deceased. So the court
here held this statement was not proper one for section 33 (c)
equivalent to Uganda, that it could not be admitted as an exception
to the hearsay rule because it was in the very interest of the
deceased clerk to make that statement so that he could pin
responsibility on the other person rather than on himself. So it was
not actually a statement against the interests of the maker because
the maker was charging another person with falsifying the books and
therefore it was not the right statement for the application of this
exception.
The next exception at section 33 is statements expressing opinion as
to a public right or custom. And remember again it is when the maker
of the statement would be dead, cannot be found and all those things
that are contained in the introductory. So statements made by
persons who cannot be called as witnesses are admissible if they give
an opinion on the existence of custom and for such to be admissible
the people ought to be a person that might be aware of such right or
custom and the statement should been made before any controversy
as to the right of custom arose. So you could not make a statement to
suit your claim in a forthcoming suit. The statement ought to have
been an unguarded statement of opinion on a public right or custom
and it ought to have been made before there was any controversy as
to that public right or custom. So you made the statement just
before the institution of the suit, then that is not going to be admitted
because you would have tailored it for that specificand when we
talk about a public right it is one which is held in common by all
members of the public. For instance, when people are talking about a
right of way in the form of a highway, people who would have known
that right of way was there, a public right of way was there and it has
to be one that affects a considerable portion of the community. For
instance also when you talk about the boundary of a village. And
remember that for it to be admissible as an exception to the hearsay
over and above it having been made before there was a controversy,
the person ought to be a person who can be considered as having
competent knowledge, person likely to know.
Statements that relate to any relationship
The next exception is at subsection (e), which reads:
When the statement relates to the existence of any relationship by
blood, marriage, or adoption between persons as to whose
relationship by blood, marriage or adoption the person making the

28

statement had special means of knowledge, and when the statement

was made before the question in dispute was raised;
So essentially state of persons who cannot be called as witnesses will
be admissible when they relate to the existence of any relationship.
And the relationship could be a relationship by blood, by marriage or
by adoption. And the person making the statement ought to have
been a person who would have had special means of knowledge of
the existence of that relationship. So it is not just any person. It is a
person who had special means of knowledge. And remember again it
is only in instances where that person cannot be called as a witness
because of the variety of factors, that they are dead, cannot be
found, etc. And the statement must also have been made before
there was a dispute as to the existence of the relationship or not. So
there ought to have been an unguarded action.
And the case to look at here is the case of Seif Ali Bajkni and others v
Hamed Bin Ali (1945) 7 Zanzibar LR 13. This involved a situation
where a child was born 10 months after the marriage between the
parents was dissolved. During the hearing it was sought to introduce
a document concerning the relationship, written by the alleged father.
The document was written in contemplation of the suit because the
father disputed the parenthood and they made the document in the
event that the child should ever file suit. If the child files suit against
the father then the father would turn around and say there is a
problem here, I do not accept that you are my son. So the document
was written in contemplation of the suit because the father disputed
his fatherhood of the child and the document contemplated a
situation where the child might file any suit against the father. And
the court held that the document conclusively proved the existence
of the controversy and it should be rejected. Because remember we
said that the document ought to have be an unguarded assertion. It
should not be one done in contemplation of a suit. The document
itself conclusively proved the existence of the controversy at the time
it is alleged to have been written because the father only wrote the
document because they disputed their parenthood of the child. And
they were writing it to guard themselves in the event that this child
should ever fight it against the father. And so it should be rejected
because the document ought to have been made when there was no
dispute as to the existence of the relationship but you see here the
father was dead but he had written the document. But he had only
written the document for the purposes of establishing certain
matters.

29

Statement relating to family affairs

The next exception is at (f), statements relating to family affairs.
Those will also be admissible and these ought to be made by persons
who would have knowledge, again. And they could also be on
tombstones, family portraits, or other places where such statement
should be made. It could also be in a will or a deed. So if you have a
statement relating to family affairs in any of those places and it is
made by a person who cannot be called as a witness, it would be
accepted as an exception to the hearsay rule. And the assumption
here is that there will be nobody inserting falsities in those kinds of
places, where you are talking of a tombstone, a family portrait or a
will or a deed. Those are solemn documents, so if you have those
kinds of statements made by person who cannot be called as
witnesses, there will be admissible.
Statements made by persons who cannot be called
Then at section 33 (g) where you have statements made by persons
who cannot be called, which are contained in a deed or other
transaction that establish a custom, those will be admitted. When a
statement is contained in any deed or other documents which related
to any such transaction as mentioned in section 13 (a). 13 (a) gave
the establishment of customs or rights. Those would be admissible.
And again here you are talking about statements that show when the
custom or the right was created, when it was claimed, where it was
modified, instances when it was recognized, or when it was asserted
or denied. All these could be admissible if they are made by a person
who cannot be called as a witness. And this provision includes private
as well as public rights. So it is not just for public rights. It is also for
private rights.
Statements made by several persons expressing feelings or
impressions
And finally under section 33, statements made by several persons
expressing feelings or impressions on their part, which are relevant to
the issue in question. So if a number of people who cannot be called
as witnesses had made statements expressing their feeling or
impressions which feelings or impressions are relevant to the matter
in question that is going to be admissible. For instance, if you have a
number of people saying they were apprehensive, they had made
statements to the effect that they were apprehensive that something
was happening or that they got the impression that things were not
being done in the way they should have been done. And again here

30

of essence to admissibility is that they made them as unguarded

statements. They are not tailor made for a specific procedure.
I urge you to read Durand for the explanation of this statement
because as you see this is just one section, which has eight subsections. And we are just scratching the surface of hearsay.
So we still have to deal with the next category of statements
that would comprise exceptions to the hearsay rule. And
again to reiterate what Lord Reid said that the rule against
hearsay is very technical and actually take a bit of reading
through to begin to appreciate why it would be admissible.
And remember when you are reading the exceptions in
section 33 you have to read that bearing in mind the
introductory bit: on when is admissible, it is not for all time.
It is when those passes operate. So if you are bringing a
statement when the maker is not dead, it is not going to be
admissible. If you are bringing it when it is not against the
interests of the maker or it is against the interests of the
maker but the person could still be found to come and
testify to the issues directly, then it is not23 going to be
admissible. And look at the exceptions to the hearsay rule
as a way in which the legislature is trying to bring
information that would otherwise be unavailable. So you are
thinking, you know you cannot get the best because the
person that has the best evidence is dead, cannot be found,
and all those things. And so you allow for the second best.
And given that it is your second best, that is why for
instance for dying declarations you have the requirement
that it be corroborated. So the fact that it is hearsay and it
is being accepted as an exception to the general rule, is
going to have a bearing on the weight that is attached to
that kind of evidence. Is that clear? So I think we will stop
ther
Law of Evidence II Lecture 4
15.2.03
Evidence given by a witness in judicial proceedings is admissible as an
exception to the Hearsay Rule and S. 34 to prove the fact stated. You
allow hearsay evidence because it is the best under the circumstances
and it saves the court time.
Under Section 34(a) the reason you allow this evidence is because the
best evidence is not available, the witness has to be dead, cannot be
31

found, is incapable of giving evidence, is kept away by the adverse

party, his presence cannot be obtained without delay and expense which
is unreasonable. Section 34 (1) (a) gives further requirements as
follows.
1.
The subsequent proceeding has to be between the same
parties or between their representatives in interest. This is
because they would have had the opportunity and right to
cross-examine the witness.
2.
The adverse party must have had the right and opportunity to
cross examine the witness in the first proceeding.
3.
The questions in issue were substantially the same in the first
as in the subsequent proceeding.
Nassir Haji Page 18 7th Case course outline
A witness had given evidence before the magistrate at the preliminary
inquiry and then proceeded to England on leave. He proceeded on leave
before counsel for the accused had reserved his cross-examination and
defence. During the trial in the High Court the evidence of the witness
was admitted under S. 33 of the E.A. (a person who cannot be found) on
appeal, admission of this evidence given in the preliminary enquiry was
challenged. The court held that the evidence had been properly
admitted as there was a right as well as an opportunity to cross-examine
at the enquiry. The fact that the counsel for the accused had not
exercised that right was not the point, the point was that they had
opportunity and a right they did not exercise and could not now say that
the witness was not available.
The requirement that the questions in issue should be substantially the
same presents problems to the courts. Why take them back to court if
they have been dispensed with? It is applicable where you have a
retrial, i.e. on appeal where a retrial is ordered. There is also the
question as to whether the previous proceedings was criminal and the
current one a civil are the questions the same? One needs to go back
to notes on Res Judicata and when that applies and read again
Queens Drycleaners V. East African Community
Under Section 35 statements in documents produced at a civil
proceedings are admissible as an exception to the hearsay rule. S. 35 is
to the effect that a written statement is admissible to prove the facts
contained in it if it is made by a disinterested person with personal
knowledge of those facts or if it is made by one who in the discharge of
his duty records information supplied to him by a person with personal
knowledge. The recipient of the information who would be recording it
should be recording it in a continuous record. In some circumstances
32

where a person has a personal knowledge and being disinterested puts

down matters, if the original document is produced in such
circumstances, the maker need not be called, if the maker is dead,
incapable of giving evidence etc.
The court allows this evidence to expedite reception of evidence, you
are dispensing with calling maker of document because they are not
available and the evidence is valuable in determining the case.
The court can also admit the written evidence or a certified copy of that
document, there are certain documents you could prove through
certified copies i.e. public documents. There is also allowance for
secondary evidence under S. 68 this is done in the interest of
expeditious and inexpensive disposal of a case. Under this case, who is
an interested person and the Act has not defined who an interested
person is
Lord Devlin in the case of Bearmans V. Metropolitan Police Receiver
1961 1 WLR 44
Lord Devlin stated in page 52 no witness ought to be held to be a
person interested on a ground that would not be taken into
consideration as affecting the weight of his evidence if it were actually
in court Lord Devlin is saying that the question as to who an interested
person is a question of fact.
Section 36 addresses itself to the issue of the way to be attached to a
statement rendered admissible by Section 35. Section 35 deals with
documentary evidence. It states that weight is pegged to the
circumstances relating to accuracy. What odds are there that this
statement is accurate? You will also be looking at the point the
statement was made whether it was contemporaneous with the
occurrence of the event. You will also be looking at the question as to
whether the maker had any incentive to conceal or misrepresent the
fact. This is a fact of determination since what appears to be the case
on the face might not be the real case as the person recording the event
could have had personal reasons for any number of reasons. If a
journalist recorded the event, it could be the journalist was not recording
the events as a disinterested party but it might turn out that he had a
relative who was involved in the accident to determine whether there is
incentive to misrepresent the facts.
STATEMENTS MADE UNDER SPECIAL CIRCUMSTANCES
They are covered under Sections 37 41 part 6 of the E A.

33

The first category of such statements are entries in books of accounts.

These are admissible if they are relevant but a book has to exist with a
number of entries not just a single entry and if the books related to the
sale and delivery goods, there has to be corroboration by a person who
loaded the goods, or one who saw them unloaded or loaded. S. 37
entries in books of account regularly kept are admissible.
Odendo V. R (1974) E.A. 6
This case is an authority for the proposition that where books of
accounts are concerned the need for corroboration is important under
Section 37 and also where there is delivery of goods corroboration is
essential.
Section 38 has an example of an entry in a public record. An entry in
any public or other official book register or record stating a fact in issue
or a relevant fact and made by a public servant in the discharge of his
official duty or by any other person in performance of a duty specially
enjoined by the law of the country in which the book register or record is
kept is admissible. For example if a priest performs a wedding, they are
expected to keep a register even though they are not public officers.
What constitutes a public record?
In the case of Ladha & Others V. Patel & Others (1960)
A public record must be intended for the use of the public or be available
for public inspection. It should be a record of fact not opinion.
Chandaria V. R page 18 of the Course outline 9th Case
The whole question of what constitutes a public official and the court of
appeal judges ruled that
Section 38 does not apply to documents made by members of the public
when detailing information necessary for their individual use whether or
not those documents are kept in a public department such as the
immigration department. This case dealt with forms that a traveler had
filled at the airport and a person sought to introduce this evidence in
court under the provision of any other person. The judges were of the
view that the provision referred to people other than public officials who
find themselves under a specific duty to maintained or keep entries in
any record of a public or official nature.
Under Section 39 A statement made under special circumstances
Statements and representations of facts made in published maps or
charts generally offered for public sale, or in maps or plans made under
the authority of any government in the commonwealth, as to matters
34

usually stated or represented in such maps, charts or plans, are

admissible.
The reason for this is to expedite matters and you have the de minimis
to expedite matters.
Section 40 statement made under special circumstances
Statement of fact contained in laws and official gazettes. 40(a)
(a)
in any written law of Kenya,
(b)
in any written law of Kenya
Section 41 deals with statements as to law contained in books.
The court has to form an opinion on the law of a country. Essentially the
fact that it is authored under the authority of government is what is
going to determine whether it is admissible.
STATEMENTS OF PERSONS WHO ARE SERIOUSLY ILL
They are admissible as an exception to the hearsay rule. It is provided
for under criminal procedure rule. It is necessary to serve the adverse
party that you intend to take a statement from a particular person who
is seriously ill, this way you accord them an opportunity to come and
cross-examine the witness. If the person later dies or cannot be
procured, then the statement will be admitted as an exception to the
hearsay rule.
EVIDENCE BY CERTIFICATE
Under Section 78 of the Evidence Act, photographic evidence is
admissible in criminal cases upon the production of a certificate by an
authorized officer authenticating the photograph. Authenticating is
through granting a certificate to the effect that this is what was actually
taken for example a birth certificate is issued instead of calling
witnesses to testify to ones birth.
AFFIDAVITS
These are written statements on behalf of people (deponents) it has to
be sworn or affirmed and could contain statements of fact which the
deponent is able to prove from his own personal knowledge. You cannot
swear an affidavit on matters that are not within your personal
knowledge.
Life Insurance Co. of India V. Panesar
CONFESSIONS

35

What are confessions, what are the rules of evidence that govern
admissibility of confessions?
Section 17 an admission is a statement oral or written which suggests
any inference as to a fact in issue or relevant fact and which is made by
any of the parties. Provisions of S. 17 there are two kinds
Formal admissions are usually made in the pleadings, a party to a
breached contract claim can admit blame and that will be a formal
admission.
Informal admissions may be made before or during proceedings, you
cannot have a formal admission without anticipation of a particular
matter but informal are made before or during the proceedings.
Informal admissions could be confessions.
A confession then is an admission by words or conduct or by a
combination of both from which an inference can reasonably be drawn
that the maker has committed an offence.
What is the relationship between admission and confessions?
The relationship is that admissions is the broader category of statements
oral or written. Confessions operate only in criminal while admissions are
in both civil and criminal
Evidence Act defines confessions in two ways: It is a statement or an admission made by a person at any time when
charged with a crime stating or admitting an inference that he/she
committed the crime.
Swami V. King Emperor Page 22 Course outline 7th
This case contains the first ever definition of confession
Lord Atkin stated the following:
No statement that contains self-exculpatory matter can amount to a
confession, if the exculpatory statement is of some fact which if true
would negative the offence alleged to be confessed. Lord Atkin is
saying that a confession must admit the offence in its terms or
substantially all the facts which constitute the offence. (Culpa has to do
with guilt and exculpatory is removing one from guilt whereas
inculpatory will be what would be incriminating)
In our Evidence Act Section 25 defines confessions a confession
comprises words or conduct, or a combination of words and conduct,
from which, whether taken alone or in conjunction with

36

Section 32 (2)
Section 25 deals with confessions made by an accused about his own
involvement in the offence whereas 32 is confessions made by an
accused person touching not only on his own involvement but on the
involvement of others. The requirement at 32(2) are more stringent,
since in 25 confessions is said to comprise words or conduct the
operative words are the person making it has committed the offence
32(2) includes the commission of the offence and also facts constituting
Under 25 definition of confession includes both an express admission of
an offence as well as admission of incriminating facts, there is express
and implied. The words whether taken alone or
Section 32(2) the confession has to have the effect of admitting in terms
either the offence or substantially all the elements constituting the
offence.
When you implicate another person, the rules get more stringent, but
when you admit your own guilt without others it is assumed that you will
be careful enough not to get put down for a specific offence.
Commissioner of Customs & Excise V. Herz
In this case, while in the course of investigating a suspect fraudulent
failure by a company to pay tax, customs officers subjected Hertz to
interrogation lasting 3 hours. During the 3 hours, Hertz made
incriminating admissions. The power to interrogate was derived from a
statute under which both Hertz and his attorney were made to believe
that failure to answer questions Hertz could be prosecuted. For the
belief that prosecution would have ensued if he did not answer all
questions, Herz would not have answered all the questions. Herzt was
subsequently charged with conspiracy to cheat and defraud the customs
of tax and the prosecution sought to tender evidence of his oral
admission. Hertz was convicted and he appealed and on appeal it was
held that the admissions were inadmissible because firstly the relevant
statutes did not confer power to subject a trader to prolonged
interrogation. Secondly the admissions were made under threat of
prosecution and were therefore not voluntary.
The Evidence Act lays out what kinds of confessions will be admissible
Section 26 ; a confession is not admissible if its admission appears
which has reference against an accused person, such inducement threat
or promise emanating from a person in Authority or coming from a c

37

In Section 26 certain words are critical in the definition if it appears to

the court the proceeding from a person in authority. Supposing that
by making it he
If it appears it is clear that this does not amount to proof of the
matter. The accused does not have to proof beyond reasonable doubt.
He only needs to make it apparent to the court enough to raise doubt as
to the voluntary of the statement. This is in favor of the accused person.
Threaten, induce or promise be of a temporal nature, it should not be of
a spiritual nature. The inducement threat or promise should relate to the
charge of the accused person. It has to come from a person in authority
and this is anyone whom the prisoner or the accused might think
capable of influencing the prosecutor.
Muriuki V. R
A person in authority as one who has or appears to have power to
influence a decision.
Drokinan V. R Page 21 course outline
In this case the Appellant was charged with murdering his co-worker and
appropriating money which had been entrusted to him by his employer
to buy timber. He confessed to a friend and the friend reported him to
the police. He was not suspicious when he saw his friend in the cell and
repeated the confession to the friend. This confession was produced in
evidence. The defense objected to this confession as it was induced.
The court held that the evidence was admissible since it did not
emanate from a person in authority and therefore the confession was
admissible.
Inducement must be sufficient to make the accused hope for some
advantage or fear some prejudice. Take into account a persons
experience and age, what they are exposed to and whether there has
been a time lapse between inducement and confession.
Section 27
It is a question of fact when you say that the impression has been
removed.
Kaluma V. R

38

In this case the accused persons committed an offence in Uganda and

fled to Kenya. Police Officers sent to arrest them intended to induce
them with beautiful girls but the accused got wind of this and they dated
the girls and murdered them and threw them in Athi River and they fled
back to Uganda. They were apprehended in Uganda and after
interrogation they confessed the murders. When brought to stand trial
for the murders, the Kenya investigators realized that the confessions
might not be admitted as they had been procured by torturing the
accused. The prosecution cautioned and warned the accused to forget
what they had said in Uganda and warned them that what they said
could be held against them.
The accused adopted the statements that they had made in Uganda and
the question was whether the statements made in Kenya adopting the
Uganda ones were admissible. The court held that they were admissible
as the threats in Uganda had ceased to operate by the time they made
the confessions in Kenya and the defining circumstances for removing
the threat of inducement had p

LAW OF EVIDENCE Lecture 5

24.02.03

EVIDENCE OF CHARACTER
Character of a witness means not only the witnesss disposition but
his/her general reputation in the community. When admissible generally
character affects the credibility of the witness. Section 58 of E.A.
defines Characters as follows:
Character denotes both disposition as well as general reputation of a
person
Disposition refers to the inherent qualities of a person and these are the
qualities that a person acquires through their upbringing,; education or
material conditions in life. Essentially the argument is that you are going
to be predisposed to act in a particular way because of the way you
were brought up, or because of how you live and your education and the
material condition in which you grew up. The way to tell a persons
disposition is thro observing that person. This is a persons inclination,
how are they likely to behave under particular circumstances?
Reputation is more specific than disposition, it refers to the general
estimation with which a person is held. For instance you may have the
reputation of being a liar and people will perceive of you as someone
39

who lies. These will be people with whom you work and people who
know you generally. It is the net effect of the interaction that you have
with other people. With disposition, you have no control over, you could
try but a lot of it has to do with what one is predisposed to but with
reputation it is the way the people perceive of you.
Definition of character at S. 58 is traceable in English legal history.
There is no distinction here between reputation and disposition and they
are used interchangeably as if they were the same. Amongst the early
English cases that conceded the evidence of character is the case of
R v. Rowtown (1865) LJMC 57
In this case the accused was charged with indecent assault and he gave
evidence of his good moral character. The prosecution to rebut this
evidence of this good moral character called a person who testified that
he had no knowledge of the neighborhoods opinion but his own opinion
was that the accused was a man capable of the grossest indecency and
the most flagrant immorality. He said that this is also the opinion of his
brothers who were the accuseds pupils held. The question was whether
this evidence admissible. The court held that it was not admissible
because it was based on the witnesss own opinion as opposed to the
opinion of the community. There was a dissent and two judges
dissented arguing that the evidence ought to have been admitted
because it was based on the witnesss intimate knowledge of the
accused rather than that of the community. The court was still of the
view that since it was not a general neighborhood opinion, it was not
admissible.
In this case the court was overemphasizing the need for big numbers to
hold a similar view before the evidence could be admitted. Courts seem
to use disposition and reputation interchangeably and it seems
confusing.
Malindi v. R (1967) 1 AC 93
When is the evidence of character admissible?
There is a distinction between criminal and civil cases.
CIVIL CASES
In civil cases the general policy is to reject evidence of the character of
the parties and this is provided for in Section 55 of the Evidence Act. It
contains the principle that in civil cases in general, evidence of the
character of the parties will be rejected. Evidence of Character in civil
cases cannot be lead to establish the commission of a wrong by a
40

person nearly by bringing their character before the court. The

argument is that the business of the court is to try the case before the
court. One is not supposed to be interrogating or inquiring into a
persons entire life and if one brings extraneously details about the
persons character you are making a person defend their whole lives.
The general principle is that in civil cases, evidence of character will not
be admissible. There are however 3 incidences when it will be admitted
(a)
When such character is in issue or directly relevant to the issue;
for example where you have a libel suit and justification is
pleaded, then the person pleading justification must be
permitted to show that the person instituting the libel suit is of
the character presented in the alleged libelous matter. S. 55
(1) section 5 is relevant here, evidence of character will be
admitted where the character is in issue or directly
(b)

When the character is such as to affect the quantum of

damages Section 12 is authority as well as Section 55(2) an
example is again a defamation suit which is vindication of a
persons reputation. If you can show that a person has not
reputation, than is relevant to the quantum of damages.
Evidence of character will be admissible in this case.

(c)

The character of a witness is always relevant to his credit.

Section 154 of the E.A. Cross examination as to credibility.
Accuracy, veracity and character. Where it is relevant in
determining the credibility of the witness.

Outside those 3 incidences, then one cannot call for evidence of

character.
CRIMINAL CASES
A distinction in criminal cases is made between evidence of good
character and evidence of bad character in S. 56 the fact that an
accused person is of good character is admissible and the admissibility
of the good character evidence pertaining to the accused person has
reigned even before 1898, i.e. the period when the accused person was
not competent to testify. Before the accused person was competent to
testify the evidence of good character went to establish their disposition
that being a good person you were unlikely to have stolen or murdered
etc. For example if an accused person was accused of stealing that
would call on the court to investigate the matter. After the accused was
made a competent witness, then evidence of good character went to
credibility than to their likelihood of having committed an offence.
Section 56 states that evidence of good character is admissible. After
statutes made the accused competent in 1898 the accused was given
41

an option to testify or not to testify and this put the accused person in a
dilemma, if he chose not to testify, an adverse inference might be drawn
or could be drawn against him. People may draw an inference that one
who refused to testify has something to conceal.
On the other hand, if they chose to testify and had a previous record,
they could be cross-examined from the previous records and this is why
you have in the CPC and the Constitution the right to silence on the part
of the accused person which is meant to guarantee that the right to
keep silent is not going to invite an inference that something will be held
against you. The prosecution has no right to comment on the silence of
an accused person.
It is explicitly provided that the prosecution has not right to comment on
the silence of an accused person. S. 77 mandates an accused to keep
silent.
The question has arisen that since the prohibition of commenting is on
the prosecution, can the judge comment. Under S. 127 (2) (3) and in the
case of
R v. Bathurst (1968) 2 QBD 99
This case considered the question whether prohibition binds the judge.
The judge could only properly tell the jury that
(i)
The accused has a right not to testify;
(ii)
They must not assume that the accused is guilty because he
does not testify even though they have been deprived of the
chance to test the story told in cross-examination.
If the accused person chose not to testify, it should not be made a
subject by the prosecution but if the accused person opts to testify, he is
treated like an ordinary witness and can be cross-examined.
What is the provision of law on how one deals with the witnesses?
Section
In the case of Maxwell v. DPP (1935) AC
In that case it was intimated that the accused person had a shield
protecting him from cross examination from previous record or
antecedents unless he threw the shield away or unless the evidence of
such previous records or antecedents had a bearing of guilt on the
present case. Examples of ways in which an accused could throw the
shield away
42

(i)
(ii)
(iii)

If he gave evidence of his good character he would be deemed

to have thrown the shield away
If he cast aspersions on the reputation of the prosecutor or the
complainant he would be said to have thrown the shield;
If he gave evidence against a co-accused with whom they were
charged with the same offence.

It would seem that apart from these 3 incidents the accused would be
treated like an ordinary witness and could not be asked irrelevant
questions.
Sections 156 and 57
S. 57 and 156 embody these rules.
In cross examination a person can be asked any question and it does not
matter that that question is incriminating. Under S. 57 evidence or cross
examination of an accused on bad character evidence is inadmissible
unless one of the 5 exceptions to that section apply.
S. 57 (2) in criminal proceedings, the fact that the accused person has
committed or been charged with an offence other than that with which

Bad character evidence is inadmissible unless one of the 5 exception

apply
Scholars of evidence have tried to explain away the apparent
contradiction and Sir Cross on Evidence tries to reconcile those views by
saying that under S. 156 one would have to be looking at the narrow
construction of the contradiction limiting S 156 to instances where
questions permitted would incriminate the accused person directly and
disallowing those that do not incriminate him indirectly.
The other view is the broader construction where both direct and
indirect incriminations are allowed irrespective of whether the accused
has thrown or not thrown away the shield. The contradiction remains as
we do not yet have a judicial interpretation. There is no definitive
rendition.
Section 57 has exception.
Unless
The five sections of S. 57 (aa) to (d) under S. 57 1(aa) evidence of bad
character will be admissible as evidence of fact in issue
Where it comprises similar fact evidence, Section 57 (1) (a) provides
that it will be inadmissible unless
R V. Cockar
43

Cockar was charged with breaking and entering with intent to steal. In
his defence he alleged that he had entered for the sake of warmth and
sleep. Evidence was adduced of a similar charge in the past where he
had also pleaded for similar evidence and had been acquitted of that
similar charge. He was convicted based on the evidence of the previous
antecedent and he appealed on the ground that the conviction was
based on inadmissible evidence of the previous offence. The court held
that the conviction should be quashed because the matters relating to
the previous antecedent did not result in conviction and was therefore
outside the purview of the English equivalent of Section 57 (1) (a).
The court is saying here that for similar fact evidence to be admissible
as an exception to S 57 (1) (a) it has to have been a conviction.
Section 57 (1) (b)
Evidence of bad character is admissible where the accused has
personally or by his advocate asked questions of a witness for the
prosecution with a view to establishing his own good character then he
could be questioned on bad character. Here we go back to S. 56 where
we said that evidence of good character is admissible but it lays the
path open for prosecution to counter that evidence. If an accused
person is telling the court that he is a good evidence, the prosecution
can show the court that he is not such a good person after all. The
accused lays himself bare for the prosecution to show the court that he
is not as good as he alleges.
Maxwell v. DPP
Maxwell a medical doctor was charged with illegally procuring an
abortion. He denied the offence and stated that he had a good clean
moral life and upon his assertion that he had a good clean moral life, the
trial judge allowed the prosecution to cross-examine him on another
charge where he had been charged with procuring an abortion but he
had been acquitted. It was held that the previous charge was not
evidence of bad character because it did not result in a conviction. But
over and above that the court stated
if the prisoner by himself seeks to give evidence of his own good
character for the purpose of showing that it is unlikely that he
committed the offence charged, he raises by way of defence an issue as
to his good character so that he may be fairly cross-examined on that
issue to show the contrary. The reasons that you have cross
examination on the accused is for two purposes
(i)
To demolish the defence that the accused puts forward and
this goes to the issue;

44

(ii)

To demonstrate that the accused is an unreliable person even

on oath, so this goes to credit.

The accused walks a very tight rope and one wonders whether this
Section 57 intended to hamper the accused defence and case law is to
the effect that when an accused person denies an offence or asserts
that he is innocent does not assert to good character. Mere denial of an
offence or assertions of innocence should not be construed as good
character as this would incapacitate the accused from preparing a
defence and a line has to be drawn between mere denials as against
assertions of good character.
R. V. Ellis (1910) 2 QB
Ellis dealt with antiques and was charged with obtaining cheques from
customers by false pretences concerning the cost price of the antiques.
He cross-examined prosecution witnesses with a view to showing that
his conduct towards the customers was not consistent with an intention
to defraud. The prosecution sought the courts leave to cross-examine
him on previous antecedents but the court declined pointing out that the
accused by examining the prosecution witnesses was not asserting his
good character. He was attempting to establish his innocence.
If the accused person gives reasons for his innocence dependent on the
courts assumption that he is an honest man, then this can amount to
evidence of good character (to what purport is this evidence that the
accused person is giving what assumption does he want the court to
have?)
R V. Samuel (1956) 40 C.A. R 8
Ali bin Hassan v. R
R v Winfield
The accused was charged with indecently assaulting a woman.
Evidence was given of the accused good character. He had a previous
conviction for larceny. The court allowed the prosecution to crossexamine him on his previous antecedent much as this was a trial for
assault and the question was whether this was proper. The court held
yes because there is no such things in legal procedure as putting a part
or a fraction of a prisoners character in issue and leaving the other part.
A prisoner that puts his character in issue must be deemed to have put
his whole character in issue.
This issue was carried further in Stallen v. DPP

45

On a charge of forgery an accused person put his good character in

issue by saying in cross-examination that he had never been charged
with any offence. The prosecution asked him in cross-examination
whether on leaving a certain employment, he had been question about
an alleged forgery. The accused denied. He was convicted and he
appealed. And the court held that the accused may be cross-examined
as to any evidence given in the examination in chief including
statements as to his good character. The court went on to state an
accused who puts his character in issue must be regarded as putting the
whole of his character in issue. He cannot assert his good character in
certain respects without exposing himself to an inquiry about the rest of
his record so far as that tends to disprove claim of goods character.
When one puts their good character in issue, the court is entitled to
know about your whole character because you have brought it forth.
What happens when it is not the accused who asserts his own character
but a witness without any prompting, with this open up the accused
person to be interrogated on his good character.
R V. Reid (1923) 1 KB 104
Which answered this question by asserting that such an occurrence does
not entitle the prosecution to bring in previous antecedents.
57(1) - where nature or conduct of the defence is such as to involve
imputations on the character of the complainant or of a witness for the
prosecution. If an accused person raises an issue in his defence that
casts aspersions on the complainant or witness he can be questioned on
the good character
Rivers Artheston Royston V. R
The accused was charged with obtaining money by false pretences from
various persons. He admitted receiving the money but denied using
false pretences. In cross examining the prosecution witness with a view
to furthering his defence, to the charge of false pretences, he cast
aspersions on their characters. The court thereupon allowed the
prosecution to cross examine him on his previous antecedent. He was
convicted and appealed against conviction on the ground that the
previous antecedents were wrongly admitted. The court of Appeal held
that the previous antecedents were wrongly admitted and in their words,
where imputations involving the character of prosecution witnesses are
an integral part of the defence, without which the accused cannot put
his case before the jury, fairly and squarely, he cannot be crossexamined on his previous criminal history. (this is what is being referred
to as an integral part of the defence)
46

Omondi V. R (
The Appellants were charged with robbery with violence. During cross
examination the first appellant suggested that the Police Sergeant who
had given evidence against him was deliberately committing perjury.
Thereafter the court allowed the prosecution to put questions to the first
Appellant touching on his first convictions. The Appellants were
convicted. They appealed challenging admissibility of evidence of past
convictions. The court held that to challenge the evidence of a witness
for the prosecution is not to cast aspersions on the character of the
witness within the meaning of S. 57. the court emphasised the latter
part of Section 57 (1) (c) which in their wording meant that if the
defence involves a proposition that the jury ought not believe the
prosecution, or one of he witnesses for the prosecution, then the jury
also needs to know what kind of character the prisoner has. It looks like
in this case the line is very thin, if you are saying that the witness for
prosecution is not to be believed, then the court need to know if you are
to be believed. What amounts to casting aspersions, it is not clear since
they will hold it as casting aspersions in one case and in the other as an
integral part of the defence.
Abdulla Katwe V. Uganda
Selvey v. DPP
This was a trial on a charge of buggery. The defence was that the
complainant was a male prostitute soliciting the appellant. The trial
court allowed the appellant to be cross-examined on previous
convictions of indecency. He was convicted and appealed. The court
held that cross-examination of an accused on previous convictions of
bad character was permissible under the Acct if the nature and conduct
of the defence involved imputations on a prosecution witness
notwithstanding that the imputations were necessary as part of the
accused answer to the charge. It also held that the trial court had a
discretion to refuse to permit cross examination of an accused person as
to the previous convictions even though the cross-examination was
permissible under the Act.
Legal opinion seems to suggest that SELVEY V. DPP overrules it is not
clear when the integral part of defence theory will operate and when it is
casting aspersions. The leeway of discretion on the part of the judge is
that the
In Kenya, and East Africa, cross-examination on previous antecedents is
not permissible if it is vital for the defence to raise issue of the character
47

of the complainant. Over and above that the court still has discretion to
disallow evidence of previous antecedents if they are casting aspersions
on the complainant, where the way is opened up the courts still have a
discretion to disallow evidence where its probative force is outweighed
by its prejudicial effect.
Immediately after (d)
S. 57 provided that the court may proviso to S. 57 as well as
rendition to the case of Omondi v. R
Paragraph 57 (1) (d)
An accused person can be questioned on his previous antecedent if he
gives evidence against any other person charged with an offence
Murdoch v. Taylor
Where it was stated that evidence against a co-accused is evidence for
the prosecution against the co accused and it therefore undermines your
defence as an accused person opening up the way for the prosecution to
question him on his previous antecedents.
It is critical that the evidence that a person gives against the co-accused
be supportive of the prosecution case as this is only when the way is
opened to question the person on their previous antecedents. For
evidence of an accused bad character the sections of 57 (1) (b) . this is
different from what happens after prosecution where the prosecution
can furnish the court with documents of previous antecedents to assist
the courts in sentencing.
OPINION EVIDENCE
What is opinion?
Opinion is defined to mean any inference which one may draw from
perceived data. It is whatever you infer from what you see, smell, hear,
feel etc and the general rule in evidence is that a witness should
confined himself/herself to what they perceive to leave the court to draw
the inferences.
It is however not always possible to separate perceived facts from
opinions in some cases they are intertwined and it would be impossible
to separate the two. The court might sometimes need the opinion of
people better placed than itself to draw the inferences and it is in these
situations that he court allows the inferences.

48

E.A. outlines the number of incidences when the court may be called to
draw the inferences where facts and opinions are so intertwined and the
court needs assistance by hearing opinions of experts better placed that
itself. In all instances where people are called to give opinion evidence,
it is a general rule that evidence be direct.
The first instances is where experts are called to give evidence, and
experts are people that are possessed of special skills in the field in
which they are called to opine or testify and the basis for admission of
expert opinion is S. 48 of the Evidence Act.
R v. Silverlock (1894) 2 QB 766

Evidence II- Lecture 7

OPINION EVIDENCE
.and we had also started to look at when opinion is admissible having
pointed out that in ordinary circumstances opinion evidence is not
admissible. So the rule is normally that oral evidence must be direct and
when you talk about opinion it is not direct evidence. So allowance for
opinion evidence is an exception to the rule.
So essentially we said that where it would be not the usual case that
opinion evidence is admissible, there are certain instances where if you
did not permit opinion evidence it would be impossible to reach a
decision on the matter because firstly the matter may be too technical
for the court and what the court is doing is bringing in opinion evidence
is to quipping itself through the admission of the evidence of experts. So
admission of expert evidence is an exception to the general rule that
oral evidence must be direct. And even if it is a document. Remember
we said that the person that authored the document should actually
bring the document to court. And I think I pointed out to you the general
ground for admission of expert opinion and this is contained at section
48 of the Evident Act:
Section 48 (1): When the court has to form an opinion upon a point of
foreign law, or of science or art, or as to identity or genuineness of
handwriting or finder or other impressions, opinions upon that point are
admissible if made by person specially skilled in such foreign law,
science or art, or on questions as to identity or genuineness of
handwriting or find or other impressions.
(2) such persons are called experts.

49

So essentially at section 48 (1) we are given the basis for bringing in

expert opinion. And it is the person that comes then to offer that expert
opinion that is referred to as an expert.
And I think we also pointed out that the second general instance when
evidence of opinion is going to be allowed is where it is impossible to
separate facts from inferences, And an example here is where a person
says so and so was driving at a fast speed. You know that when you say
that a person is driving at a fast speed you havent seen the
speedometer of the vehicle. You see a vehicle zoom by and then you say
that, my, it is moving at a very fast speed. And fast speed can be
something that depends on your perception of what is so going fast but
if you didnt allow people to opine on what they saw a motor vehicle
move then it may be impossible to get evidence of this person. Also
when you say that you are not feeling well. When a person says I am
sick. You are not a doctor. But there are things that you feel that make
you opine that all is not well. So when you tell the court or when you tell
people that you are not feeling well people will not ask you what was
your temperatureYou say I think I am coming down with a flu. If the
person asks you what is your temperature or what are the symptoms of
what you feel and expect you to opine like a medical officer would on an
allergy. They dont expect you to do that. But there is a realm at which
you would know that a person is not feeling well.
Then there is the whole question of age. When you say that you are so
many years old, that is a matter of opinion. You do not know how old you
are. You have been told when you were born. But that that is not a
factual thing when a person says I am 20 or 25 years old, it is a matter
of opinion. And that would normally be accepted because in those kinds
of situations it would be impossible to separate facts from inferences. Or
even where a person says so and so was intoxicated. How did you
induce that a person is intoxicated? Have you used what it the
instrument used to record how much alcohol is in a persons blood?
Whatever it is, when you see a drunk person or where a person comes to
you drunk, do you need a medical doctor to tell you that a person is
drunk?
So essentially there you have both facts and inferences because you are
looking at the way in which a person is carrying themselves and
inferring from that that he could not see that they are behaving
normally. And we are trying to explain away why would they behave
that; may be they had been seen at some liquor joint so you can
conclude that they are operating under the influence of and that is why
they seem to be not quite together.

50

Again the third instance where opinion evidence is admissible is where it

is so likely to be correct that convenience dictates that it be admitted. I
think I stopped at the point at which we had began to think at expert
opinion. And to recap again the opinion of experts only becomes
relevant when the court has to form an opinion on technical point on
which it would not be usually equipped and those instances are laid out
at section 48. It is not in all circumstances that opinion evidence or
expert evidence is going to be permitted. It is where you have foreign
law, a matter or science, a matter of art, identity of handwriting or finger
impression. Those are things that you do not have knowledge of
ordinarily. So you would require a person that is skilled in the particular
matter to be able to equip the court to come up with a decision if that
kind of matter is in issue.
So who an expert? We pointed out that in order for an person to be
examined as an expert he must be shown to be competent. He must be
shown to have a special study of the subject. He must also be shown to
have acquired special experience. So they must firstly be shown to be
competent, to have a special study of the subject or to have acquired
experience in the subject. So an expert in simple terms is going to be a
person skilled, as having adequate knowledge of the subject matter of
inquiry.
So essentially is not going to be always the case that an expert would be
a person who has gone to school on a particular matter. You could
become an expert through experience. So if you have long experience in
something or you have been observing a particular subject matter over
a period of time, you could qualify as an expert even though you have
not gone to school to study the profession or business.
And the value of the evidence of an expert is enhanced or depreciated
according to their experience or the amount study that the witness has
undertaken. And what I am trying to underline here is you do not have to
have both study and experience, either will suffice. So in a nutshell we
are saying that the value of your evidence as an expert is going to be
enhanced or depreciated depending on the number of years that you
have of experience or the number of years that you have devoted to
study of a subject.
And here it is illustrative to look at the case of study R v Silverlock
(1894) 2 QB 766, where the court accept the evidence of a solicitor as
expert opinion in a matter involving handwriting because though the
solicitor was in a manner of speaking unschooled in the matter he was
experienced through keen interest in the matter. So if you have a keen
interest in some subject or some area and the question arises as to
whether you are an expert what would be looked is not whether you
51

actually went to school to gain the knowledge if you gained the

knowledge through experience, then that suffices.
The other case that you should look up here is the case of Odindo v R
(1969) EA 12. The appellant in this was convicted of driving a motor
vehicle under influence of alcohol. A police inspector testified to the
effect that when the appellant was brought to the control room of the
traffic headquarters he was smelling of drink. He was incapable of
coherently giving his name. He could not tell the time by the clock on
the wall and he could not stand on one foot with his hands horizontally
stretched. The inspector concluded his testimony by asserting that in his
opinion the accused was completely incapable of having control of a
motor vehicle. The judge objected to his opinion saying that the
policeman should have confined his testimony to what he observed,
leaving the issue of fitness to drive to the court or a doctor. And
essentially you can see what kind of unfairness this kind of finding
might. You might just have a bad sense of balance; you cannot stand on
one foot, that doesnt mean that you are drunk. If you cant tell the time
by the clock on the wall you might be shortsighted, of you may be
illiterate in telling time. Then if you cant coherently give your name, you
may be a person that stutters. So essentially you can see to allow
people to make observations and then proceed to judge can actually
occasion a lot of injustice of the accused person. And this is what why
the court is saying that the police person ought to just say this is what I
observed. But having observed that has nothing to do with whether you
can control a motor vehicle or not. It may have a bearing when you
control a motor vehicle but those are matters that should be left to an
expert.

And another case along the same lines is the case of Stephen v R
(1973) EA 22. Again here the court rejected evidence by a policeman
that he had found the accused in possession of a drug called bhang. And
here what the court is saying is you should tell the court that you found
them with some substance of this color, of this consistency which smells
like this. And then leave it to an expert who can isolate the chemical
compound of that substance to say that it is bhang. But a person could
crash chalk and say that they found you in possession of some
dangerous drug. And this is the kind of unfairness that one is trying to
guard against. And of course again you are trying to prevent people who
would otherwise be lay persons from giving opinion on matters that like
study or long life experience.
Another case along the same lines is the case of Charles Ngang'a v R,
Kenya Appeal Report Criminal Case no. 66 of 1980. The accused here
was charged with offence of causing death by dangerous driving. A
police testified on the point of impact to which the defense objected
because the policeman was not an expert on the matter. The defendant
52

objected to this because in his view the policeman was not an object on
the matter. The trial court overruled the objection and on appeal it was
held that unless it can be shown that a policeman has many years of
experience in inspecting motor vehicle accidents, a police witness
should not give opinion evidence of such matter. And you can here again
you do not need to have gone to school to study this matter, only you to
do is to have many years of experience and the many years of
experience will qualify you as an expert.
HOW DO EXPERTS TESTIFY?
Experts are brought to court by the party who whishes to rely on their
expertise. The person that would fail if a particular matter is not proved
is the one that is going to bring the expert to court. That part will inform
the court of the expertise of this person that they are seeking to have
testify in court. They will inform the court of the expertise because you
just go along the street and just bring anybody and say this is my
expert. So there is a practice of briefing the court on what is the area of
expertise of this person. And the question as to whether a person is an
expert or not is a question of fact. So it is not necessarily the case that
because you have brought a personI am told of a case in which a
university student was appearing before a disciplinary committee and
when they were asked questions they refused to answer. They were
staying at the main campus and they said they wanted their lawyer to
come in. And their lawyer happened to be a second-year law student. So
you can see how you can stretch this expert. You are being asked
questions and this student lawyer had not cleared their second year;
they were still in the mark of some papers, civil procedure, etc. and they
were still there dressed in a suit and carrying the posture of an expert.
So the question as to whether a person is an expert or not is a question
of fact and that is determined by the court. And the pointer, the things
that will help the court in coming to the determination are:
1. Firstly, the educational background. You want to see certificates.
2. Evidence on the areas in his field where he has taken extra
courses
3. Work experience
The case to look up here is the case of Mohammed Ahmed v R (1957)
EA 323. The appellant here had been convicted of occupying an unsafe
house, which in the opinion of the district housing inspector and the
superintendent of works was so unsafe as to constitute a nuisance. The
court of appeal held that these two persons were not qualified experts
and so their evidence was inadmissible. Again go to the fact that in this
determination what the court is going to look at is the experience, where
they studied, and also the areas in the field of the courses taken.

53

In practice, if the expert has perceived of the fact from which he

proffered his opinion, if the expert directly perceived of the fact from
which he or she proffered his or her opinion, or if the facts are not
disputed, such expert is asked direct questions. If the expert directly
perceives of the matters on which he is preferring an opinion on or
where those matters are not disputed you will ask that expert direct
questions such as was the accused insane, or was he so drunk as to be
incapable of controlling a motor vehicle. If however the expert did not
perceive of the fact or if the facts are disputed he is asked hypothetical
questions such as are the facts adduced consistent with the existence of
a certain state such as drunkenness or insanity.
Under section 54 grounds for an expert opinion are admissible but this
section does not make it mandatory for the expert witness to give
reasons. So while section 54 makes grounds for expert opinion
admissible, it does not make it a must that those reasons be given.
And here you should look at the case of the R v Salim s/o Sengero
(1939) EACA 147, which is to effect that a court would welcome reasons
for a witnesss opinion even though it is not mandatory that this be
given.
Note however that it is necessary for experts to give reasons for their
opinions as this helps to equip the court with better knowledge of the
matter under investigation. And the authority for that preposition is the
case of Onyango v R (1969) EA 362, which his to the effect that it is not
a universal requirement that reasons for opinion should be given. An
expert should come to court prepared to justify his opinion by argument
and demonstration. But he need not necessarily be asked to do so. In
many cases it is sufficient if the expert gives his opinion. The more
eminent the expert the less the need for demonstration. So the long and
short of this statement is that while the law at section 54 does not
require an expert to bring in reasons for his opinion ordinarily when an
expert is asked to give opinion in court he should come prepared to
justify their opinion and this justification will be through demonstration
and argument. So if they come prepared to demonstrate an argument,
their reason for the opinion and they are not asked to .there is no loss
but you can imagine a situation when you came in without being
prepared as an expert to give reason and then you are asked what the
reasons are. In essence what it is also saying if you are an imminent
expert, you eminence speaks for you. If you are an up and coming
expert you will be more required to give reason than the expert who is
well established. Again the question as to whether a person is an
established expert or not is a matter of fact. You are looking at what
their education background, many years of expertise or work
experience.
54

HOW SHOULD COURTS TREAT EXPERT OPINION?

Remember we are saying expert opinion is admitted as an exception to
the general rule and the question that I am posing is how courts should
treat opinion of experts. It is opinion only. And the court must still make
its own conclusion. And there is strong feeling that courts should not
abdicate their responsibility of judicial making to experts. So what the
expert in essence is doing is assisting the court on matters that the
court is not too well equipped to opine on or to make a decision on. But
what the experts can mean, what they are doing is assisting the court.
They are not taking over the role of the court.
And the case to look at here is the case of Kit Smile Mugisha v
Uganda, Criminal appeal No 78 of 1976, where the court of appeal took
the view that expert opinion is only opinion and it cannot take the place
of substantive evidence. The court continues to state, The court has to
decide an issue upon such assistance as the expert may offer but it
should not abdicate its role of opinion-making to the expert. It must form
its own opinion on the subject matter at hand.
And the other case to look is the case of Hassan Salum v R (1964) EA
172. This case again is along the same lines that the court should not
over rely on experts because they can also make mistakes. And the
court should not be bound by the expert opinion.
A case to look at on the whole question of expert basing their opinion
upon fact is the case of the R v Kipikandimu and Three Others
(1946) 7 Zanzibar Law Reports page 90, where a medical expert gave
evidence that certain injuries described by him were inflicted before
death. He gave no reasons for his opinion. The court held that the
opinion evidence was inadmissible as to the cause of death. And again
this is going to the fact that we are making that you should go to court
as an expert prepared to justify your opinion by argument and
demonstration. So if the issue of argument and demonstration arises
and you are unable to defend that then it could that the evidence is
going to be thrown out. It will not even assist the court informing its own
opinion.
If the opinions of two experts conflict the court has to make its own
opinion the court by looking at the credibility of the evidence available
and the eminence of the experts. If the two conflicting experts are equal
in eminence and credit worthy then the matter is taken as not proved
and the party on whom the burden of proof lies has to dispense of it in
another way.

55

What do we mean by creditworthy in evidence other than bank terms?

Credit worthy here is speaking about credibility or believability of a
person as a witness. Is that clear? So if the two of them are equally
eminent and credit worthy, the matter is taken as not proved and the
party on whom the burden of proof lies has to dispense with the matter
in another way.
Under section 63 (2), opinion evidence should be direct and oral unless
it is expressed in a book commonly offered for sale. In looking at the
whole question of expert opinion, you should revisit the question of proof
of handwriting. You remember when we were looking at documentary
evidence you looked at proof of handwriting under section 50. You
should look at that again because when you are trying to prove
handwriting you go to expert evidence and these rules are particular.
That dispenses then with expert opinion and we will now proceed to look
at the second category of instances where opinion evidence is
admissible as an exception to the general rule. We say that opinion is
not generally admissible. It is only admissible in three instances. We
have looked at one instance and now we are going to look at the second
instance.
Second instance: when it is not possible to separate facts from
inference.
A witness cannot communicate effectively without admitting opinion
evidence. And I gave the opinion of that to include issues pertaining to
identity. For instance, if I say that I saw somebody going into a place a
stealing, all I am doing is opining that the person that I saw stealing is
the person that is now before me. Do you see what I mean? When you
are talking about identification of say a person who committed a crime
or identifying something you are just offering or tending an opinion that
the goods that are put before you are the same goods that were stolen.
Isnt that an opinion? Because it could be the case that there were the
same kind of goods available elsewhere. So all you are doing is offering
an opinion. There is also the whole question of who sells, etc. So when
you talk about identify you are not just talking about identity of person
but also of things. So when you say that you identify these implement or
gun as the one that we used at the scene of crime where you were you
are just opining that what was before you is the same thing that is
before you in another instance. So we are saying that evidence of
identity is an expression of an opinion. And I am giving the example of
goods. You are opining that the goods that are recovered after a robbery
are the same goods that were taken during the robbery. Do you see
what we are saying that you are opining? Its really just your opinion.
Could you really say conclusively that this is it? You would be opinion
that this is it.
56

Courts treat opinion of identity very cautiously to avoid convicting

people on mistaken identity. And here the case to look at is the case of
Roria v R (1967) EA 583. Here 14 days after a raid on a Masai
manyatta, the appellant was identified at an identification parade by the
wife of one of the persons killed in the raid. He was identified as "either
the person on who killed her husband or who passed close to her when
entering the manyatta". And the court rejected this evidence noting that
the danger of possible wrong identification is greater when the only
evidence is identification by one witness and although no one could
suggest that a conviction based on such identification should never be
upheld, it is the duty of the court to satisfy itself that in all cases it is
safe to act on such identification. In normal circumstances courts will
require corroboration of such identifications especially where it is
identification at night by single witnesses. And again this is because the
court must satisfy itself that in all circumstances it is safe to act on the
identification. In fact in instances where the only evidence is
identification by a single witness, the evidence is required to be
absolutely watertight to justify a conviction. In essence what we are
saying is that that courts exercise a lot discretion when they are faced
with evidence of identification, and this is again going back to the
principle that we have often referred tofairness to the accused
person. So if it is single witnesses at night you exercise more caution.
If indeed this is the only evidence for it to secure conviction it must be
watertight.
How are identification parades carried out?
The procedure- and essentially here what I am now looking is possible
ways of identification. We have been talking about identification parade
and that is not the only way in which you can identify a person because
we have been talking about them-that is the person you look at. How do
you carry out an identification parade? And the procedure for the
identification parade was laid out in the case of R v Mwango s/o
Manaa (1936) 3 EACA 29, which case was approved for the case of
Simon Musoke v R (1968) EA 72. And the procedure is as follows:
1. Firstly, the accused is always informed that he may have a lawyer or
friend present when the parade takes place.
2. Secondly, the office in charge of the case does not carry out the
identification but he may be present.
3. Thirdly, the witnesses do not see the accused before the parade
4. Fourthly, the accused is placed among at least 8 persons of a similar
age, height, general appearanceif the accused is scruffy you dont
57

bring unscruffy people-- and class of life as himself or herself. So there is

similarity.
5. Fifthly, the accused is allowed to take any position he chooses and he
is allowed to change position after each identifying witness has left if he
so wishes.
6. Sixthly, witnesses should not be allowed to communicate with each
other after they have been to the parade. That is of course as one is
walking out and the other one is walking in.
7. Sevenly, to exclude all persons who have no business at the parade.
8. Eighthly, careful notes should be taken after each witness leaves the
parade and the notes should include, did the witnesses identify any
person and under what circumstances, in what position was the person
identified, or any other circumstances of the identification.
9. Nine, if the witness desires to see the accused walk, hear him speak,
see him with his hat on or off, this should be done but all persons in the
parade should be requested to do what the witnesses has requested as
a precautionary measure.
10. ten, the witness should touch the person he or she identifies
11. At the termination of the parade or end of the parade the accused
should be asked if he is satisfied that the parade is being conducted in a
fair manner and a note should be made of his reply.
12. In introducing the witness to the parade, the witness should be told
that he will see a group of people who may or may not include the
suspected person and throughout the parade it is critical that the parties
conducting the parade act fairly to avoid depreciation of the
identification as evidence. It is dangerous or wrong to suggest to the
identifying witness that the person to be identified is believed to be
present on the parade. And the case to look at here is the case of R v
Bulatikwa (1941) 8 EACA 46, where the officer conducting the parade
told the identifying witness: "You know a man called Bulatikwa whom
you said killed your uncle, come on to the verandah and see whether
you can find him". And this was said to be wrong because it is a
suggestion that the person to be identified is actually in the parade.
It is not established practice to question a witness who has made an
identification at a parade as to their reasons for doing so. So you dont
put an identifying witness to task after they have identified whoever
58

they identify. A voluntary statement or comment made by the witness

however can be received as evidence as part of the identification. So
even though they are saying that you do not ordinarily ask witnesses
questions to find out the reasons why they identified a particular person
if they voluntarily make a comment then that comment will be recorded
and should be received as evidence as part of the identification. And the
case to look here is the case of Simon Musoke v R. You have it. I have
already given it to you. In this case the appellant was charged with
another person on one count of theft of a motor vehicle and two counts
of robbery with violence. The evidence was that on the material day the
accused person had been seen at a funeral and at a bar dressed in a
helmet, which was readily identified by the prosecution witness. The
evidence of identification by the bar owner was rejected by the trial
court on the grounds that no question were put to this witness to elicit
reasons for identification. The stolen motor vehicle was found outside
the bar and in it was found amongst other things the helmet exhibited at
the trial. On appeal the issue was whether the evidence of identification
was properly disallowed on the grounds that no questions were put to
him to elicit reasons for identification. And the court held that it is not
established practice to question a witness who has made an
identification at a parade as to his reasons for doing so. Comments
voluntarily made by the witness are often received as part of the
identification. But answers to questions would be of less value and of
doubtful admissibility. And essentially I am just making the point that I
made earlier: that it is not usual practice to begin to ask a person
questions at an identification: why did you identify that person? But if
they do volunteer statements those will be received as part of the
identification. And the authority for that preposition is the case of
Simon Musoke.
The second way of identifying is through fingerprints. And fingerprints
are provided for at section 48. If you look at section 48 it talks about
expert witnesses. It talks about fingerprinting. And fingerprints may be
taken also for purposes of comparison. So fingerprints should be another
way of identifying other than an identification parade.
The third one is footprints. You can use footprints and here what is done
is a comparison of footmarks. You would look for instance for the soil
type on the shoes. You have seen cases where an offence committed
and the only evidence they might have is that the person was wearing a
particular kind of shoes which formed a particular kind of impression and
the evidence would be to compare the soil type at the scene of crime
with the soil type on the shoe and to see whether the foot marks left on
that soil are the same as the ones that are contained in the shoes that
the person suspected wore. And the case to look at here is the case of R
v Maganga (1935) 2 EACA 59.
59

The fourth way of identification is by use of police dogs. And the

question has arisen here whether this is reliable. And the case in point is
Wendo and another v R., where it was stated evidence of
identification by police dogs is admissible and can corroborate other
identification. But the dog must qualify as an expert. So you have to
bring its training to court, and that has to be taken into account in
weighing the value of its evidence.
Before we leave the whole area of identification it is important to
distinguish between identification and recognition. Identification refers
to a situation where one is trying to remember whether the person you
are seeing is the same person you saw at the scene of crime, whereas
recognition refers to the situation where one knows the person, you
know the person positively, and you saw them so you recognized them
when you saw them. You are not trying to remember whether the person
you saw at the scene of crime is the same person. You are saying you
know that person and that is the person you saw. Recognition is more
reliable than identification. And the case to look at here is the case of
Reuben Taabu Anjononi v R (1980) Kenya Law Reports page 59. You
should look at that case on the whole question of recognition versus
identification.
Other issues of mixed fact and opinion, apart from identity related as we
have said to help especially where one is testifying as to their own
health. So when a person says that they are sick, this is opinion as I
have pointed out. Because the person does not go into the detail of the
causes of the illness or the incapacity resulting from this illness. The
cause of illness and incapacity resulting from the illness will be matters
left to experts but that does not remove from you the capability of
opining on your being sick. The other example we have said is speed.
One can say whether or not a particular motor vehicle is being driven at
a particular speed, you do not need to be a rocket scientist to tell
whether a vehicle is being driven at a fast speed. The practice, however,
is not to convict on the evidence of single witnesses. So on questions of
speed even though a person will find that the vehicle was moving at a
fast speed, conviction should not be based on the evidence of single
witnesses. This is provided for at section 43 (3) of the Traffic Offences
Act.
Therefore we are talking about identification. Remember with
identification there are different ways of identifying. You can use
identification parade, you can use fingerprints, you can use footprints,
and you can use police dogs.
The second one we have said is health, and we have also talked about
speed. The next is age.
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Age
Witnesses often testify as to their own age. But this is a fact upon which
such a person cannot have first-hand knowledge of that age. Because
you know age can only be proved by the testimony of a witness other
than the person in question who was present at birth, or the production
of a birth certificate. So when you testify as to your age, you are giving
an opinion, even when you testify as to the age of persons at whose
birth you were not present, you are giving an opinion. And of course you
know that age is a prime factor in certain cases. For instance if you want
to distinguish between an indictment for rape and defilement age is
going to be a factor. Or if you want to establish at what age that
criminality attaches to a persons act, that is critical and so you may
have instances where opinion of a persons age is being given. And of
course if you want to you may actually call for people that were there
when the person was born. And normally this is what is done. You either
bring a birth certificate or have people testify as to age.
There is also intoxication as mixed facts and opinion. And here the
evidence is based upon observation, which you can give without any
scientific check being carried out. And of course we go back to the case
of Odindo v R. Remember Odindo was permitted to tell the court what
this man could not do but he was not permitted to opine on whether the
person was capable of controlling a motor vehicle or not. But to be able
to tell that a person is operating under the influence of alcohol this is not
the time either. By observation, facts and inferences, you have facts on
how the person is walking, they normally walk straight but now they are
not properly focused, they are probably tottering around those kinds of
observations. All a person that you know is not really short sighted, that
doesnt seem to be seeing very far. So you should revisit here when you
are looking at intoxication the case of Odindo v R to see just what kind
of opinion will be admitted and which will not be allowed as far as
investigation is concerned.
WHERE OPINIONS ARE ADMISSIBLE ARE CASES WHERE OPINIONS
ARE SO LIKELY TO BE CORRECT
And the final category of circumstances where opinions are admissible
are cases where opinions are so likely to be correct that the court deems
this convenient and time saving to admit them. And examples here
opinions as to handwriting of a person by person acquainted with such
person's handwriting. And this is provided for at section 50(1)opinion
as to handwriting of a person by a person acquainted with such persons
handwriting. Because remember, handwriting is a matter for experts. So
when you have a person acquainted with a handwriting be allowed to
opine as to whose handwriting is before the court or is under proof, it is

61

an exception to the general rule. You are allowing this person to bring
what they know to bear on the determination.
The second example is contained at section 51 (1). Opinion as to the
existence of a general rights or custom by persons likely to know of it.
Who would be the persons to know of the existence of customary law?
Who are the repository of customs? So you would be going to people
who have a working knowledgeable, a familiarity of general the rights or
customs.
Thirdly, opinion as to usages, tenets, constitution, and government of
any association body or organization given by persons having special
means of knowledge thereon. This is provided for at section 52. So here
you are contemplating a situation where the whole question about say
the articles of faith of some cult. So the opinion of persons who would
have knowledge of those special means of knowledge. Say you are a
member or you are actually a senior person in the cult, then you will be
allowed to opine on those articles of faith or the constitution or the tenet
of that body, organization, etc.
And fourthly, opinion as to the relationship of one person to another,
expressed by conduct or evidence of persons who are best placed to
know it. So for instance, if the question is whether X and Y are married,
the fact that they were usually by their friends as husband and wife
would be relevant and admissible opinion because that is an opinion as
to a relationship by a person who has special knowledge. And that is
provided for at section 53.
17th March

LAW OF EVIDENCE Lecture 8

03
CORROBORATION

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
62

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 is 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 didnt indecently assault the boys; he
didnt 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 judges 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
63

misconduct. And this is so where the evidence is admissible and

indicative of the accused persons 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 others 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 91973) 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 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.
64

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 shouldnt 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.
65

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 shouldnt 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 courts
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.

2.

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.

3.

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 evolve
this practice.
66

WHERE LAW REQUIRES CORROBORATION

1.

Offence of procuration; (S.47 and 48 Penal Code) for

prostitution and other immoral purposes; Prostitution is not an
offence but procuration and living 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

2.

Speeding: The opinion of evidence of non-expert is as a

general rule not admissible. One of the exception 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
recognized 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
defendants 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
defendants 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
67

solely the opinion witness of one witness because the witness

had also carried out other tests
3.

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.

4.

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.

5.

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
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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.
CORROBORATION WARNING REQUIRED AS A MATTER OF LAW
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 dont require.
AN ACCOMPLICE TESTIFYING ON BEHALF OF THE PROSECUTION
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.
WHY DO WE REQUIRE CORROBORATION FOR ACCOMPLICE
EVIDENCE?
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
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exaggerate or even invent the accused role in the crime in order to

minimize his own culpability. Section 141 provides that an accomplice
shall be a.. The accomplice may be do 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
Defendants 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 participes criminis 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.

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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 girls 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
71

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 complainants 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.
WHERE THE COURTS AS A MATTER OF PRACTICE REQUIRE
CORROBORATION
Roria V. R. EALR 383
A repudiated and retracted
R V. Turnbull (1977) QB224
Corroboration is not ordinarily required and where required
Identification by single witness at night;
Repudiated and retracted confessions.

72

COMPETENCE & COMPELLABILITY lesson 9

Competence and compellability is a straightforward area of law. The
concern here is who may give evidence in court.
Competence refers to capability to give evidence and a person is
competent if he/she is conversant with the matters under consideration
and the person may legally be called upon to give evidence of those
matters.
A person is compellable on the other hand when he/she can be obliged
to go to the witness box and give evidence at the pain of penalty of
imprisonment should he or she fail to give turn up. There are instances
when a competent witness is relieved of the duty to give evidence for
instance where they have a claim to privilege. In that kind of
circumstance the person is competent but law of statute has exempted
them to give evidence.
A person can generally be a competent witness or they can be
competent in restricted cases. They may also be totally incompetent.
General competence is dealt with at S. 125(1) Evidence Act.
All persons are competent and it is up to the court to decide whether
they have a disability that renders them incompetent e.g. tender years,
extreme old age or a disease of body or mind. The implication is that it
is for the court to decide whether a particular person is competent or not
and the guidelines are given in S. 125(1). The idea is if one is able to
give rational answers to the questions the court is putting forward, one
could be 200 years old or a few months, there is no underage or overage
limited.
Under 125(2) even a mentally retarded person or a lunatic is competent
witness unless it can be shown that due to his condition at the particular
time he is incapable of understanding the questions put to him and
giving rational answers to them due to his sickness of mind.
Under Section 126 even dumb witnesses are competent witnesses and
can give their evidence in any manner which makes it intelligible. For
instance if they can write it down or if they can give it through sign
language. The writing and the signs have to be given in open court
because they are treated as oral evidence for purposes of Section 63.

73

Hamisi s/o Sallum V. R

This was a trial for murder and the only eye witness was the daughter
of the deceased who was a deaf mute. She came to court with a relative
who claimed that she could receive information from the witnesses sign
and noises. The Judge overruled the evidence. On Appeal, it was held
that such a person is a competent witness if he or she can be made to
understand the nature of an oath and if intelligence can be conveyed to
and from him/her by means of signs. This case is an authority for the
proposition that even deaf and dumb are competent witnesses if the
evidence can be communicated to them through signs.
Apart from cases of general competence there are special cases of
competence and these are cases where competence is derived from
statute.
The first instance of special case of competence is derived from the
accused person. An accused person is a competence witness for the
defense at every stage of the proceedings whether he is charged alone
or jointly with others. This is provided for at Section 127 (2) the accused
has however to apply to be a witness and he has a right to keep silent.
The reason is because before the UK 1898 Criminal Evidence Act the
accused person was not a competent witness at all. The spouse of an
accused person was also not a competent witnesses, atheists and
convicts were not competent witnesses. The 1898 Criminal Evidence
Act made these groups of people competent witnesses. Before that they
were deemed to be unworthy of credit.
The second special case of competence is a spouse of an accused
person. If a person is a lawful husband/wife of an accused he/she is a
competent witness of the defense at every stage of the trial. This is also
provided for at Section 127(2)
Section 127 (4) provides who is a husband or wife for the purposes of
this section. It is to the effect that it is a husband/wife of a marriage be
it in a monogamous or polygamous marriage.
Section 127(1) Spouses are competent witnesses in civil cases and here
there is no underscoring on whose part. It could be for the defense or
the other party. There is a change from common law where spouses
were not competent witnesses and now they are competent witnesses.
Section 127(3) it is provided that spouses are competent and
compellable witness for the prosecution or defence in any case where
the other spouses charged with
(a)
The offence of bigamy;
(b)
An offence against morality under Chapter 15 of the Penal
Code; or
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(c)

Where the other spouse is charged with an offence affecting

the person or property of the wife or husband or such person or
the children of either one of them and not otherwise;

Section 127(3) closes the category under which a husband/wife is

compellable and it is only in those 3 instances that a spouse can be a
competent witness to testify against the other.
These provisions of the Evidence Act buttress the accused persons
against self-incrimination.
ACCOMPLICES
Section 141 of E.A
Essentially accomplice evidence is admissible and an accomplice is a
competent witness and the usual practice is to finish with the
accomplice case before calling on the accomplice to testify so that the
accomplice does not give evidence in the hope that the court will be
lenient with him depending on his testimony. The statute is clear that it
is not necessarily the case that you will side-line evidence because it is
given by an accomplice.
OPPORTUNITY
CHILDREN OF TENDER YEARS
S. 125(1) general competence. Children are competent unless the court
considers them incapable of understanding the questions put to them.
What would prevent them would be their tender age and the Act does
not give an age limit below or above which a person can testify.
Kibageni V R
COMPELLABILITY
Normally a competent witness is compellable. But where a witnesss
competence derives from statute and this is in instances where a
witness was not always a competent witness, then the statute that
makes him a competent witness must also deal with the issue of their
compellability.
Section 127 (1) (2) (3) it underscores competence as well as
compellability.
If a witness is competent and compellable they decline to give evidence
or to be sworn at the peril of imprisonment.
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Section 128:
Under 128 when you go to court as a witness, you must answer the
question but the section cushions the witness because it provides that
any answer that a witness gives or is compelled to give by dint of giving
evidence to court shall not subject such a witness to an arrest or
prosecution save for the offence of perjury.
Section 152 of the Criminal Procedure Act provides the procedure to be
followed in the case of stubborn witnesses. It is to the effect that
whenever any person appearing in court refuses to be sworn or (b)
having been sworn refused to answer any question put to him or (c)
refuses or neglects to produce any document or thing, which he is
required to produced or (d) refuses to sign his deposition without in any
such case offering any sufficient excuse for such refusal or neglect, the
court may adjourn for 8 days putting such person in custody unless he
sooner consents to do that which is required of him. Privilege may
constitute a sufficient excuse.
With regard to husbands and wives spouses of accused person, they
were not originally competent, statutes made them competent for the
defence at every stage and we only have 3 instances when they are
compellable to give evidence
R V. Lapworth
Hoskin V. Metropolitan Police Commissiosner
Hoskin V. Metropolitan
The husband here was charged with inflicting personal injury on his wife.
The injury was inflicted while the woman was cohabiting with the
defendant. The woman was reluctant to testify and the question was
whether she was compellable. The court held that is the common law
wife was incompetent to testify against her husband, she cannot be
compelled to testify unless a statute makes a special provision for
compulsion. (S. 127(3)) inflicting personal injury.
R V. Kihandika
R V. Blanchard
In the Blanchard case the accused was charged with committing
buggery on his wife, the issue arose as to whether the wife was a
competent witness, the court held yes because the offence involved
injury to her person (127(3). The question has arisen as to why you
exclude spouse evidence in some and allow it in others. Some people
argue that spouses are one and should not testify against one another

76

and its only in instances where it would be impossible to sustain a case

if their evidence was not available.
R v Pete
LAW OF EVIDENCE Lecture 9

24.3.03

OATH & AFFIRMATION

The general rule is that all witnesses give their evidence on oath or on
solemn affirmation. The oath is supposed to be administered or the
affirmation done in a way that the witness declares to be binding. In
providing for oath and affirmation the law contemplates 2 categories of
people; Believers or religious persons and Atheists.
Believers are usually sworn by swearing to the holly book and indicate
that they will tell the truth and nothing but the truth. If a believer
objects to be sworn (certain religions do not allow their faithfuls to
swear) if they object they are affirmed and with affirmation you just put
up your hands and indicate that you will tell the truth.
Under Cap 9 Laws of Kenya there is no difference between an oath and
affirmation. Their effect is still the same. The effect is the same and so
if a witness wants to be sworn in a way that the court considers to be
impracticable, the court may require such a witness to be affirmed.
Insofar as atheists are concerned, if an atheist goes to court and takes a
holy book and swears to it, it is seen as binding. An Atheist can give
his/her evidence if they are sworn without objection. If atheists object to
be sworn, then they are affirmed.
The evidence of children of tender years presents difficulties in the
realm of oath and affirmation. The evidence Act does not define who a
child of tender years is but the case of Kibageni defines who a child of
tender years is, the case of Kibageni was in regard to compellability.
When a court is faced with a child of tender years, it undertakes a
preliminary enquiry to find out whether the child understands the nature
of an oath. The court will find out whether the child knows what
consequences there are for telling lies or telling the truth i.e. when you
tell lies you go to hell etc. If the child understands the nature of an oath,
then the child will be sworn. It may be the case that the child does not
know heaven and hell and the consequences of swearing but the court
could still find that the child appreciates the duty of telling the truth and
the child gives sensible answers to the questions. In that kind of case,
the child will be affirmed. It is imperative that the examination into the
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childs understanding is undertaken at the beginning of the trial. It is

not sufficient for the court in the course of the judgment to point out
that it understood the child knew the nature of the oath or appreciated
the duty of telling the truth. The enquiry has to be at the beginning and
it has to be on record. The authority for this is the case of
Macharia V. R
In this case the judge pointed out in the cause of judgment that the
court was satisfied that the children knew the nature of the oath before
giving evidence but there was no enquiry before giving the oath. The
court explicitly stated that had there been no other evidence in this case
to corroborate the childrens evidence, the conviction would have been
thrown out. The conviction would not have stood.
John Mututi V. R
Oloo V. R
These two cases state that religious belief is fundamental to the taking
of an oath so that you cannot swear anybody who has no religious belief.
So if you have a child who has no religious belief, such child should not
be sworn. That is the law in Kenya. But since people dont open the
book and they dont object, they sometimes swear by the wrong book
In England it has been said that religious belief is not fundamental to the
taking of an oath by a child. The authority here is the case of R. V
Hayes where the court stated that the important consideration for a
judge in exercising his discretion to permit a child to give evidence on
oath is whether the child sufficiently appreciates the solemnity of the
occasion and is sufficiently responsible to understand that the taking of
an oath involves telling the truth. The judge need not be satisfied that
the child is aware of the divine sanction of an oath.

EXAMINATION OF WITNESSES
The general rule is that a witness shall be examined orally and in open
court. Ordinarily evidence is adduced in the form of questions and
answers and it is the questioning which is referred to as examination
which means that it is akin to the ordeal.
Examination of witnesses is covered in parts 3 to 6 of the Evidence Act
and the specific sections are from Section 144.
The party who calls a witness examines the witness with a view to
adducing evidence in proof of his case and this is what is referred to as
examination in chief covered at S. 145(1) thereafter the adverse party
has a right to examine that witness. If the adverse party exercises that
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right, the examination is referred to as cross-examination Section

145(2).
After cross-examination of a witness the party calling that witness, the
party who called the witness may examine the witness again with a view
to clearing any ambiguities that may have arisen within the crossexamination and this examination is referred to as re-examination
covered at S. 145(3).
Insofar as the examination in chief is concerned the purpose is to obtain
from the witness in as chronological a manner as possible, evidence that
supports the case of the person calling him or her. The person
examining the witness has to control the direction of the examination,
i.e. one has to suppress a too talkative person or bring them back when
they go on a tangent without making them feel intimidated. You have to
be firm with your witness but polite. If a witness looks intimidated by
the processes it is your duty to relax the witness to ensure that they
bring out evidence. Of course when you are examining the witness you
have to bear in mind the rules of evidence. If the witness is not an
expert witness, you cannot lead opinion evidence. You have to have all
these to form your examination in chief. If you seek to go against the
rules of evidence the adverse party will object and even if they dont,
the court may overrule you. Essentially there is an assumption that the
officers of the court are armed with rules of procedure.
WHAT TYPE OF QUESTIONS CAN YOU ASK IN EXAMINATION IN
CHIEF
S. 150 of the Evidence Act is to the effect that leading questions shall
not if objected to by the adverse party be asked in examination in chief
except with the courts permission.
WHAT IS A LEADING QUESTION
Section 149 defines a leading question as any question suggesting the
answer which the person putting it wishes and expects to receive or
suggesting a disputed fact on any question as to which the witness is to
testify. For instance in a case of theft, somebody might ask isnt it
Onyango who you saw stealing from so and sos house. Did you see a
person steal from so and sos house.
Under Section 150 objection from the adverse party is required for a
leading question to be disallowed but in most cases, the court will take it
upon itself to disallow all such questions. This is the case because most
litigants have no legal counsel so the court takes it upon itself the role of
disallowing leading questions. The question might arise then as to why
79

dont you want leading questions to be asked. The reasons is because

such question may elicit false and unreliable facts especially in cases of
witnesses who are afraid of the courts process. In fact when one asks a
leading question of a witness who is afraid, many of them will just say
yes.
It is important that questions in the examination in chief confirm the
witnesss testimony as recorded in his/her statement and this is
especially in criminal cases where persons give statements and then
come to court as witnesses.
Previous statements can take various forms, they could be a complaint
by a complainant, statements of accused persons when first confronted
with incriminating facts and such statements will go to prove
consistency of the witness. Consistency in itself may not be a pointer to
truthfulness.
WHAT HAPPENS WHEN A WITNESS FORGETS TO TESTIFY ON
WHAT HE WAS CALLED TO TESTIFY ON
Section 167 provides for refreshing a witness memory. As a witness you
can refer to any writing you made of the transaction or a statement you
recorded soon after the transaction. You could also refresh your memory
by looking at writing made by any other person and led by you within a
reasonable time within which a transaction happened.
Note that the writing is not the witnesss evidence, it is what the witness
testifies to after looking at the writing which is not the evidence. What
you say after you refresh the memory is what evidence is.
An expert can refresh their memory by reading a treatise related to their
field. This is provided for in Section 167(4). There is a situation
contemplated at Section 168 which people confuse with refreshing of
memory. Here what is contemplated is where a witness writes down
facts relating to a transaction or immediately after a transaction, that
witness then forgets the facts and then cannot recollect them even after
writing them in the diary. The document here can be admitted as
evidence if the witness swears that they are an accurate record of what
happened. Again the document has to be proved to be a document that
is admissible. If you do not have the document and want to tender
secondary evidence, you can only do so under Section 68 of the
Evidence Act.
HOSTILE WITNESSES
A witness that you invite hoping that will give evidence for you but in
the examination in chief you discover that the witness for some
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unknown reason has made an about turn is giving evidence contrary to

what he/she had indicated they would talk about. This kind of witness is
called a hostile witness and Section 161 gives the court a discretion to
permit a person calling a hostile witness to cross examine such witness.
Once you have a hostile witness the court can exercise discretion and
allow you to cross examine your own witness. Once a party crossexamines their own witness that witness is in the same position as the
adverse party and it is going to be incumbent upon the person seeking
to cross-examine their own witness to ask for the courts permission to
do so after declaring the witness hostile.
HOW MUCH VALUE SHOULD BE ATTACHED TO THE EVIDENCE OF
A HOSTILE WITNESS
The evidence of a hostile witness is admissible but it is for the court to
determine what probative value that evidence has by taking all facts
into consideration.
Sections 159 to 160 prohibit asking of certain kinds of questions.
Indecent or scandalous questions should not be asked unless they relate
to facts in issue. The adverse party should object immediately if a
scandalous question is asked. It is also the case where an irrelevant
question is asked. If the objection is overruled by the judge and the
adverse party still feels that it is sustainable, they should ask the judge
to record the objection, and the ruling and the objection on the ruling.
This is helpful should the objecting party wish to appeal against the
ruling. Failure to object as soon as the question is posed estops one
from forever objecting that questions were asked that should never have
been asked.
CROSS EXAMINATION
Cross examination is a right not a privilege and if a person is denied the
right, the denial can vitiate the proceedings. The aim of crossexamination is to disqualify the case of the adverse party and try to
obtain favorable admissions from the witness. Cross examination need
not be confined to matters raised in the examination in chief. A witness
may for instance be asked questions to test his or her accuracy, veracity
or credibility. They may also be asked questions to discover who they
are and what their station in life is, all one is seeking to do is to discredit
the witness. Annoying questions can be asked and it is up to the court
to exercise discretion if they are unnecessarily offensive if they go more
than to prove the matter. Section 154 leading questions may be
asked. If a question is asked of a witness in cross examination which
relates solely to the credit of the witness, the court has a discretion to
81

compel or not to compel the witness to answer the question, the court
decide whether a witness should answer a question that relates
primarily to their credit this is provided for in Section 157. In exercising
the discretion to compel or not to compel, the court weighs the extent to
which the imputation casts on a persons credit is proximate to the suit.
Section 163 gives ways of impeaching the credit of a witness in cross
examination. You call the witness to testify to the unworthiness of credit
of a particular witness. You can also call proof that a witness has been
bribed or that the witness has accepted the offer of a bribe or any other
corrupt inducement to give evidence. You could also impeach by
proving former statements oral or written made by the witness which
are inconsistent with any part of the witnesss evidence.
Fourthly in a charge of rape, or attempted rape evidence can be brought
to show the complainant was of generally immoral character.
In cross-examining, there is no general modus operandi. It depends on
the witness you are dealing with. People will insist that you have a
police officer or professional witnesses, police officers tend to be
arrogant especially to junior lawyers and they are not easily trapped.
The best way to deal with them is to start where they least expect you
to start. If you have children, they are good witness if they have not
been coached they will not tell lies. You have to be careful how to
handle them otherwise they can start to cry. One has to be extremely
sensitive when handling childrens witnesses.
John Mutito V. R
The prosecution witness produced ghastly photographs of the murder
scene which offended the child and the counsel was cautioned by the
court to stop offending the child.
If you have experts and to avoid embarrassment, do not cross examine
them unless you are well versed with the subject.
RE EXAMINATION
This is a second chance by the person calling a witness. It is not an
opportunity to lead further evidence. It only allows the witness to
explain matters referred to in the examination in chief and cross
examination. Reexamination normally is to clarify ambiguous matters.
After reexamination cross examination is going to be allowed. Section
146(1).
Section 146(2) examination in chief and cross examination must relate
to relevant facts but cross examination need not be confined to..
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Section 146(3) re-examination shall be directed to matters referred to in

the cross examination.
Section 146(4) a party may with the permission of the court recall a
party for re examination. This is recall, there is a right of recall of a
particular witness for further examination and the court in considering
whether to allow recall for any of these purposes has to consider
whether the interests of justice would be better served by recall.
There are other rules at Part IV of the Evidence Act and at Section 147 it
is provided that a person called to produce a document does not
become a witness by the fact that he has come to produce the
document. It is the document that the court is interested in and until
and unless a person is called as a witness, mere requirement of a
document in court does not make the one who produces the document a
witness.

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