EVIDENCE OF CHARACTER

Lecturer:Sindiga Douglas

Introduction

According to the Blacks law dictionary 5th edition, character is the aggregate of the moral
qualities which belong to and distinguish an individual; it is the general result of the ones
distinguishing attributes. It describes it as that moral predisposition or habit, or aggregate of
ethical qualities, which is believed to attach to a person on the strength of the common opinion
and report concerning him.

Blacks asserts that character as the moral qualities of a person i the qualities the person
possessed as against reputation which is what others believe one to possess.

Therefore character is personal and real white reputation is external and is based on other
peoples knowledge and assessment. Character in relation to adducing evidence could ether be
bad or good.

The evidence of good character of an accused person or of a witness is admissible in evidence. It

points to the direction that the allegation against him is less likely to be true. Conversely, the
evidence of bad character or of bad reputation is inadmissible in both civil and criminal
proceedings except where a statute specifically allows it.

OBJECTIVE

This topic is to project to the student a full and proper understanding of the term character
evidence. It will also aid the students to identify when it is likely to be admitted or rejected in
evidence. It further examines the evidence of good and bad character and how such can be
relevant.

Definition of terms
 (i) Character

There is no definition of the term character under section 3 of the Kenyan Evidence Act. Section
58 only offers a working definition.

Literally character refers to the qualities which distinguishes a person from another i.e moral
nature and the fame, either good or bad.

Section 58 also provides that the word character includes both reputation and disposition without
defining this two words.

Character Evidence

According to blackss law dictionary, character evidence refers to the evidence of a person s
moral standing in the community based on reputation.

Character evidence can also refers to the testimony concerning the reputation of a person in his
community. i.e among those persons who know him best regarding a particular trait.

Basically when the evidence of character is admissible, then it may have an inclination towards
the credibility of a witness who appears in court either in criminal or civil case. But under the
common law, witnesses as to character were only allowed to testify on the general reputation of
the accused and were not allowed to give evidence of specific aspects of the character of an
individual when given the opportunity to testify as a witness. This role was to give everyone a
chance of having a free and fair trial on issues in court without bias that would otherwise result
from specific incidents and in return influence the jury and the judge.

Character Witness

This refers to a person who testifies in a trial on behalf of a person as to that persons good
ethical qualities and morality both by the persons reputation in the community. Such testimony
is primarily relevant when the partys honest or morality is an issue, particularly in most criminal
cases and civil cases such as fraud.
In R v Rowton (1865) Le and Ca 520. This is one among the early English cases that considered
the evidence of character. In this case, the accused Mr. Rowton was charged with indecence
assault of a young boy. He called several witnesses to testify as to his good moral character and
the prosecution was allowed to produce evidence in order to rebut this evidence of good moral
character and called a person who testifies that he had no knowledge of the neighborhood and
you can see here that when a person is giving evidence of his good moral character, it is in a
sense to establish or to try to say that if I am a person of good moral character the essence of
indecent assault is actually something that I would not be engaged in. So you are basically trying
to show that because you are a person of a particular character you are unlikely to have done
what you did. But here you have the prosecution calling another person to rebut this evidence of
good character and that person testified in the following manner.

He said that he had no knowledge of the neighbourhood opinion. He did not know what this
guys reputation was, because a neighbourhood opinon is actually your reputation, the estimation
in which your classmates hold you or the people amongst whom you live. He said he had no
knowledge of the neighbourhood opinion. But his own opinion was that the accused was a man
capable of the grossest indecencies and most flagrant immorality. He said that this is also the
opinion of his brothers who were pupils of the accused. But he is saying he is certainly obvious
of what the neighbourhood thinks of the man. But he and his brothers were of the opinion that
this accused person was a man of capable of the grossest indecency and most fragrant
immorality.

Now the question was whether this evidence was admissible. Was the evidence of this man
talking about his own opinion and that of his brothers admissible . Here the court held that it was
not admissible because it was based on the witnessess own opinion as opposed to the opinion of
the community.

There was actually a strong dissent in this case. Two judges dissented arguing that the evidence
ought to have been admitted because it was based on this mans intimate knowledge of the
accused rather than of the general community. But because the majority view was that the
evidence was not admissible, it wasnt admitted and the reason why it was not admitted is that
whenever evidence of a good character has been given in favour of a prisoner, evidence of the
general bad character may be called in reply. As the question whether the evidence in rebuttal
should be evidence of general reputation or evidence of disposition. It was held that evidence in
rebuttal should be evidence of his general reputation in the neighbourhood in which he lives and
should not include evidence of specific good or bad act of an accused. Further, any evidence
given in rebuttal should be evidence of general reputation or evidence of disposition. It was held
that evidence in rebuttal should be evidence of his general reputation in the neighbourhood in
which he lives and should not include evidnce of specific good or bad acts of an accused.
Further any evidence given in rebuttal should be of the general estimation amongst a group of
people and not just a certain category of the people amongst whom the person lives.

And what is essential in this case which seems to be happening is that the court was over-
emphasizing the need for big numbers to hold a similar view of a person before evidence of their
character.

If I have seen or I know you are capable of stealing and I am trying to demolish your defence,
may be you said you go to church every Sunday and you are good person. You go to church
every sunday. In your bag or your pocket they are going to find the holy book and a person who
carries the holy book everywhere is not likely to be a thief. But may be there if a person that
knows actually that over and above carrying the holy book you have an affinity for other
peoples things. And you will not hesistate to disposs others of their possession. If that is not
the view of the whole class or the community amongst whom you live, that is not your reputation
and the court is going to have difficult in admitting that. But essentially the principle is that the
court tends to use disposition and reputation interchangeably and it is a lot more difficult to put
your fingers on disposition.

Disposition

This refers to the inherent qualities of a person and the qualities that a person acquires through
their upbringing, education or material conditions in life.All those things are going to contribute
to your disposition. So your tendency to act or to refrain from acting in a particular manner,
which is disposition, is a factor of not only your upbringing but also your education and the
material of condition in which you grew up. And the way in which you tell a persons
disposition is through observing that person. When you observe a person you are able to discern
what their disposition is. So in essence when you are talking of a persons inclination: how are
they inclined to react to a particular thing or to behave in a particular set of circumstances

Reputation

Reputation refers to the general estimation with which a person is held. When you say that a
person has a reputation you are talking about the general estimation in which a person is held, for
instance, you may have the reputation of being a liar. So people generally perceives of you to be
a person that tells untruth and that that is the way in which people perceive of you. That people
has nothing to do with your inherent qualities. And this are the people among whom you live or
whom you work with or people who know you personally. May be people that have been
attending evening classes with you; they will know that they will not be able to live their pen
around you and you gain that reputation or if a person is your instructor you know that they will
come in the second hour of class. So that is the estimation in which people you work with, who
you live with or who you know you personally hold you in, an if they were asked to rate you,
how would they rate you. When a person says so and so is a drunk that is the reputation the
person has and it is the net effect of the interaction that people have with that person. Is this
clear? So when you are talking about disposition, disposition you have no control over because
you could actually refine yourself a little bit if you were brought up or do not have sufficient
level of education and therefore your disposition is abit rough, you could work on that. But a lot
of it has to do with what it is that you are predisposed to do, whereas reputation is going to be
estimation that people hold you in and they are actually holding you in that regard because, they
do know, have lived with you, have worked with you and because of the way in which they have
interacted with you, they have a basis for saying that you will behave in a particular way.

Character and Conduct

Conduct can be defined in relation to ones action. According to blacks law dictionary 5th
edition, It means an action or omission and its accompanying state of mind or where relevant a
series of acts and omission. Thus in relation to character, conduct will be the action or inaction
of an individual before the present fact. Character evidence will be admissible for example
evidence of previous convictions which are related in substance to the offence charged. It applies
in both civil and criminal proceedings.

Character Evidence and Similar Facts

Similar facts evidence is defined as follows;-

When there is a question whether an act was accidental or international or done with a particular
knowledge or intention or to rebut any defence that may otherwise be open to the defendant, the
fact that such act formed part of a series of similar occurrences in each of which the person doing
the act was concerned, is relevant. It has two connotations;-

(a) Facts having general resemblance

and

(b) Facts having particular resemblance

(a) Facts having general resemblance

Fact situation one: A stole B murdered, C burgled

There is a general resemblance, each is a criminal; they are bad men or women.

Fact situation two c is charged with stealing, three years earlier he committed house breaking.
Here is a similar fact evidence showing in each case that A is a criminal.

Facts having particular resemblance

Illustration

X is charged with obtaining Ksh. 100,000.00 from Z by false pretence that the ring is made of
gold; some six months earlier he had obtained Ksh. 50,000 from Y by the same
misrepresentation. Here also is a similar facts evidence showing that x is a bad man and a
criminal while particular modus operandi is obtaining money by false pretence.
Facts situations one and two show general remembrance. They are irrelevant. They are not
admissible in evidence against A or C. Fact situation three is of particular resemblance and it has
a distinctive modus operandi and it is admissible against x.

Here it may be submitted that evidence of general resemblance or general evidence system is
admissible only if a part from general resemblance, the evidence Act allows it. But these
evidence which shows particular resemblance such that they fix the accused as the main actor in
each fact situation is relevant and admissible.

The purpose of the this type of evidence (evidence of similar fact) is to show that the accused is
to be guilty of the offence currently charged by simply showing that he or she had been guilty of
other misconduct than the one primarily charged.

Similar facts evidence and an accused bad character reinforce each other or support allegation
made against the accused. Hence evidence of bad character, which facts within the slope of
similar facts evidence is relevant and admissible. Whenever evidence of bad character is
relevant, evidence of previous conviction is also relevant.

Character of the witnesses

The character of witness is always relevant to his or her credit to show that he or she is a person
of good character and worthy to be believed. The evidence of a witnesss character becomes
relevant is if he or she.

(i) Denies his or her previous conviction

(ii) Has made inconsistent statements
(iii) Denies bias in favour of one party
(iv) Where the reliability or credibility of a previous witness (e.g medical evidence of
abnormality of mind) may affect reliability of the witnesss testimony.

CHARACTER EVIDENCE IN CIVIL CASES

 The general rule

The general principle is that The evidence of a parties character cannot be given for the
purpose of showing that it renders the conduct imputed to him as probable or improbable.

It is not permissible to adduce evidence of a mans good or bad character to suggest to the
court that because of their character the conduct attributed to them is more or less probable.
It should be noted that the court is not concerned with trying the character of the parties but
with the facts of the case and the relevance and admissibility of the evidence before it.

If a person is charged with negligent driving he cannot give evidence of the fact that his
character and conduct has been such that he could not have been guilty of negligence.
Similarly his opposite party cannot give evidence of the fact his character and conduct had
been so bad that he must have been negligent. The reason is that the court has to try the case
on the basis of its facts for the purpose of determining whether the defendant should be liable
or not. The court has not to try the character of the parties and the evidence of character will
not only prolong the proceedings but will also unnecessarily prejudice the mind of the judge
one way or other

This principle was laid down as early as 1791 in Attorney-General V. Bowman (1791) 2 Bos.
P.532
So essentially when we are saying that the general principle is that in civil cases evidence of
character will not be admissible. There are however three instances when evidence of character
will be admitted.

(i) Where the character of the claimant / plaintiff is a fact in issue.

Evidence can be given of a parties character when his character is itself a fact in issue where,
for example, an action is brought for divorce on the grounds of cruelity, the cruel character of
the defendant, being a fact in issue, the plaintiff can lead evidence of it.
Section 55(i) of the Kenya evidence act says that in civil cases, the fact that the character of
any person concerned is such as to render probably or improbable any conduct imputed to
him is admissible except in so far as such character appears from facts otherwise admissible.
In this sections it means that no evidence shall be given in any suit or proceeding except
evidence of the existing or non-existence of a fact in issue and of any other fact declared by
any provision of this Act to be relevant. Here the operative words are evidence of the
existence or non-existence of a fact in issue, and that is why under section 5 and section 55
(i) the first instance under which evidence of character will be admitted in civil cases is
where the character is issue or direct relevant to the fact in issue.

Case
In the case of ingram vs ingram (1956). This was a case of divorce based on adultery. The
husband who was a senior military officer ws allowed to give evidence of treason against his
spouse in proof of the fact that his spouse was guilty of weighty misconduct which is a
constituent of cruelity.

2. Character as affecting quantum of damages

This exception is provided for in section 55(2) of the Kenya evidence Act and it applies
where character evidence adduced in any proceeding affects the quantum of damages to be
awarded by the court.
The damages awardable are dependent on the estimation in which he is held by society. This
means that the higher a person is placed in society, the more the damages payable to him, if
the plaintiff succeeds in his claim.

The evidence of good or bad character of the defendant is irrelevant to damages. His good
character cannot go to reduce damages and his bad character cannot aggravate them. It is
only the character of the plaintiff which is declared to be relevant and that too when his
character affects the amount of compensation which he ought to receive.
This exception has been often used in actions for damages for defamation, or for Kidnapping,
or rape or for breach of promise of marriage.

In the case of scott V. Sampson (1882) 8 QBD 49, the plaintiff was a journalist. He sued the
defendants for libel on the ground that the defendant had published of him that he was
systematically abusing his position as a dramatic critic for the purpose of obtaining money
and had obtained money from a lady under the threat of publishing facts in furious to her.
The defendants sought to show the character of the plaintiff, but the trial judge refused to
admit it.

It was held on an appeal for retrial that the evidence of reputation ought to have been
admitted. The appeal court went on to say that a man of the worst character is entitled to
the same measure of damages with one of unsullied and unblemished reputation. A reputed
thief would be placed on the same footing with the most honourable merchant, a virtuous
woman with the most abandoned prostitute. To enable the injury sustained, knowledge of the
partys previous character is the only material, but seems to be absolutely essential.

In Uren V. John Fairfax and sons pty ltd (1967)117 C.L.R 118 at 150 case justice windeyer
said
It seems to me that, properly speaking a man deformed does not get compensation for his
damaged reputation. He gets damages because he was injured in his reputation, that is
simply because he was publicly deformed. For this reason, compensation by damages
operated in two ways as a vindication of the plaintiff to the public and as a consolation to
him for a wrong done. (Compensation is here a solatium rather than a monetary recompense
for harm measurable in money.
Most civil suits touches on the character of the respective parties be it
(i) Negligence
(ii) False imprisonment
(iii) Defamation
(iv) Nuisance
(v) Malicious prosecution, where the defendant aggravates the tort, the plaintiff becomes
entitled to aggravated or punitive damages.

(iii) When character appears from other relevant fact in issue

Evidence of disposition of the defendant towards wrong doing or commission of a particular
kind of civil wrong may be admissible if it is of sufficient relevance or probative force in
 relation to the fact in issue. Such evidence relates to particular acts of misconduct on other
occasions and is designated as similar fact evidence.
A fact which is otherwise relevant cannot be excluded from evidence only because it
incidentally exposes or throws light upon a partys character. If facts otherwise relevant
show a partys character also the court can take not of it imputed to the party. For example,
where a journalist is described as an exploiter and he sues for damages for defamation and it
the defendant takes the defence to prove the explitaiton which the plaintiff has been
practicing. Such evidence will also bring to light the real character of the plaintiff and court
can take not of it.

In Mood Music Publishing Co. Ltd V. De Wolfe Ltd (1976) Ch. U.S.A (C.A) case the
defendants on appeal the court held that in civil cases, the court will admit evidence of
similar facts it is logically probative, that is logically relevant in determining the matter
which is in issue provided that it is not oppressive or unfair to the other side.

iv. Character relevant to Credit

In civil cases/proceedings, any witness who gives evidence, whether or not a party thereto, is
liable to cross-examination as to his credibility as a witness, that is, his/her character will be
probed in cross examination according to section 148 of the evidence Act.
As a general rule, the cross-examination party is not allowed to adduce evidence to contradict
a witness answer to a question concerning his credit or character. This is because question as
to the character/credit of a witness are collateral to the issue before court.
Also a witness may be asked any question which tends to;-
(a) To test his accuracy, veracity or credibility
(b) To discover who he is and what is his position in life.
Even though such questions may hurt on your character they will be allowed under section 154
of the evidence Act.
NOTE
Absent of this three exceptions then one cannot call for evidence of character because we said
the duty of the court in any particular matter is to try to issue before it, not to try the person or to
examine or inquire the persons whole life.

CHARACTER EVIDENCE IN CRIMINAL CASES

The general rule:
Common law as well as law of evidence act the general rule is that The prosecution is not
allowed to adduce evidence of the accused persons bad character or to cross examine
witnesses for the defence with a view of eliciting such evidence according to section 57 (i) of the
Kenya evidence.
The English common law attached so much importance to this rule that in cases where bad
character of the accused was in advertently revealed to the jury, whether by a witness or counsel
the judge could exercise his discretion by discharging the jury and ordering a re-trial. It is this
general rule that informs the first limb of the statement by lord Herschell in and Makin Another
V.A.G of New South Wales (1894) AC 57 (P.C).

John and Sarah Makin Case

John and Sarah Jane Makini were Australian baby farmers who were convicted in new south
wales (NSW) for the murder of infant Horace Murray. Both were tried and found guilty in
March 1893 and were sentenced to death. John Makin was hanged on 15 August 1893 but
Sarahs Sentence was commuted to life imprisonment. On 29 April 1911, Sarah was paroled
from the state reformatory for women at long bay in response to the petition of her daughters.

Horace Murray

In 1992, eighteen year old Amber Murray placed an advertisement in search of a mother to
adopt a baby boy. Murray was unable to care for her illegitimate son. Horace born on 30 may
1892 and offered to cover child support expenses. The makins replied that they were willing to
take care of Horace for ten shillings per week. Daughter blanche makin accepted an initial
payment of three pounds and collected the child. John makin continued to collect child support
payments from Amber Murray while responding to her requests to see Horace with excuses
when moray visited an address near Sydney the mains had provide, the family had moved to
mac donnaldtown NSW, and could not be found.

The discovery of the bodies

The makins came to police attention on 11 October 1872 when worker James hanoney was
clearing a clogged underground drain in the backyard of a home in Burren street , macdonald
town and found it blocked with the remains of two infants investigators examined records to
trace the makins, who had moved again to Chippendale. The makins and four of their daughters
were arrested, though only John and Sarah were charged. Police exhumed remains from the
backyards of eleven homes that the makins had occupied since 1890. The bodies of twelve
infants were recovered.

Prosecutors believed the makins sought to profit by taking babies for child care payments and
found it easier to kill the children and deceive the parents to continue receiving money. One of
their victims was Horace Muray, whose clothing was identified by his mother Amber.

On trial, the makins daughters testifies against in court. Sixteen year old clarice said she
recognized clothing recovered from one of dead babies that was previously in the custody of her
mother. Eleven year old Daisy recalled that two young girls but not Horace had followed them
to macdonald town. Another couple testified that they had been paying the makins ten shillings
per week for the temporary care of their illegitimate baby. The child died within days and the
couple paid the makins two pounds to cover funeral costs.
Sentencing

After two appeals and a plea for clemency were denied. John Makim was hanged on the gallows
at darlinghurst Gaol on 15 August 1893. Sarahs sentences was commuted to life imprisonment
with hard labour at the state reformatory for women at long Bal. After her daughters
campaigned for her release, sarah was Paroled in 1911, having served nineteen years in prison.
According to court records, the makins were not charged with any further animal activity. On
13th September 1918, Sarah Makin died in Marrickville, nsw: she was buried in Rookwood
cemetery.

Finally the privy council recognized in Makins cas that as a general rule, evidence of the bad
character of an accused was not admissible in order to prove that he was guilty of the offence
with which he was presently charged.

In criminal proceedings, the fact that the person accused is of a good character is admissible in
evidence according to section 56 of the evidence act. However it must be noted that the question
of good character may not be too helpful to the accused because the court is interested in the
determination of the relevance and admissibility of the evidence in support of the facts in issue or
relevant facts in the case.

When the evidence of good character may be admissible?

Evidence of good character may be admissible if;-
(i) It is relevant to the offence charged
(ii) It refers to a date proximate to the charge.
(iii) It is general, not relating to specific instances.
Evidence of good character is a double edged weapon as it entitles the prosecution also to
advance evidence of bad character if any.
It has two important limbs
(i) Its relevant to credibility
(ii) Its relevant to the question whether the accused / defendant was likely to have
behaved as alleged by the prosecution.
Where an accused faces multiple charges, pleads guilty to some and not guilty to others, he
ceases to be of good character any longer.

Evidence of bad character

Evidence of bad character is irrelevant. Such evidence cannot be adduced for the following
reasons;-
 (a) It is irrelevant
(b) It may unduly harass the party
(c) It is prejudicial
d. It tends to take up the whole of one s career which one would not be prepared to defend
without sufficient notice.

EXCEPTION TO THE GENRAL RULE IN CRIMINAL CASES\

There are however, exceptions to the general rule that evidence of bad character convitions and
acquittals of the accused are inadmissible.
These exceptions make admissible evidence of bad character that would otherwise be
inadmissible.

1. Intergral part of defence. / The inevitable loss of shield / To rebut

prior evidence of good character.
This can be done in two ways
(i) Introducing evidence of his or her good character.
(ii) Attacking the character of the prosecutor or his witness.
According to section 57(1) (b) of the evidence Act. It an accused person has personality or by
his advocate asked questions of a witness for the prosecution with a view to establishing his own
good character or has given evidence of his own good character.
Or

While in prosecution has no right to introduce evidence of bad character of the accused, if the
accused himself has made an issue about his character, by giving evidence that he is a man of
good character, the prosecution can rebut or contradict such evidence by adducing evidence of
his bad character.
Evidence of bad character is irrelevant, unless evidence has been given that he is a man of good
character in which case it becomes relevant. This right of prosecution is subject to certain limits.
(i) Where the prisoner does not put his own character in issue, the prosecution does not
have the right to attack his character.
When can it be said that the accused has given evidence of his characters. This question was
examined by the court of appeal in R.v Butter Wasser (1948) K.B. 4
In this case, the accused was facing trial for causing wounds with intent to do grievous hurt. The
injured person and his wife gave evidence that the accused flashed his face with a razor. Both of
them were cross-examined on behalf of the accused as to their bad character. The accused
however, gave no evidence form his side, but the prosecution produced a police officer who gave
evidence of the previous convictions of the accused and also of his bad character.

LORD GODDARD, C.J. delivered the judgment of the court of Appeal, held that such evidence
was not admissible. The accused merely attacked the character of the prosecution witnesses, he
did not give evidence of his own character and therefore, the prosecution had no right to show
that the accused was a man of bad character.

In the case of Stirland V. Director of public prosecutions (1944) A.C. 35 (H.L) The house of
lords pointed out that an accused who puts his character in issue must be regarded as putting the
whole of his past record in issue. He cannot assert his conduct in certain respects without
exposing himself to inquiry about the rest of his record so far to disprove a claim for good
character.
In the case of Maxwell V. DPP (1935) AC 309,32 LGR 335, A doctor was charged with
manslaughter of a lady who died while he was procuring an illegal abortion. In his defence
he stated that he had lived a good moral and clean life with the result that the prosecution
successfully applied to cross-examine the accused on his past antecedents. The prosecution
produced evidence which was admitted and which showed that the doctor had earlier been
acquitted of a charge of abortion.
From this case we can find example of ways in which the accused person could throw the
shield away . In the following ways ;-
(i) If the accused person gave evidence of his own good character, he would be deemed to
have thrown the shield away.

2 Similar fact evidence exception

According to Adrian Keane (in the modern law of evidence (4th edition, 1996 Butterworths)
page 417 defines similar facts evidence as a disposition of the accused towards wrong doing or
of specific acts of misconduct on other occasions, whether or not they resulted in previous
convictions. Such evidence of exceptional is admissible where it is of sufficient probative force
in relation to the question of guilt on the charge before the court.

This exception was dealt in RV. Coker (1960)2 QB 207 where the appellant had been acquitted
of his previous charges yet the trial court convicted him based on the evidence of his previous
charges. Cokar appealed on the ground that the conviction was based on admission of in
admissible evidence of the previous offence. The appellant court quashed the conviction because
matters relating to charges which did not result in a conviction were outside the purview of the
section in the English criminal evidence Act, section (1) equivalent of section 57 (1) (a) of the
Kenya evidence act.

Section 57 (1) (a) provides that similar fact evidence would be admissible unless the proof that
he has committed or been convicted of such other offence is admissible under section 14 or
section 15 of the act or to show that he is guilty of the offence with which he is then charged.

NOTE:For similar facts evidence to be admissible as an exception to section 57 it has to have

resulted in conviction. Because if it did not result in a conviction then it means that the matter
was not conclusively established.

3. If the nature or conduct of the defence is such as to cast or make

imputations on the characterof the complainant or of a witness for the
prosecution.

This exception is found in section 57(1) (c) of the Kenya evidence act. If renders admissible any
evidence in proof of the accused persons bad character or of his previous convictions, when the
conduct of the defence is such as to make imputations on the character of the complainant or a
witness for the prosecution.
In the case of Rivers Arthvoton Royston V.R 91953)20 eaca 147. The accused was charged with
obtaining cash by false pretences from various persons. He admitted receiving the money but
denies the existence of false pretences. In cross-examining the prosecution witness with a view
to furthering his defence to the charge of false pretences, he cast as persons on their character
(put their character in doubt). The court there upon allowed the preosectuon to cross examine
him on his previous antecedents. He was convicted and appealed against conviction on the
ground that the previous atencedents ware wrongly admitted. The court of appeal held that the
preivous antecedents were indeed wrongly admitted and in their words. where imputations
involving the character of prosecution witnesses are an intergral part of the defence, without
which the accused cannot put his case before the jury fairly and squarely, he cannot be cross-
examined on his previous criminal history.

And this is what is being referred to as the need for integral part of defence theory, because
again if it an integral part of the defence and if you say once they raise it they are going to be
cross-examined on their previous antecedent then it is unfair they will not be able to prove their
case respectively.

The line of argument was initially pursued in RV. Turner (1944) Vol KB 463. Where the
accused was charged with the offence of rape. During trial, the counsel for the accused in cross-
examination suggested to the complainant that she not only consented to intercourse but also
offered to commit an act of gross indecency onhim. The appellant repeated the same allegations
in his evidence in chief.

The trial magistrate found that the appellant had made imputations on the character of
complainant and opened way for the prosectuon to examine him on his antecedent. He was
convicted on appeal, the appellant challenged the admissibility of evidence o his part
antecedents. Further, the appellant argued that consent was a valid line of defence which he was
entitled to persue.

It was held that the defense of consent in a charge of rape is nothing more than a denial by the
prisoner/accused, that the prosecution on whom lies the burden of proof have established the
absence of consent on the part of the complainant which is one of the ingrideints of the chage. It
does not involve an imputation on the character of the comoplainant. Further, the court held that
the appellant did not lose his right of protection and should not have been corss-examined on his
previous antecedents. Since the questions he asked were directed towards prood of her consent
and tid no more than state the details or particulars of the conduct of the complainant, which
according to the appellant, showed that the act complained of was not against her will.

4. Evidence againt a co-accused

This exception arises where the accused has given evidence against any other person charged
with the same offence according to section 57(1) (d) of the Kenyan evidence Act.
The rationale her is that evidence tendered by a co-accused to show the misconduct of the co-
accused to show the misconduct of the co-accused on behalf of the prosecution if relevant to the
defence of the accused is admissible whether or not it prejudices the co-accused. Simlarry,
where the co-accused has given evidence against the accused the accused is seeking to defend
himself, should not be felterd in any way form cross-examining the co-accused. An accused
person who feels that he was wrongly framed by a co-accused can challenge the admissibility of
such evidence.

In mordoch v. Taylor (1904) 49 CAR 119, murdoch who had a criminal record, was jointly tried
with lynch who was previously of good character. Each was charged with receiving stolen
property lunch gave evidence implicating Murdoch and Murdoch gave evidence alleging that it
was lynch alone who was in control and possession of a box containing stolen cameras. The
judge held that Lychs counsel was entitled to cross-examine Murdoch and indeed allowed him
to cross examine him as to his previous convictions. Murdoch was convicted on that evidence.

On appeal it was held that in determining whether an accused has given evidence against a co-
accused, the test apply is objected and not subjective. Secondly the court held that evidence
against a co-accused means evidence, not necessarily given with hostile intent, intent, but which
supports the prosecution case against a co-accused in material respect or which undermines the
defence of the co-accused in a material respect or which undermines the defence of the co-
accused. Finally the court heed that once the judge has ruled that the witness has given evidence
against his co-accused, the co-accuse has a right to cross-examine the person who gave the
evidence in order to show that he has previous convictions or is of bad character and where as is
the co-prisoner who desires to exercise the right, the court has no discretion to disallow the
cross-examination.

The rationale here is that as far as an accused is concerned, if a co-accused gives evidence
against him, he/she should be viewed as being in very much the same position as a witness for
the prosecution. Sound policy and common sense demands that an accused should have a chance
to challenge any testimony given by a co-accused.

In Murdoch case the court emphasized that a co-accused can only be cross-examined if his
evidence either materially improved the prosecution case or undermined the defence of the co-
accused person. It is the effect of the evidence upon the minds of the jury which is material and
not the state of mind of the person who gives it or his motivation the test to be applied is
objective and not subjective. Cross examination under section 57 (1) d is directed towards the
character and the credit of the co-accused and the credit of the co-accused and not to his guilt.
The law allows the accused person to show by reference to the bad criminal record of the co-
accused, that his testimony is not worthy of belief.

5 Evidence which forms part of a fact in issue or is directly relevant to

a fact in issue

Here in this exception if the accused is charged with more than one count ,a court should direct
itself that any evidence which showed an accused person was guilty of an offence on any of the
counts,was inadimissible and could not be taken into account when considering any of the other
counts.

In the case of Mugo v. R [1966]EA 124.The appellant were each convicted of five counts of
robbery with violent in allegations that they were involved in the raid of five petrol stations in
Nairobi .The accused persons were found in possession of a stolen motor vehicle that they had
used to get away.Their identifications were established at identification parades where the
identifying witness also misidentified innocent men.They were convicted.
On appeal the cout held that an identifying witness could be relied upo,only in so far asthey
identified a particular appellant in respect of a particular count..Thi exception is found in section
57 (1)(a) of the Kenyan Evidence Act of 1963.