LAW OF EVIDENCE NOTES.

By Justus A. Amito

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.

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

The court accepted the evidence of a solicitor as expert opinion in a matter

involving handwriting because though the solicitor was not schooled in the
matter, he was experienced through keen interest in the matter.

ODINDO V. R (1969) E.A. 12

The Appellant was convicted of driving a motor vehicle under the 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 smelt of drink. The
Inspector opined that this person was smelling of drink and was incapable of
coherently telling his name, he could not tell the time by the clock on the wall
and he could not stand on one foot with his hand horizontally spread. The

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 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 this opinion saying that the policeman should have confined his
testimony to what he had observed, leaving the issue of fitness to drive to the
court or a doctor.

STEPHEN V. R [1973] EA 22

The court rejected evidence by a policeman that he had found the accused in
possession of a drug called Bhang. The court is saying that one should tell the
court that you found them with a substance that looked and smelled a certain
way and leave the experts to decide what drug it was. The court is trying to
prevent lay persons from giving opinions on matters that require long years of
experience.

CHARLES NG’ANG’A V. R KAR Crim Case No. 66 of 1980

The accused was charged with the offence of causing death by dangerous
driving. A policeman testified on the point of impact to which the defence
objected because the policeman was not an expert 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 matters.

How do experts testify,

Experts are brought to court by people who intend to rely on their expertise. That
party will inform the court of their expertise. The question as to whether a person
is an expert or not is a question of fact which is determined by the court. The
pointers or the things that will help the court in coming to a conclusion are
1. Educational background; they may want to see certificates;
2. Evidence on the areas in his/her field where he/she has taken extra courses;
3. Work experience.

Mohamed Ahamed V. R [1957] E.A. 323

The Appellant 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.

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In practice, if the expert has perceived of the facts from which he/she proffers his
opinion or if the facts are not disputed, such expert is asked 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 facts 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?

Section 54: grounds for an expert opinion are admissible but this section does not
make it mandatory for the expert witness to give reasons.

R V. Salim s/o Sengero (1939) E.A.CA. 147

The evidence is to the effect that a court would welcome reasons for a witness’s
opinion even though it is not mandatory that this be given.

Note that it is necessary for experts to give reasons for their opinion as this helps to
equip the court with better knowledge of the matter under investigation

Onyango V. R (1969) E.A 362

Which is to the effect that it is not a universal requirement that reasons for the
opinion should be given. An expert should come to court prepare 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 whilst the law does not require an expert to bring in his
opinion, when he does come to court, he should be prepared to justify and
demonstrate and argue their reasons for their opinion.

HOW SHOULD COURTS TREAT EXPERT OPINION

It is opinion only and the court must still make its own conclusion and there is strong
feeling that courts should not abdicate their reasons for decision making to
experts.

Kit smile Mugisha V. Uganda Crim App. No. 78 of 1976

The Court of Appeal took the view that expert opinion is only opinion and it
cannot take the place of substantive evidence. The court states that the court
has to decided an issue upon such assistance as the expert may offer but it should

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not abdicate its role of opinion making to the expert called before it. It must form
its own opinion on the subject matter at hand.

Hassan Sallum V. R (1964) E.A 126

This case was on the line that the court should not over-rely on experts, they can
also make mistakes. The court should not be bound by the expert opinion.
Expert basing their opinion upon facts look at the case of

R V. Kipikandimu [1946] 7 Zanzibar Law Reports 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.

If the opinions of two experts conflict, the court has to make its own opinion by
looking at the credibility of the evidence available and the eminence of the
experts. If the two conflicting experts are equally eminent and creditworthy, then
the matter is taken as not proved and the party on whom the burden of prove
lies has to dispense with it in another way.
Under S. 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 revisit the proof of handwriting at s. 50.

WHERE IT IS NOT POSSIBLE TO SEPEARATE FACTS FROM INFERENCES

When one talks of identity, it is not just identity of persons but also identity of
things. When you say that you identify the instrument that was used, you are just
opining. Evidence of an identity is an expression of an opinion. Courts treat
opinion of identity cautiously to avoid convicting people on mistaken identity.

Roria V. R (1967) E.A. 583

Fourteen days after a raid on a Maasai 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 who killed her husband or who passed close
to her when entering the Manyatta’ 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 in cases of identification
by night because the courts must satisfy themselves that it is safe to act on the

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 identification. In instances where the only evidence is identification by one
witness, the evidence is required to be absolutely water tight to justify a
conviction. In essence, courts exercise a lot of discretion when they are faced
with evidence of identification.

HOW ARE IDENTIFICATION PARADES CARRIED OUT?

The procedure for identification parade was laid out in the case of R V. Mwango
s/o Manaa (1936) 3 EACA 39
Which case was approved in the case of Simone Musoke V R 1958 EA 7
The procedure is as follows
1. The accused person is always informed that he may have a lawyer or friend
present when the parade takes place;
2. The officer in charge of the case does not carry out the identification that
he may be present
3. The witnesses do not see the accused before the parade;
4. The accused is place among at least 8 persons of as similar age, height,
general appearance and class of life as him or her as possible.
5. 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. Witnesses should not be allowed to communicate with each other after
they have been to the parade.
7. The practice is to exclude all persons who have no business at the parade;
8. Careful notes should be taken after each witness leaves the parade and
the notes would include
(i) Did the witness identify any person and under what circumstances
9. If the witness desires to see the accused walk, hear him speak, see him with
his cap on or off, this should be done but all persons in the parade should be
asked to do as the witness has requested as a precautionary measure;
10. The witness should touch the person he/she identifies
11. At the termination of the parade or during 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;
13. Throughout the parade, it is critical that the parties conducting the parades
should act fairly to avoid depreciation of identification as evidence. It is
dangerous or wrong to suggest to the identifying witness that the person to be
identified is believed to be in the parade.

R V Bulatikwa (1941) EACA 46

The officer conducting the parade told the identifying witness ‘you know a man
called Bulatikwa whom you say killed your uncle. Come on to the veranda and
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see if you can find him.’ This was held to be wrong because it was a suggestion
that the person to be identified was actually in the parade.

It is not established practice to question a witness who has made an identification

at the parade as their reason for doing so. A voluntary comment made by the
witness is however admissible it can be received in evidence as part of the
identification.

Simone Musoke V. R

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 questions were put to these 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
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 act of identification but,
answers to questions would be of less value and of doubtful admissibility.

Second way of identifying is fingerprints.

Fingerprints are provided for at section 48. fingerprints may be taken also for
purposes of identification.

Footprints is another form of identification. This is done by a comparison of

footmarks of the shoes. They compare the soil type on the shoe and the soil mark
at the scene of the crime.

R V. Maganga (1935) 2 EACA 89

The fourth way of identification is by use of Police dogs and a question has arisen
as to whether this is reliable. Look at the case of Wendo & Another V. R where it
was stated that evidence of identification by police dogs is admissible and can
corroborate other identification but the dog must qualify as an expert. One has
to bring its training into court and that has to be taken into account in weighing
the value of its evidence.

It is important to distinguish between identification and recognition.

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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 a situation where one knows the person. Recognition is more
reliable than identification. Look at the case of
Reuben Taabu Anjononi & Others V. R (1980) KLR 59

Other issues of facts and identification apart from id

Health - Causes of illness and incapacity resulting from illness are matters for
experts

Speed – one can say whether or not a particular car is being driven at a fast
speed. A the practice however is not to convict on the evidence of single
witnesses. This is provided for at Section 43(3) Traffic Offences Act. We are talking
of identification

Age – witnesses often testify as to their own age but this is a fact upon which such
persons cannot have first hand knowledge. Age can only be proved by the
testimony of a witness other than the person in question who was present at the
birth. When you testify about your age, you are giving an opinion. Age is a prime
factor in certain cases e.g. if you want to identify indictment for defilement, age
is a factor.

Intoxication – the evidence is based upon observation which one can give
without any scientific tests being carried out. (Odindo V. R) what kind of opinions
will be admissible?

Cases where opinions are so likely to be correct that the court deems these
opinions as convenient and time saving to admit the opinions:

Opinions as to handwriting of a person by a person acquainted with that person’s

handwriting will be admitted as an opinion that is so likely to be corrected Section
50 (1)

Section 51(1) – Opinion as to the existence of a general rite or custom by persons

likely to know of it. If for example we wanted opinion on customary law, who
would be likely to know of customary law it would be the people who are versed
in customary law. It is important to look at who are the repositories of the
customary general rites and practices

Section 52- Opinion as to usages, tenets, constitution and government of any

association body or organisation given by persons having special means of
knowledge thereon.
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 Section 53 - Opinions as to the relationship of one person to another expressed by
conduct or evidence of persons who are best placed to know it. For instance if
the question is to whether X and Y are married, the fact that they were usually
received and treated by their friends as man and wife is relevant and admissible
JUDICIAL NOTICE
Judicial notice is defined as what judges see or the liberty accorded a judicial
officer acting as such to recognise the existence or non-existence of certain facts
or phenomena without calling for evidence.

On what basis will Judicial Notice be allowed: -

1. The habit or customs of the court and this relates to the authenticity for instance
of certain signatures. You don’t have to prove the authenticity every time they
come to court. Seals of the court you don’t have to prove their authenticity
because the court habitually uses the seal. The names and official designation of
high ranking officers past and present; International relations of a country if Kenya
is at war with a country judges are expected to know;

2. Where statutes decree that certain things be judiciary noticed e.g. certain
certificates that judges will decree should be taken judicial notice of;
3. Need to make things workable e.g. the practice of the court, how the court
conducts itself is taken judicial notice of. Ordinary rules of reasoning don’t need
evidence to be proved.

4. Basis of judicial notice is that of matters that are known by everybody e.g.
judges would know that if you imbibe certain liquids you can get intoxicated this
is commonly known. One cannot assume that judges are so ignorant that they
won’t know what everybody else knows.

The effects of judicial notice Section 59 of the Evidence Act

“No fact of which the court shall take judicial notice need be proved.

Judicial notice dispenses with proof.

Section 60 enumerates matters that the court should take judicial notice of.

60. (1) The courts shall take judicial notice of the following facts:-
(a) All written laws, and all laws, rules and principles, written or unwritten, having
the force of law, whether in force or having such force as aforesaid before, at or
after the commencement of this Act, in any part of Kenya;

(b) The general course of proceedings and privileges of Parliament, but not the
transactions in their journals;
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(c) Articles of War for the Armed Forces;

(d) The public seal of Kenya; the seals of all courts of Kenya; and all seals which
any person is authorized by any written law to use;

(e) The accession to office, names, titles, functions and signatures of public officers,
if the fact of their appointment is notified in the Gazette;

(f) The existence, title and national flag of every State and Sovereign recognized
by the Government;

(g) Natural and artificial divisions of time, and geographical divisions of the world,
and public holidays;

(h) The extent of the territories comprised in the Commonwealth;

(i) The commencement, continuance and termination of hostilities between

Kenya and any other State or body of persons;

(j) The names of the members and officers of the court and of their deputies,
subordinate officers and assistants, and of all officers acting in execution or its
process, and also of all advocates and other persons authorized by law to appear
or act before it;

(k) The rule of the road on land or at sea or in the air;

(l) The ordinary course of nature; Preston Jones V. Preston Jones – Preston went
abroad and resided there for 9 months and therefore had no nuptial intercourse
with his wife. 3 months after he came back, a baby was born to his wife fully
mature. He petitioned for divorce on the grounds of adultery. Relying on the
evidence that the ordinary course of nature i.e. that human gestation period was
9 months and not 12 or 3 months. The court held that the matrimonial offence of
adultery was not proved. In the words of judges “though the court took judicial
notice of the normal life of human gestation period, it was not completely ruled
out that there could be abnormal periods of human gestation.

(m) The meaning of English words;

(n) All matters of general or local notoriety; (things that everyone knows)
(o) All other matters of which it is directed by any written law to take judicial notice.

Should we take judicial notice of customary law?

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Kimani Gikanga

The issue arose as to whether in a dispute involving customary law whether

customary law should be taken judicial notice of. Judges were of the opinion that
the party that seeks to rely on the customary should prove that customary law as
a matter of fact by calling expert witnesses. This is because of the difficulty of
establishing what the customary law is at any given time since it is unwritten.

Section 18 of the Magistrates Act

Magistrates are allowed to take Judicial Notice of customary law without having
to call for proof for it and if there is a dispute, then it will have to be established by
proof. If customary law is a disputed tenet, then there is need for proof. If there
are contestations then proof will have to be called.

Section 60 (1) (b) Judicial Notice should be taken of the general course of
proceedings and privileges of parliament, but not the transactions in their
journals.

The court need not call for evidential proof of privileges accorded to
parliament. These provisions however exempts from judicial notice transactions in
parliamentary journals. Whatever is recorded in the Hansard is not going to be
taken judicial notice of.

Section 60 (1) (c) - Judicial Notice should be taken of articles of war for the
Armed Forces.

Section 60 (1)(e) - the public seal of Kenya; the seals of all courts of
Kenya; and all seals which any person is authorized by any written law to use;

Section 60 (1) (f) - The accession to office, names, titles, functions and signatures
of public officers if the fact of their appointment is notified in the Gazette;

Section 60 (1) (g) the existence, title and national flag of every State and
Sovereign recognized by the Government; this is to avoid embarrassment.
Section 60 (1) (h) Natural and artificial divisions of time, and geographical divisions
of the world, and public holidays;

Section 60 (1)(i) The extent of the territories comprised in the commonwealth;

Section 60 (1)(j) the commencement, continuance and termination of

hostilities between Kenya and any other State or body of persons;

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Section 60 (1)(k) the names of the members and officers of the court and of
their deputies, subordinate officers and assistants, and of all officers acting in
execution of its process, and also of all advocates and other persons authorized
by law to appear or act before it;

Section 60 (1)(l) the rule of the road on land or at sea or in the air;

Section 60 (1)(m) the ordinary course of nature;

Section (1)(n) the meaning of English words;

Section (1)(o) all matters of general or local notoriety;

Section (1)(p) all other matters of which it is directed by any written law to
take judicial notice.

PRESTON JONES VS PRESTON

Preston went abroad and resided there for 9 months and therefore had no nuptial
intercourse with his wife. 3 months after he came back, a baby was born to his
wife fully mature. He petitioned for divorce on the grounds of adultery. Relying
on the evidence that the ordinary course of nature, human gestation was 9
months not 12 months or 3 months. The court held that the matrimonial offence
of adultery was not proved. In the words of the judges, “though the court took
judicial notice of the normal life of human gestation, it was not completely ruled
out that there could be abnormal periods of human gestation.

Re Oxford Poor Rate Case:

Burns V. Edmund

In this case Crichton J. halved the conventional award of damages for loss of
expectation of life to the wife of a deceased criminal after taking judicial notice
of the fact that “the life of a criminal is an unhappy one.”

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 SIMILAR FACTS EVIDENCE

The definition
Similar facts evidence can only be led if there are similar facts to those under
consideration. There has to be substantial connection or similarity of what the
person did.

The court has a number of questions should ask

Is it relevant?
Can the offence be proved without similar facts evidence?
What other purpose does the evidence serve other than cause prejudice against
the accused person?

Section 14 and 15 deal with similar facts evidence.

Section 14 and 15.

8. (1) Facts showing the existence of any state of mind, such as intention,
knowledge, good faith, negligence, rashness, ill-will or good-will towards any
particular person, or showing the existence of any state of body or bodily feeling,
are relevant, when the existence of any such state of mind or body or bodily
feeling is in issue or relevant.
9.
(2) A fact relevant within the meaning of subsection (1) as showing the
existence of a state of mind must show that the state of mind exists, not generally,
but in reference to the particular matter in question.
(3) Where, upon the trial of a person accused of an offence, the previous
commission by the accused of an offence is relevant within the meaning of
subsection (1), the previous conviction of such person is also relevant.

1. Can we infer that something was done by human beings because similar
incidents have been occasioned by human beings in the past? Can we rule out
natural occurrence when something happens because similar things have
happened before?

2. Is it legitimate to infer that the accused person has committed the act under
investigation merely because it is shown that he has done similar things in the
past?

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 It is notable that when you are dealing with similar facts, the general principle of
law is that it is not legitimate to infer that an accused person committed a
particular offence merely because he had committed a similar offence in the
past. The reason is because

1. Firstly there is the policy of consideration of fairness to the accused person.

2. Secondly similar facts evidence is evidence that can bring about a lot of
prejudice to the accused person.
3. Thirdly the burden that an accused person has when they come to court is that
they have to be ready to defend their whole lives.

Evidence of similar facts may be led if there is substantial connection between

those similar incidents and the one in issue. You cannot lead evidence of fact just
to show connection. There has to be substantial connection in similarity in what
a person did.

The court should ask whether

1. Evidence of similar fact is relevant;
2. The offence can be proved without the similar evidence;
3. There is a purpose that is served by the evidence other than to cause prejudice
against the accused person.

Evidence of similar fact helps to establish intention and it can also be used to rule
out defence such as honest intention. Even then a Judge has discretion to keep
away evidence of similar facts if it is prejudicial to the accused person.

The locus classica on evidence of similar facts is

Makin V. AG

Makin and his wife were charged with murdering a child. It was shown that the
child’s mortal remains were found buried in the garden of the Makins. There was
no evidence that they had killed the child but there was evidence that the Makins
had adopted this child from the parents. There was also evidence that the Makins
had also adopted other children who were unrelated to this one. They were
being paid after they adopted the children. There was also evidence that the
children were never again seen by their parents after being adopted by the
Makins. The investigators had found mortal remains of children in gardens of the
houses that the Makins had lived in before.

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 The question was, is this evidence of houses and backyards relevant in the trial for
the murder of a specific murder. The evidence was admitted though there was
not direct evidence to show that the Makins had actually killed the
children. There was substantial connection between the activities of the
adoption of the other children and the one under investigation. There was striking
similarities between the cases and the Makins had the opportunity to murder the
children but the evidence of their dealings with other children was taken into
consideration because of the similarities that the investigators had found.
In that case, 2 basic principles were established and reiterated in the case ofJohn
Makindi V. R.
The Principles were as follows:

1. You cannot lead similar facts evidence merely to show the accused disposition
to commit an offence. Lord Herschell states as follows
“It is undoubtedly not competent for the prosecution to adduce evidence tending
to show that the accused has been guilty of criminal acts other than those
covered by the indictment for the purpose of leading to the conclusion that the
accused is a person likely from his criminal conduct/character to have
committed the offence for which he is being tried.”
Disposition should not be motivation for leading similar facts evidence.

2. On the other hand, the mere fact that the evidence adduced tends to show the
commission of other crimes does not render it inadmissible if it be relevant to an
issue before the jury and it may be so relevant if it bears upon the question
whether the acts alleged to constitute the crime charged in the indictment were
designed or accidental or to rebut a defence which would otherwise be open to
the accused.
Essentially the Makin case established parameters for admitting evidence of
similar facts. Similar facts evidence cannot just be used to show disposition.

The second proposition delimiting evidence of similar facts is found in S. 15 of the

Evidence Act
10. When there is a question whether an act was accidental or intentional, or done
with a particular knowledge or intention, 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.

After Makin the question arose as to whether the prosecution would have to wait
until a defence arose or could they wait to admit similar facts evidence.

The question arose as to whether the defence had to wait until a defence arose
to raise similar fact evidence or could they raise it to prevent the accused from
even thinking of raising a defence.

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Had Lord Herschell only given direction on which subsequent courts could built
on and in Harris V DPP AC. 394

Viscount Simmons settled the matter .

“It was an error to draw a closed list of circumstances of when similar facts
evidence was admissible. He dispelled the notion that Lord Herschell one did not
have to wait until the accused person raised a defence of accused or mistake
for one to bring up the defence before introducing such evidence.

Lord Herschell only gave instance when similar facts evidence could be raised
and that Lord Herschell only raised instances.

Mohammed Said Akraby v. R. [1956] Vol. 23 EACA 512

It was held in this case that even though the prosecution did not have to wait until
the accused raised a defence; the judge had discretion to exclude similar facts
evidence if its probative value was out weighed by the prejudicial effect. It was
always going to be a balancing act what purpose does the evidence serve other
than cause prejudice.

Noor Mohammed v. R. [1937] Vol. 4 E.A.C.A

The accused was charged with murdering his wife by poisoning. There was no
evidence that he had administered the poison but prosecution sought to adduce
evidence that the accused had had another wife who died as a result of
poisoning in circumstances which suggested that the accused had lured the wife
into taking poison as a cure for a toothache. The accused was convicted but on
Appeal, the Appeal was allowed on the grounds that evidence admitted by the
trial judge was very prejudicial to the accused person. In the words of the court,
the probative value was outweighed by the prejudicial effect even though the
evidence was technically admissible.

Similar facts evidence must have strong probative value weighed against
prejudice.

R v. Scarrot [1978] 1 AER 672

Discussing further probative value versus prejudicial effect, Lord Scarman stated
in this case:

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 “Such probative value is not provided by mere repetition of similar facts. There
has to be some features in the evidence sought to be adduced which provided
an underlying link. The existence of such a link is not to be inferred from mere
similarity of facts which are themselves so common place that they can provide
no sure ground for saying that they point to the commission by the accused of
the offence under consideration.”

Evidence of similar facts has to have its own persuasive value and not to just have
probative value it just not depend on coincidence.

Admissible similar facts evidence falls into 3 categories which depend on what it
is directed towards.

1. Similar facts evidence to establish state of mind with which some act proved to
have been done was done i.e. what motivated the act;
2. Similar facts evidence to prove the identity of the perpetrator or doer of an act;
3. Similar facts evidence to establish the commission of the act itself and therefore
rule out an act of nature or miracle.

Firstly the question of similar facts evidence to establish state of mind – the
accused may admit that he committed an act but his state of mind is not
discernible. Looking at the evidence it is overwhelming that the accused
committed the crime but it is not clear what his state of mind was. Under this
circumstance it may be the case that he had no intention to do what he did. E.g.
a person could have killed a human being but the case could be that he killed
the human being thinking it to be an animal. If the accused person had done
similar actions where the state of mind was clear, then it can be inferred that the
present act was done with the same state of mind as the previous ones.

If however the state of mind in previous actions is unclear, the very nature of those
acts conceded along with the present one may lead to an inference as to what
the state of mind was. For instance if a student was to be caught during the
exams copying from the Evidence Act and in defence says that he did not know
that he was wrong to copy from the Act, if there is evidence that such a student
has been previously caught in another subject doing the same and has been
reprimanded for it, then the evidence would go to show that he is not innocent,
the Evidence can be used to infer.
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R . V. Francis

Francis was charged with attempting to obtain money from another person by
presenting a certain ring to be a diamond ring. He said that he had no
knowledge that the ring he was purporting to sell was not a diamond ring and
was worthless. There was evidence that he had previously approached other
persons previously who had refused to give him money for the ring when they
realised that the ring was not a diamond ring. The question was whether the
Evidence of previous transaction with other persons where these people had
refused to give him money for the ring by realising that the ring was worthless
relevant. The court held that it was relevant to rebut the defence of lack of
knowledge. The evidence of Francis’s experience with other people was
relevant to rebut lack of knowledge.
The evidence of Francis with other persons was relevant here to rebut lack of
knowledge.

John Makindi V. R

Evidence of similar fact in John Makindi was admitted on the ground that it
illustrated the hostility and ill-will between John Makindi and his foster child. On
state of mind one of the findings explained the cause of loss of blood and the
other evidence showed that he had been previously taken to court and had
threatened the child with further beating on account of having sent him to
prison. Similar evidence can be used to show the intention in which an act was
done. You can pin the act on a person because they admitted but you may be
unable to establish what the state of their mind was. You use similar fact
evidence to illustrate that a person had fraudulent intention.

R V. Armstrong

Armstrong was charged with murdering his wife by administering arsenic poison
on her. This poison was actually found in his house tied up in packets containing
a fatal dose. Armstrong claimed that he used the poison to kill weeds as a
gardening aid. There was actually no evidence that he had administered the
poison on his wife. The prosecution however sought to lead evidence that a few
weeks after Armstrong’s wife’s death he had attempted to murder another man
by giving him arsenic poison. The question was whether this evidence was
admissible. The defence raised the objection that the evidence was prejudicial

17 | P a g e
and irrelevant. The court held that the evidence was admissible and in the words
of Lord Hewart “… The fact that Armstrong was subsequently found not merely in
possession of but actually using for a similar deadly purpose the very poison that
caused the death of his wife was evidence from which the jury might infer that
the poison was not in his possession at the earlier date for an innocent purpose.”

R V. Bond [1969] 2 K.B. 389

Dr. Bond was charged with using some instruments on a woman with the intent to
procure an abortion. He denied the intent, he said that he was not using the
instrument to procure an abortion but the instruments were to examine the
woman. The prosecution however sought to lead evidence that the doctor had
used the same instruments on another woman occasioning an abortion and the
girl on whom he was being accused in using the instruments testified that the
doctor had told her words to the effect that he had made dozens of girls happy
and could do the same to her. The defence objected to this evidence on the
grounds that it was prejudicial and irrelevant but it was admitted on the grounds
that it showed the doctor’s intention in purporting to examine the woman and
rebutted the doctors’ assertion that he was using it to examine the woman.

Achieng’ V. R

Achieng’ was a permanent secretary who had an imprest account and was
charged with stealing 76,000/- from that account. His defence was that he had
no intention to defraud and that he intended to account for the money but was
apprehended prematurely. The prosecution however adduced evidence to the
effect that on six previous occasions, Achieng’ had taken money from his imprest
account and never accounted for it. The question was whether the evidence of
previous occasions was admissible and the court held that it was admissible
because it rebutted his defence of intention to account for the money.

The Queen V. Harold Whip and Another (1955) 28 KLR

The two accused were charged with conspiracy to defraud the City Council. The
case for the prosecution was that pursuant to an agreement between the two
accused, one of them was a City Council Engineer and the other one an
excavator, the 1st accused, certified payments as due to the 2nd accused firm for
the excavation of hard rock which the 1st accused knew to be greatly in excess
of what had been excavated. The 1st accused had therefore caused excessive
payment to be made by the City Council to the contractors. The prosecution
alleged that this was done fraudulently and that he had not just made an honest
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mistake in the estimation of the rocks. The prosecution actually brought evidence
that there had been a case where the same accused had overestimated the
amounts owed to the 2nd accused an event which had occurred in 1953. The
court held that the 1953 transaction rebutted a defence of honest
mistake. Essentially showing the state of mind with which he had acted.

R V. Mortimer

Mortimer was charged with murdering a woman cyclist by knocking her

down. He claimed that it was an inevitable accident. The prosecution however
adduced evidence that Mortimer had on previous occasions knocked down
other female cyclists. It was held that this evidence of the previous incidence was
admissible to show that he intended what he had done. It was not an
accident. The nature of the event as a whole ruled out coincidence and the
conclusion was gleaned from looking at the transaction as a whole.

SIMILAR FACTS EVIDENCE TO IDENTIFY THE PERPERTRATOR OR DOER OF AN ACT

Where it is shown that a particular act has been done but nobody knows for sure
who did it, if it so happens that other acts of distinctive similarity with the one under
consideration have occurred and a particular person has been involved, then an
inference may be drawn that he was the doer of the act under consideration. It
is notable however that for this inference to be drawn the similarity must be very
distinct to ensure propensity on its own should not be used to judge a person. For
example if handbags disappear and it is known that they disappear during the
break and this time a person is caught walking out with a handbag and then it is
discovered that this person never comes back to class after the break and a
modus operandi is drawn that this person has been taking the handbags and the
person has a liking for a particular kind of handbag. Essentially you are looking
for similarities.

R V. STRAFFEN:

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In this case a young girl was found strangled by the roadside and it was clear from
examining her that there had been no attempt at sexual assault on her
person. Straffen had been seen around the scene of crime but there was no
evidence that he was directly or indirectly connected with the murder. It was
established as a fact that Straffen had strangled two girls at a different place two
months earlier and had also left their bodies by the roadside. It was also clear
that there had been no attempt at sexual assault on these girls. Straffen had
been committed to a mental hospital for the offence and at the time the girl
whose murder was under consideration had been killed; Straffen had escaped
from the mental hospital and was at large. When the police went to interview
him he said even before he was questioned ‘I did not kill the girl’. He was
convicted on the basis of the evidence of the other two girls. Again it was
established that he had had the opportunity to murder the girl having escaped
from the mental hospital and the fact that he had been seen near the scene he
had the opportunity and the propensity was so distinct.

Thompson V. R

Thompson had carnal knowledge of two boys and he gave them a date 3 days
later. He described the place of the date as a street outside a public toilet.
Thompson met the two boys at the appointed hour. On noticing the presence of
strangers, Thompson gave the boys some money and asked them to go away. It
turned out that these strange persons were police and when they approached
Thompson he told them that they had got the wrong man. On being searched
Thompson was found in possession of a few bottles of chemicals and a further
search of his house yielded photos of naked boys. The judges relied on this
evidence and its use as alleged by the boys. The boys said what the chemical
had been used for. In the words of the court, being gay had characteristics that
were easily recognisable. It elicited a distinct propensity and was therefore a
reliable means of identification.

Paul Ekai V. R [1981] CAR 115

Paul was charged with the murder of Joy Adamson a famous conservationist. His
defence was an alibi (alibi is assertion of not being at the locus quo). Ekai said
that he had been in Isiolo staying with his grandmother. The evidence was that
on the material night, one of the 3 trunks of boxes in the deceased tent including
the one containing the cash box had been forced open by a person using a bar
which had been taken from the workshop at the camp. The intruder had
escaped using the animal enclosure. The prosecution gave evidence that 3

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weeks earlier, there had been a theft at the camp and on that occasion the box
containing the cash box had been forced open with the bar taken from the
camp workshop. The intruder on that previous occasion had gone out through
the animal enclosure. When Paul was apprehended after the murder, he was
found in possession of some clothes stolen from the camp on the previous
occasion. Paul was the deceased’s worker and he had a good knowledge of
the camp and taking all these factors into consideration it was held that the
evidence of the previous theft was admissible in attempts to prove the murder
because the acts exhibited a distinct modus operandi.

Similar fact evidence can be lead to prove the commission of an act

This applies in situations where it is not clear whether the act was done or it
happened miraculously. If it is shown that a similar act has occurred caused by
human intervention, this is a good ground for inferring that a particular act was
actually done as opposed to it just happening miraculously. This is normally in
situations where if you look at the acts in isolation, you can dismiss human act and
attribute them to nature but when you look at the acts together you can see they
had help.

R V. Smith

Smith married his first wife. He took out an insurance policy on her life in his
favour. He made representation to his personal doctor that his wife was
epileptic, a few months later his wife’s dead body was found floating in the
bathtub and a few months later the insurance paid. Smith proceeded to marry
another woman, took out an insurance policy on her in his favour and made
assertions that she was epileptic and she too was found dead in the tub and he
proceeded to collect insurance and married yet another one whose body was
also found dead. He was charged with murdering wife no. 1 on the basis of the
subsequent deaths of wives 2 and 3 in similar circumstances. In the words of the
court the coincidence was too fantastic to be credible and this of course ruled
out the possibility that the drowning of the women in the bath was an
accident. In the words of the court the act was done by human hands and the
motive was clear so it was not an act of God.

Makin V. Attorney General

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The question arose whether the dying of the children adopted by the Makins was
coincidental.

R V. BOLL

In the Republic V. Boll, Boll stayed with his sister as husband and wife when incest
was not an offence and they even had a child together when incest was not an
offence. After parliament made incest an offence, the two were charged for
having an incestuous affair, but they continued living together as man and
wife. Even after incest had been made an offence, they still continued to live
together as man and wife and the question was whether the evidence of the
previous cohabitation as man and wife could be used against them. They were
convicted of incest because their previous association ruled out innocence of
their subsequent association. The logic was that if two people have previously
lived as husband and wife, unless they separate to live under separate roofs they
continue to live as husband and wife. The burden is on them to rebut this
presumption and they were unable to do that.

To summarise similar fact evidence we should look at

Section 16 of the Evidence Act
“When there is a question whether a particular act was done, the existence of any
course of business, according to which it naturally would have been done, is
relevant.”

For instance if you are trying to establish whether people had lived as husband
and wife if you can show previous cause of dealing where they were living as
man and wife that would be admissible.

Admission of similar fact evidence is the exception to the general rule and will
only be admitted when it has strong probative value.

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 RELEVANCE & ADMISSIBILITY

RES GESTAE

‘Res Gestae’, it has been said, is a phrase adopted to provide a respectable legal
cloak for a variety of cases to which no formula of precision can be applied’. The
words themselves simply mean a transaction. Under the inclusionary common
law doctrine of Res Gestae, a fact or opinion which is so closely associated in
time, place and circumstances with some act or event which is in issue that it can
be said to form a part of the same transaction as the act or event in issue, is itself
admissible in evidence. The justification given for the reception of such evidence
is the light that it sheds upon the act or event in issue: in its absence, the
transaction in question may not be fully or truly understood and may even appear
to be meaningless, inexplicable and unintelligible. The importance of the
doctrine, for present purposes, is its provision for the admissibility of statements
relating to the performance, occurrence or existence of some act, event or state
of affairs which is in issue. Such statements may be received by way of exception
to the hearsay rule.

Res Gestae forms part of hearsay.

R V. BEDINGFIELD [1879] Vol. 14 Cox C.C. 341

A girl was living with her boyfriend until the relationship turned sour. The boyfriend
allegedly cut her throat. She managed to run out even with a cut throat and
managed to say ‘see what Harry (Bedingfield) has done to me’. In court the
question arose as to whether this statement could be admitted in evidence. Lord
Justice Cockburn was emphatic that it could not be admitted. He said that it was
not part of the transaction, that it was said after the transaction was all over. (The
transaction being the cutting of the throat) The Judge held that it was not
admissible as part of the Res Gestae since it was something stated by her after it
was all over.” The girl said after it was all over.

Under S. 33 of Law of Evidence Act, this would have been admitted.

33. 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—

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(a) 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 person’s 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 expectation of death, and whatever
may be the nature of the proceeding in which the cause of his death comes in
question;

R V. Premji Kurji [1940] E.A.C.A 58

In this case the accused was charged with murder, the deceased had been killed
with a dagger and there was evidence that the accused had been found
standing over the deceased body with a dagger dripping with blood. The
prosecution adduced evidence that a few minutes before, the accused had
been seen assaulting the deceased’s brother with a dagger and he had uttered
words to the effect that ‘I have finished with you, I am now going to deal with
your brother’. The question was whether this statement was admissible as forming
part of the transaction. Is that part of the same transaction as the murder. Were
the words uttered part of the same transaction. It was held that they were part
of the same transaction because when two acts of an accused person are so
interwoven as to form part of the same transaction, it is not proper to shut out
evidence of one of the acts even though it may involve introducing evidence of
the commission of another offence.

R V. RAMADHANI ISMAEL [1950] ZLR 100

A Girl was living in the village with her parents and she was allegedly raped by
the accused. After the rape incident, she unlocked the door and ran over to her
parents’ house, a few paces away from the accused’s house. She got hold of
her father’s hand and took him to the accused house. She pointed to the
accused person and said ‘daddy, this is the Bwana’ and the question was
whether this statement was part of the transaction. The transaction here is rape,
which is already finished by the time she goes to call her daddy. Is it
admissible? The court held that it was not part of the transaction. The
transaction was already over.

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Different courts have different conception of what forms part of the
transaction. The court in this rape case adopted a conservative view of what
formed the transaction.

TEPPER V. R [1952] A.C 480

In that case there was a fire some place and a house was burning and the lady
was heard to ask somebody who looked like the accused some minutes later
‘your house is burning and you are running away’ the question was whether this
statement was part of the transaction as the fact in issue the fact in issue being
Arson. It was held to be part of the transaction.

R V. CHRISTIE 1914 AC 545

The accused was convicted of indecent assault on a boy. The boy gave un-
sworn evidence in which he described the assault and identified the accused
but made no reference to any previous identification. The House of Lords, by a
majority of five to two, held that both the boy’s mother and a constable had
been properly allowed to give evidence that shortly after the alleged act they
saw the boy approach the accused, touch his sleeve and identify him by
saying, ‘That is the man’. Evidence of the previous identification was admissible
as evidence of the witness’s consistency, ‘to show that the witness was able to
identify at the time’ and ‘to exclude the idea that the identification of the
prisoner in the dock was an afterthought or mistake.

THOMPSON V. TREVANION 1693 Skin L.R. 402

This case had to do with statements made by participants in or observers of

events. Thus in this case it was decided that what a wife said immediately upon
the hurt was received and before she had time to devise or contrive anything for
her own advantage was held to be admissible in evidence.

ALL THE ABOVE CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS
PART OF THE FACT OF IN ISSUE.

R V. RATTEN [1972] A.C 378

Ratten was charged with the murder of his wife. He offered the defence of
accident. He said that he was cleaning his gun and it accidentally went off
injuring his spouse. There was nobody else at the scene of crime or at the point

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 where this incident occurred and the prosecution sought to tender evidence of
a girl who worked with the telephone exchange who said that a call had had
been made from the accused house at about the time of the murder. The girl
said that the voice on the phone betrayed emotion, she was begging to have
the police called over and before the operator could link the woman with the
police the phone hang up on the woman side. The question was, was the
statement by the telephone operator admissible as part of the transaction? Did
it happen contemporaneously with the facts in issue? The court held that the
evidence of the telephone operator was admissible and in explaining why the
Privy Council explained that the important thing was not whether the words were
part of the transaction. The important thing was whether the words were uttered
during the drama. The court also said that the particular evidence of the
operator contradicted the evidence which was to the effect that the only
telephone call outside from his house during the murder was only a call for an
ambulance.

Section 7

“7. Facts which are the occasion, cause or effect, immediate or otherwise, of
relevant facts or facts in issue, or which constitute the state of things under which
they happened or which afforded an opportunity for their occurrence or
transaction are relevant.”

They will be those facts which will afford the opportunity to the facts in issue. The
occasion may not be a fact in issue but it helps us understand the fact in issue or
relevant facts.

CAUSE/EFFECT

John Makindi V. R EALR 327

The accused in this case was charged with the murder of a boy over whom he
stood in loco parentis (foster father) to. In his defence the accused averred that
the deceased was epileptic trying to explain away the injuries on the boy and
how they may have occurred. Medical evidence showed that the boy had died
due to severe bleeding in the head and a doctor testified that there were blood
clots in the boy’s head which had opened causing a lot of blood to flow from the
deceased’s head and therefore occasioning his death. The prosecution
tendered evidence that the accused had previously beaten up this boy and had
previously been convicted for beating up this boy and he had threatened the

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 boy with further beatings on account of having been convicted. The question
was whether evidence of previous beating was admissible. The court held yes
that the evidence of previous beatings was admissible in the
circumstances? Could the court admit the evidence of past beatings? The court
held that the beatings of earlier beatings was admissible because having taken
the evidence of blood clots at the head, it was important to know the cause of
the blood clots and the evidence of the previous beatings was admissible as a
fact leading to the bleeding and ultimate death.

The cause of things or relevant facts or facts in issue will be admitted to explain
the cause of death. E.g. the opening of the blood clots and loss of lots of
blood. The previous beatings showed us the cause and was thus admissible, so
the cause of things and the cause of relevant issues will be admitted. They
explain the cause of death like in this case.

STATE OF AFFAIRS

R V RABIN & ANOTHER [1947] Vol. 14 E.A.C.A 80

In this case there was a charge of corruption and the prosecution tried to lead
evidence of a previous shady dealing in which the two persons whose conduct
was in issue were involved. The question was whether the evidence was
relevant. The court held that the evidence of the previous shady dealings was
relevant because it gave the state of things under which the bribe was given. It
explained the state of things in which the transaction occurred. The transaction
which is the fact in issue.

OPPORTUNITY

R V Premji Kurji R.V. (1940) 7 E.A.C.A. 40

The case shows that the accused had opportunity to commit the murder.
This case discusses Res Gestae. The deceased had been killed with a dagger,
and evidence was admitted at the trial of the fact that just prior to the death of
the deceased the accused had assaulted the deceased’s brother with a dagger
and had uttered threats against the deceased. It was held that the accused had
an opportunity, he had used the dagger only a few minutes before he used it to
commit the murder.

Section 8
8. Any fact is relevant which shows or constitutes a motive or preparation for any
fact in issue or relevant fact.”

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 Facts which relate to motive, preparation or conduct of any fact in issue will be
relevant.

Motive is that which makes a person do a particular thing or act in a particular

way. For instance a person who is accused of rape may be motivated by lust or
desire. A person who says they killed in self defence will be motivated by fear.
Motive is what influences a person’s acts or conduct. For all voluntary acts, there
will be a motivation and you need to look at a person’s conduct to explain away
the motivation. Similarly any fact that would constitute preparation for a fact in
issue is also going to be admissible. The planning or arranging means and
measures necessary to commit an act or to do something. If it is a crime, it will be
the type of measures one takes to help achieve the committing of that that
crime. For example if you intend to steal there will be surveillance involved. Hiring
implements required to commit the crime.

Similarly any fact which shows the conduct of any party to the proceedings is
relevant.

Section 8 (4)

8. (4) The word “conduct” in this section does not include statements, unless
those statements accompany and explain acts other than statements.”

Statements are expressly excluded. You are not talking about statements but
preparation. Under section 8 you are dealing with things that people do and not
things that people do. If you want to bring in a statement, it would have to be
associated with an act.

Section 9
9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which
support or rebut an inference suggested by such a fact, or which establish the
identity of any thing or person whose identity is relevant, or fix the time or place
at which any fact in issue or relevant fact happened, or which show the relation
of parties by whom any such fact was transacted, are relevant insofar as they are
necessary for that purpose.”

Facts, which explain or introduce facts in issue, are relevant.

It is only phraseology of Section 9 that differs from factors that have been
explained in Section 6,7 and 8.

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10. Where there is reasonable ground to believe that two or more persons have
conspired together to commit an offence or an actionable wrong, anything said,
done or written by any one of such persons in reference to their common
intention, after the time when such intention was first entertained by any one of
them, is a relevant fact as against each of the persons believed to be so
conspiring, as well for the purpose of proving the existence of the conspiracy as
for the purpose of showing that any such person was a party to it.”

The legislator is said to have been acting Ex Abundante Cautella. Out of an

abundance of caution. This section deals with conspiracies. If there are
reasonable grounds to believe that there is a conspiracy, then whatever is said or
done by any person in reference to their common intention, after the time such
intention was formed, is a relevant fact.

What does a conspiracy entail? It is where people sit and agree and form a
common intention to do something. Common intention is the defining factor of
the conspiracy.

It is relevant to prove
1. That it is a conspiracy; and
2. To prove that persons were parties to the conspiracy.

R V. KANJI 1949 VOL 15 EALR 116

It is stated with reference to S. 10 that a person who joins a conspiracy in law is

responsible in law for all the acts of his fellow conspirators done in furtherance of
the conspiracy whether done before during or after his participation. It is only
after common intention is established.

STANLEY MUSINGA ET AL V. R [1951] 18 EACAR 211

Here the court said that “A person who joins a conspiracy is responsible in law for
all the acts of his fellow-conspirators done in furtherance of the conspiracy,
whether done before, during or after his participation.”

The time when, by act or declaration, reference is made to the common intention
is not important so long as it is after that time when the intention is first entertained
by one of the conspirators.

R V. MULJI JAMNADAS ETAL 1946 13 EACA 147.

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 The defendants were charged with a conspiracy to effect a lawful purpose by
unlawful means, in that they toured the neighbourhood in a lorry to recruit labour
for the Company’s Sugar Works, and that acting together they did on a number
of occasions compel persons by the use of force and threats of force to get into
the lorry and submit to being carried away on it for labour at the Sugar Works.

The defence argued that intimidating labour into employment was not an
offence known to the criminal law of Uganda, and did not, therefore, constitute
“unlawful means”. The Court noted, however, citing from ARCHBOLD, that a tort
which is not a criminal offence is sufficient to satisfy the provision as to “unlawful
means”, and upheld the convictions.

Section 11 - Facts which are inconsistent with or which affect the probability of
other facts.
11. Facts not otherwise relevant are relevant—
(a) if they are inconsistent with any fact in issue or relevant fact; or
(b) if by themselves or in connexion with other facts they make the existence or
non-existence of any fact in issue or relevant fact highly probable or improbable.

What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant
in a fact in issue. Read S. 5 along with S. 11.

Section 12
12. In suits in which damages are claimed, any fact which will enable the court to
determine the amount of damages which ought to be awarded is relevant.”

Section 12 – Deals with the facts which affect the quantum of damages.
This Section is said to be a boon to ambulance chasers. E.g. contributory
negligence your participation affects the amount of damages you receive.

If the plaintiff in a civil suit claims damages as compensation for injuries suffered,
the amount of damages which will compensate him naturally becomes a fact in
issue. Evidence which helps the court to determine the amount of damages is
relevant. The following cases show various types of facts which the courts have
considered in reaching an assessment.

M’IBUI V. DYER [1967] E.A. 315 (K)

“Wounding in course of arrest by private person on suspicion of

felony. Psychological factors of malingering and “compensationists” taken into
account, as well as aggravation of damages by element of injury to reputation.”

MU WANI [1964] E.A. 171 (U)WANGA V. JI

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 “The deceased was an African child and the court considered the amount of
damages for the loss of service to the mother and grandparents, the father being
deceased.”

Section 13.

13. Where the existence of any right or custom is in question, the following facts are
relevant—
(a) any transaction by which the right or custom in question was created, claimed,
modified, recognised, asserted or denied, or which was inconsistent with its
existence; or
(b) particular instances, in which the right or custom was claimed, recognized or
exercised, or in which its exercise was disputed, asserted or departed from.

If what you have in issue is your right in custom, 13 (a) factors that show when
customs were created, whether it is relevant and what kinds of arguments were
made for the custom. (Locus classicus)

Relevance and admissibility

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EVIDENCE OF CHARACTER
Character of a witness means not only the witness’s 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 up bringing,; 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 person’s disposition is thro observing that person. This is a
person’s 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 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 neighbourhood’s 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
accused’s pupils held. The question was whether this evidence admissible. The
court held that it was not admissible because it was based on the witness’s 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 witness’s 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 neighbourhood opinion, it was not admissible.

32 | P a g e
 In this case the court was overemphasising 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 person merely 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 person’s entire
life and if one brings extraneously details about the person’s 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

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 libellous matter. S. 55 (1) … section 5 is
relevant here, evidence of character will be admitted where the character is in
issue or directly

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 person’s 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.

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 own cannot call for evidence of character.

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 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 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.

The question has arisen that since the prohibition of commenting is on the
prosecution, can the judge comment. in the case of

R v. Bathhurst (1968) 2 QBD 99

This case considered the question whether prohibition binds the judge. The judge
could only properly tell the jury that
· The accused has a right not to testify;
· 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?
34 | P a g e
 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
· 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.

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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

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
36 | P a g e
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
To demolish the defence that the accused puts forward and this goes to the
issue;
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 court’s 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 court’s
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

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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 cross-examine 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 Starland v. DPP

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

38 | P a g e
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 cross-examined on his previous criminal
history. (this is what is being referred to as an integral part of the defence)

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
39 | P a g e
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 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.

[Character evidence-evidence regarding someone’s personality traits; evidence

of a person’s moral standing in a community, based on reputation or opinion]

So you are talking about two things when you are talking about character, you
are talking about disposition and you are talking about reputation. When
admissible generally, in general terms, character affects the credibility of the
witness, it goes to the creditworthiness of the witness. Section 58 of our Evidence
40 | P a g e
Actdefines character for the purposes of this Act. So basically it is to the effect
that character denotes disposition as well as general reputation of a person.

And the next question then is, what do you mean when you talk about disposition
or when you talk about reputation? 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. And essentially here 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 the material condition in which you
live or because of your level of education. 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 condition in which you grew up. And the way in
which you tell a person's 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 person's disposition, you are talking about a person’s
inclination: how are they inclined to react to a particular thing or to behave in a
particular set of circumstances? And you are saying that is going to be a factor
of different things, whether you were born or brought up in a resource challenged
environment or a resource-endowed environment.

What is reputation? On the other hand reputation is more specific than disposition.
It refers 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 general perceiver of you to be a person that tells untruth and that and
that is the way in which people perceive of you. That has nothing to do with your
inherent qualities. And these people would be people among whom you live or
whom you work with, 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 know you
personally hold you in, how 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 a sufficient level of education and therefore your
disposition a bit 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 the
estimation that people hold you in and they are actually holding you in that
regard because they do know, have lived with you, have work with you and

41 | P a g e
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.

The definition of character at section 58 is traceable to English legal history and in

English legal history there is no necessary distinction between disposition and
reputation. So in English legal history you have the term disposition and
reputation used interchangeably like if they were the same.

And among the early English cases that considered the evidence of character is
the case of R v Rowton (1865) 34 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 good moral character called a person who
testified that he had no knowledge of the neighbourhood. And you can see here
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 he had no knowledge of the
neighbourhood opinion. He did not know what this guy’s reputation was, because
a neighbourhood opinion 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 the most flagrant
immorality. He said that this is also the opinion of his brothers who were pupils of
the accused held. So essentially this man is testifying to his opinion and that of his
brothers who were pupils of the accused. But he is saying he is certainly oblivious
of what the neighbourhood is thinks of the man. But he and his brothers were of
the opinion that this accused person was a man capable of the grossest
indecency and most flagrant immorality. And 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? And the court held it was not
admissible because it was based on the witness’s 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 man's intimate knowledge of the accused rather
than that of the general community. But because the majority view was that the
evidence was not admissible, it wasn’t admitted and the reason it was not
admitted is because if you are talking of reputation you have to talk of the
general estimation amongst a group of people not just a certain category of the
people amongst whom the person lives. And what essentially in this case 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 along the
42 | P a g e
light that opinion most was admissible. Is this clear? So essentially what is being
said here and when we look the next item of evidence we will be looking here is
the evidence of opinion. Opinion evidence is not admissible., And as a general
rule when you are talking about character you are dealing with fairness to the
accused person. And this is why there is all this hair-splitting about disposition and
about reputation.

And here you are not talking about as the person’s disposition, because we said
disposition is the inherent qualities that you are. You are talking about how a
person is rated in the community in which they live. And the court here was of the
belief that they could not actually say this is the person’s reputation because this
was just the view of a small group of people, it was a person’s own opinion. And
even though we have the dissenting view that it ought to have been admitted
because the opinion was based on the witness’s intimate knowledge of the
accused, the court still was of the view that because it is not the view of the
community. SO 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 that carries the holy
book everywhere is not likely to be a thief. But may be there is a person that
knows actually that over and above carrying the holy book you have an affinity
for other people’s things. And you will not hesitate to dispossess others of their
possessions. 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
admitting that. But essentially the principle is that the court tend to use disposition
and reputation interchangeably and it is a lot more difficult to put your fingers on
disposition. How do you say because a person is this way they are predisposed to
act in a particular way, may be because they were brought in a food-challenged
place if they found it anywhere they are likely to take it for themselves…wouldn’t
that be the disposition? But essentially reputation might be stronger because you
are saying that people know that you do not leave your things lying around if this
person is there. They are like to take them for themselves and they have no qualms
about that.

When is evidence of character admissible? Actually before that you should look
at the case of Malindi v R 1967 1 AC 43. Just to get again a judicial rendition of
how you define character.

So when is evidence of character admissible? And there is a distinction between

criminal and civil cases. You are unlikely ever to be asked a question, when is
evidence of character admissible? But you will have to be able to spot a court
trying to admit evidence of character when it should not be admitted. And
essentially I am telling you that there is a difference in civil and criminal cases and
we are going to start with civil cases.
43 | P a g e
 In civil cases, the general principle or policy is to reject evidence of the character
of the parties. And this principle or policy is provided for in section 55 of the
Evidence Act. Section 55 of the Evidence Act contains the principle that in civil
cases in general evidence of the character of the parties will be reject. So under
section 55, evidence of character in civil cases cannot be led to argue that a
person is of a particular character and therefore did committed a particular
wrong. So you could not use as your ammunition in trying to establish the
commission of a wrong by a person or the incurrence of liability in a civil case by
a person merely by bringing their character before the court. Is that clear?

And the argument here is that the business of the court is to try the case before
the court. So you are not supposed to be interrogating or inquiring into a person’s
entire life. You are supposed to try the matter before you. And if you begin to
bring extraneous matters about a person’s bad character or good character or
character as it may be, what you are in essence doing is making this person have
to defend his whole life when in essence what he has come to court to do, or
what the court is there to do is to establish a particular matter that has come to
the court at that particular time. Can you see how difficult it would be for people
that decide that they will leave their things to life behind and look ahead.
Because every time you would say they did this at this time. So it is likely that they
would do it again.

So essentially then 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. And these are:

1. when such character is in issue or directly relevant to the issue. An example here
is when you have a libel suit. If there is a libel suit and justification is pleaded, then
the person pleading justification must be permitted to show that the person in
instituting the libel suit is—you have a libel suit before you as a court and
justification is pleaded, the party pleading justification must be permitted to show
that the person institution the libel suit is of the character present in the alleged
libelous matter. And you can see here that if you didn’t let evidence of character
be admitted it would be impossible to establish that kind of defence. Is this clear?
And we have looked at this section 5 of the Evidence Act and the principle is
reiterated at section 55 (1), which reads: ”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.” So if you look at that last bit of this provision you
will see, in so far as such character appears otherwise admissible. And may be
then you need to go back to section 5, which reads: “Subject to the provisions of
this Act and of any other law, no evidence shall be given in any suit or proceeding
except evidence of the existence or non-existence of a fact in issue, and of any
44 | P a g e
 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 you can see in a libelous matter the justification goes to the court of
the existence or non-existence of the claim. And that is why we are saying under
section 5 and section 55 (1) the first instance under which evidence of character
will be admitted in civil cases is where the character is in issue or directly relevant
to the fact in issue and I went on to give you the example of a liable suit.

2. The second instance is when the character is such as to affect the quantum of
damages and you will remember from your Evidence I, when we were looked at
relevance and admissibility, generally looking at section 5 to 16, we looked at a
provision of the Evidence Act that deals with what facts may be relevant and we
pointed out that facts that touch on the quantum of damages are going to be
relevant, as provided for in section 12. So section 12 is the authority for that
preposition as well as section 55(2). And an example here is a defamation suit. A
defamation suit you know is the vindication of a person’s reputation. So if you can
show that the plaintiff has no reputation anyway, that is relevant in quantum of
damages. E.g., let us say that you called a matatu tout a rouge and they say that
you lowered their esteem in the eyes of right thinking members of society, then
you get to get factors that may go to establish whether that person has the
reputation that they are claiming to have. Because if you are saying that their
esteem has been lowered in the eyes of right thinking people, we need to know
how right thinking people ordinarily perceive of you. Because may be you have
no reputation, or may be you are overrating your reputation. So when the
character is such that as to affect the quantum of damages evidence of
character will be admissible in civil cases. And that is section 55(2) and section 12
of the Evidence Act.

3. The character of the witness is always relevant to his credit. So character is

relevant in establishing whether you are credit worthy or not credit worthy. And
this is provided for at section 154 of the Evidence Act (on cross-examination as to
credibility): When a witness is cross-examined he may in addition to the questions
referred to hereinbefore be asked any questions which tend to (a) to test his
accuracy, veracity or credibility, (b) to discover who he is and what is his position
in life. So you can see that (a) covers your accuracy, veracity and credibility. So
even though such questions may hurt on your character they will be allowed
under section 154 which we will be look at when we look at the examination of
witnesses and cross-examination particularly.

But for the purposes of the evidence of character and especially character in civil
cases, having said that by dint of section 55 the general principle is that evidence
will be rejected. There are three instances when it will be admitted. The first one
being where it is in issue or directly relevant to the issue. Two, where it affects the
quantum of damages. And three, where it is relevant to in determining the
45 | P a g e
credibility of the witness. Absent those three instances, then you do not call for
evidence of character because we said the duty of the court in any particular
matter is to try the issue before it, not to try the person or to examine or inquire the
person’s whole life.

In criminal cases a distinction is made between evidence of good character and

evidence of bad character. Under section 56 the fact that the accused person is
of good character is admissible. And the admissibility of the good character
evidence pertaining to the accused person has reigned for a long time before
1898 when the accused was not a competent witness. The admissibility of good
character evidence of the accused person is a principle that obtained even
before 1898, that is the period when the accused person was not competent to
testify. And when we look at the law on competence and compellability, we will
see what it is that the accused person became a competent witness and what
rules obtain even those with a competent witness. Suffice it here to say that this
principle that the evidence of good character of an accused person is admissible
is a principle that has reigned for a long time. And before an accused person was
competent to testify, the evidence of his good character when to the likelihood
of his committing an offence or not. So essentially when you led evidence of good
character of an accused person you are trying to establish that this is a good
person, so they are unlikely to have committed this particular offence. So it did go
to the credibility of the accused person because in any event they were not
allowed to testify. It went to their disposition that being good people or being a
good person you are unlikely to have stolen or to have murdered a person, etc.
So if you have an accused person charged with stealing and there was evidence
of their good character, that would call on the court to investigate that matter
critically because you are saying that it would be unlikely that a good person
should accused of murder. So if this person is being accused of stealing and
murdering there may be some facts that people have gotten wrong. So you are
not using this evidence in terms of deciding whether this is a person that is
credible, that should be believed or not believed. You are admitting it to sort of
disprove their having committed an offence and if indeed they are being
accused of an offence, that matter should be investigated because there could
be a mistake. Is this clear?

So after the accused was made a competent witness by statute passed in 1898,
then evidence of good character went more to credibility than to the likelihood
of their having committed an offence. So essentially when you are talking about
evidence of good character, one going to credibility versus on the other hand
going to likelihood of committing an offence or the issue as it might be called you
are talking about two things, you are on the credibility side you are saying that is
he or he reliable or trustworthy. Or on the other hand, you are asking the question
can he or she, judging from their character, do a particular thing.

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What about bad character? Section 56 categorically says that evidence of good
character is admissible. What about bad character? After statutes made the
accused person a competent witness in 1898 the accused was given 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 may be drawn or could be drawn against him.
So after the statute made the accused person competent to testify there is a
problem here because the accused has an option to testify or not to testify and
this, as I am saying, put the accused person in a dilemma. If he opt not to testify
then an adverse inference could be drawn against him. People could say that
one who refuses to testify has something to conceal. Again this is a matter that
will become clearer as we look at competence and compellability. But suffice it
here to say that there is this dilemma. Because the accused person can choose
to testify or not to testify. But they are scared that if I do not testify people might
think that I am refusing to testify as an accused person because I have something
to hide or to conceal. On the other hand, remember we said the option to testify
puts the accused person in a fix or in a dilemma; if they say, no, I do not want to
testify a bad inference could be drawn. If on the other hand they chose to testify,
and have a previous record, they could be cross-examined on the previous
record. So it is a no-in situation for the accused person. If you keep quiet people
may begin to say the reason that this guy or this person isn’t talking is because
they have something to conceal. If on the other hand, you testify you might begin
to be asked questions and especially if you have a previous record, if you have
skeletons in the closet. Those skeletons may be brought out because you have
chose to talk and therefore you may be cross-examined on that. And this is why
you in the Criminal Procedure Code and the Constitution the right to silence on
the part of the accused person. The right to silence on the part of the accused
person is meant to guarantee that your failure to say anything is not going to lead
t an adverse inference being drawn against you. And in fact under section 127
(2) (ii)—which again we will revisit when we look at competence and
compellability -- it is explicitly provided that the prosecution has no right to
comment on the silence of an accused person. If an accused person decides to
keep quiet as they are mandated to do by the constitution(Article 50); they could
keep quiet or keep silent. And what about the Criminal Procedure Act?… What
section? In any event the Criminal Procedure Act and the Constitution provide
for the right to silence and in terms of evidence there is the explicit provision that
if an accused person decides to keep silent this is not going to be mad the subject
of comment by the prosecution, so that the prosecution has no right to comment
on the silence of the accused person. This is protecting the accused person.
Remember we said once you are given the option to testify or not to testify. You
worried that if you say nothing people will say you have something to hide and if
you have previous antecedents and you don’t want your closet opened and your
skeletons dragged out, then you don’t know where you are. And so the Evidence
Act by providing that the prosecution should not comment on the silence of an
accused person that keeps protected the accused person should he choose to
47 | P a g e
 remain quiet. And essentially the comment would be such comments that might
lead to adverse inference being drawn. May be we should have somebody read
section 127 (2) (iii):

“the failure of the person charged (or of the wife or husband of that person) to
give evidence shall not be made a subject of any comment by the prosecution.”

“Shall not be made a subject of any comment by the prosecution”, but that is
being read in light of subsection 2 which is to the effect that “in criminal
proceedings every person charged with an offence, and the wife or husband of
the person charged, shall be a competent witness for the defence at every stage
of the proceedings, whether such person is charged alone or jointly with any other
person:

Provided that the failure of the person charged (or of the wife or husband of that
person) to give evidence shall not be made a subject of any comment by the
prosecution.”

And we will look again at this when we are looking at the subject of competence
and compellability but for the purposes of this Act, is there to show the protection
that is given to the accused person.

And the question has arisen that since this prohibition of commenting is on the
prosecution, can the judge comment? Basically under section 127 (2) (iii)the
subject or the object of the prohibition against commenting on the silence of the
accused person is the prosecution. And the question has arisen as to whether the
judge can rightly rightly or lawfully comment on that silence. And in the case
of the R v Bathhurst (1968) 2QB 99. This case considered that question, the
question whether the prohibition also binds the judge. And it was stated in that
case that the judge could only properly tell the jury that

1. the accused has a right not to testify

2. he could tell the jury that they must not assume that the accused is guilty
because he does not testify, even though he has been deprived of the chance
to test the story told in cross-examination.

So essentially then if the accused chose not to testify this should not be made the
object of comment by the prosecution and the judge can only comment about
it, according to the case of R v Bathhurst by informing the jury that the accused
does not actually have to testify. And even if he doesn’t testify you should not
assume that he is guilty. But if the accused person opts to testify, and goes to the
witness box, he is treated like an ordinary witness, can be cross-examined.

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 What is the provision of law on how you deal with witnesses? Remember the
privilege of witnesses. What section of the law? Section 158, I think. In the case
of Marxwell v the DPP (1935) 18 EACA 309. In that case it was intimated that the
accused person had a shield protecting him from cross-examination on his
previous record or antecedent. So you couldn’t drag out skeletons the closet. He
had a shield unless he threw the shield away or unless the evidence of such
previous record or antecedent had a bearing on his guilt in the present case. So
it was intimated in Marxwell v the DPP the accused person had a shield which
protected him from cross-examination on his previous antecedents or record. And
he could throw this shield away or he may actually be cross-examined if there
was a relationship between the previous antecedents and the case under
investigation. And in that case examples of ways in which the accused person
could throw the shield away were outlined as follows:

1. if the accused person gave evidence of his own good character he would be
deemed to have thrown the shield away.
2. he would be said to have cast aside the shield if he casts aspersions on the
reputation of the prosecutor, or the complainant, or the prosecution witness. And
we will be looking at this in greater detail because most of them have actually
been nulled in the statutes, our Evidence Act.
3. if he gave evidence against a co-accused with whom they were charged with
the same offence, he would be deemed to have thrown the shield away.

It would seem that apart from instances, that is firstly where the accused gives
evidence on his good character, or secondly where he casts aspersions or
imputations on the character of the prosecution, complainant or the prosecution
witness, or thirdly where he gives evidence against a co-accused with whom they
are charged with the same offence. Other than those three instances, the
accused would be treated like an ordinary witnesses and could not be asked
irrelevant questions. And again when we look at the subject of the examination
of witnesses will see what questions are permissible, what kind of questions can
lawfully be put to an accused … a witness and this would include an accused
person unless they have thrown the shield away.

Sections 57 and 156 embody the rules, the rules established in the case
of Marxwell v the DPP. The rules are embodied in our Evidence Act, section 57
and 156.

Read section 156: “A person charged with an offence and called as a witness for
the defence may be asked any questions in cross-examination notwithstanding
that the answer may tend to incriminate him as to the offence charged.”

So essentially in cross examination a person can be asked any question and it

doesn’t matter that the answer to that question would incriminate you. Then
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section 57 provides that evidence from examination on that character is
inadmissible unless any of the five exceptions to the rule apply. Under section 57
evidence of cross-examination of an accused person on that character
evidence is inadmissible unless one of the five exceptions to that section apply.
And section 57 is titled, “Bad character in criminal cases.” And under section 57
(1)

In criminal proceedings the fact that the accused person has committed or been
convicted or charged with any other offence other than with which he is then
charged or is of bad character is inadmissible and then it goes to “unless”. And
this is why I am saying that bad character evidence is inadmissible unless any of
the five exceptions to that section are satisfied.

You can see right there that there seems to be a contradiction between section
156 and section 57. What is the contradiction? Or is there a contradiction? We
have said that under section 156 a person charged with an offence and called
as a defence witness may be asked any question in cross-examination
notwithstanding that the answer to such s question may tend to incriminate him
on the offence charged. And section 57, which is to the effect that in criminal
proceedings the fact that the accused person has committed or been convicted
of or charged with any offence other than that with which he is then charged, or
is of bad character, is inadmissible. Do you see the contradition? That the one
mandates admission of all evidence, the other limits instances in which evidence
of bad character may be admitted. Is this clear?

And scholars of evidence have tried to explain away this apparent contradiction
and if you look at Cross on Evidence he actually tries to reconcile those two views
by saying that under section 156 one would have to be looking at the narrow
construction and permission there would only be granted for questions that
incriminate an accused person directly. So he argues on the one hand for narrow
construction of this apparent contradiction limiting section to instances where
questions submitted would be those that incriminate an accused person directly
and disallowing those questions that indirectly incriminate the accused person.
So you would be basically looking at direct incrimination as opposed to indirect
incrimination.

The other view is where you have the broader construction where both direct and
indirect incrimination are allowed irrespective of whether the accused person
has thrown away the shield. And it is that contradiction remains because we do
not have as yet a judicial interpretation or judicial rendition on this two sections of
the Evidence Act which seem to run contrary to each other. So while we could
talk of the narrow construction, the broad construction as proferred by Prof. Cross
we cannot say there is a definitive rendition of what is the position we have an
apparent contradiction in the law and until we have a judicial interpretation it is
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going to be difficult to know whether it is both direct and indirect irrespective of
whether we throw away the shield or whether we are talking about a broad and
narrow. The narrow being that you only allow questions that directly incriminate.
The second one where you would allow both direct and indirect examination
whether or not the shield has been thrown out under default. I am saying that
broad or narrow construction isn’t really helpful absent a judicial interpretation of
these two sections of the law which seem to run contrary to one another.

Section 57 has exceptions we said: In criminal proceedings the fact that the
accused person has committed or been convicted of or charged with any
offence other than that with which he is then charged, or is of bad character, is
inadmissible. So I would like now to go to what follows unless, and I said there are
five exceptions to that rule. And these five exceptions are contained section at
157 (aa) to (d). Under section 157 (1) (aa) evidence of bad character will be
admissible as evidence of a fact in issue or is directly relevant to a fact in issue. So
if the evidence of bad character comprises of the fact in issue or a fact directly
relevant to the issue then that will be admissible.

Secondly, where it comprises similar facts evidence and section 57 (1) (a)
provides that it 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.
And you know that sections 14 and 15 deal with similar facts evidence. So here
you would need to re-visit your notes on similar facts evidence, when is similar
facts evidence admissible, because in those kinds of instances evidence of bad
character will be admissible. You will remember when we looked at the evidence
of similar facts we discussed that the reason that similar facts evidence is generally
disallowed is because it is evidence that is likely to have a great prejudicial effect
against the accused person. And it is actually admitted as an exception to the
general rule. And here again it would be that similar facts evidence of bad
character that would be admitted as an exception to the rules established at
section 57.

And here we should look at the case of the R v Cockar(1960) 2 QB 207. Cockar
was charged with breaking and entering with intent to steal. In his defence he
alleged he entered for the sake warmth and sleep. Evidence was adduced of a
similar charge in the past where he had also pleaded entry for similar reasons,
namely warmth and sleep and he had been acquitted of previous charge. He
was convicted based on the evidence of the previous such incident. He was
convicted on the basis of the evidence of the previous antecedent and he
appealed on the grounds that the conviction was based on inadmissible
evidence of the previous offence. The court held that the conviction should be
quashed because the matter relating to the previous antecedent did not result
in conviction and was therefore outside the purview of the English equivalent of
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section 57 1 (a). So essentially what is being said here is that for similar facts
evidence to be admissible as an exception to section 57 it has to have resulted in
a conviction. Because if it did not result in a conviction then it means that the
matter was not conclusively established.

The third exception is contained at paragraph (b), section 57 (1) (b): Evidence of
bad character is admissible where the accused has personally or by his advocate
asked questions of a witnesses for the prosecution with a view to establishing his
own good character, then he could be question on bad character. And here
again we go back section 56. Remember we said under section 56 that evidence
of a good character of an accused person is admissible. But giving evidence of
a good character of an accused person lays he path open for the prosecution
to counter that evidence. So if an accused person is telling the court through
evidence that he is a good person the prosecution can proceed to show that he
is not nearly s good as he is telling the court, by bring in evidence of bad
character. To give an example, if a person is asking a prosecution witness, Am I
not the pastor in your church? Haven’t you seen me going to pray every day?
Then the accused lays himself bare for the prosecution to show that after prayer
time they are engaged inextraneous activities that are not very compatible with
that which they are alleging as good character on your part.

And essentially advocates will advise their clients, especially if they have a
previous record or previous antecedents, they have skeletons in the closet, you
would be advised not to go talking about your good character. Because when
you talk about your good character is admissible yes, but it opens you up under
section 57 (1) (b) to bring up questions that would establish that you probably are
not as of the good character that you are trying to tell the court.

And here again we revisit the case of Marxwell v DPP (1935) 18 EACA 309.
Marxwell, 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. And 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 state this principle: “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 fairly
cross-examined on that issue to show the contrary.” And the reason that you have
cross-examination on the accused after he gives evidence of his good character
is for two purposes:

52 | P a g e
1. to demolish the defence that the accused puts forward. So that does to the
issue. So you are trying to show even though he is telling us that he is a good
person he is really not a good person.

to demonstrate that the accused is an unreliable person even in court. So this is

going to discredit. And of course again here you can see the tight rope that the
accused person walks. Yes, your evidence of good character is admissible but
once you bring if forward, then we can ask you questions and we can bring out
all those things that you do not want us to bring out. And the whole issue as to
whether this provision was intended to prevent the accused person from
preparing his defence has arisen. Was this provision at section 57 intended to
hamper the accused’s defence? And case law is to the effect that when an
accused person merely denies an offence or assets that he is innocent that should
not be constructed as an assertion of good character and should therefore not
open the way for cross-examination on previous antecedent. So it allows the
accused person leeway to be able to establish a defence to asset that he is
innocent without always being said to have asserted that he a person of good
character. So mere denial of an offence or assertion of innocence should not be
construed as an assertion of good character as this would result in incapacitating
the accused person from being able to prepare for his defence. If each time he
say no, I did not commit the offence you are deemed to be saying you are a
person of good character, then it is impossible for you to prepare a defence at
all. So a line has to be line between mere denials of an offence or protestation of
innocence as against assertion of good character where he says I have good
clean moral life, as opposed to where you say, I did not commit the offence.
When you say I did not commit the offence that should not be read to mean that
you are saying you are good person. And the case to look at here is the case of
the R v Ellis(1910) 2QB 746.

[You cannot put one aspect of your character in issue and leave out another
part. Once you put your character in issue you open a Pandora’s box. We are
entitled to know all part of your character. So a person that puts their character
on the line cannot be said to have put boundaries on what character they want
the court to know. We are entitled to know all about their character.]

R v Ellis (1910) 2QB 746.

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 really consistent with an intention to defraud. So essentially he
was trying to show absence of intention to defraud. The prosecution sought the
court’s leave to cross-examine him on previous antecedents. But the court
declined pointing out that the accused by examining the prosecution witnesses
53 | P a g e
was not asserting his good character. He was attempting to establish his
innocence. So essentially here the line is being draw between assertion of good
character and establishment of a defence. And that line can be thin. But you can
see that you say each time an accused person seeks to deny an offence or seeks
to establish that he didn’t have an intention to commit the offence, what you are
doing is to establish that you are good person, then you are denying him an
opportunity to defend himself. He couldn’t prepare his defence.

And essentially what the courts have done is to draw the line based on this
premise. If the accused person gives reasons for his innocence dependent on the
court’s assumption that he is an honest man, then this can amount to evidence
of good character. So you would be looking at to what purport is this evidence
that the accused person is giving, that we want the court to have the assumption
that he is an innocent person and therefore he is unlikely to have committed an
offence or is here trying to establish that he actually did not commit the offence
…

And again here we should look at the case of the R v Samuel (1956) 40 C.A. R 8

You can see that section 57 is dealing with instances where the accused would
throw away the shield but giving evidence of his good character. And the
question had arisen to what happens where the accused rather than giving the
evidence of his good character, gives evidence of his bad character. And legal
opinion here is to the effect that this does not entitled the prosecution to bring
more evidence of bad character. So if an accused person comes to the witness
box to be cross-examined, say he is accused of stealing, and he begins to say,
You were saying I stole one million shillings. You know I had also stolen two million
and I had been convicted for it. And the question is, would this entitle the
prosecution to bring more evidence of bad character? And legal opinion is to
the effect that it won’t entitle the prosecution to bring more evidence of bad
character. And the case to look at here is the case of Ali bin Hassan v R (1968) EA
1972 (Z).

R v Winfield (1939) 14 ALL ER 164 (CA).

The accused in this case was charged with indecently assaulting a

woman. Evidence was given of the accused’s good character. He had a
previous conviction for larceny. The court allowed the prosecution to cross-
examine him on his previous antecedent much as this was a trial for assault. And
this is going to answer the question as to whether it has to be relevant. The
accused charged with indecently assaulting a woman, evidence given of the
accused’s good character, he had previous conviction for larceny, the court
allowed the prosecution to cross-examine him on his previous antecedents, much
as this was a try for assault. And the question was whether this was proper. Was it
54 | P a g e
proper for the court to allow cross-examination of the previous antecedent? And
the court held, yes, because there is no such thing in legal procedure as putting
a part or a fraction of a prisoner’s 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.

Starland v. DPP, where 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 questioned 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. And the court stated, “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 a claim of good
character.”

Again answers to the question whether it has to be related or otherwise… Good

character in issue or your character in issue, the court is entitled to know about
your all about your character because you have brought it forth.

Another question that has been asked is what happens when it is not the accused
who asserts his good character but a witness gives that evidence of his own
volition without any prompting. Because you see this is anticipating as situation
where the accused or his advocate gives evidence of his good character. What
about a situation a witness without any prompting gives the evidence of the good
character of the accused person. The question is, would this open up the accused
person to be interrogated on his bad character.

And the answer to this question is to be found in the case of the R v Reid (1923) 1
KB 104, which answers this question by averring that such an occurrence does not
entitle the prosecution to bring in previous antecedents. Because this is a situation
that is not covered under paragraph (b). Paragraph (b) is to the effect that where
the accused personally or by his advocate asks questions of a witness with a view
to establishing his good character. So where a witness without any prompting of
their own volition gives evidence of the good character of an accused person
that is not a situation that is contemplated here and that is the effect of the case
of the R v Reid.

The fourth exception at 57 (1) (c) is where nature or conduct of the defence is
such as to involve imputations on the character of a complainant or of a witness
for the prosecution. So even an accused person, if there is an issue in his defence
55 | P a g e
that casts aspersion on the character of the complainant or a prosecution witness
then he can be questioned on the previous antecendent. And the authority for
this preposition is the case of Rivers Arthuston Royston v R (1953) 20 EACA 147.

Rivers Arthuston Royston v R (1953) 20 EACA 147.

The accused here was charged with obtaining cash by false pretences from
various persons. He admitted receiving the money but denied the existence of
false pretences. So he was admitting the acteus reus but denying the mens rea.
In cross-examining the prosecution witness with a view to furthering his defence
to the charge of false pretences, he cast aspersions on their character (put their
character in doubt). 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 indeed
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
cross-examined on his previous criminal history.”
And this is what is being referred to as the need for “integral part of the defence
theory”, because again if it is 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. And the
question to be asked seems to be whether the imputations or the aspersions that
are cast on the character of the prosecution witnesses is integral to the defence
that the accused person is trying to put forward without which the accused
cannot prove their case fairly or square before the court.

Omondi v R (1967) EA 802 (K)

The appellants here were charged with robbery with violence. During cross-
examination the first appellant suggested that a 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 the evidence on past convictions. And the court held that to
challenge the evidence of a witness for the prosecution is not to cast aspersions
on the character of a witness within the meaning of section 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 to 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.
56 | P a g e
It looks like in this case the line is very thin. Whilst they are saying that to challenge
the evidence of a prosecution is not to cast aspersions, but if you are saying that
the witness for prosecution is a person that should not to be believed, then the
court also need to know if you yourself as a prisoner or accused ought to be
believe as well. And basically you see, once there is difficulty drawing a borderline
between what would be a reasonable defence and what amounts to casting
aspersions. And in essence if you look at the cases where this matter has been
discussed, where section 57 (1) (c ) has been discussed, it is not clear really. It
seems like in one case they will hold the view amounting to casting aspersions
whereas in the other one they will say it is actually an integral part of the
defence. And you also should look here the case of Abdulla Katwe v
Uganda (1964) EA 477 (U). We also look at the case of Selvey v DPP (1970) AC 304
(1968) 2 ALL ER (1960) 2 WLR 1494.

Selvey v DPP (1970) AC 304

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 his previous convictions of indecency. He was
convicted and appealed. And the court held that cross-examination of an
accused on previous convictions of bad character was permissible under the Act
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’s 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 the integral part of the
defence theory. Because if you look at the first part of the holding there saying
there was relation of an accused person on previous convictions of bad
character it is persmissible under the Act if the nature and conduct of the defence
involved imputation on a prosecution witness not withstanding that the
imputations were necessary part of an accused answering the charge. And
what they do is to heave a way out by saying that the trial court actually has a
discretion to disallow that. And essentially what seems to be the case is that is not
clear at what point the integral part of the defence theory will operate and when
the court will insist on applying an ordinary reading of the provision at section 57
(1) (c) where you don’t go looking beyond what the words mean. But you can
also see that even though they are saying that the accused can be cross-
examined any time the leeway of discretion on the part of the judge, means that
at certain point the judge can say no we don’t allow that for cross-examination.

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In Kenya, and actually East Africa looking at the cases of Abdulla
Katwe and Omondi, cross-examination on previous antecedents is not permissible
if it is vital for the defence to raise issue of the character of the prosecution
witness. So in East Africa cross-examination of previous antecedent is not
permissible if it is vital for the defence to raise the issue of the character of the
prosecution witness or the complainant. And over and above that, the court still
has discretion to disallow evidence of previous antecedents where its probative
force is outweighed by prejudicial effect. On the one hand if it is an integral part
of the defence in our region the previous antecedent will not be allowed to be
brought in by the prosecution. So if by the nature of the defence that the accused
person is setting up, they would have to cast aspersion on the character of the
complainant, or a witness, or the prosecution. That will not open up the way for
the prosecution to bring up the antecedents of bad character. And even in
instances where that happens, where actually the way is opened up, where the
casting of aspersions was not an integral part of the defence, the courts still have
a discretion to disallow the evidence where its probative force is outweighed by
its prejudicial effect. And that is provided for at the proviso to section 57 and also
in the position taken in the case of Omondi v R. If you look at the paragraph just
after (d) you will see that it is stated that:

“Provided that the court may, in its discretion, direct that specific evidence on
the ground of the exception referred to in paragraph (c) shall not be led if, in the
opinion of the court, the prejudicial effect of such evidence upon the person
accused will so outweigh the damage done by imputations on the character of
the complainant or of any witness for the prosecution as to prevent a fair trial.”

So there is still discretion, and that is the proviso at section 57 as well as the
rendition in the case of Omondi v R.

The fifth exception is contained at section 57 (1) (d): unless the accused has given
evidence against any other person charged with the same offence. So an
accused person can be questioned on his previous antecedent where he gives
evidence against any other person charged with the same offence.

Murdoch v. Taylor And here you need to look at the case of Murdoch v.
Taylor (1965) AC 574, HL. Where it was stated that evidence against a co-
accused is evidence supporting the prosecution case. If you give evidence
against a co-accused you are in essence giving 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.

And here again it is critical that the evidence that a person gives against the co-
accused be supportive of the prosecution case. It is not enough to say that the
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evidence of the co-accused contradicted the evidence given by the other co-
accused. It has to be looked at and read to actually support the prosecution
case and it is only when it supports the prosecution case that the way is then open
to question this person on their previous antecedents. So essentially then for
evidence of an accused bad character to be adduced the exceptions at
sections of 57 have to obtain. If they do not obtain then you cannot given
evidence of bad character. This is not like good character. Remember we said
that good character at section 56 is always admissible. But then once you give
evidence of your good character, you open yourself up to being questioned on
your bad character and that is by the authority of section 57 (1) (b), and also the
cases that we have looked at.
But again this is different from what happens after conviction. And you know that
after conviction, the prosecution can punish the court with details of previous
antecedents to enable the court to mete out the appropriate sentence. So when
you are talking about section 57 we are talking about pre-conviction, whereas
when you give evidence of previous antecedents to assist the court in sentencing
that is not the same as what we are talking about here when we talk about
evidence of bad character.

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 Is a voluntary confession is always admissible?

The next question that I would like us to address is whether a voluntary confession
is always admissible. Is a voluntary confession always admissible? What we have
been looking at are sections 26 and 27 is the requirement that a confessionary
statement be voluntary. And we have said that the burden of establishing that
voluntariness is the prosecution and the court has a duty to inquire into the
voluntariness even though that issue does not arise if it looked like there is doubt
as to those circumstances. And this is the point that is emphasized in both the
case of Onyango Otolito and also Njuguna s/o Kimani. And they are talking
about the case being required, especially where you have an accused person
being in custody for a long period of time. So then the next question that we are
asking is if you have on all fronts satisfied the requirement of section 26 and 27,
are you ready then to introduce your statement. The answer is actually No. a
voluntary confession is not always admissible. A confession even if voluntary has
to conform to some technical rules, and these are established at sections 28 and
29 of the Evidence Act.

Section 28 reads:

“No confession made by any person whilst he is the custody of a police officer
shall be proved as against such person, unless it be made in the immediate
presence of-
(a) a magistrate; or
(b) a police officer of or above the rank of, or a rank equivalent to, inspector.”

Section 28 deals with confession of people made by people in police custody.

And it is to the effect that if a person makes a confession while in police custody,
it is only admissible if it is made in the immediate presence of certain ranks of
officers. And these are firstly a magistrate or a police officer of or above the rank
or rank equivalent to sub-inspector or a station inspector. So even though a
statement be voluntary, if it has been made in violation of section 28 if it is made
by a person in police custody then it is not going to be admitted. It has to have
been made in the immediate presence of those two persons.

Section 28 please remember deals with statement made by persons while in

police custody.

Section 29 reads:

“No confession made to a police officer shall be proved against a person

accused of any offence unless such police officer is-
(a) of or above the rank equivalent to, inspector; or

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(b) an administrative officer holding first or second class magisterial powers and
acting in the capacity of a police officer”

So essentially section 29 deals with statements or confessions taken by police

officers by persons who are not under police custody. There is proposals to repeal
section 28 but this not yet seen the light of day. If you look at the Criminal Law
Amendment Bill, it seeks to repeal section 28, which would then mean that there
would be no possibility of there being confessions made by persons in police
custody. But right now the law seems there is confusion between confession
made by persons in police custody and those made by police not in police
custody. And if you look at the administrative officer, that anticipates a situation
where you have administrative officers acting as police officers, and this is
normally in situations where you have shortage of police officers, that is the only
situation in which that would arise where you are taking a statement and you are
vested with the powers of a police officer even though you are not a police
officer strictly speaking.

There has been …against the wide powers given to police officers in taking
confession. And of course this comes against the backdrop of what was the
provision in the Indian Evidence Act. If you will remember when we looked into
the history of our law of evidence, we noted that we received our Evidence Act
from England through India. And under the Indian Evidence Act as imported into
Kenya, confessions made to police officers of whatever rank were not admissible.
And actually this whole question of police officer taking confession and those
confessions being admissible was an offshoot of the Emergency period, and the
issue has been that it is not justified to retain provisions that were made for an
Emergency period in independent Kenya. But actually we with the 1963 Kenya
Evidence Act, those provisions that were not contained in the Indian Evidence
Act which had been brought in for expediency by the colonialist during the
Emergency period were put in our Evidence Act and they remain today. And so
many people argue that those should be removed. And I think it is because of
those arguments against those wide powers that you have proposals that are
contained in the Criminal Law Amendment Bill, which seeks to repeal section 28
among others. It also actually seeks to make confessions admissible only when
made in court. That is the Criminal Law Amendment Bill. And against I am saying
that this in reaction to the kind of sentiments that have been expressed against
allowing the police to have so much powers. Because if you hold a person in
custody for two weeks and then you go and take a statement from them, there
is a time in which they will be vulnerable to may be admitting guilt for whatever
reason.

Let us look at what the implications of those two sections (s 28 and 29) are. For
instance, who is a police officer? Because that is an issue when you are
considering if it is voluntary or not voluntary, and was it made under the technical
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rules. And the term of police officer, for the purposes of this section, is broadly
interpreted to include all persons that are invested with the powers of a police
officer by law. So it is not restricted to persons in uniform. If a person is by law
empowered to exercise powers that would ordinarily be exercised by a police
officer, then they would fall within this category. So you don’t have to wait until
you have a person in uniform or a person in the employment of the regular police
force for you to decide whether the technical requirement has been adhered to.

It also includes police officers in foreign countries. And the authority for that
preposition is the case of Kaluma v R., which we looked at last time, which
involved offences committed in both Kenya and Uganda. So the term police
officer is not limited to a police officer in Kenya. It includes police officers in foreign
countries.

The next case that I would like use to look at in this whole question as to who is a
police officer, is the case R v Masola Bin Msembe 1925 TLR 117, which also defines
who police officers are. And it is to the effect that if a person is arrested by persons
performing the duties of a police officer in a foreign country, then for the purposes
of our law those would be police officers. So police officers is not just police officers
in your country; it could actually be police officers in a foreign jurisdiction, suffice
it that they are performing the duties of a police officer in that foreign jurisdiction.

And you can see here by looking at both section 28 and 29 that the question of
rank is seen as important. The reason that you have a delineation of what rank of
police officers can take confessions for those to be admissible, whether they are
made in custody or not in custody, suggests that rank is important. And in the case
of Kenyarithi s/o Mwangi v R. (1956) 23 EACA 111, stresses the importance of rank.
In this particular case, statements taken by a police corporal were held to be
inadmissible because they did not adhere to the requisite rank.

And again the case of the R v Mwanda and Others Criminal Case no. 100 of 1977,
held that rank is a rough and ready measure of intelligence and responsibility. It is
assumed that once a certain rank is attain, once an officer attains a certain rank,
then you can presume a certain measure of intelligence and responsibility. Is it
always he case? It may not always be the case. But as it is, rank is seen as a rough
and ready measure of intelligence and responsibility, the assumption being that
once an officer attains a particular rank then you can presume some measure of
responsibility and intelligence on their part which they will enforce in the taking of
confessions. But again as I am saying this may not always be the case. But that is
the standard that is used.

If you look at section 28, the provision is that confession made by persons in police
custody are only admissible if they are made in the immediate presence of the
magistrate and the police officer of the specified rank. And the question has
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arisen as to, what does these words mean? Do they mean you have to make the
statement to the magistrate or the police officer of the specified rank?

And the case of Ngumba and Another v R (1975) EA 223 is to the effect that if the
statement is made to any other person it is inadmissible unless the magistrate or
the police officer of the specified rank is present. And then this would answer the
question that I am asking: it is not relevant to who the confession is addressed.
What is important is in the presence of whom. So the magistrate or the police
officer of the requisite rank has to be there.

There is the case of Rashidi s/o Sadala v R (1950) 17 EACA 124, where the accused
made a confession to a fellow prisoner in remand. And it was in the presence of
the Governor of the remand prison. And the question was whether that confession
would be admissible. And it was held that it was admissible because even though
the Governor was not technically speaking a police officer he could actually fall
within the broader definition of who a police officer is.

And on the same point, you should look at the case of the R v Shamshuddin
Kassim,(1944) 11 EACA 90, which is to the effect that if a person has duties
assigned to them which are akin to those of a police officer, that in itself does not
make them a police officer qualified to take the statement. So it is not enough to
say that they were performing duties akin to those of a police officer. You have
to look at the kind or the level of a police officer that would carry out the duties
that are allocated to that person. And again going back to Rashidi s/o Sadala v
R where we said that a person who made a confession to a fellow prisoner in the
presence of the Governor of the remand prison, that goes back to the point that
I made that the term police officer is broadly interpreted. So here you are looking
at the level of the kind of the police officer that the Governor of the remand prison
might be.

And that again is to juxtapose that to the case of Shamshuddin where the person
was exercising the duties of a police officer but it couldn’t be assumed that just
because they were exercising the duties of a police officer they would be of the
requisite rank; you have to look at what rank of police officer would do or will
perform the duties of a particular person performing.

On the same point, you should look at the cases of Joseph Ndungu Kimani v R(Cr.
App. No. 22 of 1979 (CA). That addressed the whole question: What do you mean
by immediate presence of? And you should also look at the case of Ishmael
Kanyare V R, Cr. App. No. 16 of 1981 (CA), which also addressed the question of
what do you mean by immediate presence of a police officer or a magistrate.

The next question is: what is police custody? Is it a jail? Are you talking about only
cells? And the interpretation here is that police custody does not refer to the cells
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alone or to situations where a person is under arrest. It means any state of affairs
when one comes into contact with the police and cannot depart at will. So you
don’t have to have been physically locked up in the cells or to have been placed
under arrest, to have been warned you are now under arrest. It could be a
situation where the police officer has called you or has requested you to go and
meet them or you have met with them and you know that you could not depart
at the point at which you want. That what you are having is not just a friendly
chat. They could actually prevent you from leaving at that point. And again you
are saying that when you begin to look at what is the police attribute for the
purposes of what is admissible and what is not admissible confession in regard to
who it is made, you have to know beyond the self. And you have also to look
beyond being already informed that you are under arrest. It is a situation where
you know even if you wanted to leave you couldn’t leave without there being
attendant consequences.

And here you need to look at the case of the R v Sangutet (1939) 18 KLR 169, on
the whole question of what is police custody and the whole principle that you
have to look at police custody being broadly defined to mean the point at which
you come into contact with a police officer and you know you cannot depart at
will. So it doesn’t have to be within the cells or you don’t have to have been told
now you are arrested. There is an element of actual determination and common
sense to determine whether you could actually just walk away without really
attendant consequences.

The next question that then arises is: What is the evidential value of statements
that are made in police custody? If you make statements in police custody, what
is the value of them? And again here, when you are asking about the value of
statements made in police custody you are looking at the fact that their
voluntariness is going to be an issue. And also, you are also looking at the capacity
of abuse of office or abuse of power to get a person to give an incriminating or
inculpatory statement is going to be relevant. And by the authority of the case
of Kimani s/o Njuguna v R, a statement that is made in police custody is not
necessarily inadmissible. It is actually admissible but it has to be scrutinized
thoroughly on its voluntariness. A statement made in police custody is not
necessarily inadmissible but it has to be scrutinized thoroughly to establish whether
it was voluntary or not. And of course in the determination of whether it was
voluntary or not, that is going to have a bearing on how probative or how
convincingly persuasive that statement is going to be.

Apart from the provisions of sections 28 and 29, we said that first of all you have
the substance of the confession, which is section 26 and 27. Then we said over
and above that, even though you establish the statement is voluntary, you have
then to move on to look at the technical rules and those technical rules tell you
who and to whom or in the presence of whom to make statements. But apart
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 from sections 28 and 29, we have other rules, the judges’ rules that have to be
adhered to in taking confession. And there are 9 judges’ rules. And basically the
fact that you have all these safeguards in admission of confessions just points to
the way in which the courts treat confessionary statements. The judges rules are
to the effect that:

1. when a police officer seeks to discover the author of a crime he may put to any
person any question pertaining to such crime, whether such a person is a suspect
or not. What this is doing is giving the police officer who is seeking to discover the
author of a crime, a wide net. So they are mandated to put any question to any
person and such a person may or may not be a suspect.

2. when a police officer decides to charge a person with a crime, he should caution
that person before putting any question to him. So basically you can see the first
rule allows the police officer to put any question to any person and that person
that they put the question to could be a suspect or not, giving them wide leeway
to obtain information. But then while in the process of getting this information
putting any question to any person they decide that they are going to charge a
person they are required to caution that person before they put further questions
to them. So the practice might be, we have been talking, you have been talking
to the police officer and then the police officer begins to think that you may be
able to help them more than they thought you may be able to help them. And
you may actually be the person that they are looking for. If they decided to
charge you with the offence, then at that point they will have to caution you
before putting any further questions to you.

3. persons in custody should not be questioned with a caution being administered.

So essentially in the first category that the police officer may put any question to
any person whether that person is a suspect or not is not applicable to you if you
are in police custody. Because you cannot be in police custody just to unwind.
So essentially by the time you are in the police cells it is assumed that there is a
basis for your having been put in custody. By the time you are in police custody
there must be some basis upon which you are linked to the crime and therefore
any person that is in custody should not be questioned without the caution being
administered because you could not have gone to the police station to just have
a friendly chat, to while away time. You must have been there because you were
mandated to be there, and if you are mandated to be there then it means there
is danger of the way in which statements may be taken from you and therefore it
is important that the caution is administered.

4. If a prisoner wishes to volunteer any statement, the usual caution should be

administered with the last words of the caution being “ be given in evidence”. So
here again it is anticipated a situation where the police officer may want to put
questions to you but you may actually, while in police custody be motivated to
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 give some information. If you are motivated to give information you should still be
cautioned and the last word of caution should be given in evidence.

5. gives the full form of the caution. Remember that we have said at rule 2, rule 3
and rule 4, we have been adverting to a caution being uniform and at rule 5 this
caution is given in expenso and it goes as follows: “Do you wish to say anything in
answer to the charge. You are not obliged to say anything unless you wish to do
so. But whatever you say will be taken down in writing and may be given in
evidence”. And here it is actually noted that care should be taken to avoid any
suggestions that a person’s answers can only be used in evidence against them.
You shouldn’t tell them, you know that what you say could be used in evidence
against you. This is why we saying the last words should be “be given in evidence”.
And care should be taken to avoid any suggestion that the answers can only be
used in evidence against the person because this may actually prevent a person
from making a statement given though they would have otherwise made the
statement.

6. addressing the situation where a prisoner gives a statement before the

administration of the caution. What happens to a statement given by a prisoner
before the administration of a caution. And under rule 6 such a statement is not
rendered inadmissible merely because of the lack of a caution. But in such a case
a caution should be administered as soon as possible. And right here you can see
the potential for abuse. You can begin to talk to a person without a caution and
then when you realize they are really telling you interesting things you find that
you want to administer the caution and that would mean that even what they
have said before the caution would not be necessarily be inadmissible. And of
course that goes to show what kind of a scrutiny courts should have of statement
that are made as confession. In fact, in most cases confessionary statements will
hardly ever get to be the ones that carry the day. It is hardly ever the case that a
person is going to be convicted on a confessionary statement, especially where
issues arise as to the voluntariness of the averred. First of all the weight is going to
be very low. The requirement as a rule of practice that it be corroborated if there
has been issues of voluntariness. The reason I am saying this is because you might
wonder, why do we have all these rules and basically you might also think that
statement is going to be the one that is going to get a person indicted. Hardly
ever the case that a confessionary statement—you are going to be looking at
other evidence that would be supportive of the confessional statement.

7. a prisoner making a voluntary statement must not be cross-examined. No

question should be put to the prisoner about the statement except for the
purpose of removing ambiguity in what he actually said. And of course this is to
avoid the persons making the statement from doctoring it. If you begin to cross-
examine a person who is making a voluntary statement you could actually get
them to say what you want them to say rather say what they wanted to say. That
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 is why rule 7 is saying when a prisoner decided to make a voluntary statement do
not cross-examine them, do not put any questions to them unless you are putting
questions to remove ambiguity in what the person actually says.

8. when two or more persons are charged with the same offence and their
statements are taken separately, the police should not read these statements to
the other persons charged. But each of such persons should be given by the
police a copy of such statements and nothing should be said or done by the
police to invite a reply. If a person charged wishes to make a statement in reply
the usual caution should be administered. Here again you can see the danger:
Let’s say two or more persons are charged with the same offence and their
statement are taken separately. If you are now one of the co-accused and the
police officer comes carrying this statement and they are reading it to you. They
can put intonation where they actually want you to emphasize, the things they
would want you to see. For instance, let’s the statement says, oh, I stood on the
shoulders of Peter to get into the house and Peter actually stood outside,
watching out while I ransacked the house. So the statement is being read to Peter
and the police officer introduce the articulation, they could actually use tone or
voice to emphasize that this is actually what happened. You can see what kind
of manipulative things might happen when you are taking statement. And this
why even though you give the person a statement to read, let them read it and
let them get from it what they get by reading it themselves and if they do wish to
make a reply let them do that uninvited. And even then the usual caution should
be administered. Actually they will do it as another statement being taken and
that should be taken down in writing. But they have to be cautioned when they
are making the reply, that the reply they give will be given in evidence.

When the statement made in accordance with the judges rules should whenever
possible be taken down in writing and should be signed by the person making it
after it has been read to him and had been invited to make any corrections he
may wish. The Criminal Procedure laws in this country make these rules applicable
in Kenya where the law is silent. If the law is silent, this will be admissible or they will
be applicable in the taking confessionary statements. And in terms of cases in
which the applicability of the judges rules have been discussed, you should look
at the following cases:

Ondundo s/o Anyango et all v R [1968] EA 239

Ibrahim v R (1914) AC 609

R v Voisin (1918) 1 KB 531

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In this case, the accused was convicted of murdering a woman whose body was
found in a parcel together with a piece of paper bearing the handwritten words
‘Bladie Belgiam’. The accused, without being cautioned, was asked by the
police to write down ‘Bloody Belgian’. He wrote down ‘Bladie Belgiam’ and this
writing was admitted in evidence at his trial. The accused appealed on the
grounds inter alia, that he should have been cautioned before being asked to
write the words in question. The appeal failed. Although the case did not
concern an inadmissible confession, the Committee was of the view that, had the
words been written in an inadmissible confession, the Committee was of the view
that, had the words been written in an inadmissible confession, that part of it
should have been admissible, not as evidence of the truth of its contents, but for
the purpose of identifying the accused with the offender.

Those cases discuss the applicability of the judge’s rules in our context. And
remember we said that they come only when the statutes are silent. And basically
the breach of these rules in the taking of a statement, can lead to the statement
being ruled as inadmissible and thus excluded as evidence. And the feeling is that
these are rules of practice in the taking of confessions, you could not actually say
they are legal rules, but they are rules of practice and if you did not abide them
that could lead to exclusion of a statement that is taken and this again is in the
interests of fairness to the accused person. Why do we have all these rules on how
an accused person should make a statement? And basically that should be what
one thinks about. If we are going to put in all these safeguards, why not allow for
confessionary statements unless those are made in the course of law where you
have specific rules on how statements should be taken. And may be that is what
wisdom is informing the proposed addition to the Evidence Act via section 25A
which defines confessions will be only those taken made in court admitting guilty.

Retracted and repudiated confessions

When a statement made by an accused person is produced at the trial—again
information that will be useful to you in addressing the question before you-- the
accused may allege that they never made the statement; they could actually
say they did not make the statement. They may admit having made the
statement. So on the on hand the accused may say they never made the
statement. Or secondly they could admit having made the statement, but allege
that they only made it because of the inducement, threat or promises emanating
from a person in authority. So on the one hand when the confessionary statement
is brought to court, the accused person can disown it, say I never made it, it
wasn’t me. Or on the other hand he could actually say, yes, I made this statement
but explain it away as being occasioned by inducement, threat or promises
made by a person in authority. When an accused person denies ever having
made a statement, he is said to have repudiated the statement.

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On the other hand, where the accused person admits having made the
statement but says they only made it as a result of an inducement, threat or
promise, the accused is said to have retracted the confession. So disowning the
statement is repudiating it, admitting to having made it but explaining it away as
having been occasioned by various factors is retraction or retracting their
statement.

The case of Tawamai v Uganda (1967) EA 1884 (CA) distinguishes retracted

confession from repudiated one. It defines what is what is a repudiated confession
and also a retracted one and it goes as follows at page 84: “A retracted
confession occurs when the accused person admits that he made the statement
recorded but now seeks to recant, to take back what he said, generally on the
ground that he has been forced or induced to make the statement. In other
words, that the statement was not a voluntary one. On the other hand, a
repudiated statement is one which the accused persons avers he never made.”
And the judges in that case proceeded to say that in terms of effect there is really
not much difference between a repudiated and a retracted confession. In terms
of effect whether you repudiate or retract a confession, there is no real distinction.
Because the implications are going to be the same, that such statements should
be treated with caution and should not be the basis of a conviction unless it has
been corroborated in some material particulars.

So essentially what we are saying here if a confession is repudiated or retracted,

some corroboration is normally required of it before it can be taken as evidence
against the maker. And when this is not a requirement of law, courts have a
matter of practice revolved or come up with a rule that if a statement a
statement has been retracted or it has been repudiated, before you use it as a
basis of conviction you need to have corroboration of that statement in some
material particulars.

And to determine whether a repudiated statement or retracted confession

should be admitted, what normally happens is that there is going to be a trial
within a trial. So the person may say, I never made the statement, that is
repudiating it. Or they will say, yes, I made it but it was because as inducement,
threat or promises, which is retraction. Once the whole question of repudiation or
retraction arises the court is going to hold a trial within a trial. And the procedure
for a trial within a trial is given in the case of Stephen Muriungi and Others v R HC
Cr. Appeal No. 901-904 of 1982 (unreported). The usual pattern is for the defence
to raise the issue of repudiation or retraction. And remember we said we are
talking about voluntariness. It just has to appear, and also remember the fact that
it is incumbent on an accused person if it is every going to be fruitful. So once the
issue is raised, the prosecution then calls witnesses to prove that the statement
was properly taken and these witnesses can be cross-examined. The accused, for
instance, could make an unsworn statement challenging the voluntariness of the
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statement, or could opt to give a statement on oath. He can call witnesses to
attest to the involuntariness. For instance, an accused person could call people
that were held in the same cell as themselves or who witnessed some torture or
some threat. And then it is up to the judge to decide on whether the statement
should be admitted or not admitted upon listening to both sides. So a trial within
a trial is just that. It is just a trial that occurs within the main trial but its main purpose
is to establish whether the statement was made or whether it was properly taken.
And a trial within a trial happens in both the High Court and the magistrate’s court.
So it is restricted to the High Court. In the High Court where there are assessors
they are required to leave the court during the trial within a trial. Why do you think
that is the case? Where should the assessors leave the court during a trial within a
trial. The decision should be decided by the judge but also should the judge
decide to throw away the statement, it is going to be difficult for the assessors to
not remember what they heard during the trial within a trial. So if the assessors go
out during the trial within a trial, if the judge decides that the statement is thrown
out that is the last that it will be heard of. But if the judge decides to admit the
statement, then the trial within a trial is repeated for the benefit of the assessors.
So if the judge rules that the confession is inadmissible, that it was actually not
made or it was not properly taken then that statement is thrown out but if it is ruled
admissible then the assessors are required to come in and the trial within a trial is
repeated to allow the assessors to test the weight of the statement for it could be
one of the statements upon which there will be advising.

In what language should a confession be recorded?

An accused person should be allowed to make a confession in a language of his

choice. And where the recording officer is familiar with the language that the
accused ought to use, he should record it in that language. This is to obviate or
to avoid the risk of the accused person claiming to have been misunderstood; or
they may even say they were at cross purposes with the recorder of the statement
if you take it in another language. This is why they say that you should make the
statement in a language of your choice. If the recording officer knows that
language they should actually use it to record.

If an interpreter is using the making of a statement both the original statement

and the translation must be produced to verify the accuracy of the translation.
So essentially here you can also see how the balance tilts in favour of the accused
person that where there is a translation the court should have the opportunity to
see both the original and the translation. And the case to look at here is the case
of Onchau s/o Usigai v R (1966) 73 EAEA 2580, which is authority for the preposition
that the interpreter has to be competent, and also a responsible person. And in
interpreting care has to be taken to conform to rule 7 of the judge’s rule with
respect to cross-examination in asking questions of the person making the
statement.
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The next provision of the Act that I would like to look at and the next kind of rule
pertaining to confessions are covered under section 30. Section 30 reads:

“If a confession made by an accused person is otherwise admissible it does not

cease to be so merely because it was made under a promise of secrecy, or in
consequence of a deception practised on him for the purpose of obtaining it, or
when he was drunk, or because it was made in answer to questions which he
need not have answered, whatever may have been the form of those questions,
or because was not warned that he was not bound to make such confession and
that evidence of it might be given.”

If you listen to the import of section 30, it waters down all the provisions we have
been looking at on safeguarding the taking of statements, confessionary
statements. It deals with confession obtained by deception, and it is to the effect
that if a confession is voluntary within the terms of section 26, and made in the
presence of a police officer of the requisite rank or the magistrate as the case
may be, it will not cease to be admissible merely because it was made under a
promise of secrecy or in consequence of some deception practised on the
accused person or because the person was drunk when he made the confession
or that they made it in answer to question that they need not have answered, or
even because he was not cautioned. So essentially one wonders why you have
all those provisions at sections 26, 27, 28, 29 and then you come section 30, which
seems to actually go against the grain of the application of all those provisions.
And no wonder then that the Criminal Law Amendment Bill proposes to repeal
section 30. Do you see what I am saying that it is no use having all those
safeguards if at the bottom you are going to have section 30. And in fact, as if
section 30 wasn’t bad enough wait till you read section 31, which again will a
section that will put you in good stead in dealing with the matter before you, for
your assignment. Basically because of this kind of perception, that it is no use
having said that if you are going to have section 30, the judges or court have
actually ruled that a judge always has discretion to refuse to admit or to exclude
a statement made in the circumstances contemplated at section 30. And the
authority for that position is the case ofNayinda s/o Batungwa v R (1969) EALR 688.
Again I am saying that this is one of the cases that provides that the judge has the
discretion to exclude a statement taken in such circumstances that are
contemplated at section 30, and in exercising this discretion the judge will look at
the totality of the circumstances surrounding the taking of that statement. So
again what the court is saying is even though this provision may seem to water
down all the safeguards that we have on the taking of confession, at the end of
the day it doesn’t tie the judge’s hand. The judge could actually look at all the
circumstances and decide that in the fairness of justice to the accused persons
or in the interests of fairness to the accused person and justice they should
exclude that statement and actually exclude it. So it will not always be admissible;
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the judge feels to exclude it. All that section 30 is saying is that those
circumstances do not automatically render the statement inadmissible. It could
actually be admitted. But having said that the judge has the discretion to disallow
it. If looking at the circumstances in the interests of justice and fairness to the
accused person, actually considers right to exclude the statement.

Section 31:
“Notwithstanding the provisions of section 26, 28 and 29, when any fact is
deposed to as discovered in consequence of information received from a person
accused of any offence, so much of such information, whether it amounts to a
confession or not, as relates distinctly to the fact thereby discovered, may be
proved.”

And we remember we said that under the Criminal Law Amendment Bill section
30 is proposed to be repealed along with section 31.

So essentially section 31 deals with confessions that lead to discovery. It is the

effect that whether a confession was voluntary or not taken by a police officer of
the prescribed rank or not, if it leads to some discovery then both the fact
discovered and that part of the confession that distinctly relates to the discovery
are admissible in evidence. And I would like to draw your attention to the question
that you have. It just might be a good example:

“On the 28 of February 2003, Syombua, a diligent, conscientious and God-fearing

fourth year law student at Parklands Campus was charged at a Nairobi Court with
stealing a mobile telephone head-set, to wit, a NOKIA 7210 from Anyango, a
fellow student. Syombua was arrested on the night of 13th December 2002 and
detained at Parklands Police Station until 16th December 2002. During her
confinement at the Station, Syombua recorded a statement with Kimeu, a Police
Constable working at Parklands Police Station who also comes from her village in
Makueni. She confessed to Police Constable Kimeu that she was a kleptomaniac
with a special affinity for NOKIA phones and had even asked their local pastor in
Makueni to schedule a deliverance service for her during the 2002 Christmas
break. Kimeu recorded Syombua’s statement in English after cautioning her in
Kikamba. Syombua was so remorseful that she even promised Constable Kimeu
that she would return five NOKIA phones that she had stolen, including Anyango’s
NOKIA 7210, to their respectful owners. Her handbag, which was kept in the safe
at the Police Station, yielded five NOKIA phones (among these were: NOKIA 3210,
NOKIA 3310; NOKIA 3410; NOKIA 5210 and NOKIA 7210) when brought to her by
Constable Kiema at her request. These phones are sought to be produced as
exhibits at the trial.”

So essentially here you are talking about a statement taken whether it be

voluntary or not and leading to discovery and under section 31, if a confession
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leads to discovery it doesn’t matter that it was voluntary or not voluntary, made
to a police officer of the request rank or not, that part of the statement as distinctly
relates to the discovery is going to be admissible. And I am saying again that it is
no use having the provisions that we have at sections 26, 27, 28 and 29 to be
followed by sections 30 and 31, which seems to actually water down all these
things that we are talking about. And actually also water down the essence of
the judges’ rules. And you can see the possibility of section 31 being abused by
the police officers seeking to procure conviction. They can plant an item at a
place and alleged that the accused person led them to it. They can stage a
discovery, can’t they? They can plant bangh on you. You know that happens a
lot. And it is therefore very important in these circumstances for the judge to
ascertain the truthfulness of the discovery, to establish whether the discovery is an
actual discovery or it is a staged discovery. And in fact section 31 is also sought
to be repealed by the Criminal Law Amendments Bill. And the cases to look at on
this particular theme are the cases of

R v Sawe arap Kurugat (1938) KLR 68

Mwangi s/o Njoroge v R (1954) EACA 377

In the Mwangi case the Court of Appeal was of the view that even under section
31 judges have a discretion to exclude evidence leading to a discovery if they
think it is necessary to avoid abuse of the legal provision. The facts of this case
were as follows. The accused was surprised in an ambush by two home guards.
He shot one of them dead while the other one escaped unhurt. The accused was
seen stooping as if hiding something. And he then came to the other guard to
surrender. So here you have a situation where somebody is ambushed by two
home guards and he shoots one. The other one escapes unhurt. The accused runs
off, is seen stooping as if to hide something and then comes back to the surviving
home guard to surrender. Asked to show where he had hidden the gun or risk
being shot, the guard following him closely with a rifle ready to shoot, the accused
stated, "Come, I will show you where I hid the gun.” The gun was discovered. And
you can see that here you have this part of the statement: Come, I will show you
where I hid the gun.” And then there is the discovery. So if you look at the strict
reading of section 31, this ought to have been admitted. The judges were of the
view that, much as this statement could strictly be admitted under section 31 they
a discretion to exclude it, as it had been procured under the threat of death and
therefore a misuse of the law. Because remember we said that the person was
followed closely by the home guard with a rifle ready to shoot, and it was as a
consequence of that he said, “Comer come and I will show you where hid the
gun”. So essentially this is an authority for the preposition that even though
technically a statement might be admissible through a strict reading of section
31, judges exercise discretion in dealing with those kinds of statements in the

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interests of the benefit of the accused and justice. Again the revisit the case
of Kenyarithi s/o Mwangi v. R, which you have on your course outline.

Section 32 is a section that we have looked at in the definition of confession. It

deals with confessions, which implicate a co-accused. It is to the effect that when
two or more people stand a joint trial or a joint defence and one confesses
implicating himself and the co-accused, the confession can be taken into
consideration not only against the maker but also to the others implicated. So
essentially here you have the Evidence Act making the confessions made by a
co-accused to actually be used against this person charged with this person. But
remember we said that in the definition of confession there is a distinction
between the definition at section 25 which would be a definition of a confession
where the accused is just talking about their own guilt and the definition of a
confession at section 32 where you have a confession that implicates a co-
accused. And we pointed out that the standards are going to be higher when
you implicate a co-accused, that here the confession that is anticipated at
section 32 has to be an express admission of guilt of all the elements of the
offence. And remember I tried to rationalize that you are talking about yourself
alone you will be careful enough not to not to just give off a statement but when
you are talking about yourself and others you may actually be a little more
relaxed when you are talking about other people than about yourself alone. And
this probably why if you look at the definition of confession at section 32 (2) it is a
more strict definition than the one you find at section 25.

In all cases, however, whether it is confession being taken in court or one person
alone to court accusing co-accused or the prisoner alone courts exercise a lot of
caution and this is actually borne out by the approach that courts have in that
section, even under section 30 and 31, they exercise caution in admitting
statements especially where you are dealing with confession implicating co-
accused. This would be what are called concrete statements and while, I believe
under section 141 of the Evidence Act accomplice evidence is admissible and
can actually found the basis of a conviction. You will see that when they look
through corroboration that the courts have as a matter of practice required
corroboration for accomplice evidence because they see as dangerous
evidence on which to found conviction. In fact normally the party is going to finish
with particular accomplice that you want to testify against another one and then
get them to testify because you don’t want them testify against their co-accused
hoping that you are going to give them something or exercise mercy towards
them or show them favours. You want to finish with their case and then get them
to testify so that they have no expectation. But again courts treat accomplice
statement with a lot of caution and especially where they are confessionary
statements, they would be unsworn statements which again courts treat with
even more caution and here again the case of Stephen Muriungi and Others v
R would be instructive.
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CONFESSIONS

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 aadmission 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 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…
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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. Hertz

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 evicence 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
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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 favour 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.

Deokinan 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 defence 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 person’s 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.

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Kaluma V. R

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
realised 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
passed.

Once a confessional statement is produced and a question of voluntariness is

raised, the burden is on the prosecution to prove the voluntariness. The accuse
need only raise doubt about the voluntariness.

Onyango Otolito V. R Page 22 Course Outline

The Appellant was convicted of house breaking and theft; the conviction was
based on a confession obtained in curious circumstances which were as follows

The accused was arrested and placed in police custody, he was removed from
the cell taken to court and charged with two offences. He was cautioned and
after the caution he made an exculpatory statement to a Police Inspector. He
was then returned to the cells where he stayed overnight and the following day,
an assistant inspector interviewed him and he admitted breaking into the
house. On the same day he was charged with the two offences again and
cautioned. He proceeded to make an incriminating statement to the chief
inspector. At the trial, the Appellant alleged that the Police Inspector tortured
him and it was as a consequence of the torture that he made the incriminating
statement. The trial magistrate had overlooked these allegations for torture and
this was an appeal against conviction.

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 The court of appeal held that the magistrate should have addressed himself to
the issue of the voluntariness of the statement. He ought to have asked the
appellant whether he admitted that the statement was voluntary. If the
Appellant denied the voluntariness of the statement, a trial within a trial ought to
have been held and this would have established the voluntariness of the
statement or otherwise.

Section 26 - words used are if it appears.

Njuguna S/O Kimani and others V. R

In this case, the Appellant were convicted of murder. There was practically no
evidence against them except 4 inculpatory statements amounting to
confessions made to a police officer in May 1954. The accused had been taken
to police custody on 15th March 1954 and remained in custody until June of that
year. There was no suspicion of their being involved of the murder in issue whilst
in custody they became suspects of being involved in the murder under
consideration and it was at this point that they made the 4 statements after they
were cautioned. The caution went like this “I have received information that you
are alleged to be connected with the offence I am inquiring into. Do you wish to
say anything followed by the usual words “anything you say might be used in
evidence’ the statement did not disclose the offence and the question was
whether these statement were admissible against the accused persons and the
court held that
1. It is the duty of the court to examine with the closest care and attention all
the circumstances in which a confession has been obtained from an accused
especially when the accused has been in custody for a long time.
2. The onus is upon the prosecution to prove affirmatively that a confession
has been voluntarily made and not obtained by improper or unlawful
questioning. The prosecution also has to prove that any inducement to make the
confession had ceased to operate on the mind of the maker at the time of the
making.

The case of Njuguna is an authority for the that its is incumbent to the prosecution
to prove the voluntariness of a confession if any doubt is alleged.
HEARSAY AND HEARSAY RULE
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
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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 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
ofSubramanium 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.
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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 don’t 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 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
ofMyers 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.”

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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 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 appellant’s 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,
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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 didn’t
call 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.”

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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
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:

the first one would be admissions, formal and informal admissions. And these are
covered at sections 17-24

confessions are another exception to the hearsay rule covered at sections 25-52

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.

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.

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.

statements in documents produced in civil proceedings are also an exception to

the hearsay rule. Section 35 and 36

Res Gestae is also an exception to the hearsay rule.

affidavit statements especially where they are based on information are also an
exception to the hearsay rule.

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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.

And also evidence by certificate covered at sections 77 and 78.

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 couldn’t 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
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he is required to give evidence. So you cannot just say that you have not been
seeing the person…if 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 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 Thornhill 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 person’s death comes into question and such
statements are admissible whether the person who made them was or was not,
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at the time when they were made, under 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 f 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 appellant’s
wife and that the appellant’s 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 appellant’s 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
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not in imminent expectation of death. But they had 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:

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.
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 related to the cause and or
circumstances of the death of the maker, not of other people. So they would
admit what was pertaining to his death, not to the death of other people.

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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.

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 deceased’s 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
ofBeddington. 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 Waugh’s 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 don’t 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 gun shot 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 the deceased died subsequently. Daki
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was charged and convicted on the basis of the statement, despite his counsel’s
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 say—he 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 Daki…nobody knows what this person wanted to say…
which means the statement was incomplete because you don’t 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.

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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 that—I think evidence of the
complainant in rape case is required by law to be corroborated. But over and
above that, courts in exercising caution—and again being guided by the need
to be fair to the accused person—have 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 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
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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

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

The company imported some blankets allegedly from West Germany, No import
licence was required for goods from West Germany, although a licence 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:
that Mr. Blok’s attendance at the trial could not be procured without
unreasonable delay of expense, that Mr. Blok’s signed document was used in the
course of business, and
that the document was actually signed by Mr. Blok, the person whose
attendance it was unreasonable to procure.

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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 post-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 one’s 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 complainant’s 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 complainant’s 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 Magandazi’s 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 Taylor’s 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
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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.”

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.

In 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
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was, could such a statement be admitted under section 33 (c ) as one against
the interests of the 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 specific—and 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 know 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 statement had special means of
knowledge, and when the statement was made before the question in dispute
was raised;”

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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.

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.

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
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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 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 sub-sections. 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 would it 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
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 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 not 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.

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 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
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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
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 Bearman’s 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

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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 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.

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.

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 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 traveller 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 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

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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 authorised 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

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 USE OF EXTRINSIC EVIDENCE IN INTERPRETATION OF DOCUMENTS
Interpretation of documents is the duty of the court. The concern of the court is
to decipher the meaning of the words as used by the parties. It is the court’s job
to find out the true meaning of a document to give effect to the true intention of
the maker of the document if the document is not self explanatory but that is
rarely the case and this is why the court needs to interpret the document.

The Evidence Act has rules on how you interpret a document and they are as
follows:
1. Documents which are unambiguous and plain should be given that plain
meaning. The presumption is that the words are used in their ordinary sense and
the parties meant what they have written. Where the language applies
accurately to existing facts, it is to be applied plainly. This is provided for in Section
100.

2. When the language used in a document is on its face ambiguous or

defective, evidence may not be given of facts which show its meaning or supply
its defects. Such a document may be unintelligible in its face and the wording
may not be capable of being comprehensible. The ambiguity in the document
on its face is said to be patent. Section 99.

3. When the language used in a document is plain but meaningless in

reference to existing facts, evidence may be given to show that it was used in a
peculiar sense. Section 101. the ambiguity in this case is said to be latent and
latent evidence can be cured by bringing in oral evidence to show that the words
were used in a peculiar sense.

4. When the facts are such that the language used in a document might have
been used to apply to any one but could not have been meant to apply to more
than one of several persons or things where evidence may be given of facts
which show to which of those persons or things it was intended to apply. For
instance a person might agree to sell a European Car and it is clear that the seller
has 3 European cars which are volkswagon, Volvo and a Peugeot and it is clear
that they meant to sell one but the words apply to all three but it is clear from the
amount of money agreed on, you may bring in oral evidence to show to which
car the agreement applied. Section 102

5. When the language used in a document applies partly to one set of existing
facts and partly to another but the whole of the documents does not apply
correctly to either, evidence may be given to show which of the two it was meant
to apply. For instance a person agrees to sell a plot in Westlands on which there
is a 3 bedroom house. In fact the person has 2 plots one in Westlands and another
in Parklands and it is clear that the one with a 3 bedroomed house is the one in
Parklands and the one in Westlands is actually an undeveloped plot. The court
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 will allow extrinsic evidence to be brought to establish which plot as the evidence
applies partly to both but it is not clear which one. Section 103.

6. Section 104 allows for extrinsic evidence to be given to show the meaning
of illegible or not commonly intelligible characters of foreign, obsolete, technical,
local and provincial expressions. For instance if in the past the government had
used the word ‘unbwogable’ later extrinsic evidence may be allowed to explain
on what context the words were used. Section 104

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EXCLUSION OF ORAL EVIDENCE WHERE A DOCUMENT IS AVAILABLE

Section 67 provides that contents of all documents should be proved by primary

evidence. Essentially the law is giving effect to what parties do i.e. to
perpetuate the memory of that which they have committed themselves to and
also to guard against fraud. The general rule then is that a transaction that has
been reduced into writing should be confined to the document and oral
evidence should not be allowed for the following reasons:

1. To avoid the use of extrinsic or oral evidence to substitute the terms

of the document i.e you want to immortalise what you have agreed to and
committed in writing.

2. To guard against the use of oral or extrinsic evidence to contradict,

vary, add to or subtract from the contents of the document.

The first concern is the concern to avoid substitution of the document and it is
found in Section 97(1) of Evidence Act. The law requires that a matter be
reduced into writing or when the parties are in agreement that the matter be
reduced into writing. The document becomes the sole memorial of what it is
that parties have gotten into.

The rule is qualified by 2 exceptions contained at Section 97(2). The exception

are:-
1. Pertaining to Wills – Wills can be proved by probate and the seal
which has letters of administration attached to it.

2. Where a public officer is required by law to be appointed by writing

if it is shown that a person has been acting as such, then the writing by which he
was appointed need not be proved. The reason is to make things workable.

Section 98 is to the effect that when a document has been produced or

Secondary Evidence of it given, all oral evidence between the parties to the
document is generally inadmissible to contradict, vary or subtract from the
contents of such document. The rule would only apply to bilateral agreement
and parties to the document. A third party or stranger would not be bound.

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There are various qualifications to this rule which are contained as a proviso to
Section 98 which is as follows: -

(i) Any fact may be proved which would invalidate any

document or which would entitle any person to any decree or order relating
thereto; such as fraud, intimidation, illegality, want of due execution, want of
capacity in any contracting parties, want or failure of consideration, mistake in
fact or law.

(ii) Extrinsic evidence may be tendered to supplement the terms

of the document. The existence of any separate oral agreement as to any
matter on which a document is silent, and which is not inconsistent with its terms,
may be proved, and in considering whether or not this paragraph of this proviso
applies, the court shall have regard to the degree of formality of the document.

(iii) Extrinsic evidence can be brought to prove that parties agreed

that a condition would be precedent to the attaching of obligations. Parties
may agree but decide that the terms are predicated on certain terms. Oral
evidence can be brought in to show the condition precedent.

(iv) Where there is a distinct oral agreement to modify or rescind a

transaction which is not required by law to be in writing or which is not registered
in conformance with the law, then the oral agreement is to be admitted.

(v) If you get into a transaction that will ordinarily be subject to

any usage or customs, then oral evidence of those usages and customs will be
admitted.

(vi) Any fact which shows in what manner language used in a

document is related to existing facts.

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PROOF OF THE CONTENTS OF A DOCUMENT

This can be done through primary or secondary evidence. For public

documents, you could use either primary or secondary evidence whereas the
contents of a private document can only be proved by primary evidence
except in instances where S. 68 of the Evidence Act allows use of Secondary
Evidence.

WHAT IS PRIMARY EVIDENCE?

Primary Evidence would be the document itself produced in court for court
inspection and perusal. Secondly primary evidence could be in the instance
where a document is executed in several parts then each part is going to be
primary evidence of the document and this contemplates a situation where you
have a tenancy and a landlord and both their parts are essential for an
agreement. Thirdly where a document has been executed in counterpart and
some of the parties have only signed the counterpart each counterpart is
primary evidence against the parties executing it. An example is a letter of offer
of employment which gets to you in a number of copies, the employer signs the
copies and when you receive you are supposed to sign them and keep
one. Fourthly where documents are made by one uniform process each is
primary evidence of the other. For instance when you buy books or
newspapers, you cannot say that one is more authoritative than the other each
will be primary evidence.

The categorisation is provided at Section 65 of E.A.

WHAT IS SECONDARY EVIDENCE

Section 66 of E.A. gives examples of secondary evidence to include

1. Certified Copies (defined at 80(1)

2. Mechanical Copies of the original, these include photocopies or

sacrostyled copies.

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3. Copies compared with the mechanical copies; read word for word
to certify correctness.
4. Copies made from or compared with the original.

5. Counterparts of Documents as against parties who did not execute

them; In the employment contract, offer is signed by employer acceptance by
the employee.

6. Oral accounts of the contents of a document given by a person

who has seen it. Mechanical copies are favoured more than oral accounts
which are often tainted by ones perception of the issues.

WHEN IS SECONDARY EVIDENCE ADMISSIBLE?

Section 67 is the basis of what is called the best evidence rule, the provision that
documents must be proved by evidence. The allowance of secondary
evidence is a concession by the law to allow the second best. The optimal will
be to have the document itself or whatever would comprise the primary
evidence. It is rarely the case that secondary evidence is permissible where you
could bring in primary evidence.

Section 68

Secondary evidence is permissible when

1. The original is in possession or power of the adverse party;

2. It is in the possession of a person outside the court’s jurisdiction; you

could not enforce the requirement that they produce

3. When in possession of a person who is immune from the court’s

process; or any person not legally bound to produce the document. Section
68(1) (a) (iii).

In all these instances, if a notice to produce the document is served on the

person, and they do not produce the original, secondary evidence of the
document may be given. Essentially you give a notice to produce and you will

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be seeking the best evidence and only when you fail to get the best evidence
you could go ahead and produce secondary evidence.

There are certain cases where the law does not require that you give a notice to
produce.

1. Section 69 Notice is not needed when the document is itself a notice

then you do not give a notice to produce. There is no essence of notifying the
person if what is required is a notice itself. This is to avoid redundancy because if
the document is a notice of motion, you need not give another notice.

2. When from the nature of the case the adverse party knows that he will be
required to produce the document.

3. When it appears or it is proved that the adverse party received the

documents by fraud or force;

4. When the adverse party or his agent has the original in court;

5. When the adverse party or his agent admits the loss of the document;

6. When the person having the document is out of the court’s reach or
immune from the process

7. In any other case where the court thinks fit to dispense with this
requirement.

Lakman Ramji v. Shivji Jessa & Sons (1965) E.A. 125

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This case considered a situation where the document was in the power and
possession of the adverse party. It was a suit for the payment in respect of extra
work done under a building contract. the case for the defendant was that it
had been agreed between the parties that a set sum would be accepted in
settlement and that a cheque had been tendered and accepted. Evidence at
the trial showed that the cheque was sent to the applicant in an envelop with a
letter which stated that the cheque was in full and final settlement. The
Applicant agreed that there was such an agreement but alleged that he had
only received the cheque without a covering letter. A Carbon copy of the
letter was produced and the trial court relied on it, together with a receipt at
the back of the cheque. On Appeal the question was whether the evidence of
the carbon copy had been properly received. It was held that in the
circumstances it was not an unreasonable inference that the Applicant had
received the covering letter. The court relied on S. 68 and 69

Sugden V. Lord St. Leonards (1876 QBD 15

The deceased made his will 5 years prior to his death. During the last 2 years of
his life, he was sick at this time, his daughter kept the box which contained the
will. She constantly opened the box and read the will’s contents. Unfortunately
the will got lost and could not be found. At the trial, it was claimed that she
could recite the contents of the will and her solicitors suggested that she write
out the purport of the will from her recitation. The question was whether this
transcript of the Will was admissible as secondary evidence of the lost will? The
court held Yes it was admissible as secondary evidence.

WHEN CAN SECONDARY EVIDENCE BE TENDERED

1. Essentially you can use secondary evidence where a notice to

produce is given contemplated at S. 69(i) of the Act. “when the document to
be proved is itself a notice.

2. The second instance where secondary evidence is allowed is where

the existence condition or contents of the original are shown to have been

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admitted by the adversary or his representative. There is no contestation so you
can produce secondary evidence.

3. When the original has been lost or destroyed or when the original
cannot be produced within a reasonable time for reasons other than the fault of
the person who wishes to rely on it. In this case destruction or loss has to be
testified to by witnesses who saw the document destroyed or have knowledge
of its loss. The destruction or loss is a matter to be ascertained by the Court and
once it is ascertained that the loss occurred without the fault of the person
seeking to rely on the evidence, secondary evidence can be tendered.

4. When the original is of such a nature as not to be easily movable for

instance writings on a building.

5. When the original is a public document for which a certified copy

may be tendered.

6. When the original is a document of which a certified copy is

allowed by the Evidence Act or any other law.

7. When the original consists of numerous accounts or other

documents which cannot be conveniently examined in court and the fact to
be proved is a general result of the whole collection, the secondary evidence
may be given.

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DOCUMENTARY EVIDENCE
Read Sections Section 64 – 106 Evidence Act Cap 80 Laws of Kenya

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.”

Define a Document

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There is no definition of a document in the Evidence Act Cap 80 and so the
definition we shall use is from a dictionary

A document is any written thing capable of being evidence irrespective of

where such writing is inscribed.

Interpretation and General Provisions Act Cap 2 defines a document as

including any publication in any matter written, expressed or described upon
any substance by means of letters, figures or marks or by more than one of those
means which is intended to be used or may be used for the purposes of
recording the matter.

A document covers a broad spectrum of things, it could be what might be

written on a tomb stone, it could still satisfy the definition of a document, even a
tattoo on someone’s body.
For purposes of evidence documents are divided into 2

1. Private Documents;
2. Public Documents;

A Public Document is defined at S. 79 (1) (a) it is defined to include documents

forming the acts or recording the acts of the sovereign authority; they will be
also documents of official bodies and tribunals. They will be records of or
recording acts of public officers whether legislative, judicial or executive,
whether of Kenya or of any other country.

Under S. 79(2) All documents other than public documents are private. it is
decreed that public records which are kept of private documents would also
constitute public documents. For instance at the Registry of Births and Deaths
people get documents that are private in nature but the Registrar has a record
of what birth certificates or deeds have been issued so the register of these
private documents would constitute a public document.

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PRIVATE DOCUMENT

They are all documents, which do not fall within the definition of public
documents. They do not constitute what is defined at S. 79 (1) (a) and (b). For
example where you have a record of a contract between two parties, that
would be a private document.

The question then is what to do when faced with a document as evidence. The
first thing is to establish whether a document is genuine. Is it a true record of
what the parties agreed to?

How do you proof that a document is genuine - this will be predicated on

whether it is a public or private document. For public documents, it is easy
because the law has devised presumptions in relation to public
documents. Public documents are much to deal with in terms of genuineness
because of the presumptions that relate to public documents.

For private documents there is a distinction whether they are attested or not
attested. Attestation signifies the witnessing of appending of a signature to a
document and this act is used to differentiate private documents. Where you
have attested documents, you get into an inquiry whether it was attested,
because the parties opted to have it attested to. You distinguish documents
attested to as a legal requirement and those attested to because the parties
chose to have them attested. Where for example you have a land sale or
mortgage, there is a legal requirement that they be attested.

To prove the execution of an attested document, you need to call the attesting
witness. The party that witnessed the appending of the signature to that
document only if they are alive, capable of giving evidence and subject to the
court proceedings. What might make one unable to give evidence? If a person

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is deranged or have lost their memory, they cannot give evidence. Section 71
of Cap 80.

Why does one call the attesting witness? To give benefit to the other party by
giving them an opportunity to cross-examine the attesting witness as to the
circumstances in which they attested the document. The law has devised
certain instances when it is not necessary to call the attesting witness. There are
at least 7 instances.

1. Where the document has been registered in accordance with legal

provisions, the assumption is that by the time the document was registered, the
matter of attestation was looked into and is therefore a non-issue. This is
provided for as the proviso to Section 71 which reads “if a document is required
by law to be attested it shall not be used as evidence until one attesting witness
at least has been called for the purpose of proving its execution, if there is an
attesting witness alive and subject to the process of the court and capable of
giving evidence.” The proviso “provided that it shall not be necessary to call an
attesting witness in proof of the execution of any document which has been
registered in accordance with the provisions of any written law, unless its
execution by the person by whom it purports to have been executed is
specifically denied.”

If there is no contestation, then you do not need to call the attesting

witnesses. The calling of attesting witnesses would be a waste of the court’s
time.

2. If the execution of the document is admitted by the executant; i.e. where

the person who is bound by the document is not contesting the validity of the
document. This is provided for at S. 73 of the Evidence Act. “the admission of a
party to an attested document, of its execution by himself, shall be sufficient
proof of its execution as against him, though it be a document required by law
to be attested.”

3. If the attesting witness denies or does not recall the fact of having
attested the document, there is no need to call the witness and the document
has to be proved by other evidence. Section 74.

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4. Where the document is in the possession of the adverse party who refuses
to produce it after a notice to produce has been given, you need not call the
attesting witness. In that case secondary evidence of the document may be
tendered. Allowing secondary evidence is an exception and by allowing
secondary evidence you are dispensing with need to call the attesting witness
and the adverse party knows that the document will be against his/her best
interest.

5. When the document is 20 years old and is produced from proper

custody, it is presumed by the court to have been attested to and executed by
dint of its age.

6. When the apparent or ostensible executor of the document has been

using it in other cases it is assumed to be a valid document. The Executor is
basically saying that all is fine with the document.

7. When the adverse party produces a document, which he claims an

interest under the document in question then the document won’t need to be
attested. (the adverse party validates the document)

If a document does not fall within the 7 instances and where the attesting
witness is not available or where the attesting witness is incapable of giving
evidence, then to prove the document, it has to be established that the
attestation of one attesting witnesses is in his/her handwriting. This is provided for
at Section 72 which reads “ where evidence is required of a document which is
required by law to be attested and none of the attesting witnesses can be
found, or where such witness is incapable of giving evidence or cannot be
called as a witness without an amount of delay or expense which the court
regards as unreasonable, it must be proved that the attestation of one attesting
witness at least is in his handwriting, and that the signature of the person
executing the document is in the handwriting of that person.”

How do you prove Handwriting?

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Section 70 buttresses the points aforementioned.

Handwriting can be proved in 4 ways

1. Where the writer of the document testifies that the document is in

their handwriting.

2. You may need to call a witness who has acquired knowledge of a

person’s handwriting this is done in different ways
(i) If you have seen the person write; there has to be proximity
(ii) If you’ve been receiving documents purporting to have been
written by that person in answer to documents written by you or under your
authority, you can be said to have acquired knowledge of that person’s
handwriting;

(iii) When in the ordinary cause of business, documents purporting

to have been written by that person have been submitted to you. For instance,
if you are a person’s secretary or copy typist, documents written by that person
would be submitted to you.

3. Calling an expert which is provided for in S. 48 of the Evidence Act,

you need to compare documents admitted as evidence with documents
written by that person.

4. Comparison by the Court under the provisions of Section 76 of the

Evidence Act. This is where you call the person to write in court and then the
court will compare the handwriting with that in the document in court.

5. You can prove handwriting if parties against whom document is

tendered admit that the handwriting on the document in question is that of the
person who is purported to have written it.

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With public documents, proof of their genuineness is not as complex because of
the presumptions that there are about public documents. The presumptions
help to dispense with prove. Look at section 82 through to 96.

The principle with regard to public documents is established at Section

80. Public Documents may be proved by certified copies. Under S. 80(2) there is
definition of who the public officer would be. “any officer who by the ordinary
course of official duty is authorised to deliver copies of public documents shall
be deemed to have the custody of such documents within the meaning of this
section.”

Under Section 81 certified copies of a public document may be produced in

proof of the contents of the document.

What is a Public Document?

In the case of Tootal Broadhurst Lee Co. Ltd v. Ali Mohammed [1954] 24 K.L.R
31 This was a case for damages for infringement of a design registered in Great
Britain. The Plaintiff relied on a document bearing the seal of the patent office
of Great Britain purporting it to be a copy of the certificate of registration of the
design. Two questions arose, was the document a public document which
could be proved through certified copies? Whether you would need to have
the document itself or did a certified copy suffice. The court held that the
certificate of registration being a document issued by authority of law, by a
public officer is necessarily a public document. Secondly, that a certificate of
registration does not come within the category of public documents which can
be proved with means of certified copies. Essentially what the court was ruling is
that this was not a public document within the meaning of S. 80(1) and could
not be proved by a certified copy
In the words of the court

“It is not however, all public documents that can be proved by means of
certified copies but only those which any party has a right to inspect.”

Essentially even though a document may seem public.

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