UNIVERSITY OF NAIROBI

FACULTY OF LAW
TAPE RECORDED LECTURES
THE LAW OF EVIDENCE

XXX
LLB II 2003

Law of Evidence II Lecture 1 JULY- NOVEMBER 2003

ILLEGALLY OBTAINED EVIDENCE

Evidence which is obtained by means or acts which are illegal or against the law.

How does a court faced with illegally obtained evidence deal with the evidence, for example
evidence obtained in violation of the constitution? It could also be evidence obtained in
breach of other statutes

A common way in which evidence is obtained illegally is through illegal searches and illegal
seizures e.g. breaking into somebody’s house and obtaining evidence, through deception,
threats, bribes inducement or trickery.

The issue has to be looked at in two ways

1. Section 20 of Police Act
2. Section 118 of Criminal Procedure Code

S. 118 of the Criminal Procedure Code deals with the power that is given to search places.
The power that a Magistrate or police officer may be permitted to search any place, building,
ship, aircraft, vehicle, box or receptacle but they have to do this through a certain procedure
i.e. Search warrant. Essentially if you search and find something you are allowed to seize it.
It could be a thing or document. If you do not have a search warrant the search may be said
to be illegal.

Section 20 of the Police Act empowers police officers investigating offences to search any
place that they believe has material necessary for the purposes of the investigation. The
requirement to get a search warrant may be dispensed with in instances where a police officer
believes that the process of getting the warrant is going to cause unreasonable delay. In
these instances what is required is that the officer should record in writing the basis upon
which they form the opinion that if they go looking for a search warrant there is going to be
inordinate delay.

There are two approaches to illegally obtained evidence

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 1. Mandatory inclusion;
2. Mandatory Exclusion

Under common law jurisprudence there is mandatory inclusion whereas under US

Jurisprudence there is Mandatory Exclusion.

In common law the status is accurately represented by the following words “it matters not
how you get it, if you steal it even, it would be admissible in evidence” statement by Justice
Crompton in R V. Leatham The only exception that is entertained under common law is
where the evidence consists of a confession which has been obtained in consequence of some
inducement or oppression. Even though Crompton says it does not matter how you get it, it
will matter if there is inducement or oppression.

A confession that is obtained as a consequence of the deception or inducement of the person

confessing is not admissible even though it be relevant. E.g. a confession made to a
colleague to a person in jail has been held not to be confessed to a person in authority.

In civil cases there is no discretion to exclude admissible evidence. But even in criminal
cases there is a conflict between 2 positions i.e. where you admit all relevant evidence to
ensure that the guilty are punished and then there is the view that to admit improperly
obtained evidence condones and encourages impropriety on the part of the police. i.e. why
go through proper channels if you can obtain evidence illegally. There is no provision in the
Evidence Act to guide us. For instance if somebody got evidence through phone tapping is it
admissible?

We look to the constitution which protects persons against being subjected to the search of
their person or property without their consent. It also protects against entry to your property
by others without your consent.

Under common law, there is the proposition that all relevant evidence is admissible
regardless of the fact that it was obtained illegally. Is this a good way to view evidence in
light of sometimes the excesses that police can be prone to? A person may be accused but
they still have certain rights. It is better that 99 guilty people go free than one innocent
person to be found guilty. It is much better that one occasional criminal go free than to
condone illegal procuring of evidence.

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

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Lloyd V. Mostyn 1842 10 M&W 478 where Chief Justice Goddard says that the test to be
applied in considering whether evidence is admissible is whether it is relevant to the matters
in issue. If it is, it is admissible and the court is not concerned with how the evidence was
obtained. This case was quoted with approval in the case of Kuruma s/o Kaniu v. R 1955 1
AELR 236 The Appellant was convicted with being in unlawful possession of two rounds of
ammunition contrary to Regulation 8 of the emergency regulations of 1952. Under the
Emergency Regulations only a police officer or an officer above the rank of assistant
inspector was empowered to stop and search an individual. The appellant was an employee
of a European settler farmer and had been granted leave of absence to go to his rural home in
the reserve. He was stopped at a roadblock, a police constable stopped him and on searching
him found him with the two rounds of ammunition and a penknife. 3 persons witnessed the
search but were not called to testify. The accused was charged and convicted of this capital
offence and sentenced to death. He appealed contending that the evidence used to convict
him was illegally obtained. The court held that the evidence was properly obtained in line
with Justice Crompton statement in Lloyd v. Mostyn.

King V. R 1969 1 AC 304

Police obtained a search warrant to search a house belonging to one Joyce Cohen looking for
Ganja and this was under the Dangerous Drugs Act. They read the warrant to Joyce Cohen
but apart from Joyce Cohen, there was the Appellant in Joyce Cohen’s House when the
police came and they did not read the warrant to the visitor. The police however searched the
appellant and another man in the house and they found the appellant with the drug. The
Appellant was tried and convicted for possession of dangerous drugs and he appealed
arguing that the warrant was not directly read to him and thus he was not legally searched.
The court should have excluded the evidence found on his person because the evidence was
unfair to him. The court held that there was no way of interfering with the way in which the
court exercised its discretion and the court went further to say that this was not a case in
which evidence had been obtained by conduct which was reprehensible insinuating that if the
conduct had been irreprehensible the court would have allowed the appeal. There was a bit
of discussion about constitutional rights concerning illegal searches.

The court in R V. King referred to the case of R v Payne [1963] 1 AER 848 Where illegally
obtained evidence was excluded but it refused to be guided by this case. The facts of this
case are that the defendant was taken to a police station following a traffic accident. He was
asked whether he wanted to see a doctor, he agreed to see a doctor. At no time had he been
told that the results of the examination might be used in evidence against him. It was not
made clear to him that the doctor would enquire on whether he was fit to drive. At the trial
for drunk driving the doctor gave evidence that the driver was driving under the influence of
alcohol and the defendant was convicted. He appealed. The appeal court quashed the
conviction on the ground that even though the evidence was admissible, had the accused
realised that the doctor would give evidence on the matter of driving under the influence of
alcohol, he might have refused to submit himself for examination and in refusing to be
guided by this case, the court in King v R stated that there was no evidence in the King’s case
of oppressive conduct or trickery on the part of the police. The court essentially seems to be
saying that illegality is graded, ie. That there is illegality that can be allowed to pass but there
are cases when it is reprehensible.

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Jeffrey V. Black [1978] QB 490 The defendant was arrested by 2 police officers of the drug
squad for stealing a sandwich from a public house. The officer improperly searched his
home and found Cannabis and the defendant was subsequently charged with possession of
drugs. The accused put up in his defence that his house was searched illegally. The first
court ruled out the evidence of the search as inadmissible having been illegally obtained.
The prosecution appealed and the appeal was allowed. The Appeal court held
1. That the mere fact that evidence is obtained in an irregular fashion does not of
itself prevent that evidence from being relevant and acceptable to court;
2. Any court has the discretion to decline to allow any evidence brought by the
prosecution if they think it will be unfair or oppressive to allow it.

R V. Sang [1979] 2 AER P 1222

The Appellant was charged with conspiracy to utter forged US Bank Notes. He pleaded not
guilty before the case opened. Counsel for the Appellant applied for a trial within a trial to
show that the Appellant had been induced to commit the offence by a police informer acting
on the instructions of the police. The appellant was averring that for the inducement, he
would not have committed the offence. Counsel was hoping to persuade the judge to
exercise his discretion to disallow the evidence of the commission of the offence. The Judge
however ruled that he had no discretion to exclude the evidence. The appellant changed his
plea to guilty and was convicted and sentenced. He appealed against the judgment and the
appeal was allowed by the court of appeal and then the state appealed to the House of Lord.
The House of Lord held that
1. A Judge in a criminal trial always has discretion to refuse to admit evidence if its
prejudicial effect outweighs its probative value;
2. Except in the case of admissions, confessions and evidence obtained from an
accused after the commission of an offence, a Judge has no discretion to refuse to
admit relevant admissible evidence merely because it had been obtained by
improper and unfair means.
3. The use by the police of an agent provocateur or an informer to obtain evidence
was not a ground on which the discretion should be exercised. Such a factor may
however be considered in mitigating the sentence imposed on the accused.
4. The defence of entrapment had no place in English Law and could not be
accepted by a Judge as a ground for exercising the discretion to exclude the
prosecution’s evidence of the commission of the crime.

It would appear that the R v. Sang articulates the common law stand succinctly if evidence is
relevant to a fact in issue it is admissible provided it is not obtained under inducement,
confession or after the commission of an offence. The common law position is almost the
opposite of the position which exists in the US Today. The US Jurisprudence tries to run
away from the law. The law that is used to exclude illegally obtained evidence is the 4 th
Amendment which reads as follows:-
“the right of the people to be secure in their persons, houses, favours and effects
against reasonable searches and seizures shall not be violated and no warrant shall
issue but upon probable cause supported by oath or affirmation and particularly
describing the place to be searched and the persons or things to be seized.”

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The question as to whether illegally obtained evidence is admissible in the US has been
debatable.

Weeks V. United States 232 US 283

The police went to defendant’s house without warrant, they searched and took possession of
various papers and articles that they found in that house and these were turned over to the
courts. The police later went to the premises hoping to get more evidence and carried away
more letters and this second search was also without a warrant. The whole question as to
whether evidence obtained by the police and the prosecutor was admissible was discussed
and the judges stated “if letters and private documents can thus be seized and held and used
in evidence against a citizen accused of an offence, the protection of the 4 th Amendment is of
no value.”
This was a Supreme Court Decision .

In Wolfe V. Colorado it was suggested that there was need for a uniform rule, even after the
Weeks case the courts had continued to apply common law rules and in this case of Wolfe
the court decided to have a uniform rule.

Map V. Ohio 367 US P 643

The defendant was convicted in an Ohio state court for possession of obscene literature. The
conviction was affirmed by the Ohio Court of Appeal and later by Ohio state supreme court.
The obscene materials were discovered during a search that was not subject to a warrant on
the defendant’s house. The Ohio supreme court held that evidence obtained by an unlawful
search and seizure is admissible in a criminal prosecution. The court continued to state that
under the Supreme Court of United States in Wolfe v. Colorado a state was not prevented by
federal constitution from adopting the rule as it prevailed in Ohio. On appeal to the US
Supreme Court it was held that as a matter of due process evidence obtained by a search and
seizure in violation of the 4th amendment is inadmissible in a state court as it is in a federal
court. If the supreme court holds evidence to be inadmissible it should apply across the
board.

The US Courts have gone even further and held that even if the evidence is not obtained
illegally, where such evidence is obtained in such a manner as to be reprehensible according
to the spirit of the constitution, such evidence shall not be admissible. Note the importance
that jurisprudence attaches to people’s rights.

In Kenya the reigning position is that in Kuruma s/o Kaniu v. R. This Case has been
criticised in the context within which it was decided. It was decided during emergency
regulation times not withstanding provisions of S. 76 of the Constitution. The position
seems to be that the end justifies the means.

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UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

Law of Evidence II Lecture

DOCUMENTARY EVIDENCE

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

Part Three

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

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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

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 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.
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 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.

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?

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

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 (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.

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

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“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,

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.
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?

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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 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

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
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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 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.
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 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.

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.

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.

14
 (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.

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

15
 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
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

7. Persons that are not parties to a document or their representatives in interest may
give evidence of any facts tending to show a contemporaneous agreement varying
the terms of the document. Section 105 this is a retaliation of Section 98 which
provides that extrinsic evidence can be brought in.

UNIVERSITY OF NAIROBI
16
FACULTY OF LAW
XXX
LLB II 2003

Evidence II- Lecture 3

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 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 of Subramanium v
Public Prosecutor (1956) WLR 965. And the facts of this case were as follows: The
appellant was charged and convicted of being in possession of firearms without lawful

17
excuse. In his defence, he asserted that he was acting under duress in consequence or a result
of threats uttered to him by Malayan terrorists. When he attempted to state the contents of the
threats, he was overruled by the judge. He appealed against conviction arguing that the judge
should actually have listened to what the import of the threat was. And of course the judge
would have argued that if he was allowed to say what the terrorists had told him that would
be hearsay. The court of appeal held that the conviction had to be quashed because what the
terrorists told the appellant should have been admitted as original or direct evidence. It would
have shed light on subsequent actions of the appellant.

So essentially here what the court is saying is that the appellant should have been allowed to
utter the threat because they would not have been threatening-may be he was told if you
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 of Myers v DPP
1964 2 All ER 881. This is a case you must read. The appellant in this case was charged and
convicted of receiving a stolen motor vehicle. He was in the business of buying wrecked
motor vehicles for repair and resale. The chief prosecution witness was the person in charge
of the records department of the relevant motor vehicle factory. He testified that every time
that a car was manufactured a workman would note down the engine number and the chassis
number of the car amongst other details and these would be marked on some card. He also
testified that the cylinder head number would be indelibly struck on the cylinder head block
so as to be inerasable. The card would then be microfilmed and stored. At the trial the
microfilms were produced on oath by the witness and schedules were prepared from this
microfilm. The schedules showed that the cylinder block numbers of the car in question
belonged to the car allegedly stolen. The appellant was convicted on the basis of this
evidence. The court of appeal affirmed the conviction and the appellant appealed to the
House of Lords. The House of Lords held that the trial court and the court of appeal
improperly admitted hearsay evidence in the form of the microfilm and Lord Reid at page
884 stated: “The witness would only say that a record made by someone else showed that if
the record was correctly made a car had left the workshop bearing three particular numbers.
He could not prove that the record was correct or the numbers which it contained were in fact
the numbers on the car when it was made.”

Do you see the argument here? That essentially the basis of the microfilm was not something
that the witness could testify to because he did not put in the particular entry. He did not
18
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, 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.
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Another case is the case of Tenywa v Uganda (1967) EA 102(U). The accused was accused
of having stolen a bicycle. The bicycle was seized by police officers acting on this
information. On examination the bicycle was found to have a forged number plate. The
accused was convicted of the offence but appealed and on appeal it was held that the police
report from Kampala suggesting that the original number on the bicycle was altered was
hearsay. It should not have been admitted. Because essentially there was nobody to say this
was the number. When you say there was a fake number on the bicycle you are basically
saying that it is not the number that was on it, so you should have a person to testify to what
was actually the original number. But just to say that it has been changed, even saying that
what has been found is what was. Because essentially the person that marked the number on
the bicycle was not called to give evidence.

The learned trial magistrate was wrong in law to have admitted in evidence the report alleged
to have been obtained from Kampala, which suggested that the original number of the
(stolen) bicycle had been altered. That piece of evidence was hearsay and should not have
been admitted… unless the expert who had examined the bicycle had testified before the
court and been cross-examined on the point as to how he arrived at his conclusion.

Over and above those cases you should also look at the cases of

Magoti s/o Matofali v R (1953) EACA 232.

“A plan of the locus … was made and produced in evidence by a police corporal. Various
points on the plan are marked with letters and it bears a legend showing what these points
represent… as to what each point represented he merely said ‘I got the information from
Antonia, (P.W. 2), as to positions and ownership.’ ‘This, of course, was merely hearsay and
his evidence should have been supported by the evidence of the witness Antonia to the effect
that she had, subsequent to the event, pointed out to the corporal the places where the various
incidents, to which she had testified, had taken place.”

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

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

20
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.

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-“

21
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 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 Thorhill 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
22
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, 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 not in imminent

23
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.

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
24
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 of Beddington.
You should also look at the case of Waugh v R (1950) AC 203 (PC). R v Beddington (?),
you looked at that when we were looking at res gestae or was it similar facts? In 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 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
25
is no requirement that there be corroboration or independent credible evidence fortifying a
particular statement, and in this case a dying declaration. There is no requirement of law.

But here one of the points they noted was that as a matter of practice the court should always
require corroboration. And they said that the weight of a dying declaration that is made in
circumstances suggesting that the person might have said something more, must be less than
the one that is fully made. A dying declaration that is made in circumstances that suggest
that the person may have said other things but he was prevented from saying those other
things because he expired, the weight attached to that dying declaration must essentially be
less than one that appears to be complete. And over and above that the principle that even
though law will not require you to corroborate a dying declaration, as a matter of practice the
court should always require that such be corroborated. And that is going to be the final
requirement of a dying declaration. A dying declaration requires corroboration as a matter of
practice. When you look at rules on corroboration, you will see that the law on evidence
requiring corroboration is generally divided into two.

There are those circumstances where the law actually requires that you get corroboration.
Like when you have evidence of children of tender years. There are a number of cases where
the law requires 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
26
the receipt of money, receipt books, or documents used in commerce. These would be
admissible as an exception to the hearsay rule. And the assumption here is that the person
making them has no motivation to falsify them. They are kept in the ordinary course of
business; they would actually be entered.

But remember in the case of Myers v the DPP what seems to have been record that were
kept in the ordinary cause of business were actually ruled to be hearsay because the person
making them did not actually come to testify to them. And this is again to talk to the
introductory part of section 33, that it has to be that the person is dead, cannot be found, is
incapable of giving evidence, cannot be procured or even they can be procured it will be as a
consequence of delay and expense which is unreasonable. So in Myers v the DPP it was not
established that a person had died, or could not be found. So essentially for this book to be
admissible it is not for all time. The exception comes in because what is contained at the
introduction at section 33 is already applicable, that there is a problem in getting this person
here because they are dead, etc.

And the cases to look at there are

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.
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.

27
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 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:
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“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 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,
29
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;”

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.
30
Statement relating to family affairs

The next exception is at (f), statements relating to family affairs. Those will also be
admissible and these ought to be made by persons who would have knowledge, again. And
they could also be on tombstones, family portraits, or other places where such statement
should be made. It could also be in a will or a deed. So if you have a statement relating to
family affairs in any of those places and it is made by a person who cannot be called as a
witness, it would be accepted as an exception to the hearsay rule. And the assumption here is
that there will be nobody inserting falsities in those kinds of places, where you are talking of
a tombstone, a family portrait or a will or a deed. Those are solemn documents, so if you
have those kinds of statements made by person who cannot be called as witnesses, there will
be admissible.

Statements made by persons who cannot be called

Then at section 33 (g) where you have statements made by persons who cannot be called,
which are contained in a deed or other transaction that establish a custom, those will be
admitted. When a statement is contained in any deed or other documents which related to any
such transaction as mentioned in section 13 (a). 13 (a) gave the establishment of customs or
rights. Those would be admissible. And again here you are talking about statements that
show when the custom or the right was created, when it was claimed, where it was modified,
instances when it was recognized, or when it was asserted or denied. All these could be
admissible if they are made by a person who cannot be called as a witness. And this
provision includes private as well as public rights. So it is not just for public rights. It is also
for private rights.

Statements made by several persons expressing feelings or impressions

And finally under section 33, statements made by several persons expressing feelings or
impressions on their part, which are relevant to the issue in question. So if a number of
people who cannot be called as witnesses had made statements expressing their feeling or
impressions which feelings or impressions are relevant to the matter in question, that is
going to be admissible. For instance, if you have a number of people saying they were
apprehensive, they had made statements to the effect that they were apprehensive that
something was happening or that they got the impression that things were not being done in
the way they should have been done. And again here 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
31
is when those passes operate. So if you are bringing a statement when the maker is not dead,
it is not going to be admissible.
If you are bringing it when it is not against the interests of the maker or it is against the
interests of the maker but the person could still be found to come and testify to the issues
directly, then it is 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. Is that clear? So I think we will stop there.

UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003
Law of Evidence II Lecture 4
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.

32
 2. The adverse party must have had the right and opportunity to cross examine the
witness in the first proceeding.
3. The questions in issue were substantially the same in the first as in the subsequent
proceeding.

Nassir Haji Page 18 7th Case course outline

A witness had given evidence before the magistrate at the preliminary inquiry and then
proceeded to England on leave. He proceeded on leave before counsel for the accused had
reserved his cross-examination and defence. During the trial in the High Court the evidence
of the witness was admitted under S. 33 of the E.A. (a person who cannot be found) on
appeal, admission of this evidence given in the preliminary enquiry was
challenged. The court held that the evidence had been properly admitted as there was a right
as well as an opportunity to cross-examine at the enquiry. The fact that the counsel for the
accused had not exercised that right was not the point, the point was that they had
opportunity and a right they did not exercise and could not now say that the witness was not
available.

The requirement that the questions in issue should be substantially the same presents
problems to the courts. Why take them back to court if they have been dispensed with? It is
applicable where you have a retrial, i.e. on appeal where a retrial is ordered. There is also the
question as to whether the previous proceedings was criminal and the current one a civil are
the questions the same? One needs to go back to notes on Res Judicata and when that
applies and read again

Queens Drycleaners V. East African Community

Under Section 35 statements in documents produced at a civil proceedings are admissible as

an exception to the hearsay rule. S. 35 is to the effect that a written statement is admissible
to prove the facts contained in it if it is made by a disinterested person with personal
knowledge of those facts or if it is made by one who in the discharge of his duty records
information supplied to him by a person with personal knowledge. The recipient of the
information who would be recording it should be recording it in a continuous record. In some
circumstances 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
33
Lord Devlin stated in page 52 “no witness ought to be held to be a person interested on a
ground that would not be taken into consideration as affecting the weight of his evidence if it
were actually in court” Lord Devlin is saying that the question as to who an interested
person is 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.

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

34
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 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

35
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

UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

LESSON FIVE

CONFESSIONS

What are confessions, what are the rules of evidence that govern admissibility of
confessions?
36
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…

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

37
Under 25 definition of confession includes both an express admission of an offence as well
as admission of incriminating facts, there is express and implied. The words “whether taken
alone or …

Section 32(2) the confession has to have the effect of admitting in terms either the offence or
substantially all the elements constituting the offence.

When you implicate another person, the rules get more stringent, but when you admit your
own guilt without others it is assumed that you will be careful enough not to get put down for
a specific offence.

Commissioner of Customs & Excise V. Herz

In this case, while in the course of investigating a suspect fraudulent failure by a company to
pay tax, customs officers subjected Hertz to interrogation lasting 3 hours. During the 3
hours, Hertz made incriminating admissions. The power to interrogated 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

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

38
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.

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.

UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

39
LAW OF EVIDENCE Lecture FIVE

CONFESSIONS CONTINUED

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.

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

40
 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.

ARE VOLUNTARY CONFESSIONS ALWAYS ADMISSIBLE?

No! A voluntary confession is not always admissible. A confession has to conform to

technical rules established in Section 28 and 29.

Section 28 deals with people making confessions whilst in police custody. Even though a
statement be voluntary if it is in violation of Section 28 it will not be admitted, it has to have
been made in the presence of a Magistrate or Police Officer of the rank of sub Inspector and
above.

Section 29 – this deals with statements or confessions taken by police officers by persons
who are not in police custody.
Criminal Law Amendment Bill seeks to amend Section 28. right now the law is that there is
a distinction of confessions made by people in police custody and those not in police custody.
There have been arguments against the wide powers given to the police in taking
confessions. This comes in the backdrop of what was the position in the Indian Evidence
Act, confessions made to police officer of whatever rank were not admissible and the issue of
have confessions made to police officer of whatever ranks is an offshoot of the emergency
period and had been brought in for expediency.

The amendment seeks to make confessions admissible only when they are made in court.

Who is a Police Officer? For the purposes of this section a Police Officer includes all
persons that are vested with the powers of a police officer by law. It is not restricted to
persons in uniform but whoever is empowered by law to exercise those powers they would
fall in this category. It also includes police officers in foreign countries (see Kaluma V. R)

Masola bin Msembe

This case defines a police officer and is to the effect that if a person is arrested by persons
performing the duties of a police officer in the service of a foreign country, then for the
purposes of our law, those would be police officers.

The question of rank is seen as important, the fact that you have delineation suggests that
rank is important.

41
Kenyarithi s/o Mwangi V. R

This stresses the importance of rank and in this particular case statements taken by a police
corporal were held to be inadmissible because they did not adhere to rule on rank

R V. Mwanda and others Crim Case NO. 100 of 1977

It held that rank is a rough and ready measure of intelligence and responsibility it is assumed
that once an officer attains a particular rank, a measure of intelligence and responsibility is
assumed. This may not always be the case but it is so assumed.

Section 28 – confessions made in police custody are only admissible if made in from of a
police officer of the rank of sub inspector or magistrate and the question is it relevant to
whom the confession is addressed what is important is in the presence of whom.

Ngumba & Others V. R

This case 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 requisite rank is present.

Rashidi s/o Sadala V. R (1950) 17 E.A.CA. 24

Accused made a confession to a fellow prisoner in remand and it was in the presence of the
governor of the remand prison. The question was whether that confession would be
admissible. 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.

R V. Shamsuddin Kassim (1944) 11 E.A.C.A. 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.

In Rashidi Sadala, the point is that the term police officer is broadly interpreted and we are
looking at the level of police officer the governor of the prison might be.

Joseph Ndung’u Kimani V R (

Ishmael Kanyari V. R

Immediate presence of a police officer

WHAT IS POLICE CUSTODY?

Is it jail? Cells?
42
The interpretation is that police custody does not refer to cells 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. You don’t have to have been placed under arrest it could be
a situation where a police officer has summoned you and you could not depart where they
could prevent you from leaving.

R V. Sangutet Page 23 of course outline (question of what is police custody)

What is the evidential value of statement that are made in police custody? We are looking at
the fact that their voluntariness is going to be an issue and also at the capacity for abuse of
power. By authority of the case of Njuguna s/o Kimani, a statement that is made in police
custody is not necessarily inadmissible but it has to be scrutinised to see whether it was
voluntary or not.

Judges Rules that have to be adhered to when taking confessions besides rules in S. 28 and
29. there are 9 judges rules and the fact that you have all the safeguards

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; this is giving the police officer a wide net and they are mandated to put
any question to any person in custody or not.
2. When a police officer decides to charge a person with a crime, he should caution
that person before putting any questions to them.
3. Persons in custody should not be questioned without a caution being administered
4. If a prisoner wishes to volunteer any statement, the usual caution should be
administered with the last words of caution being be given in evidence.
5. ‘Do you wish to say anything in answer to the charge?’ You are not obliged to
say anything in answer to the charge unless you wish to do so but whatever you
say will be taken down in writing and may be given in evidence. (care should be
taken to avoid any suggestions that a person’s answers can only be used in
evidence against a person coz it can [prevent people from making statements.
6. Where a prisoner gives evidence before the administration of a caution. Such
statement is not rendered inadmissible merely because of the lack of caution but
in such a case, a caution should be administered as soon as possible.
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 about what he said.
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. Nothing should be said or done by the police to invite a
reply. If the person charged wishes to make a statement in reply, the usual
caution should be administered.
9. Any statement made in accordance with Judges rules should whenever possible be
taken down in writing and signed by the person making it after it has been read to
him and he has been invited to make any corrections he may wish.

43
The criminal procedure in this country make these rules applicable in Kenya where the law is
silent.

Applicability of the Judges Rules has been discussed in the following cases

Anyangu V. R (1968) E.A.L.R

Ibrahim V. Republic (1914) A.C. 609

R V.Voisin (1918) 1 KB

These are rules of practice in the taking of confessions not necessarily legal rules. They are
in the interest of the accused.

RETRACTED AND REPUDIATED CONFESSIONS

When a statement made by an accused person is produced in trial, the accused may allege
that they never made the statement. They may admit having made the statement, but allege
that they only made it because of 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.. where the accused admits having made the statement but says that
they only made it as a result of an inducement threat or promise, the accused is said to have
retracted the statement

Tuwamoi V. Uganda

This case distinguishes retracted confessions from repudiated ones.

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 had 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 person avers he never made. the judges in that case proceeded to say that in
terms of effect, there is not really much difference between a repudiated confession and a
retracted confession because the implication are the same that is 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 particular.

To determine whether a repudiated or retracted statement is admitted, there is going to be a

trial within a trial. The procedure for a trial within a trial is given in the case of

Steven Muriungi & Others V. R

The usual practice is for the defence to raise the issue of repudiation or retraction, the
prosecution calls witness to prove that the statement was properly taken and they can be
cross examined. The accused could make a written statement challenged the statement or opt
to give a statement on oath or call witness to attest to the evidence. It is up to the Judge to
decide whether a statement was admitted or whether it was properly taken. A trial within a
44
trial happens in both the High Court and the Magistrate’s court. Where there are assessors,
they are required to leave the court during the trial within the trial. If the statement is ruled
admissible, the trial within a trial is repeated for the benefit of the assessors.

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 the accused opts to use, it should be
recorded in that language. This is to obviate or avoid the risk of the accused saying that they
were misunderstood or where they may even say that they were at cross purposes with the
recorder of the statement.

If an interpreter is used in the making of the statement, both the original statement and the
translation must be produced to verify the accuracy of the translation. Essentially, the
balance tilts in favour of the accused person.

Onchau s/o Osigai V. R (1956) 23 E.A.CA. 586

This authority for proposition that the interpreter has to be competent, responsible persons
and in interpreting care has to be taken to conform to rule 7 of the judges rules.

Section 30 of Evidence Act

Goes against the grain of Sections 26, 27 28 and 29 the amended seeks to repeal Section 30.
what is the use of having safeguards? The courts have ruled that judges always of discretion.

Nayinda S/O Batungwa V. R (1959) E.L.R 288

This case provides that the judge has discretion and in exercising the discretion the judge will
look at the totality of the circumstances and decide in the fairness of justice to the accused
person. It will not always be admissible and the Jude could still exclude it. The
circumstances do not render the statement inadmissible but the judge can allow or disallow.

Section 31:

Confessions that lead to discoveries. Was a confession voluntary or not. If it leads to

discovery, both the facts discovered and that … are admissible in evidence.

Statement taken whether voluntary or not and leading to discovery. The evidence as relates
to leading to discovery will be admissible. The possibility of Section 31 may be abused by
the police officers seeking to secure a conviction. The police can plant evidence and it is
important for the judge to ascertain the truthfulness of the discovery whether it is real or a
staged discovery. The criminal law amendment bill seeks to repeal Section 31.

Sawe Arap Kurgat (1938) K.L.R 68

45
Mwangi s/o Njoroge V. R 91954) E.A.CA. 357

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 provisions. The facts were as follows
The accused was surprised in an ambush by two Homeguards, he shot one of them dead
while the other one escaped unhurt. The accused was seeing stooping as if to hide something
and he then came to the other 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. The
Judges were of the view that much as the statement could be technically admitted under
section 31, they had a discretion to exclude it as it had been procured at the threat of death
and therefore misuse of the law.

Kenyarithi s/o Mwangi V. R

Section 32 – Definition of confession. Confessions that implicate a co-accused.

It is to the effect that where two or more people stand a joint trial and one confesses
implicating ….. the confessions can be admitted. The anticipated confessions at S. 32 has
to be

Definition more strict than the one found in S. 25.

Courts exercise a lot of caution in admitting statements especially where they are dealing
with accomplice statements. While under S. 141 accomplice evidence is admissible and can
found the basis of a conviction, courts have as a matter of practice required corroboration for
accomplice evidence.

Muriungi V. R. – caution exercised by courts in dealing with accomplice evidence.

46
UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

Evidence II-Lecture FIVE

CONFESSIONS CONTINUED

Would that be voluntary or involuntary and you will remember the case of Deokinanan v R
and all that knowledge is going to put you in good stead in looking at the question before
you. So once a confession statement is produced and a question of voluntariness is raised the
burden is on the prosecution to prove that the statement is voluntary. So if an issue as to the
voluntariness or otherwise of a statement raised, the burden of proving that voluntariness is
on the prosecution. The accused need only raise doubt about voluntariness. So the accused is
not duty bound to establish conclusively that he was induced or threatened into making the
confession. They only need to raise a doubt as to the voluntariness of the circumstances
surrounding making of the statement.

And the case to look at here is the case of Onyango Otolito v R (1959) EA 986. The
appellant in this case was convicted of housing 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.

[Exculpate-to free from blame or accusation. Exculpation. Exculpatory]

An exculpatory statement is a statement that denies guilt.

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 he was
tortured by the Police Inspector and it was as a consequence of the torture that made the
incriminating statement. So he was trying to explain away the incriminating statement as
having been motivated or having been as a consequence of torture. The trial magistrate had
overlooked these allegations of torture. And this was an appeal against conviction. The Court
of Appeal held that the magistrate should have addressed himself to the issue of the
47
voluntariness of the confession. 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
or otherwise of the statement. So essentially here the principle that is being established is that
if an accused person in court raises the issue of voluntariness of a statement that they made it
is incumbent upon the court to inquire into the circumstances under which the statement was
made because if you read section 26 of the Evidence Act the words used are if it “appears”
and if it “appears” is a very light burden of proof; there is not much that is expected of the
accused other than making it apparent that the statement is not voluntary. And once the
question of voluntariness is raised, it is incumbent upon the court to enquire and they enquire
through a trial within a trial.

[Section 26: “A confession or any admission of a fact tending to the proof of guilt made by
an accused person is not admissible in a criminal proceeding if the making of the confession
or admission appears to the court to have been caused by any inducement, threat or promise
having reference to the charge against the accused person, proceeding from a person in
authority and sufficient, in the opinion of the court, to give the accused person grounds which
would appear to him reasonable for supposing that by making it he would gain any advantage
or avoid any evil of a temporal nature in reference to the proceedings against him.]

And again here the case of Njuguna s/o Kimani and Others v. R is illustrative (page 22, 8th
case from the bottom). In this case, the appellants were convicted of murder. There was
practically no evidence against them except for four inculpatory statements amounting to
confession made to a police officer in May 1954. The accused had been taken to police
custody 15 March 1954 and remained in custody until June of that year (1954). There was no
suspicion of their being involved with the murder in issue. While in custody they were being
held on other grounds but there was no suspicion that they were involved in the murder that
was the issue of this particular trial. There was no suspicion that they were involved in this
murder. They had been held from the 15 of March and were held cumulatively until June
1954 but there had not been suspicion that they were involved in the murder until the end of
March. Only two weeks after they had been put into custody that they begun to be suspected
of the murder under consideration.

It was at this point that they made the four statements and they made the statements after they
were cautioned and the caution that was given to them 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: ”What will you say might be taken
against you in evidence or might be used in evidence”. The caution did not disclose what the
offence was. And of course the question was whether these statements were admissible
against the accused persons. And the court held that
(1) that 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
in circumstances 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. So essentially what we
are saying is that the case of Njuguna s/o Kimani and Others and Onyango Otolito
48
 v R, are authority for the proposition that it is incumbent upon the prosecution to
establish the voluntariness of a confession statement, once doubt has arisen. And of
course in this particular case, the statements were admitted because of the
circumstances in which they were made, and in the case of Njuguna s/o Kimani and
Others it emphasizes that the prosecution has to prove the voluntariness of a
confession if any doubt is raised as to that voluntariness.

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
49
(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 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
50
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 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.
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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 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.

52
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 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
53
 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 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.

54
 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 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.

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
56
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 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
57
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.

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
58
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 of Nayinda 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; 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

59
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 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 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
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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.

Next: Character Evidence

UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX
LLB II 2003

LAW OF EVIDENCE II LECTURE SIX

EVIDENCE OF CHARACTER
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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.

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?

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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.

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

63
might be drawn or could be drawn against him. People may draw an inference that one who
refused to testify has something to conceal.

On the other hand, if they chose to testify and had a previous record, they could be cross-
examined from the previous records and this is why you have in the CPC and the
Constitution the right to silence on the part of the accused person which is meant to guarantee
that the right to keep silent is not going to invite an inference that something will be held
against you. The prosecution has no right to comment on the silence of an accused person.

It is explicitly provided that the prosecution has not right to comment on the silence of an
accused person. S. 77 mandates an accused to keep silent.

The question has arisen that since the prohibition of commenting is on the prosecution, can
the judge comment. Under S. 127 (2) (3) and in the case of

R v. 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?

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.

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Sections 156 and 57

S. 57 and 156 embody these rules.

In cross examination a person can be asked any question and it does not matter that that
question is incriminating. Under S. 57 evidence or cross examination of an accused on bad
character evidence is inadmissible unless one of the 5 exceptions to that section apply.

S. 57 (2) in criminal proceedings, the fact that the accused person has committed or been
charged with an offence other than that with which …
Bad character evidence is inadmissible unless one of the 5 exception apply

Scholars of evidence have tried to explain away the apparent contradiction and Sir Cross on
Evidence tries to reconcile those views by saying that under S. 156 one would have to be
looking at the narrow construction of the contradiction limiting S 156 to instances where
questions permitted would incriminate the accused person directly and disallowing those that
do not incriminate him indirectly.

The other view is the broader construction where both direct and indirect incriminations are
allowed irrespective of whether the accused has thrown or not thrown away the shield. The
contradiction remains as we do not yet have a judicial interpretation. There is no definitive
rendition.

Section 57 has exception.

Unless
The five sections of S. 57 (aa) to (d) under S. 57 1(aa) evidence of bad character will be
admissible as evidence of fact in issue
Where it comprises similar fact evidence, Section 57 (1) (a) provides that it will be
inadmissible unless …

R V. Cockar

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
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said that evidence of good character is admissible but it lays the path open for prosecution to
counter that evidence. If an accused person is telling the court that he is a good evidence, the
prosecution can show the court that he is not such a good person after all. The accused lays
himself bare for the prosecution to show the court that he is not as good as he alleges.

Maxwell v. DPP

Maxwell a medical doctor was charged with illegally procuring an abortion. He denied the
offence and stated that he had a good clean moral life and upon his assertion that he had a
good clean moral life, the trial judge allowed the prosecution to cross-examine him on
another charge where he had been charged with procuring an abortion but he had been
acquitted. It was held that the previous charge was not evidence of bad character because it
did not result in a conviction. But over and above that the court stated
“if the prisoner by himself seeks to give evidence of his own good character for the purpose
of showing that it is unlikely that he committed the offence charged, he raises by way of
defence an issue as to his good character so that he may be fairly cross-examined on that
issue to show the contrary. The reasons that you have cross examination on the accused is
for two purposes
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

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R v Winfield

The accused was charged with indecently assaulting a woman. evidence was given of the
accused good character. He had a previous conviction for larceny. The court allowed the
prosecution to 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

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
67
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 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)

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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.

Evidence II-Lecture Six

Character evidence cont’

[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 Act defines 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
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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 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
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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 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.
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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.

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 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”,
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 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 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
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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.

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
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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 (Section 77); 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 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
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 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.

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.

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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 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 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
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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 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
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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:

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.
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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 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).

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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 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 that casts aspersion on the
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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.

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
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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.

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
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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 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.

UNIVERSITY OF NAIROBI
FACULTY OF LAW
XXX

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LLB II 2003

OPINION EVIDENCE

LESSON SEVEN

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 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
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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.

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.

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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 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

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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 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.
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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 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
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 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.

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.

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 opinion.

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