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ILLEGALLY OBTAINED EVIDENCELaw of Evidence II Lecture 1

20.1.03

ILLEGALLY OBTAINED EVIDENCE

Its evidence obtained by;-Breach of a defendants rights.-Tee!hone ta!!ing-Breach of contract-Tortious action"o##on Law$ % evidence !rovided it is reevant is ad#issibe in%#erican &urisdiction.'th a#end#ent outaws iegay obtainedevidence-iega sei(ure.)enyan Law$ *ient on iegay obtained evidence.Sec 76 of the constitution deas with iega searches+ entry and sei(ure.

76(1) E,ce!t with his own consent no !erson sha be sub&ected to

the search of his !erson or his !ro!erty or the entry by others onhis !re#ises.(2) othing contained in or under the authority of any Law shabe hed to be inconsistent with or in contravention of the sectionto e,tent that the Law in uestion #a/es !rovisiona That is reasonaby reuired in the interest of defense+ !ubicsafety+ !ubic order+ !ubic #oraity+ !ubic heath+ town andcountry !anning+ the deveo!#ent and utii(ation of any other!ro!erty in such a #anner as to !ro#ote the !ubic heathb That is reasonaby reuired for the !ur!ose of !ro#oting therights or freedo#s of the !ersons

c that authori(es an ocer or agent of the govern#ent of )enya+or of a oca govern#ent authority+ or of a body cor!orateestabished by Law for !ubic !ur!oses+ to enter on the !re#isesof a !erson in order to ins!ect those !re#ises or anything thereonfor the !ur!ose of a ta,+ rate or in order to carry wor/ connectedwith !ro!erty that is awfuy on those !re#ises and that beongsto ov+ authority or body cor!orate+ as the case #ay be ord that authori(es for the !ur!ose of 444444444or in order of acourt in civi !roceedings+ the entry u!on !re#ises by order of acourt

and e,ce!t so far as that !rovision or+ as the case #ay be+ anything

done under the authority thereof is shown not to be reasonaby &usti5abe in a de#ocratic society.%so Sec 118 Criminal Procedure Code !rovides !oice with !ower toissue a search warrant$

“6here it is !roved on oath to a court or a #agistrate thatanything u!on+ with or in res!ect of which an o7ence has beenco##itted+ or anything which is necessary for the conduct of aninvestigation into an o7ence+ is+ or is reasonaby sus!ected to be

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in any !ace+ shi!+ buiding+ aircraft+ vehice+ bo, or rece!tace+ thecourt or #agistrate #ay by written warranty caed a searchwarrant #ay authori(e a !oice ocer or a !erson na#ed in thesearch warrant to search the !ace+ buiding+ shi!+ aircraft+ vehice+bo, or rece!tace which sha be na#ed or described in the

warranty for that thing and if the thing #ay be found+ to sei(e itand ta/e it b' a court having &urisdiction to be deat with accordingto aw.”

Section 20 (Police Act Cap24)8cer of !oice station+ where reasonabe grounds e,ist+ for!ur!oses of investigation+ is i/ey to be found and unreasonabedeay #ay be there; he can !roceed without a search warrant$ iethe discretion is the !oice9s. In the fa#ouse case of

Evidence which is obtained by #eans or acts which are iega or against

the aw.

:ow does a court faced with iegay obtained evidence dea with theevidence+ for e,a#!e evidence obtained in vioation of the constitutionIt coud aso be evidence obtained in breach of other statutes

% co##on way in which evidence is obtained iegay is through iegasearches and iega sei(ures e.g. brea/ing into so#ebody9s house andobtaining evidence+ through dece!tion+ threats+ bribes induce#ent ortric/ery.

The issue has to be oo/ed at in two ways1. *ection 20 of <oice %ct2. *ection 11= of "ri#ina <rocedure "ode

*. 11= of the "ri#ina <rocedure "ode deas with the !ower that is givento search !aces. The !ower that a >agistrate or !oice ocer #ay be!er#itted to search any !ace+ buiding+ shi!+ aircraft+ vehice+ bo, orrece!tace but they have to do this through a certain !rocedure i.e.*earch warrant. Essentiay if you search and 5nd so#ething you areaowed to sei(e it. It coud be a thing or docu#ent. If you do not havea search warrant the search #ay be said to be iega.

*ection 20 of the <oice %ct e#!owers !oice ocers investigatingo7ences to search any !ace that they beieve has #ateria necessaryfor the !ur!oses of the investigation. The reuire#ent to get a searchwarrant #ay be dis!ensed with in instances where a !oice ocerbeieves that the !rocess of getting the warrant is going to causeunreasonabe deay. In these instances what is reuired is that theocer shoud record in writing the basis u!on which they for# the

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o!inion that if they go oo/ing for a search warrant there is going to beinordinate deay.

There are two a!!roaches to iegay obtained evidence1. >andatory incusion;

2. >andatory E,cusion

?nder co##on aw &uris!rudence there is #andatory incusion whereasunder ?* @uris!rudence there is >andatory E,cusion.

In co##on aw the status is accuratey re!resented by the foowingwords Ait matters not how you get it, if you steal it even, itwould be admissible in evidence state#ent by !"tice C#o$%ton in C D. Leatha# The ony e,ce!tion that is entertained under co##onaw is where the evidence consists of a confession which has beenobtained in conseuence of so#e induce#ent or o!!ression. Even

though "ro#!ton says it does not #atter how you get it+ it wi #atter ifthere is induce#ent or o!!ression.

% confession that is obtained as a conseuence of the dece!tion orinduce#ent of the !erson confessing is not ad#issibe even though it bereevant. E.g. a confession #ade to a coeague to a !erson in &ai hasbeen hed not to be confessed to a !erson in authority.

In civi cases there is no discretion to e,cude ad#issibe evidence. Buteven in cri#ina cases there is a conict between 2 !ositions i.e. whereyou ad#it a reevant evidence to ensure that the guity are !unished

and then there is the view that to ad#it i#!ro!ery obtained evidencecondones and encourages i#!ro!riety on the !art of the !oice. i.e. whygo through !ro!er channes if you can obtain evidence iegay. There isno !rovision in the Evidence %ct to guide us. For instance if so#ebodygot evidence through !hone ta!!ing is it ad#issibe

6e oo/ to the constitution which !rotects !ersons against beingsub&ected to the search of their !erson or !ro!erty without their consent.It aso !rotects against entry to your !ro!erty by others without yourconsent.

?nder co##on aw+ there is the !ro!osition that a reevant evidence isad#issibe regardess of the fact that it was obtained iegay. Is this agood way to view evidence in ight of so#eti#es the e,cesses that!oice can be !rone to % !erson #ay be accused but they sti havecertain rights. It is better that GG guity !eo!e go free than oneinnocent !erson to be found guity. It is #uch better that one occasionacri#ina go free than to condone iega !rocuring of evidence.

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Evidence which is reevant to a fact in issue is reevant no #atter how itwas obtained.

Loyd D. >ostyn 1='2 10 >H6 '= where "hief @ustice oddard saysthat the test to be a!!ied in considering whether evidence is

ad#issibe is whether it is reevant to the #atters in issue. If it is+ itis ad#issibe and the court is not concerned with how the evidencewas obtained. This case was uoted with a!!rova in the case of)uru#a sJo )aniu v. C 1GKK 1 %ELC 23 The %!!eant was convictedwith being in unawfu !ossession of two rounds of a##unitioncontrary to Ceguation = of the e#ergency reguations of 1GK2.?nder the E#ergency Ceguations ony a !oice ocer or an ocerabove the ran/ of assistant ins!ector was e#!owered to sto! andsearch an individua. The a!!eant was an e#!oyee of a Euro!eansetter far#er and had been granted eave of absence to go to hisrura ho#e in the reserve. :e was sto!!ed at a roadboc/+ a !oice

constabe sto!!ed hi# and on searching hi# found hi# with the tworounds of a##unition and a !en/nife. 3 !ersons witnessed thesearch but were not caed to testify. The accused was charged andconvicted of this ca!ita o7ence and sentenced to death. :ea!!eaed contending that the evidence used to convict hi# wasiegay obtained. The court hed that the evidence was !ro!eryobtained in ine with @ustice "ro#!ton state#ent in Loyd v. >ostyn.

)ing D. C 1GG 1 %" 30'

<oice obtained a search warrant to search a house beonging to one

@oyce "ohen oo/ing for an&a and this was under the Mangerous Mrugs%ct. They read the warrant to @oyce "ohen but a!art fro# @oyce "ohen+there was the %!!eant in @oyce "ohen9s :ouse when the !oice ca#eand they did not read the warrant to the visitor. The !oice howeversearched the a!!eant and another #an in the house and they foundthe a!!eant with the drug. The %!!eant was tried and convicted for!ossession of dangerous drugs and he a!!eaed arguing that thewarrant was not directy read to hi# and thus he was not egaysearched. The court shoud have e,cuded the evidence found on his!erson because the evidence was unfair to hi#. The court hed thatthere was no way of interfering with the way in which the court

e,ercised its discretion and the court went further to say that this wasnot a case in which evidence had been obtained by conduct which wasirre!rehensibe insinuating that if the conduct had been irre!rehensibethe court woud have aowed the a!!ea. There was a bit of discussionabout constitutiona rights concerning iega searches.

The court in C D. )ing referred to the case of C v <ayne N1G3O 1 %EC ='=6here iegay obtained evidence was e,cuded but it refused to be

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guided by this case. The facts of this case are that the defendant wasta/en to a !oice station foowing a trac accident. :e was as/edwhether he wanted to see a doctor+ he agreed to see a doctor. %t noti#e had he been tod that the resuts of the e,a#ination #ight be usedin evidence against hi#. It was not #ade cear to hi# that the doctor

woud enuire on whether he was 5t to drive. %t the tria for drun/driving the doctor gave evidence that the driver was driving under theinuence of acoho and the defendant was convicted. :e a!!eaed. The a!!ea court uashed the conviction on the ground that eventhough the evidence was ad#issibe+ had the accused reaised that thedoctor woud give evidence on the #atter of driving under the inuenceof acoho+ he #ight have refused to sub#it hi#sef for e,a#ination andin refusing to be guided by this case+ the court in )ing v C stated thatthere was no evidence in the )ing9s case of o!!ressive conduct ortric/ery on the !art of the !oice. The court essentiay see#s to besaying that iegaity is graded+ ie. That there is iegaity that can be

aowed to !ass but there are cases when it is re!rehensibe.

@e7rey D. Bac/ N1G=O PB 'G0 The defendant was arrested by 2 !oiceocers of the drug suad for steaing a sandwich fro# a !ubic house. The ocer i#!ro!ery searched his ho#e and found "annabis and thedefendant was subseuenty charged with !ossession of drugs. Theaccused !ut u! in his defence that his house was searched iegay. The5rst court rued out the evidence of the search as inad#issibe havingbeen iegay obtained. The !rosecution a!!eaed and the a!!ea wasaowed. The %!!ea court hed

1. That the #ere fact that evidence is obtained in an irreguar

fashion does not of itsef !revent that evidence fro# beingreevant and acce!tabe to court;

2. %ny court has the discretion to decine to aow any evidencebrought by the !rosecution if they thin/ it wi be unfair oro!!ressive to aow it.

& V' Sn *1+7+, 2 AE& - 1222

The %!!eant was charged with cons!iracy to utter forged ?* Ban/otes. :e !eaded not guity before the case o!ened. "ounse for the%!!eant a!!ied for a tria within a tria to show that the %!!eant had

been induced to co##it the o7ence by a !oice infor#er acting on theinstructions of the !oice. The a!!eant was averring that for theinduce#ent+ he woud not have co##itted the o7ence. "ounse washo!ing to !ersuade the &udge to e,ercise his discretion to disaow theevidence of the co##ission of the o7ence. The @udge however ruedthat he had no discretion to e,cude the evidence. The a!!eantchanged his !ea to guity and was convicted and sentenced. :ea!!eaed against the &udg#ent and the a!!ea was aowed by the court

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evidence against a citi(en accused of an o7ence+ the !rotection of the'th %#end#ent is of no vaue.This was a !upreme Court ,ecision "

-n #olfe %" Colorado it was suggested that there was need for a uniform

rule even after the #ee$s case the courts had continued to applycommon law rules and in this case of #olfe the court decided to have auniform rule"

-n .ap %" /hio &01 ! P 04& The defendant was convicted in an /hiostate court for possession of obscene literature" The conviction wasarmed by the /hio Court of Appeal and later by /hio state supremecourt" The obscene materials were discovered during a search that wasnot sub*ect to a warrant on the defendants house" The /hio supremecourt held that evidence obtained by an unlawful search and sei3ure isadmissible in a criminal prosecution" The court continued to state that

under the !upreme Court of nited !tates in #olfe v" Colorado a statewas not prevented by federal constitution from adopting the rule as it prevailed in /hio" /n appeal to the ! !upreme Court it was held thatas a matter of due process evidence obtained by a search and sei3ure inviolation of the 4th amendment is inadmissible in a state court as it is ina federal court" -f the supreme court holds evidence to be inadmissibleit should apply across the board"

The ! Courts have gone even further and held that even if theevidence is not obtained illegally where such evidence is obtained insuch a manner as to be reprehensible according to the spirit of the

constitution such evidence shall not be admissible" ote theimportance that *urisprudence attaches to peoples rights"

-n 5enya the reigning position is that in 5uruma s6o 5aniu v" 7" ThisCase has been criticised in the conte8t within which it was decided" -twas decided during emergency regulation times not withstanding provisions of !" 10 of the Constitution" The position seems to be thatthe end *usti9es the means"

DOCUMENTA! E"#DENCE

7ead !ections Part Three !ection 04 : ;<0

!ections 0= 00 1> ? the whole question of how proof of documentaryevidence di@ers from oral evidence" ow do you prove a privatedocument from a public document" #hen is secondary evidence ofdocuments permissiblese of e8trinsic evidence in interpretation of documents"

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#hat is a documentB

o de9nition of document in 5enya vidence Act

As a general de9nition /!D/7 de9nes document asE?

+!omething on which things are written printed or inscribed and whichgives informationF any written thing capable of being evidence"G

-ndia vidence Act +any matter e8pressed or described upon any substance by means ofletters 9gures or mar$s or by more than one of those means intendedto be used or which may be used for the purpose of recording thatmatter"G

Tan3ania vidence Act +,ocumentG means any writing handwriting typewriting printing

Photostat and every recording upon any tangible thing any form ofcommunication or representation by one of those means which may beused for the purpose of re?cording any matter provided that suchrecording is reasonably permanent and readable by sight"G

EVIDENCE 2

1' DOC./ENTA&Y EVIDENCE

There is no de5nition docu#ent in the )enyan Evidence %ct. %s agenera de5nition Osborn de5nes it as$

“*o#ething+ in which things are written+ !rinted or inscribedwhich gives infor#ation; any written thing ca!abe of beingevidence.”

Inte#%#ettion" n ene# %#oi"ion" ct c% 2Section 3(1)

“....it incudes any !ubication and any #atter written+e,!ressed or described u!on any substance by #eans of etters+5gures or #ar/s or by #ore than one of three #eans which isintended to be used or #ay be used for the !ur!ose of recordingthat #atter. It #ay be any co##unication in !er#anent for#.”

"assi5cation of docu#ents.

% docu#ents without e,ce!tion are divided into 2 cassi5cations$ !ubicdocu#ents and !rivate docu#ents and the distinction is i#!ortantowing to the di7erent rues governing the ad#issibiity of docu#ents inthe di7erent categories

1>(;) the following documents are public documents$

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• Mocu#ents for#ing the %ct or records of the %cts

• of the sovereign authority; or

• of ocia bodies or of tribunas ; or

• !ubic ocers+ egisative+ &udicia or e,ecutive whether of

)enya or any other country ;

• <ubic records /e!t in )enya of !rivate docu#ents

The test for deter#ining into which a docu#ent fas is prima facie aneasy one; If the docu#ents doesn9t fa within the ist of docu#entsfound in "ec 7+ (1)4 (5) and (c)which ists !ubic docu#ents then it a!rivate docu#ent The distinction between !ubic and !rivate docu#ents is i#!ortant co(of the di7erences in the rues governing ad#issibiity and the!rocedures to be foowed; for e,a#!e+ secondary evidence #ay begiven of the e,istence+ condition or contents of a !ubic docu#ent underthe !rovisions of *ec =1 )enya Evidence %ct whereas the ruesconcerning secondary evidence of !rivate docu#ents are #orerestrictive.$ar%ar in 1= notes how Dlac$burn9s de5nition of a !ubic docu#ent in$turla v &reccia K %" K'1 as a

“docu#ent that is #ade for the !ur!ose of the !ubic #a/inguse it and being abe to refer to it; it is #eant to be where there isa &udicia or uasi-&udicia duty to inuire”

ote the i#!ortance of this right of ins!ection in Tootal Droadcast Hee uotation co##encing < 13 in Mercer v Denne 1G0' 2 "h. K3=&arwell ' said

“ The test of !ubicity as !ut by Lord Bac/burn is that the !ubicare interested in it and entited to see it+ so that if there isanything wrong in it they woud be entited !rotest In that sense+ itbeco#es a state#ent that woud be o!en to the !ubic tochaenge or dis!ute+ and therefore it has a certain a#ount ofauthority.”

The Atest of !ubicity attains i#!ortance under Sec 80 certi5ed co!ies.%#ong the #any /inds of !ubic docu#ents there are the foowingisted in Sec 82 ).E.%$

• <roceedings of the East %frican "entra Legisative %sse#by or

the egisature of any country in the co##onweath;

•

%cts orders or noti5cations of the e,ecutive govern#ent of)enya+ the :igh "o##ission+ any oca authority+ or a #inistryor a de!art#ent of any of the foregoing;

• <roceedings of a oca authority or of any cor!orate body

created by the %ct or ordinance;

• <roca#ations+ treaties and other acts of states or any foreign

country or any !art of the co##onweath;

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• @udg#ents+ decrees+ orders and other &udicia !roceedings ofany court of &ustice in such country;

• %davits+ !eadings and other ega docu#ents 5ed or

de!osited in such court as reuired by *ec of the Evidence%ct 1=K of the ?nited )ingdo#;

• <ubic docu#ents of any other cass in a foreign countryote how these e,a#!es #eet the reuire#ents isted in subs a i - iiof Sec 7+ 1

Tootal (roadcast )ee Co* )td v Alimohamed +ai Ahmed and$ons )td-./0 2' )LC 2 31

This was a case for da#ages or euitabe reief for infringe#ent ofdesign registered in reat Britain. The !ainti7s reied on a docu#entbearing the sea of the !atent oce of reat Britain+ !ur!orting to be aco!y of the certi5cate of registration of the designs together with acerti5cate bearing the sea of the !atent oce of reat Britain

8ne of the uestions considered was in fact+ a !ubic docu#ent so thatthe rues regarding ad#ission of certi5ed co!ies a!!ied. The court uoted Sec 7 iiii IE%+ Sec 7+1e )E%+ Sec 76 and 77 IE%+ *ec 7+81 )E% and Sec 82 IE%+ Sec 8 )E% and said

“ The docu#ents on which the !ainti7s rey on !ur!ort to beco!ies of the registration certi5cates issued in res!ect of eachdesign by the controer genera of <atents and Mesigns under theauthority of Law *ec 1= Cegistered Mesigns %ct 1G'G whichre!roduces Sec 97 of the <atents and Mesigns %ct 1G' It see#sto #e+ therefore+ that the certi5cates of registration being adocu#ent issued by authority of Law by a !ubic ocer #ust

necessariy be a !ubic docu#ent.” The court then went on to discuss uestions of ad#issibiity.*ubsection G i b states that !ubic records of !rivate docu#ents/e!t in )enya are <ubic docu#ents. The fact that a docu#ent isregistered doesn9t #a/e the docu#ent itsef a !ubic docu#ent; ony therecord of registration in a !ubic docu#ent. The registration referred to is that !rovided for by Law e.g. "a! 2=KCegistration of Mocu#ents %ct <ertaining to Land.The theory is thatthese registrations are in the !ubic interest+ and the state#ents in theregisters concerning the docu#ents registered are #ade by authori(edand co#!etent agents of the !ubic in the course of their ocia duty

Entries of this /ind have been cassi5ed as faing under thecassi5cation of state#ents #ade under s!ecia circu#stances Sec 38 )E%<roof of Mocu#ents By "erti5ed "o!ies. The !roof of !ubic docu#ents di7ers fro# !roof of !rivate docu#ents+generay by certi5cation of a co!y of the docu#ent+ or in certaininstances by authentication

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down in *ec G-=1 be stricty !roved b' a docu#ent tendered inevidence be tendered as a !ubic docu#ent by #eans of certi5ed co!y

4B4 T:ECE 6%* % *E"TI8 8F 8TE* T:%T 6%* 8T "LE%C %M I* T:ECEF8CE BQ<%**EM$-<roof of certain !ubic docu#ents

-&urisdiction over !ro!erty abroada the !rinci!a Pen v How Daltimore+wing v /rv wing b %!!ication c @urisdiction e,cuded

Evidence II- Lecture 3HEARSAY

:earsay refers to testi#ony given in court by a !erson other than the

one who !erceived it. %s a genera rue hearsay is inad#issibe. For youstart fro# the !re#ise that re!orting in court what you heard another!erson say is not going to be ad#itted in court as evidence. %nd thisdraws fro# section 3 of the Evidence %ct+ which e,!icity !rovides thatora evidence #ust be direct. *o you are not aowed to go to court tosay this is what another !erson said. 8ra evidence #ust be direct. %ndwhen you are deaing with docu#ents it is going to be reuired that theauthor of the docu#ent !resents that docu#ent in court. %nd the reasonthat we are saying that the author of the docu#ent shoud co#e tocourt is so that if you want to cross-e,a#ine the# you have theo!!ortunity to cross-e,a#ine the#.

The rue against hearsay is stated as foows$A "tte$ent $e 5; %e#"on not ce " <itne"" <=ic= i" o>e#e in eience to%#oe t=e t#!t= o? t=e ?ct contine in t=e "tte$ent i" =e#";n it i" not $i""i5e' I? =o<ee# t=e "tte$ent i" o>e#e ineience4 not to %#oe t=e t#!t= o? t=e ?ct" contine in t=e"tte$ent 5!t on; to %#oe t=t t=e "tte$ent <" in ?ct$e it i" not =e#"; n it i" $i""i5e- @ustice Me *iva

*o essentiay then what deter#ines whether hearsay is hearsay or notis going to be !egged around the !ur!ose for which the state#ent is

given. If you are giving the state#ent to !rove the truth of the contentsof the state#ent+ you are giving the state#ent #ade by another !ersonsee/ing to get !eo!e to beieve that which is contained in thestate#ent+ that is hearsay. But on the other hand if you state whatanother !erson said+ not to !rove the truth but to estabish that those!eo!e actuay #ade the state#ent+ that is not hearsay. Becauseessentiay then what you are doing is &ust re!orting what another

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!erson said and you did !erceive of what that other !erson said becauseyou heard the#. Is this cear

6hen you are using the state#ent to !rove that the state#ent was#ade+ here you are attesting to so#ething that you !erceived of

because you heard it had ta/en !ace. But where you are giving astate#ent to !rove the truth of what was contained in the state#entwhich so#ebody ese had !erceived of+ that is hearsay. *o for instance if a !erson co#es and says+ @a#es tod #e <eter stoe the ti fro# theban/. If you are trying to !rove the fact that <eter stoe fro# the ban/then you can see there that you wi not have direct !erce!tion of whatha!!ened. If in fact you did hear @a#es say that <eter stoe+ you!erceived of that fact because you did hear @a#es say that <eter stoe. Isthat cear

T=e c"e t=t ;o! "=o! #e t=t conce#n" t=i" #!e o? =e#";

i" t=e c"e o? $ubramanium v 1ublic 1rosecutor (1+96)@L& +69' An t=e ?ct" o? t=i" c"e <e#e " ?oo<" T=e%%ent <" c=#e n conicte o? 5ein in%o""e""ion o? #e#$" <it=o!t <?! ec!"e' In =i"e?ence4 =e ""e#te t=t =e <" ctin !ne# !#e"" incon"e!ence o# #e"!t o? t=#et" !tte#e to =i$ 5;/;n te##o#i"t"' @=en =e tte$%te to "tte t=econtent" o? t=e t=#et"4 =e <" oe##!e 5; t=e !e' Fe%%ee in"t coniction #!in t=t t=e !e "=o!ct!; =e i"tene to <=t t=e i$%o#t o? t=e t=#et<"' An o? co!#"e t=e !e <o! =e #!e t=t i? =e

<" o<e to "; <=t t=e te##o#i"t" = to =i$ t=t<o! 5e =e#";' T=e co!#t o? %%e =e t=t t=econiction = to 5e !"=e 5ec!"e <=t t=e te##o#i"t"to t=e %%ent "=o! =e 5een $itte " o#iin o#i#ect eience' It <o! =e "=e i=t on "!5"e!entction" o? t=e %%ent'

*o essentiay here what the court is saying is that the a!!eant shoudhave been aowed to utter the threat because they woud not have beenthreatening-#ay be he was tod if you don9t 5re the 5rear# we wi /iyour #other. *o the fact that the state#ent was uttered is one thing+ but

the truth of what was in the state#ent is another thing. 6hether theterrorists had the ca!acity to /i his #other or whatever ese theythreatened to do is not what we are see/ing to hear. 6hat we aresee/ing to 5nd out is whether a reasonabe !erson woud have behavedin the sa#e way as the a!!eant did in the circu#stances. %nd youshoud note in this case the state#ent I was reading to you on what ishearsay and what is not hearsay was stated. In the &udg#ent of @usticeMe *iva at !age GKG to G0. That is where that state#ent that we are

13



ta/ing about+ what is and what is not hearsay is stated by this !articuar &udge$

% state#ent #ade by a !erson not caed as a witness which is o7eredin evidence to !rove the truth of the fact contained in the state#ent is

hearsay and it is not ad#issibe. If however the state#ent is o7ered inevidence+ not to !rove the truth of the facts contained in the state#entbut ony to !rove that the state#ent was in fact #ade it is not hearsayand it is ad#issibe

The other case that we shoud oo/ at getting to what is hearsay is thecase of .yers v ,PP 1G' 2 % EC ==1. This is a case you #ust read. The a!!eant in this case was charged and convicted of receiving astoen #otor vehice. :e was in the business of buying wrec/ed #otorvehices for re!air and resae. The chief !rosecution witness was the!erson in charge of the records de!art#ent of the reevant #otor

vehice factory. :e testi5ed that every ti#e that a car was #anufactureda wor/#an woud note down the engine nu#ber and the chassis nu#berof the car a#ongst other detais and these woud be #ar/ed on so#ecard. :e aso testi5ed that the cyinder head nu#ber woud be indeibystruc/ on the cyinder head boc/ so as to be inerasabe. The card woudthen be #icro5#ed and stored. %t the tria the #icro5#s were!roduced on oath by the witness and schedues were !re!ared fro# this#icro5#. The schedues showed that the cyinder boc/ nu#bers of thecar in uestion beonged to the car aegedy stoen. The a!!eant wasconvicted on the basis of this evidence. The court of a!!ea ar#ed theconviction and the a!!eant a!!eaed to the :ouse of Lords. The :ouse

of Lords hed that the tria court and the court of a!!ea i#!ro!eryad#itted hearsay evidence in the for# of the #icro5# and Lord Ceid at!age ==' stated$ AThe witness woud ony say that a record #ade byso#eone ese showed that if the record was correcty #ade a car hadeft the wor/sho! bearing three !articuar nu#bers. :e coud not !rovethat the record was correct or the nu#bers which it contained were infact the nu#bers on the car when it was #ade.

Mo you see the argu#ent here That essentiay the basis of the#icro5# was not so#ething that the witness coud testify to becausehe did not !ut in the !articuar entry. :e did not actuay author the

docu#ent. Ce#e#ber we said by dint of section 3 of the Evidence %ct+the !erson that authors the docu#ent shoud !roduce that docu#ent.*o here the vehice had eft the wor/sho! with so#e nu#bers. Thosehad now been reduced into #icro5# and you have a third !ersonsee/ing to !roduce that as evidence. %nd essentiay what the court issaying here is that the ony thing the witness can say is that so#erecord had been #ade of a car that eft with so#e nu#bers. But hecoud not actuay vouch for the veracity of the truth of what was

14



contained in those docu#ents. %nd for that reason+ that was hearsay. This is why we are saying the :ouse of Lords said the tria court and thecourt of a!!ea had i#!ro!ery ad#itted hearsay evidence. %nd becausethis beca#e a bit technica+ Lord Ceid ends his state#ent by saying$

This is a highy technica !oint but the aw regarding hearsay evidenceis technica and I woud say absurdy technica

The other case that it woud be a good thing to oo/ at &ust to iustratehow hearsay !resents itsef+ is the case of Patel v Comptroller ofCustoms N1GKO 3 % EC KG3. The a!!eant here i#!orted fro#*inga!ore into Fi&i so#e coriander seeds shi!!ed in bags. :e correctyengrossed 5ed the custo#s i#!ort entry for# and on investigation atarriva 5ve bags of what he had i#!orted were found to be contained inwithin another outer bag. *o essentiay here you have doube bagging. The outer bag of these 5ve bags was #ar/ed with the a!!eant9s trade

na#e but it had #ar/ed on it A<roduce of >orocco. In the i#!ortantentry for# the a!!eant had 5ed that the coriander was a !roduct ofIndia. *o in res!ect of the 5ve bags that had A<roduce of >orocco+ thea!!eant was charged and convicted in #a/ing a fase decaration in acusto#s i#!ort for#+ on a custo#s i#!ort entry. %nd we are saying thathe had stated that the seed originated fro# India when in fact itoriginated fro# >orocco.

8n a!!ea+ it was hed that the evidence of the writing on the bag wasinad#issibe. It was hearsay. %nd this was because the court coud notascertain that in essence the coriander seed had actuay co#e fro#

#orocco even though the bags were #ar/ed A<roduce of >orocco. There were actuay saying nobody /new who and when those #ar/ingson the bags+ <roduce of >orocco+ were #ade. %nd essentiay thennobody coud s!ea/ to the# testifying to the fact that the !articuarcoriander seed had originated fro# >orocco. *o they coud not be thebasis of conviction for #a/ing a fase entry because the !erson whowrote the# coud not be caed to vouch for the truth.

The other case that woud iustrate the sa#e !oint is Iunga v 7 1GK2%" '=0 <". The accused was charged and convicted with the o7ence of being ar#ed with the intent to co##it a feony. The !oice witness gave

evidence at the tria+ saying that they had been tod by a !oice infor#erof the aeged atte#!ted o7ence. The infor#er was not caed to giveevidence and his identify was not reveaed. The accused was convicted.8n a!!ea it was hed that the tria #agistrate had before hi# hearsayevidence of a very da#aging /ind. 6ithout the hearsay evidence thecourt beow coud not have found the necessary intent to co##it afeony and that being the case the "ourt of %!!ea aowed the a!!eaagainst conviction. iven that here was hearsay evidence+ you didn9t ca

15



the infor#er who woud have actuay given 5rst-hand /nowedge of thefact that ed to the conviction of this !erson. %nd that being the case+the "ourt of %!!ea says that in a fairness the conviction shoud beuashed.

%nother case is the case of Tenywa v ganda 1G E% 102?. Theaccused was accused of having stoen a bicyce. The bicyce was sei(edby !oice ocers acting on this infor#ation. 8n e,a#ination the bicycewas found to have a forged nu#ber !ate. The accused was convicted of the o7ence but a!!eaed and on a!!ea it was hed that the !oicere!ort fro# )a#!aa suggesting that the origina nu#ber on the bicycewas atered was hearsay. It shoud not have been ad#itted. Becauseessentiay there was nobody to say this was the nu#ber. 6hen you saythere was a fa/e nu#ber on the bicyce you are basicay saying that it isnot the nu#ber that was on it+ so you shoud have a !erson to testify towhat was actuay the origina nu#ber. But &ust to say that it has been

changed+ even saying that what has been found is what was. Becauseessentiay the !erson that #ar/ed the nu#ber on the bicyce was notcaed to give evidence.

The earned tria #agistrate was wrong in aw to have ad#itted inevidence the re!ort aeged to have been obtained fro# )a#!aa+ whichsuggested that the origina nu#ber of the stoen bicyce had beenatered. That !iece of evidence was hearsay and shoud not have beenad#ittedR uness the e,!ert who had e,a#ined the bicyce hadtesti5ed before the court and been cross-e,a#ined on the !oint as tohow he arrived at his concusion.

8ver and above those cases you shoud aso oo/ at the cases of

.agoti s6o .atofali v 7 1GK3 E%"% 232.

A% !an of the ocus R was #ade and !roduced in evidence by a !oicecor!ora. Darious !oints on the !an are #ar/ed with etters and it bears aegend showing what these !oints re!resentR as to what each !ointre!resented he #erey said SI got the infor#ation fro# %ntonia+ <.6. 2+ as to!ositions and ownershi!.9 SThis+ of course+ was #erey hearsay and hisevidence shoud have been su!!orted by the evidence of the witness %ntoniato the e7ect that she had+ subseuent to the event+ !ointed out to the cor!orathe !aces where the various incidents+ to which she had testi5ed+ had ta/en!ace.

7 v Jutasi s6o #amagale 1G3 1' E%"% 232

A6e note that the state#ent #ade by the a!!eant E,.<.1 to >r. :arwich+*u!erintendent of <oice+ was ad#itted+ athough the two inter!reters who hadcarried out a doube inter!retation were not caed as witnesses. 6ithout their

16



10. %nd aso evidence by certi5cate covered at sections and=.

6e wi begin by oo/ing at state#ents #ade by !ersons who cannot becaed as witnesses$

Stte$ent" 5; %e#"on" <=o cnnot 5e ce " <itne""e"*ection 33 ays out what those state#ents #ight be. It actuay has =e,a#!es of such state#ents and these are a+ in their own right+e,ce!tions to the hearsay rue. %nd therefore I coud not agree #orewith Lord Ceid that the rue against hearsay is technica and absurdytechnica.

The o!ening !aragra!h at section 33 gives the conte,t within whichthose e,ce!tions covered at that section a!!y$

A*tate#ents+ written or ora+ of ad#issibe facts #ade by a !erson whois dead+ or who cannot be found+ or who has beco#e inca!abe of givingevidence or whose attendance cannot be !rocured+ or whose attendancecannot be !rocured without an a#ount of deay or e,!ense which in thecircu#stances of the case a!!ears to the court unreasonabe+ arethe#seves ad#issibe in the foowing cases-A

*o it is not a the ti#e that you have+ for instance+ under section 33 aa dying decaration or whatever ese+ that it is going to be used inevidence. 6hat is detaied at section 33 introduction wi have to a!!y.

*o essentiay the state#ent wi be ad#issibe if the !erson #a/e the#is dead+ cannot be found+ has beco#e inca!abe of giving evidence+their attendance cannot be !rocured. 8r even if it can be !rocured thatwoud actuay occasion e,!ense and deay which in the view of thecourt is unreasonabe. If those circu#stances a!!y then a+ b+through to eight woud be ad#itted. Is it cear

*o each of these eight e,ce!tions there is that rider$ cannot be found+ isdead+ the attendance cannot be !rocured without deay or cannot be!rocured at a. *o if it is aeged that a !erson is dead+ do you thin/ thatthis state#ent that a !erson is dead+ is enough It is not. The fact of the

death has to be ascertained. :ow do you !rove that a !erson is deadBy a death certi5cate+ the !resu#!tion of death+ by !eo!e who!artici!ated in their buria can be caed to testify to the fact of death.But essentiay the fact of death is a fact that needs to be !roved untiyou have !roved that the !erson is dead through the screening+ thenyou coudn9t actuay bring any of these state#ents R. %nd if a !ersoncannot be found the fact of not being found #ust reate to the ti#e thathe is reuired to give evidence. *o you cannot &ust say that you have not

18



e,!ectation of death+ and whatever #ay be the nature of the !roceedingin which the cause of his death co#es into uestion;

*o when the cause of death of a !erson is in issue and this coud be ineither civi or cri#ina !roceedings+ the state#ent #ade by such a

!erson which deas with the circu#stances of the cause of the death isgoing to be reevant. %nd the case to oo/ at here is the case of Teri$abiv ganda 1GK E% 0. The deceased in this case gave or #ade astate#ent giving the cause of his death but no evidence of thecircu#stances reating to the death. %nd of course the uestion was$woud this be ad#issibe Because essentiay !eo!e are oo/ing at it asbeing that he has to give both cause and circu#stances. *o this casewas testing whether if a state#ent gave ony cause+ woud it bead#issibe If it gave ony circu#stances but no cause+ woud it bead#issibe %nd the court here hed that the state#ent was ad#issibe+that it was not necessary that the state#ent refer to both the cause and

circu#stances. >ention of either cause or circu#stances was sucient.

In certain &urisdictions it is reuired that for a dying decaration to bead#issibe the !erson #a/ing it #ust have haven in i##inente,!ectation of death. %nd the assu#!tion here is that if you are ini##inent e,!ectation of death+ you are uni/ey to te ies because youare e,!ecting to be going to your #a/er and you do not want to gotainted by untruth. But of course you /now that it faacious as webecause you #ay be revengefu against a !articuar !erson that you donot #ind if after you are dead they s!end a their ives behind bars+accused of having /ied you. In )enya+ however that is not a

reuire#ent. *o it is not reuired in this country that for a dyingdecaration to be ad#issibe one woud have to be in i##inente,!ectation of death. %nd that is actuay contained at section 33a+ ifyou oo/ at the sentence beginning+ Asuch state#ents are ad#issibewhether the !erson who #ade the# was or was not+ at the ti#e whenthey were #ade+ under e,!ectation of death.

%nd the case to oo/ at here is a case that we wi oo/ at again when weoo/ at confessions. The case of !wami v 5ing?mperor 1G3G 1 % EC3G <". In this case the court considered the ad#issibiity of evidenceby a widow that the deceased had tod her that he was going to a

!articuar !ace on the invitation of the a!!eant9s wife and that thea!!eant9s wife had as/ed the deceased to go and receive !ay#ent ofhis dues at that !ace. *o the court was considering whether evidence of a state#ent by a widow that the deceased had tod her he was going toa !articuar !ace on the invitation of the a!!eant9s wife to !ic/ u!!ay#ent of his dues. %nd this state#ent was hed to be ad#issibe eventhough it was #ade before the cause of death had arisen. *o thedeceased here was not in i##inent e,!ectation of death. But they had

20



#ade a state#ent that shed ight into the circu#stances that ed to thedeath that he was going to !ic/ u! his due.

%gain on the sa#e !oint you shoud oo/ at the case of 5aluma v 71G=E%C 3'G. In this case+ three a!!eants were convicted of the

#urder of two wo#en in )enya. The three a!!eants ha!!ened to bewanted by the ?ganda !oice and the two wo#en they were accused ofhaving #urdered were !art of a search !arty which had been sent to)enya to 5nd and arrest the a!!eants. Evidence was ad#itted at thetria that one of the two wo#en had #ade inuiries about thea!!eants9 whereabouts and this had been re!orted to the a!!eants. This evidence was ad#itted on the grounds that it was reevant as to the#otive or reason for the #urder. The a!!eants were convicted andthey a!!eaed chaenging the ad#ission of the evidence about theinuiries and the court hed that evidence about the inuiries wasad#issibe under section 33 of the )enya Evidence %ct as a state#ent

#ade by a !erson who is dead as to the circu#stances of thetransaction+ which resuted in the death. *o it was not in the categorythat woud be hearsay and inad#issibe. It was an e,ce!tion to thehearsay rue. *o the !erson was dead and under section 33 a astate#ent #ade by a !erson who is dead on the circu#stances of theirdeath woud be ad#issibe as an e,ce!tion to the hearsay rue.

*o essentiay then what woud be the reuire#ent under section 33 afor ad#ission of a state#ent as a dying decaration$

1. It has to reate to the cause and or circu#stance of the death of

the #a/er and not to any other !erson. *o it has to reate to yourdeath as the #a/er of the state#ent+ not to the death of other!eo!e. %nd the authority for that !re!osition is the case of.ohamed #arsama v 7.1GK 23 E%"% K. In this case thedeceased had #ade a series of dying decarations which were!recise and detaied and if true concusive. :e had in hisdecaration aso stated the cause of death of another !erson andthe uestion was whether that !art of the dying decaration thatidenti5ed another !erson was ad#issibe. %nd the court hed+ no+it was not ad#issibe. The uestion was whether that !art of thedying decaration that !ointed to the cause of death of another

!erson was ad#issibe. Ce#e#ber we said that the deceased#ade #any dying decarations of a !recise and detaied and iftrue concusive. But in those dying decarations did not &ust ta/about the cause of his own death. :e actuay ta/ed about thecause of death of another !erson. %nd the court was enuiring asto whether that !art of the state#ent that ta/ed about the causeof death of the other !erson was ad#issibe. %nd the court hed+no. the dying decaration has to reate to the cause and orcircu#stances of the death of the #a/er+ not of other !eo!e. *o

21



they woud ad#it what was !ertaining to his death+ not to thedeath of other !eo!e.

2. The second rue is that the state#ent #ust be !ro,i#ate to thedeath. *o if you had #ade a state#ent about your death in the

year 2000 and then you die this year+ the whoe uestion of the!ro,i#ity of the state#ent to your death is going to arise. %nd theauthority here is Antonio v Darugahare v 7 1GK E% 1'G "%. The witness here had given evidence that the deceased wo#anhad tod her si, wee/s earier before she died that the accusedhad as/ed her to #arry hi#. *o the deceased had con5ded to thewitness+ si, wee/s !rior to her death+ that the accused had as/edher to #arry hi#. The deceased had aso as/ed the deceasedaccording to the re!ort to end hi# #oney to !ay his ta,. *he hadrefused to yied to either de#and. %nd she was found dead si,wee/s ater. %nd the uestion was whether what she had con5ded

to the witness was a dying decaration. 6as the infor#ation thathe had !assed to the witness that she had been as/ed to #arrythe accused and end hi# #oney a dying decaration. The courthed+ not+ it was not a dying decaration because the facts aegedwere not !ro,i#ate or reated to the death and the circu#stanceswere not those of the transaction resuting in the death. Qoushoud co#!are that hoding to the hoding of the case 7 v5abateleine s6o chwaba 1G' 13 E%"% 1'. In this case+ aco#!aint #ade by a deceased !erson to her head#an two daysbefore the house in which she was see!ing was burned+ was heddirecty reated to the occasion of the deceased9s death and was a

circu#stance that resuted in her reevant. Essentiay here youare oo/ing at two days and K0. *o whie si, wee/s are seen as not!ro,i#ate+ not cose enough+ here the co#!aint had been donetwo days earier and that is the duration between the co#!aintand when the death occurred+ is what #a/es the ruing that it is!art of the transaction that resuted in death.

The dying declaration must be complete. nd !e should here re"isit the case o#

Beddington. $ou should also loo% at the case o# Waugh v R &1950' ( 203 &)('. R v

Beddington (?)* you loo%ed at that !hen !e !ere loo%ing at res gestae or !as it similar

#acts+ ,n -aughs case* the declaration !as held to be inadmissible because it !as not

complete on its #ace. The deceased in this case #ell in a terminal comma !hen he !asma%ing the statement lea"ing it incomplete. /o basically !hat the court is saying is that

you dont %no! !hat the person might ha"e said i# they had had the opportunity to

complete the statement* and #or 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 o# R V. Charles Daki s/o Daki &1960' 34. The deceased !as in this case admitted into hospital su##ering

#rom gunshot !ounds. -hen he !as as%ed !ho shot him* he said* (harles a%i has %illed

me* he shot me !ith a gun. , sa! him !ith a gun. e !as on a motorcycle. #riend o# minehad "isited me and , !ent to the garage !ith him. t this point the doctor inter"ened and

22



the deceased died subseuently. a%i !as charged and con"icted on the basis o# the

statement* despite his counsels obection. n appeal the statement !as held inadmissible

on the grounds that the deceased might or might not ha"e added something ndessentially because this statement !as not complete* on appeal it !as held that this

statement could not be used as basis o# con"iction because #or a dying declaration to be

admissible it had to be a complete statement. :or e;ample* i# he had stopped at* (harles<a%i %illed me. e shot me !ith a gun. nd then he did not e;press !illingness or desire

to say other things. =asically he had gone on to say>he !as no! going o## on a tangent.

-hat !as he going to say !hen he said a #riend "isited him* !e !ent to the garage+ ?ay be the #riend started uarreling !ith (harles a%inobody %no!s !hat this person !anted

to say !hich means the statement !as incomplete because you dont %no! !hat he

might ha"e said i# he had not e;pired at that point. @et us also loo% at the case o# Pius

Jasunga s/o Akumu v R &1954' 21 ( 331. ,n this case* a !itness !ho !as an assistant police inspector ga"e e"idence that he sa! the deceased lying on the road !ith a !ound in

his chest. -hen as%ed !ho had inured him the deceased replied* A)ius Basunga had stabbed

me. @ater at the hospital* the deceased made a statement to the superintendent o# police

during the cause o# !hich he got !ea%er and !ea%er and he !as unable to sign thestatement. There !as no corroboration o# this story and it had been made in the absence o#

the accused by a man !ho !as su##ering #rom a terrible !ound* #rom !hich he diedsubseuently. nd the court here held that e"en though as a rule o# la! it is not reuired

that a dying declaration should be corroborated* as a matter o# practice you should not

con"ict on uncorroborated dying declaration* e"en though as a matter o# la! there is noreuirement that there be corroboration or independent credible e"idence #orti#ying a

particular statement* and in this case a dying declaration. There is no reuirement o# la!.

=ut here one o# the points they noted !as that as a matter o# practice the court should

al!ays reuire corroboration. nd they said that the !eight o# a dying declaration that ismade in circumstances suggesting that the person might ha"e said something more* must be

less than the one that is #ully made. dying declaration that is made in circumstances that

suggest that the person may ha"e said other things but he !as pre"ented #rom saying thoseother things because he e;pired* the !eight attached to that dying declaration must

essentially be less than one that appears to be complete. nd o"er and abo"e that the

principle that e"en though la! !ill not reuire you to corroborate a dying declaration* as amatter o# practice the court should al!ays reuire that such be corroborated. nd that is

going to be the #inal reuirement o# a dying declaration. dying declaration reuires

corroboration as a matter o# practice. -hen you loo% at rules on corroboration* you !ill see

that the la! on e"idence reuiring corroboration is generally di"ided into t!o. There arethose circumstances !here the la! actually reuires that you get corroboration. @i%e !hen

you ha"e e"idence o# children o# tender years. There are a number o# cases !here the la!

reuires that>, thin% e"idence o# the complainant in rape case is reuired by la! to becorroborated. =ut o"er and abo"e that* courts in e;ercising caution>and again being

guided by the need to be #air to the accused person>ha"e de"ised instances !here e"en

though the la! does not reuire corroboration they !ill ordinarily reuire corroboration.nd a good e;ample is !here you ha"e a dying declaration. That a dying declaration

should not #orm the basis o# con"iction i# it is not corroborated and corroboration here is

tal%ing to bringing in credible* independent* strong e"idence to #orti#y that !hich is being

state in the e"idence reuiring corroboration. ,t is also reuired #or con#essions that arerepudiated or retracted* !here a person has made a con#ession and they later say that either

23



they ne"er made it or that they only made it because they !ere tortured or they !ere

coerced into ma%ing it. That %ind o# con#ession* e"en should the court the court decide to

admit it* it !ill ordinarily as a matter o# practice reuired that it be corroborated.

*tate#ents #ade in the ordinary course of business

The second category of state#ents under section 33 are state#ents#ade in the ordinary course of business.*ection 33b states$

Awhen the state#ent was #ade by such !erson in the ordinarycourse of business+ and in !articuar when it consists of an entry or#e#orandu# #ade by hi# in boo/s or records /e!t in the ordinarycourse of business or in the discharge of !rofessiona duty; or of anac/nowedge#ent written or signed by hi# of the recei!t of #oney+goods+ securities or !ro!erty of any /ind; or of a docu#ent used in

co##erce+ written or signed by hi#+ or of the date of a etter or otherdocu#ent usuay dated+ written or signed by hi#.

*o for a state#ent to satisfy the reuire#ents of 33b it has to be astate#ent being in the ordinary course of business. %nd section 33b gives e,a#!es of those to incude entries or #e#orandu# inboo/s or records+ and these have to be reguary /e!t. For instance+boo/s of account+ edgers+ &ournas. It coud aso beac/nowedge#ents that are written and signed for the recei!t of#oney+ recei!t boo/s+ or docu#ents used in co##erce. These woudbe ad#issibe as an e,ce!tion to the hearsay rue. %nd the

assu#!tion here is that the !erson #a/ing the# has no #otivation tofasify the#. They are /e!t in the ordinary course of business; theywoud actuay be entered. But re#e#ber in the case of .yers v the,PP what see#s to have been record that were /e!t in the ordinarycause of business were actuay rued to be hearsay because the!erson #a/ing the# did not actuay co#e to testify to the#. %ndthis is again to ta/ to the introductory !art of section 33+ that it hasto be that the !erson is dead+ cannot be found+ is inca!abe of givingevidence+ cannot be !rocured or even they can be !rocured it wi beas a conseuence of deay and e,!ense which is unreasonabe. *o in.yers v the ,PP it was not estabished that a !erson had died+ or

coud not be found. *o essentiay for this boo/ to be ad#issibe it isnot for a ti#e. The e,ce!tion co#es in because what is contained atthe introduction at section 33 is aready a!!icabe+ that there is a!robe# in getting this !erson here because they are dead+ etc.

%nd the cases to oo/ at there are

24



"o##issioner of "usto#s v *) <anachand (;>0;) A &<& (CA)

The co#!any i#!orted so#e ban/ets aegedy fro# 6est er#any+o i#!ort icense was reuired for goods fro# 6est er#any+athough a icense was reuired for goods fro# other countries. The

"usto#s sei(ed the ban/ets acting on infor#ation that they+ in fact+had co#e fro# East er#any. The co#!any+ see/ing the return ofthe ban/ets+ in order to su!!ort its case !roduced two docu#ents+an invoice+ and a docu#ent signed by a >r. Bo/ in which it wasstated that the invoice+ on which a!!eared the words A"ountry of8rigin 6est er#any+ was correct. The "o#!any cai#ed thatthese docu#ents satis5ed the burden !aced u!on the "usto#s %cts+i.e. to !rove the country of origin of the ban/ets.

The decision invoved *. 33 of Evidence %ct covering cases where theattendance of a witness cannot be !rocured without unreasonabe

deay and e,!ense+ subs. b deaing with state#ents or docu#ents#ade in the ordinary course of business. The #ain issue waswhether the invoice and docu#ent signed by >r. Bo/ weread#issibe in evidence to !rove country of origin.

The court hed basicay that the Aany !erson who wi Agiveevidence of any other fact in this case+ as set forth in *. 110 I.E.%was >r. Bo/+ who by #eans of his signed docu#ent woud giveevidence of the Aother fact+ i.e. that the ban/ets ca#e fro# 6ester#any. Before >r. Bo/ coud Agive evidence through the #edia ofthe docu#ents+ *. 110 !aced the burden u!on the "o#!any of

!roving$athat >r. Bo/9s attendance at the tria coud not be !rocured

without unreasonabe deay of e,!ense+bthat >r. Bo/9s signed docu#ent was used in the course of

business+ andc that the docu#ent was actuay signed by >r. Bo/+ the !erson

whose attendance it was unreasonabe to !rocure.*ince the "o#!any had faied to #eet its burden of !roving theseconditions !recedent to the ad#ission of the docu#ents they were hednot ad#issibe in evidence and the court ordered conde#nation of theban/ets.

Qou shoud aso oo/ at the case of 7 v .asalu 1G E% 3KK T.

Qou shoud aso oo/ at Jichunge v 7 1G2 E% K'.

%nd a these cases woud be iustrating what #ight be state#ents#ade in the ordinary course of business. The cases of .asalu andJichunge are !articuary interesting because they dea with !ost-

25



#orte# re!orts and woud see# to indicate that fact re!ort cantechnicay be ad#itted as a state#ent #ade in the ordinary courseof business if they constitute a state#ent of fact+ rather than astate#ent of one9s o!inion+ when you are ta/ing about the cause ofdeath+ when you are ta/ing about either a state#ent of fact rather

than an e,!ression of o!inion+ that woud be ad#issibe.

Qou shoud aso oo/ at the case of 7 v .aganda3i and four /thers1G E% =' "%+ which woud aso ta/ to docu#ents #ade in theordinary cause of business.

The accused were e#!oyed in ?ganda to carry oads to the "ongo.8n a charge of theft of a !ortion of the oads by the accused+ a etterfro# an agent of the co#!ainant9s 5r# resident in the "ongo was!aced in evidence+ but the writer was not caed. The "ourt said$

AR a etter was !roduced R by the sa#e witness !ur!orting toco#e fro# the agency of the co#!ainant9s 5r# in the "ongo andshowing shortages in the goods received. *ection 302 uoted. The !rovision of the *ection shoud in #y o!inion be ony s!aringya!!ied and rarey+ if ever+ be used where the state#ent goes to theroot of the whoe #atter before the "ourt+ as in the !resent case.Further the etter+ athough it #ay be said to have been written in theordinary course of business to re!ort a oss+ a!!ears aso to be in thenature of a s!ecia etter written with a view to the !resent!rosecution. The etter was not ad#itted.

%nother case #ight the case of -di bin 7amadhan v 7 1G1' 2 ?LC10=.The statement of a police constable was put in evidence during thecourse of the trial after it had been proved that the constable inquestion had proceeded on leave" Presumably the statement purported to be put in evidence under s" &2(2) of the vidence,ecree" J7AK C"I" quoted from .aganda3is case and from ingawav" Dharmappa +- thin$ in using the phrase Lin the ordinary course ofbusiness the legislature intended to admit statements similar tothose admitted in ngland as coming under the same description"The sub*ect is clearly dealt with in Chapter M-- of .r" Pitt TaylorsTreatise on the Haw of vidence and the case(s) which he hascollected show that this e8ecution to the general rule against hearsay tends only to statements made during the course not of any particular transaction of an e8ceptional $ind such as the e8ecution ofa deed or mortgage but of business or professional employment inwhich the declarant was ordinarily or habitually engaged" The phrasewas apparently used to indicate the current routine of business whichwas usually followed by the person whose declaration it is sought tointroduce"G

26



*tate#ents against the interests of the #a/er The ne,t category of state#ents ad#issibe under section 33 arestate#ents against the interests of the #a/er.

*tate#ents against the interests of the #a/er

*ection 33 c reads$

A6hen a state#ent against the !ecuniary or !ro!rietary interests ofthe !erson #a/ing it+ or when+ if true+ it woud e,!ose hi# or woudhave e,!osed hi# to a cri#ina !rosecution or to a suit for da#ages;

*o essentiay a state#ent which is against the interests of the #a/erwoud be ad#issibe as an e,ce!tion to the hearsay rue. Butre#e#ber against the introductory !art of section 33 has to a!!y

before you ad#it that it #a/es an e,ce!tion to the hearsay rue. %ndover and above that you have to oo/ at$ Is it reay against theinterests of the #a/er %nd the interests of the #a/er #ight be!ecuniary or reating to #oney+ !ro!rietary where it a7ects !ro!ertyor the ownershi! of the !ro!erty of the #a/er+ or it coud aso be onethat e,!oses a !erson to a cai# for da#ages or to !rosecution. %ndthe rationae here is that in the ordinary course of ife a !erson is notgoing to #a/e a state#ent against their own interests and woud ony#a/e such a state#ent if it is true.

"ase to oo/ at is the case of .arie Ayoub v !tandard Dan$ of !A

1G1 E% '3 "%.%nd the state#ent here was #ade by thedeceased. There was a state#ent in a etter where the deceased wassaid to be owed for the running of his estate. % state#ent in a etterin which it was said that the !ainti7 were indebted to the deceasedfor the running e,!enses of an estate. The uestion arose as towhether the state#ent woud be an e,ce!tion to the hearsay rueunder section 33c and it was hed not ad#issibe because the#a/er was not dead. The !erson who had #ade the state#ent sayingthey were indebted to the deceased for the running of the estate wasnot dead. *o the !rereuisite for the o!eration of section 33 c hadnot been satis5ed.

The other case you coud oo/ at is the case of ,ias v 7 1G2 3?ganda Law Ce!orts 21'+ where the accused was charged with theo7ense of fasifying boo/s of account and the !rosecution reied on aetter written by a deceased cer/ to the head of the de!art#entwhich charged the accused with having ordered hi# to #a/e thefase entries. *o the uestion was+ coud such a state#ent bead#itted under section 33 c as one against the interests of the

27



#a/er. 6ho was #a/er of the state#ent here The deceased cer/.%nd who was the accused :e was not the deceased. *o the courthere hed this state#ent was not !ro!er one for section 33 ceuivaent to ?ganda+ that it coud not be ad#itted as an e,ce!tionto the hearsay rue because it was in the very interest of the

deceased cer/ to #a/e that state#ent so that he coud !inres!onsibiity on the other !erson rather than on hi#sef. *o it wasnot actuay a state#ent against the interests of the #a/er becausethe #a/er was charging another !erson with fasifying the boo/s andtherefore it was not the right state#ent for the a!!ication of thise,ce!tion.

The ne,t e,ce!tion at section 33 is state#ents e,!ressing o!inion asto a !ubic right or custo#. %nd re#e#ber again it is when the #a/erof the state#ent woud be dead+ cannot be found and a those thingsthat are contained in the introductory. *o state#ents #ade by

!ersons who cannot be caed as witnesses are ad#issibe if they givean o!inion on the e,istence of custo# and for such to be ad#issibethe !eo!e ought to be a !erson that #ight be aware of such right orcusto# and the state#ent shoud been #ade before any controversyas to the right of custo# arose. *o you coud not #a/e a state#ent tosuit your cai# in a forthco#ing suit. The state#ent ought to havebeen an unguarded state#ent of o!inion on a !ubic right or custo#and it ought to have been #ade before there was any controversy asto that !ubic right or custo#. *o you #ade the state#ent &ustbefore the institution of the suit+ then that is not going to be ad#ittedbecause you woud have taiored it for that s!eci5cUand when we

ta/ about a !ubic right it is one which is hed in co##on by a#e#bers of the !ubic. For instance+ when !eo!e are ta/ing about aright of way in the for# of a highway+ !eo!e who woud have /nownthat right of way was there+ a !ubic right of way was there and it hasto be one that a7ects a considerabe !ortion of the co##unity. Forinstance aso when you ta/ about the boundary of a viage. %ndre#e#ber that for it to be ad#issibe as an e,ce!tion to the hearsayover and above it having been #ade before there was a controversy+the !erson ought to be a !erson who can be considered as havingco#!etent /nowedge+ !erson i/ey to /now.

*tate#ents that reate to any reationshi!

The ne,t e,ce!tion is at subsection e+ which reads$

A6hen the state#ent reates to the e,istence of any reationshi! bybood+ #arriage+ or ado!tion between !ersons as to whosereationshi! by bood+ #arriage or ado!tion the !erson #a/ing the

28



state#ent had s!ecia #eans of /nowedge+ and when the state#entwas #ade before the uestion in dis!ute was raised;

*o essentiay state of !ersons who cannot be caed as witnesses wibe ad#issibe when they reate to the e,istence of any reationshi!.

%nd the reationshi! coud be a reationshi! by bood+ by #arriage orby ado!tion. %nd the !erson #a/ing the state#ent ought to havebeen a !erson who woud have had s!ecia #eans of /nowedge ofthe e,istence of that reationshi!. *o it is not &ust any !erson. It is a!erson who had s!ecia #eans of /nowedge. %nd re#e#ber again itis ony in instances where that !erson cannot be caed as a witnessbecause of the variety of factors+ that they are dead+ cannot befound+ etc. %nd the state#ent #ust aso have been #ade beforethere was a dis!ute as to the e,istence of the reationshi! or not. *othere ought to have been an unguarded action.

%nd the case to oo/ at here is the case of !eif Ali Da*$ni and others v amed Din Ali 1G'K Van(ibar LC 13. This invoved a situationwhere a chid was born 10 #onths after the #arriage between the!arents was dissoved. Muring the hearing it was sought to introducea docu#ent concerning the reationshi!+ written by the aeged father. The docu#ent was written in conte#!ation of the suit because thefather dis!uted the !arenthood and they #ade the docu#ent in theevent that the chid shoud ever 5e suit. If the chid 5es suit againstthe father then the father woud turn around and say there is a!robe# here+ I do not acce!t that you are #y son. *o the docu#entwas written in conte#!ation of the suit because the father dis!uted

his fatherhood of the chid and the docu#ent conte#!ated asituation where the chid #ight 5e any suit against the father. %ndthe court hed that the docu#ent concusivey !roved the e,istenceof the controversy and it shoud be re&ected. Because re#e#ber wesaid that the docu#ent ought to have be an unguarded assertion. Itshoud not be one done in conte#!ation of a suit. The docu#entitsef concusivey !roved the e,istence of the controversy at the ti#eit is aeged to have been written because the father ony wrote thedocu#ent because they dis!uted their !arenthood of the chid. %ndthey were writing it to guard the#seves in the event that this chidshoud ever 5ght it against the father. %nd so it shoud be re&ected

because the docu#ent ought to have been #ade when there was nodis!ute as to the e,istence of the reationshi! but you see here thefather was dead but he had written the docu#ent. But he had onywritten the docu#ent for the !ur!oses of estabishing certain#atters.

29



*tate#ent reating to fa#iy a7airs

The ne,t e,ce!tion is at f+ state#ents reating to fa#iy a7airs. Those wi aso be ad#issibe and these ought to be #ade by !ersonswho woud have /nowedge+ again. %nd they coud aso be on

to#bstones+ fa#iy !ortraits+ or other !aces where such state#entshoud be #ade. It coud aso be in a wi or a deed. *o if you have astate#ent reating to fa#iy a7airs in any of those !aces and it is#ade by a !erson who cannot be caed as a witness+ it woud beacce!ted as an e,ce!tion to the hearsay rue. %nd the assu#!tionhere is that there wi be nobody inserting fasities in those /inds of!aces+ where you are ta/ing of a to#bstone+ a fa#iy !ortrait or awi or a deed. Those are soe#n docu#ents+ so if you have those/inds of state#ents #ade by !erson who cannot be caed aswitnesses+ there wi be ad#issibe.

*tate#ents #ade by !ersons who cannot be caed

Then at section 33 g where you have state#ents #ade by !ersonswho cannot be caed+ which are contained in a deed or othertransaction that estabish a custo#+ those wi be ad#itted. 6hen astate#ent is contained in any deed or other docu#ents which reatedto any such transaction as #entioned in section 13 a. 13 a gavethe estabish#ent of custo#s or rights. Those woud be ad#issibe.%nd again here you are ta/ing about state#ents that show when thecusto# or the right was created+ when it was cai#ed+ where it was#odi5ed+ instances when it was recogni(ed+ or when it was asserted

or denied. % these coud be ad#issibe if they are #ade by a !ersonwho cannot be caed as a witness. %nd this !rovision incudes !rivateas we as !ubic rights. *o it is not &ust for !ubic rights. It is aso for!rivate rights.

*tate#ents #ade by severa !ersons e,!ressing feeings ori#!ressions

%nd 5nay under section 33+ state#ents #ade by severa !ersonse,!ressing feeings or i#!ressions on their !art+ which are reevant tothe issue in uestion. *o if a nu#ber of !eo!e who cannot be caed

as witnesses had #ade state#ents e,!ressing their feeing ori#!ressions which feeings or i#!ressions are reevant to the #atterin uestion that is going to be ad#issibe. For instance+ if you have anu#ber of !eo!e saying they were a!!rehensive+ they had #adestate#ents to the e7ect that they were a!!rehensive that so#ethingwas ha!!ening or that they got the i#!ression that things were notbeing done in the way they shoud have been done. %nd again here

30



of essence to ad#issibiity is that they #ade the# as unguardedstate#ents. They are not taior #ade for a s!eci5c !rocedure.

I urge you to read Murand for the e,!anation of this state#entbecause as you see this is &ust one section+ which has eight sub-

sections. %nd we are &ust scratching the surface of hearsay.

So <e "ti =e to e <it= t=e net cteo#; o? "tte$ent"t=t <o! co$%#i"e ece%tion" to t=e =e#"; #!e' Anin to #eite#te <=t Lo# &ei "i t=t t=e #!e in"t=e#"; i" e#; tec=nic n ct!; te 5it o? #eint=#o!= to 5ein to %%#ecite <=; it <o! 5e $i""i5e'An #e$e$5e# <=en ;o! #e #ein t=e ece%tion" in"ection 33 ;o! =e to #e t=t 5e#in in $in t=eint#o!cto#; 5it on <=en i" $i""i5e4 it i" not ?o# ti$e'It i" <=en t=o"e %""e" o%e#te' So i? ;o! #e 5#inin

"tte$ent <=en t=e $e# i" not e4 it i" not oin to 5e$i""i5e' I? ;o! #e 5#inin it <=en it i" not in"t t=einte#e"t" o? t=e $e# o# it i" in"t t=e inte#e"t" o? t=e$e# 5!t t=e %e#"on co! "ti 5e ?o!n to co$e nte"ti?; to t=e i""!e" i#ect;4 t=en it i" not23 oin to 5e$i""i5e' An oo t t=e ece%tion" to t=e =e#"; #!e" <; in <=ic= t=e ei"t!#e i" t#;in to 5#inin?o#$tion t=t <o! ot=e#<i"e 5e !ni5e' So ;o! #et=inin4 ;o! no< ;o! cnnot et t=e 5e"t 5ec!"e t=e%e#"on t=t =" t=e 5e"t eience i" e4 cnnot 5e ?o!n4n t=o"e t=in"' An "o ;o! o< ?o# t=e "econ 5e"t'

An ien t=t it i" ;o!# "econ 5e"t4 t=t i" <=; ?o#in"tnce ?o# ;in ec#tion" ;o! =e t=e #e!i#e$entt=t it 5e co##o5o#te' So t=e ?ct t=t it i" =e#"; n iti" 5ein cce%te " n ece%tion to t=e ene# #!e4 i"oin to =e 5e#in on t=e <ei=t t=t i" ttc=e tot=t in o? eience' I" t=t ce#H So I t=in <e <i "to%t=e#

L< o? Eience II Lect!#e 19'2'03

Evidence given by a witness in &udicia !roceedings is ad#issibe as ane,ce!tion to the :earsay Cue and *. 3' to !rove the fact stated. Qouaow hearsay evidence because it is the best under the circu#stancesand it saves the court ti#e.

?nder *ection 3'a the reason you aow this evidence is because thebest evidence is not avaiabe+ the witness has to be dead+ cannot be

31



found+ is inca!abe of giving evidence+ is /e!t away by the adverse!arty+ his !resence cannot be obtained without deay and e,!ense whichis unreasonabe. *ection 3' 1 a gives further reuire#ents asfoows.

1. The subseuent !roceeding has to be between the sa#e

!arties or between their re!resentatives in interest. This isbecause they woud have had the o!!ortunity and right tocross-e,a#ine the witness.

2. The adverse !arty #ust have had the right and o!!ortunity tocross e,a#ine the witness in the 5rst !roceeding.

3. The uestions in issue were substantiay the sa#e in the 5rstas in the subseuent !roceeding.

assir :a&i <age 1= th "ase course outine

% witness had given evidence before the #agistrate at the !rei#inary

inuiry and then !roceeded to Engand on eave. :e !roceeded on eavebefore counse for the accused had reserved his cross-e,a#ination anddefence. Muring the tria in the :igh "ourt the evidence of the witnesswas ad#itted under *. 33 of the E.%. a !erson who cannot be found ona!!ea+ ad#ission of this evidence given in the !rei#inary enuiry waschaenged. The court hed that the evidence had been !ro!eryad#itted as there was a right as we as an o!!ortunity to cross-e,a#ineat the enuiry. The fact that the counse for the accused had note,ercised that right was not the !oint+ the !oint was that they hado!!ortunity and a right they did not e,ercise and coud not now say thatthe witness was not avaiabe.

The reuire#ent that the uestions in issue shoud be substantiay thesa#e !resents !robe#s to the courts. 6hy ta/e the# bac/ to court ifthey have been dis!ensed with It is a!!icabe where you have aretria+ i.e. on a!!ea where a retria is ordered. There is aso theuestion as to whether the !revious !roceedings was cri#ina and thecurrent one a civi are the uestions the sa#e 8ne needs to go bac/to notes on Ces @udicata and when that a!!ies and read again

Pueens Mryceaners D. East %frican "o##unity

?nder *ection 3K state#ents in docu#ents !roduced at a civi!roceedings are ad#issibe as an e,ce!tion to the hearsay rue. *. 3K isto the e7ect that a written state#ent is ad#issibe to !rove the factscontained in it if it is #ade by a disinterested !erson with !ersona/nowedge of those facts or if it is #ade by one who in the discharge ofhis duty records infor#ation su!!ied to hi# by a !erson with !ersona/nowedge. The reci!ient of the infor#ation who woud be recording itshoud be recording it in a continuous record. In so#e circu#stances

32



where a !erson has a !ersona /nowedge and being disinterested !utsdown #atters+ if the origina docu#ent is !roduced in suchcircu#stances+ the #a/er need not be caed+ if the #a/er is dead+inca!abe of giving evidence etc.

The court aows this evidence to e,!edite rece!tion of evidence+ youare dis!ensing with caing #a/er of docu#ent because they are notavaiabe and the evidence is vauabe in deter#ining the case.

The court can aso ad#it the written evidence or a certi5ed co!y of thatdocu#ent+ there are certain docu#ents you coud !rove throughcerti5ed co!ies i.e. !ubic docu#ents. There is aso aowance forsecondary evidence under *. = this is done in the interest ofe,!editious and ine,!ensive dis!osa of a case. ?nder this case+ who isan interested !erson and the %ct has not de5ned who an interested!erson is

Lord Mevin in the case of Bear#an9s D. >etro!oitan <oice Ceceiver1G1 1 6LC ''

Lord Mevin stated in !age K2 Ano witness ought to be held to be a person interested on a ground that would not be ta$en intoconsideration as a@ecting the weight of his evidence if it were actuallyin courtG Lord Mevin is saying that the uestion as to who an interested!erson is a uestion of fact.

*ection 3 addresses itsef to the issue of the way to be attached to a

state#ent rendered ad#issibe by *ection 3K. *ection 3K deas withdocu#entary evidence. It states that weight is !egged to thecircu#stances reating to accuracy. 6hat odds are there that thisstate#ent is accurate Qou wi aso be oo/ing at the !oint thestate#ent was #ade whether it was conte#!oraneous with theoccurrence of the event. Qou wi aso be oo/ing at the uestion as towhether the #a/er had any incentive to concea or #isre!resent thefact. This is a fact of deter#ination since what a!!ears to be the caseon the face #ight not be the rea case as the !erson recording the eventcoud have had !ersona reasons for any nu#ber of reasons. If a &ournaist recorded the event+ it coud be the &ournaist was not recording

the events as a disinterested !arty but it #ight turn out that he had areative who was invoved in the accident to deter#ine whether there isincentive to #isre!resent the facts.

*T%TE>ET* >%ME ?MEC *<E"I%L "IC"?>*T%"E*

They are covered under *ections 3 '1 !art of the E %.

33



usuay stated or re!resented in such #a!s+ charts or !ans+ aread#issibe. The reason for this is to e,!edite #atters and you have the de #ini#isto e,!edite #atters.

*ection '0 state#ent #ade under s!ecia circu#stances*tate#ent of fact contained in aws and ocia ga(ettes. '0aa in any written aw of )enya+ Rb in any written aw of )enya R

*ection '1 deas with state#ents as to aw contained in boo/s.

The court has to for# an o!inion on the aw of a country. Essentiay thefact that it is authored under the authority of govern#ent is what isgoing to deter#ine whether it is ad#issibe.

*T%TE>ET* 8F <EC*8* 6:8 %CE *ECI8?*LQ ILL They are ad#issibe as an e,ce!tion to the hearsay rue. It is !rovidedfor under cri#ina !rocedure rue. It is necessary to serve the adverse!arty that you intend to ta/e a state#ent fro# a !articuar !erson whois seriousy i+ this way you accord the# an o!!ortunity to co#e andcross-e,a#ine the witness. If the !erson ater dies or cannot be!rocured+ then the state#ent wi be ad#itted as an e,ce!tion to thehearsay rue.

EDIME"E BQ "ECTIFI"%TE

?nder *ection = of the Evidence %ct+ !hotogra!hic evidence isad#issibe in cri#ina cases u!on the !roduction of a certi5cate by anauthori(ed ocer authenticating the !hotogra!h. %uthenticating isthrough granting a certi5cate to the e7ect that this is what was actuayta/en for e,a#!e a birth certi5cate is issued instead of caingwitnesses to testify to one9s birth.

AIDAVITS

These are written state#ents on behaf of !eo!e de!onents it has tobe sworn or ar#ed and coud contain state#ents of fact which the

de!onent is abe to !rove fro# his own !ersona /nowedge. Qou cannotswear an adavit on #atters that are not within your !ersona/nowedge.

Li?e In"!#nce Co' o? Ini V' -ne"#

CONESSIONS

35



6hat are confessions+ what are the rues of evidence that governad#issibiity of confessions

*ection 1 an ad#ission is a state#ent ora or written which suggestsany inference as to a fact in issue or reevant fact and which is #ade by

any of the !arties. <rovisions of *. 1 there are two /inds

For#a ad#issions are usuay #ade in the !eadings+ a !arty to abreached contract cai# can ad#it ba#e and that wi be a for#aad#ission.

Infor#a ad#issions #ay be #ade before or during !roceedings+ youcannot have a for#a ad#ission without antici!ation of a !articuar#atter but infor#a are #ade before or during the !roceedings.Infor#a ad#issions coud be confessions.

% confession then is an ad#ission by words or conduct or by aco#bination of both fro# which an inference can reasonaby be drawnthat the #a/er has co##itted an o7ence.6hat is the reationshi! between ad#ission and confessions

The reationshi! is that ad#issions is the broader category of state#entsora or written. "onfessions o!erate ony in cri#ina whie ad#issions arein both civi and cri#ina

Evidence %ct de5nes confessions in two ways$ - It is a state#ent or an ad#ission #ade by a !erson at any ti#e when

charged with a cri#e stating or ad#itting an inference that heJsheco##itted the cri#e.

*wa#i D. )ing E#!eror <age 22 "ourse outine th

This case contains the 5rst ever de5nition of confessionLord %t/in stated the foowing$+o statement that contains self?e8culpatory matter can amount to aconfession if the e8culpatory statement is of some fact which if truewould negative the o@ence alleged to be confessed" Lord %t/in issaying that a confession #ust ad#it the o7ence in its ter#s or

substantiay a the facts which constitute the o7ence. "u!a has to dowith guit and e,cu!atory is re#oving one fro# guit whereasincu!atory wi be what woud be incri#inating

In our Evidence %ct *ection 2K de5nes confessions Aa confessionco#!rises words or conduct+ or a co#bination of words and conduct+fro# which+ whether ta/en aone or in con&unction withR

36



*ection 32 2

*ection 2K deas with confessions #ade by an accused about his owninvove#ent in the o7ence whereas 32 is confessions #ade by anaccused !erson touching not ony on his own invove#ent but on the

invove#ent of others. The reuire#ent at 322 are #ore stringent+since in 2K confessions is said to co#!rise words or conductR theo!erative words are Athe !erson #a/ing it has co##itted the o7ence322 incudes the co##ission of the o7ence and aso facts constituting

?nder 2K de5nition of confession incudes both an e,!ress ad#ission ofan o7ence as we as ad#ission of incri#inating facts+ there is e,!ressand i#!ied. The words Awhether ta/en aone or R

*ection 322 the confession has to have the e7ect of ad#itting in ter#seither the o7ence or substantiay a the ee#ents constituting the

o7ence.

6hen you i#!icate another !erson+ the rues get #ore stringent+ butwhen you ad#it your own guit without others it is assu#ed that you wibe carefu enough not to get !ut down for a s!eci5c o7ence.

"o##issioner of "usto#s H E,cise D. :er(

In this case+ whie in the course of investigating a sus!ect frauduentfaiure by a co#!any to !ay ta,+ custo#s ocers sub&ected :ert( tointerrogation asting 3 hours. Muring the 3 hours+ :ert( #ade

incri#inating ad#issions. The !ower to interrogate was derived fro# astatute under which both :ert( and his attorney were #ade to beievethat faiure to answer uestions :ert( coud be !rosecuted. For thebeief that !rosecution woud have ensued if he did not answer auestions+ :er( woud not have answered a the uestions. :er(t wassubseuenty charged with cons!iracy to cheat and defraud the custo#sof ta, and the !rosecution sought to tender evidence of his oraad#ission. :ert( was convicted and he a!!eaed and on a!!ea it washed that the ad#issions were inad#issibe because 5rsty the reevantstatutes did not confer !ower to sub&ect a trader to !roongedinterrogation. *econdy the ad#issions were #ade under threat of

!rosecution and were therefore not vountary.

The Evidence %ct ays out what /inds of confessions wi be ad#issibe

*ection 2 ; a confession is not ad#issibe if its ad#ission a!!ears Rwhich has reference against an accused !erson+ such induce#ent threator !ro#ise e#anating fro# a !erson in %uthority or co#ing fro# a c

37



who ies. These wi be !eo!e with who# you wor/ and !eo!e who/now you generay. It is the net e7ect of the interaction that you havewith other !eo!e. 6ith dis!osition+ you have no contro over+ you coudtry but a ot of it has to do with what one is !redis!osed to but withre!utation it is the way the !eo!e !erceive of you.

Me5nition of character at *. K= is traceabe in Engish ega history. There is no distinction here between re!utation and dis!osition and theyare used interchangeaby as if they were the sa#e. %#ongst the earyEngish cases that conceded the evidence of character is the case ofC v. Cowtown 1=K L@>" K

In this case the accused was charged with indecent assaut and he gaveevidence of his good #ora character. The !rosecution to rebut thisevidence of this good #ora character caed a !erson who testi5ed thathe had no /nowedge of the neighborhood9s o!inion but his own o!inion

was that the accused was a #an ca!abe of the grossest indecency andthe #ost agrant i##oraity. :e said that this is aso the o!inion of hisbrothers who were the accused9s !u!is hed. The uestion was whetherthis evidence ad#issibe. The court hed that it was not ad#issibebecause it was based on the witness9s own o!inion as o!!osed to theo!inion of the co##unity. There was a dissent and two &udgesdissented arguing that the evidence ought to have been ad#ittedbecause it was based on the witness9s inti#ate /nowedge of theaccused rather than that of the co##unity. The court was sti of theview that since it was not a genera neighborhood o!inion+ it was notad#issibe.

In this case the court was overe#!hasi(ing the need for big nu#bers tohod a si#iar view before the evidence coud be ad#itted. "ourts see#to use dis!osition and re!utation interchangeaby and it see#sconfusing.

>aindi v. C 1G 1 %" G3

6hen is the evidence of character ad#issibe

There is a distinction between cri#ina and civi cases.

"IDIL "%*E*

In civi cases the genera !oicy is to re&ect evidence of the character ofthe !arties and this is !rovided for in *ection KK of the Evidence %ct. Itcontains the !rinci!e that in civi cases in genera+ evidence of thecharacter of the !arties wi be re&ected. Evidence of "haracter in civicases cannot be ead to estabish the co##ission of a wrong by a

40



an o!tion to testify or not to testify and this !ut the accused !erson in adie##a+ if he chose not to testify+ an adverse inference #ight be drawnor coud be drawn against hi#. <eo!e #ay draw an inference that onewho refused to testify has so#ething to concea.

8n the other hand+ if they chose to testify and had a !revious record+they coud be cross-e,a#ined fro# the !revious records and this is whyyou have in the "<" and the "onstitution the right to sience on the !artof the accused !erson which is #eant to guarantee that the right to/ee! sient is not going to invite an inference that so#ething wi be hedagainst you. The !rosecution has no right to co##ent on the sience ofan accused !erson.

It is e,!icity !rovided that the !rosecution has not right to co##ent onthe sience of an accused !erson. *. #andates an accused to /ee!sient.

The uestion has arisen that since the !rohibition of co##enting is onthe !rosecution+ can the &udge co##ent. ?nder *. 12 2 3 and in thecase of C v. Bathurst 1G= 2 PBM GG

This case considered the uestion whether !rohibition binds the &udge. The &udge coud ony !ro!ery te the &ury that

i The accused has a right not to testify;ii They #ust not assu#e that the accused is guity because he

does not testify even though they have been de!rived of thechance to test the story tod in cross-e,a#ination.

If the accused !erson chose not to testify+ it shoud not be #ade asub&ect by the !rosecution but if the accused !erson o!ts to testify+ he istreated i/e an ordinary witness and can be cross-e,a#ined.

6hat is the !rovision of aw on how one deas with the witnesses

*ection

In the case of >a,we v. M<< 1G3K %"

In that case it was inti#ated that the accused !erson had a shied!rotecting hi# fro# cross e,a#ination fro# !revious record orantecedents uness he threw the shied away or uness the evidence ofsuch !revious records or antecedents had a bearing of guit on the!resent case. E,a#!es of ways in which an accused coud throw theshied away

42



i If he gave evidence of his good character he woud be dee#edto have thrown the shied away

ii If he cast as!ersions on the re!utation of the !rosecutor or theco#!ainant he woud be said to have thrown the shied;

iii If he gave evidence against a co-accused with who# they were

charged with the sa#e o7ence.

It woud see# that a!art fro# these 3 incidents the accused woud betreated i/e an ordinary witness and coud not be as/ed irreevantuestions.

*ections 1K and K

*. K and 1K e#body these rues.In cross e,a#ination a !erson can be as/ed any uestion and it does not#atter that that uestion is incri#inating. ?nder *. K evidence or cross

e,a#ination of an accused on bad character evidence is inad#issibeuness one of the K e,ce!tions to that section a!!y.

*. K 2 in cri#ina !roceedings+ the fact that the accused !erson hasco##itted or been charged with an o7ence other than that with whichRBad character evidence is inad#issibe uness one of the K e,ce!tiona!!y

*choars of evidence have tried to e,!ain away the a!!arentcontradiction and *ir "ross on Evidence tries to reconcie those views by

saying that under *. 1K one woud have to be oo/ing at the narrowconstruction of the contradiction i#iting * 1K to instances whereuestions !er#itted woud incri#inate the accused !erson directy anddisaowing those that do not incri#inate hi# indirecty.

The other view is the broader construction where both direct andindirect incri#inations are aowed irres!ective of whether the accusedhas thrown or not thrown away the shied. The contradiction re#ains aswe do not yet have a &udicia inter!retation. There is no de5nitiverendition.

*ection K has e,ce!tion.

?ness The 5ve sections of *. K aa to d under *. K 1aa evidence of badcharacter wi be ad#issibe as evidence of fact in issue 6here it co#!rises si#iar fact evidence+ *ection K 1 a !rovidesthat it wi be inad#issibe uness RC D. "oc/ar

43



ii To de#onstrate that the accused is an unreiabe !erson evenon oath+ so this goes to credit.

The accused wa/s a very tight ro!e and one wonders whether this*ection K intended to ha#!er the accused defence and case aw is to

the e7ect that when an accused !erson denies an o7ence or assertsthat he is innocent does not assert to good character. >ere denia of ano7ence or assertions of innocence shoud not be construed as goodcharacter as this woud inca!acitate the accused fro# !re!aring adefence and a ine has to be drawn between #ere denias as againstassertions of good character.

C. D. Eis 1G10 2 PB

Eis deat with antiues and was charged with obtaining cheues fro#custo#ers by fase !retences concerning the cost !rice of the antiues.

:e cross-e,a#ined !rosecution witnesses with a view to showing thathis conduct towards the custo#ers was not consistent with an intentionto defraud. The !rosecution sought the court9s eave to cross-e,a#inehi# on !revious antecedents but the court decined !ointing out that theaccused by e,a#ining the !rosecution witnesses was not asserting hisgood character. :e was atte#!ting to estabish his innocence.

If the accused !erson gives reasons for his innocence de!endent on thecourt9s assu#!tion that he is an honest #an+ then this can a#ount toevidence of good character to what !ur!ort is this evidence that theaccused !erson is giving what assu#!tion does he want the court to

have

C D. *a#ue 1GK '0 ".%. C =

%i bin :assan v. C

C v 6in5ed

The accused was charged with indecenty assauting a wo#an.Evidence was given of the accused good character. :e had a !reviousconviction for arceny. The court aowed the !rosecution to cross-

e,a#ine hi# on his !revious antecedent #uch as this was a tria forassaut and the uestion was whether this was !ro!er. The court hedyes because there is no such things in ega !rocedure as !utting a !artor a fraction of a !risoner9s character in issue and eaving the other !art.% !risoner that !uts his character in issue #ust be dee#ed to have !uthis whoe character in issue. This issue was carried further in *taen v. M<<

45



8n a charge of forgery an accused !erson !ut his good character inissue by saying in cross-e,a#ination that he had never been chargedwith any o7ence. The !rosecution as/ed hi# in cross-e,a#inationwhether on eaving a certain e#!oy#ent+ he had been uestion aboutan aeged forgery. The accused denied. :e was convicted and he

a!!eaed. %nd the court hed that the accused #ay be cross-e,a#inedas to any evidence given in the e,a#ination in chief incudingstate#ents as to his good character. The court went on to state +anaccused who puts his character in issue must be regarded as putting thewhole of his character in issue" e cannot assert his good character incertain respects without e8posing himself to an inquiry about the rest ofhis record so far as that tends to disprove claim of goods character"G 6hen one !uts their good character in issue+ the court is entited to/now about your whoe character because you have brought it forth.

6hat ha!!ens when it is not the accused who asserts his own character

but a witness without any !ro#!ting+ with this o!en u! the accused!erson to be interrogated on his good character.

C D. Ceid 1G23 1 )B 10'

6hich answered this uestion by asserting that such an occurrence doesnot entite the !rosecution to bring in !revious antecedents.

K1 W - where nature or conduct of the defence is such as to invovei#!utations on the character of the co#!ainant or of a witness for the!rosecution. If an accused !erson raises an issue in his defence that

casts as!ersions on the co#!ainant or witness he can be uestioned onthe good character

Civers %rtheston Coyston D. C

The accused was charged with obtaining #oney by fase !retences fro#various !ersons. :e ad#itted receiving the #oney but denied usingfase !retences. In cross e,a#ining the !rosecution witness with a viewto furthering his defence+ to the charge of fase !retences+ he castas!ersions on their characters. The court thereu!on aowed the!rosecution to cross e,a#ine hi# on his !revious antecedent. :e was

convicted and a!!eaed against conviction on the ground that the!revious antecedents were wrongy ad#itted. The court of %!!ea hedthat the !revious antecedents were wrongy ad#itted and in their words+Awhere i#!utations invoving the character of !rosecution witnesses arean integra !art of the defence+ without which the accused cannot !uthis case before the &ury+ fairy and suarey+ he cannot be cross-e,a#ined on his !revious cri#ina history. this is what is being referredto as an integra !art of the defence

46



8#ondi D. C

The %!!eants were charged with robbery with vioence. Muring crosse,a#ination the 5rst a!!eant suggested that the <oice *ergeant who

had given evidence against hi# was deiberatey co##itting !er&ury. Thereafter the court aowed the !rosecution to !ut uestions to the 5rst%!!eant touching on his 5rst convictions. The %!!eants wereconvicted. They a!!eaed chaenging ad#issibiity of evidence of !astconvictions. The court hed that to chaenge the evidence of a witnessfor the !rosecution is not to cast as!ersions on the character of thewitness within the #eaning of *. K. the court e#!hasised the atter!art of *ection K 1 c which in their wording #eant that if thedefence invoves a !ro!osition that the &ury ought not beieve the!rosecution+ or one of he witnesses for the !rosecution+ then the &uryaso needs to /now what /ind of character the !risoner has. It oo/s i/e

in this case the ine is very thin+ if you are saying that the witness for!rosecution is not to be beieved+ then the court need to /now if you areto be beieved. 6hat a#ounts to casting as!ersions+ it is not cear sincethey wi hod it as casting as!ersions in one case and in the other as anintegra !art of the defence.

%bdua )atwe D. ?ganda

*evey v. M<<

This was a tria on a charge of buggery. The defence was that the

co#!ainant was a #ae !rostitute soiciting the a!!eant. The triacourt aowed the a!!eant to be cross-e,a#ined on !reviousconvictions of indecency. :e was convicted and a!!eaed. The courthed that cross-e,a#ination of an accused on !revious convictions ofbad character was !er#issibe under the %cct if the nature and conductof the defence invoved i#!utations on a !rosecution witnessnotwithstanding that the i#!utations were necessary as !art of theaccused answer to the charge. It aso hed that the tria court had adiscretion to refuse to !er#it cross e,a#ination of an accused !erson asto the !revious convictions even though the cross-e,a#ination was!er#issibe under the %ct.

Lega o!inion see#s to suggest that *ELDEQ D. M<< overrues it is notcear when the integra !art of defence theory wi o!erate and when it iscasting as!ersions. The eeway of discretion on the !art of the &udge isthat the

In )enya+ and East %frica+ cross-e,a#ination on !revious antecedents isnot !er#issibe if it is vita for the defence to raise issue of the character

47



of the co#!ainant. 8ver and above that the court sti has discretion todisaow evidence of !revious antecedents if they are casting as!ersionson the co#!ainant+ where the way is o!ened u! the courts sti have adiscretion to disaow evidence where its !robative force is outweighedby its !re&udicia e7ect.

I##ediatey after d*. K A!rovided that the court #ay R !roviso to *. K as we asrendition to the case of 8#ondi v. C

<aragra!h K 1 d

%n accused !erson can be uestioned on his !revious antecedent if hegives evidence against any other !erson charged with an o7ence

>urdoch v. Tayor

6here it was stated that evidence against a co-accused is evidence forthe !rosecution against the co accused and it therefore under#ines yourdefence as an accused !erson o!ening u! the way for the !rosecution touestion hi# on his !revious antecedents.

It is critica that the evidence that a !erson gives against the co-accusedbe su!!ortive of the !rosecution case as this is ony when the way iso!ened to uestion the !erson on their !revious antecedents. Forevidence of an accused bad character the sections of K 1 b . this isdi7erent fro# what ha!!ens after !rosecution where the !rosecution

can furnish the court with docu#ents of !revious antecedents to assistthe courts in sentencing.

8<II8 EDIME"E

6hat is o!inion

8!inion is de5ned to #ean any inference which one #ay draw fro#!erceived data. It is whatever you infer fro# what you see+ s#e+ hear+fee etc and the genera rue in evidence is that a witness shoudcon5ned hi#sefJhersef to what they !erceive to eave the court to draw

the inferences.

It is however not aways !ossibe to se!arate !erceived facts fro#o!inions in so#e cases they are intertwined and it woud be i#!ossibeto se!arate the two. The court #ight so#eti#es need the o!inion of!eo!e better !aced than itsef to draw the inferences and it is in thesesituations that he court aows the inferences.

48



*o essentiay at section '= 1 we are given the basis for bringing ine,!ert o!inion. %nd it is the !erson that co#es then to o7er that e,!erto!inion that is referred to as an e,!ert.

%nd I thin/ we aso !ointed out that the second genera instance when

evidence of o!inion is going to be aowed is where it is i#!ossibe tose!arate facts fro# inferences+ %nd an e,a#!e here is where a !ersonsays so and so was driving at a fast s!eed. Qou /now that when you saythat a !erson is driving at a fast s!eed you haven9t seen thes!eedo#eter of the vehice. Qou see a vehice (oo# by and then you saythat+ #y+ it is #oving at a very fast s!eed. %nd fast s!eed can beso#ething that de!ends on your !erce!tion of what is so going fast butif you didn9t aow !eo!e to o!ine on what they saw a #otor vehice#ove then it #ay be i#!ossibe to get evidence of this !erson. %sowhen you say that you are not feeing we. 6hen a !erson says I a#sic/. Qou are not a doctor. But there are things that you fee that #a/e

you o!ine that a is not we. *o when you te the court or when you te!eo!e that you are not feeing we !eo!e wi not as/ you what wasyour te#!eratureRQou say I thin/ I a# co#ing down with a u. If the!erson as/s you what is your te#!erature or what are the sy#!to#s ofwhat you fee and e,!ect you to o!ine i/e a #edica ocer woud on anaergy. They don9t e,!ect you to do that. But there is a rea# at whichyou woud /now that a !erson is not feeing we.

Then there is the whoe uestion of age. 6hen you say that you are so#any years od+ that is a #atter of o!inion. Qou do not /now how od youare. Qou have been tod when you were born. But that that is not a

factua thing when a !erson says I a# 20 or 2K years od+ it is a #atterof o!inion. %nd that woud nor#ay be acce!ted because in those /indsof situations it woud be i#!ossibe to se!arate facts fro# inferences. 8reven where a !erson says so and so was into,icated. :ow did youinduce that a !erson is into,icated :ave you usedR what it theinstru#ent used to record how #uch acoho is in a !erson9s bood6hatever it is+ when you see a drun/ !erson or where a !erson co#es toyou drun/+ do you need a #edica doctor to te you that a !erson isdrun/

*o essentiay there you have both facts and inferences because you are

oo/ing at the way in which a !erson is carrying the#seves andinferring fro# that that he coud not see that they are behavingnor#ay. %nd we are trying to e,!ain away why woud they behavethat; #ay be they had been seen at so#e iuor &oint so you canconcude that they are o!erating under the inuence of and that is whythey see# to be not uite together.

50



actuay went to schoo to gain the /nowedge if you gained the/nowedge through e,!erience+ then that suces.

The other case that you shoud oo/ u! here is the case of Odindo v 1GG E% 12. The a!!eant in this was convicted of driving a #otor

vehice under inuence of acoho. % !oice ins!ector testi5ed to thee7ect that when the a!!eant was brought to the contro roo# of thetrac headuarters he was s#eing of drin/. :e was inca!abe ofcoherenty giving his na#e. :e coud not te the ti#e by the coc/ onthe wa and he coud not stand on one foot with his hands hori(ontaystretched. The ins!ector concuded his testi#ony by asserting that in hiso!inion the accused was co#!etey inca!abe of having contro of a#otor vehice. The &udge ob&ected to his o!inion saying that the!oice#an shoud have con5ned his testi#ony to what he observed+eaving the issue of 5tness to drive to the court or a doctor. %ndessentiay you can see what /ind of unfairness this /ind of 5nding

#ight. Qou #ight &ust have a bad sense of baance; you cannot stand onone foot+ that doesn9t #ean that you are drun/. If you can9t te the ti#eby the coc/ on the wa you #ight be shortsighted+ of you #ay beiiterate in teing ti#e. Then if you can9t coherenty give your na#e+ you#ay be a !erson that stutters. *o essentiay you can see to aow!eo!e to #a/e observations and then !roceed to &udge can actuayoccasion a ot of in&ustice of the accused !erson. %nd this is what whythe court is saying that the !oice !erson ought to &ust say this is what Iobserved. But having observed that has nothing to do with whether youcan contro a #otor vehice or not. It #ay have a bearing when youcontro a #otor vehice but those are #atters that shoud be eft to an

e,!ert.

%nd another case aong the sa#e ines is the case of $te2hen v 1G3 E% 22. %gain here the court re&ected evidence by a !oice#anthat he had found the accused in !ossession of a drug caed bhang. %ndhere what the court is saying is you shoud te the court that you foundthe# with so#e substance of this coor+ of this consistency which s#esi/e this. %nd then eave it to an e,!ert who can isoate the che#icaco#!ound of that substance to say that it is bhang. But a !erson coudcrash cha/ and say that they found you in !ossession of so#edangerous drug. %nd this is the /ind of unfairness that one is trying to

guard against. %nd of course again you are trying to !revent !eo!e whowoud otherwise be ay !ersons fro# giving o!inion on #atters that i/estudy or ong ife e,!erience.

%nother case aong the sa#e ines is the case of Charles Ngang3a v , )enya %!!ea Ce!ort "ri#ina "ase no. of 1G=0. The accused herewas charged with o7ence of causing death by dangerous driving. %!oice testi5ed on the !oint of i#!act to which the defense ob&ectedbecause the !oice#an was not an e,!ert on the #atter. The defendant

52



ob&ected to this because in his view the !oice#an was not an ob&ect onthe #atter. The tria court overrued the ob&ection and on a!!ea it washed that uness it can be shown that a !oice#an has #any years ofe,!erience in ins!ecting #otor vehice accidents+ a !oice witnessshoud not give o!inion evidence of such #atter. %nd you can here again

you do not need to have gone to schoo to study this #atter+ ony you todo is to have #any years of e,!erience and the #any years ofe,!erience wi uaify you as an e,!ert.

FO@ DO EJ-E&TS TESTIYHE,!erts are brought to court by the !arty who whishes to rey on theire,!ertise. The !erson that woud fai if a !articuar #atter is not !rovedis the one that is going to bring the e,!ert to court. That !art wi infor#the court of the e,!ertise of this !erson that they are see/ing to havetestify in court. They wi infor# the court of the e,!ertise because you &ust go aong the street and &ust bring anybody and say this is #y

e,!ert. *o there is a !ractice of brie5ng the court on what is the area ofe,!ertise of this !erson. %nd the uestion as to whether a !erson is ane,!ert or not is a uestion of fact. *o it is not necessariy the case thatbecause you have brought a !ersonUI a# tod of a case in which auniversity student was a!!earing before a disci!inary co##ittee andwhen they were as/ed uestions they refused to answer. They werestaying at the #ain ca#!us and they said they wanted their awyer toco#e in. %nd their awyer ha!!ened to be a second-year aw student. *oyou can see how you can stretch this e,!ert. Qou are being as/eduestions and this student awyer had not ceared their second year;they were sti in the #ar/ of so#e !a!ers+ civi !rocedure+ etc. and they

were sti there dressed in a suit and carrying the !osture of an e,!ert.*o the uestion as to whether a !erson is an e,!ert or not is a uestionof fact and that is deter#ined by the court. %nd the !ointer+ the thingsthat wi he! the court in co#ing to the deter#ination are$

1. Firsty+ the educationa bac/ground. Qou want to see certi5cates.2. Evidence on the areas in his 5ed where he has ta/en e,tra

courses3. 6or/ e,!erience

The case to oo/ u! here is the case of Mohammed Ahmed v 1GK

E% 323. The a!!eant here had been convicted of occu!ying an unsafehouse+ which in the o!inion of the district housing ins!ector and thesu!erintendent of wor/s was so unsafe as to constitute a nuisance. Thecourt of a!!ea hed that these two !ersons were not uai5ed e,!ertsand so their evidence was inad#issibe. %gain go to the fact that in thisdeter#ination what the court is going to oo/ at is the e,!erience+ wherethey studied+ and aso the areas in the 5ed of the courses ta/en.

53



In !ractice+ if the e,!ert has !erceived of the fact fro# which he!ro7ered his o!inion+ if the e,!ert directy !erceived of the fact fro#which he or she !ro7ered his or her o!inion+ or if the facts are notdis!uted+ such e,!ert is as/ed direct uestions. If the e,!ert directy!erceives of the #atters on which he is !referring an o!inion on or

where those #atters are not dis!uted you wi as/ that e,!ert directuestions such as was the accused insane+ or was he so drun/ as to beinca!abe of controing a #otor vehice. If however the e,!ert did not!erceive of the fact or if the facts are dis!uted he is as/ed hy!otheticauestions such as are the facts adduced consistent with the e,istence of a certain state such as drun/enness or insanity.

?nder section K' grounds for an e,!ert o!inion are ad#issibe but thissection does not #a/e it #andatory for the e,!ert witness to givereasons. *o whie section K' #a/es grounds for e,!ert o!inionad#issibe+ it does not #a/e it a #ust that those reasons be given.

%nd here you shoud oo/ at the case of the v $alim s4o $engero 1G3G E%"% 1'+ which is to e7ect that a court woud weco#e reasonsfor a witness9s o!inion even though it is not #andatory that this begiven.

ote however that it is necessary for e,!erts to give reasons for theiro!inions as this he!s to eui! the court with better /nowedge of the#atter under investigation. %nd the authority for that !re!osition is thecase of Onyango v 1GG E% 32+ which his to the e7ect that it is nota universa reuire#ent that reasons for o!inion shoud be given. %n

e,!ert shoud co#e to court !re!ared to &ustify his o!inion by argu#entand de#onstration. But he need not necessariy be as/ed to do so. In#any cases it is sucient if the e,!ert gives his o!inion. The #oree#inent the e,!ert the ess the need for de#onstration. *o the ong andshort of this state#ent is that whie the aw at section K' does notreuire an e,!ert to bring in reasons for his o!inion ordinariy when ane,!ert is as/ed to give o!inion in court he shoud co#e !re!ared to &ustify their o!inion and this &usti5cation wi be through de#onstrationand argu#ent. *o if they co#e !re!ared to de#onstrate an argu#ent+their reason for the o!inion and they are not as/ed to R.there is no ossbut you can i#agine a situation when you ca#e in without being

!re!ared as an e,!ert to give reason and then you are as/ed what thereasons are. In essence what it is aso saying if you are an i##inente,!ert+ you e#inence s!ea/s for you. If you are an u! and co#inge,!ert you wi be #ore reuired to give reason than the e,!ert who iswe estabished. %gain the uestion as to whether a !erson is anestabished e,!ert or not is a #atter of fact. Qou are oo/ing at whattheir education bac/ground+ #any years of e,!ertise or wor/e,!erience.

54



FO@ SFO.LD CO.&TS T&EAT EJ-E&T O-INIONHCe#e#ber we are saying e,!ert o!inion is ad#itted as an e,ce!tion tothe genera rue and the uestion that I a# !osing is how courts shoudtreat o!inion of e,!erts. It is o!inion ony. %nd the court #ust sti #a/e

its own concusion. %nd there is strong feeing that courts shoud notabdicate their res!onsibiity of &udicia #a/ing to e,!erts. *o what thee,!ert in essence is doing is assisting the court on #atters that thecourt is not too we eui!!ed to o!ine on or to #a/e a decision on. Butwhat the e,!erts can #ean+ what they are doing is assisting the court. They are not ta/ing over the roe of the court.

%nd the case to oo/ at here is the case of 5it $mile Mugisha vUganda, "ri#ina a!!ea o = of 1G+ where the court of a!!ea too/the view that e,!ert o!inion is ony o!inion and it cannot ta/e the !aceof substantive evidence. The court continues to state+ AThe court has to

decide an issue u!on such assistance as the e,!ert #ay o7er but itshoud not abdicate its roe of o!inion-#a/ing to the e,!ert. It #ust for#its own o!inion on the sub&ect #atter at hand.

%nd the other case to oo/ is the case of +assan $alum v 1G' E%12. This case again is aong the sa#e ines that the court shoud notover rey on e,!erts because they can aso #a/e #ista/es. %nd thecourt shoud not be bound by the e,!ert o!inion.

% case to oo/ at on the whoe uestion of e,!ert basing their o!inionu!on fact is the case of the v 5i2i%andimu and Three Others

1G' Van(ibar Law Ce!orts !age G0+ where a #edica e,!ert gaveevidence that certain in&uries described by hi# were inicted beforedeath. :e gave no reasons for his o!inion. The court hed that theo!inion evidence was inad#issibe as to the cause of death. %nd againthis is going to the fact that we are #a/ing that you shoud go to courtas an e,!ert !re!ared to &ustify your o!inion by argu#ent andde#onstration. *o if the issue of argu#ent and de#onstration arisesand you are unabe to defend that then it coud that the evidence isgoing to be thrown out. It wi not even assist the court infor#ing its owno!inion.

If the o!inions of two e,!erts conict the court has to #a/e its owno!inion the court by oo/ing at the credibiity of the evidence avaiabeand the e#inence of the e,!erts. If the two conicting e,!erts are euain e#inence and credit worthy then the #atter is ta/en as not !rovedand the !arty on who# the burden of !roof ies has to dis!ense of it inanother way.

55



6hat do we #ean by creditworthy in evidence other than ban/ ter#s"redit worthy here is s!ea/ing about credibiity or beievabiity of a!erson as a witness. Is that cear *o if the two of the# are euaye#inent and credit worthy+ the #atter is ta/en as not !roved and the!arty on who# the burden of !roof ies has to dis!ense with the #atter

in another way.

?nder section 3 2+ o!inion evidence shoud be direct and ora unessit is e,!ressed in a boo/ co##ony o7ered for sae. In oo/ing at thewhoe uestion of e,!ert o!inion+ you shoud revisit the uestion of !roof of handwriting. Qou re#e#ber when we were oo/ing at docu#entaryevidence you oo/ed at !roof of handwriting under section K0. Qoushoud oo/ at that again because when you are trying to !rovehandwriting you go to e,!ert evidence and these rues are !articuar.

That dis!enses then with e,!ert o!inion and we wi now !roceed to oo/

at the second category of instances where o!inion evidence isad#issibe as an e,ce!tion to the genera rue. 6e say that o!inion isnot generay ad#issibe. It is ony ad#issibe in three instances. 6ehave oo/ed at one instance and now we are going to oo/ at the secondinstance.

Secon in"tnce <=en it i" not %o""i5e to "e%#te ?ct" ?#o$in?e#ence'% witness cannot co##unicate e7ectivey without ad#itting o!inionevidence. %nd I gave the o!inion of that to incude issues !ertaining toidentity. For instance+ if I say that I saw so#ebody going into a !ace a

steaing+ a I a# doing is o!ining that the !erson that I saw steaing isthe !erson that is now before #e. Mo you see what I #ean 6hen youare ta/ing about identi5cation of say a !erson who co##itted a cri#eor identifying so#ething you are &ust o7ering or tending an o!inion thatthe goods that are !ut before you are the sa#e goods that were stoen.Isn9t that an o!inion Because it coud be the case that there were thesa#e /ind of goods avaiabe esewhere. *o a you are doing is o7eringan o!inion. There is aso the whoe uestion of who ses+ etc. *o whenyou ta/ about identify you are not &ust ta/ing about identity of !ersonbut aso of things. *o when you say that you identify these i#!e#ent orgun as the one that we used at the scene of cri#e where you were you

are &ust o!ining that what was before you is the sa#e thing that isbefore you in another instance. *o we are saying that evidence ofidentity is an e,!ression of an o!inion. %nd I a# giving the e,a#!e ofgoods. Qou are o!ining that the goods that are recovered after a robberyare the sa#e goods that were ta/en during the robbery. Mo you seewhat we are saying that you are o!ining It9s reay &ust your o!inion."oud you reay say concusivey that this is it Qou woud be o!inionthat this is it.

56



"ourts treat o!inion of identity very cautiousy to avoid convicting!eo!e on #ista/en identity. %nd here the case to oo/ at is the case oforia v 1G E% K=3. :ere 1' days after a raid on a >asai#anyatta+ the a!!eant was identi5ed at an identi5cation !arade by the

wife of one of the !ersons /ied in the raid. :e was identi5ed as Xeitherthe !erson on who /ied her husband or who !assed cose to her whenentering the #anyattaX. %nd the court re&ected this evidence noting thatthe danger of !ossibe wrong identi5cation is greater when the onyevidence is identi5cation by one witness and athough no one coudsuggest that a conviction based on such identi5cation shoud never beu!hed+ it is the duty of the court to satisfy itsef that in a cases it issafe to act on such identi5cation. In nor#a circu#stances courts wireuire corroboration of such identi5cations es!eciay where it isidenti5cation at night by singe witnesses. %nd again this is because thecourt #ust satisfy itsef that in a circu#stances it is safe to act on the

identi5cation. In fact in instances where the ony evidence isidenti5cation by a singe witness+ the evidence is reuired to beabsoutey watertight to &ustify a conviction. In essence what we aresaying is that that courts e,ercise a ot discretion when they are facedwith evidence of identi5cation+ and this is again going bac/ to the!rinci!e that we have often referred toUfairness to the accused!ersonR. *o if it is singe witnesses at night you e,ercise #ore caution.If indeed this is the ony evidence for it to secure conviction it #ust bewatertight.

Fo< #e ientiction %#e" c##ie o!tH

The !rocedure- and essentiay here what I a# now oo/ing is !ossibeways of identi5cation. 6e have been ta/ing about identi5cation !aradeand that is not the ony way in which you can identify a !erson becausewe have been ta/ing about the#-that is the !erson you oo/ at. :ow doyou carry out an identi5cation !arade %nd the !rocedure for theidenti5cation !arade was aid out in the case of v Mwango s4oManaa 1G3 3 E%"% 2G+ which case was a!!roved for the case of$imon Muso%e v 1G= E% 2. %nd the !rocedure is as foows$

1. Firsty+ the accused is aways infor#ed that he #ay have a awyer orfriend !resent when the !arade ta/es !ace.

2. *econdy+ the oce in charge of the case does not carry out theidenti5cation but he #ay be !resent.

3. Thirdy+ the witnesses do not see the accused before the !arade

'. Fourthy+ the accused is !aced a#ong at east = !ersons of a si#iarage+ height+ genera a!!earanceUif the accused is scru7y you don9t

57



bring unscru7y !eo!e-- and cass of ife as hi#sef or hersef. *o there issi#iarity.

K. Fifthy+ the accused is aowed to ta/e any !osition he chooses and heis aowed to change !osition after each identifying witness has eft if he

so wishes.

. *i,thy+ witnesses shoud not be aowed to co##unicate with eachother after they have been to the !arade. That is of course as one iswa/ing out and the other one is wa/ing in.

. *eveny+ to e,cude a !ersons who have no business at the !arade.

=. Eighthy+ carefu notes shoud be ta/en after each witness eaves the!arade and the notes shoud incude+ did the witnesses identify any

!erson and under what circu#stances+ in what !osition was the !ersonidenti5ed+ or any other circu#stances of the identi5cation.

G. ine+ if the witness desires to see the accused wa/+ hear hi# s!ea/+see hi# with his hat on or o7+ this shoud be done but a !ersons in the!arade shoud be reuested to do what the witnesses has reuested asa !recautionary #easure.

10. ten+ the witness shoud touch the !erson he or she identi5es

11. %t the ter#ination of the !arade or end of the !arade the accused

shoud be as/ed if he is satis5ed that the !arade is being conducted in afair #anner and a note shoud be #ade of his re!y.

12. In introducing the witness to the !arade+ the witness shoud be todthat he wi see a grou! of !eo!e who #ay or #ay not incude thesus!ected !erson and throughout the !arade it is critica that the !artiesconducting the !arade act fairy to avoid de!reciation of theidenti5cation as evidence. It is dangerous or wrong to suggest to theidentifying witness that the !erson to be identi5ed is beieved to be!resent on the !arade. %nd the case to oo/ at here is the case of v Buati/wa ( 1G'1 = E%"% '+ where the ocer conducting the !arade

tod the identifying witness$ XQou /now a #an caed Buati/wa who#you said /ied your unce+ co#e on to the verandah and see whetheryou can 5nd hi#X. %nd this was said to be wrong because it is asuggestion that the !erson to be identi5ed is actuay in the !arade.

It is not estabished !ractice to uestion a witness who has #ade anidenti5cation at a !arade as to their reasons for doing so. *o you don9t!ut an identifying witness to tas/ after they have identi5ed whoever

58



they identify. % vountary state#ent or co##ent #ade by the witnesshowever can be received as evidence as !art of the identi5cation. *oeven though they are saying that you do not ordinariy as/ witnessesuestions to 5nd out the reasons why they identi5ed a !articuar !ersonif they vountariy #a/e a co##ent then that co##ent wi be recorded

and shoud be received as evidence as !art of the identi5cation. %nd thecase to oo/ here is the case of $imon Muso%e v ' Qou have it. I haveaready given it to you. In this case the a!!eant was charged withanother !erson on one count of theft of a #otor vehice and two countsof robbery with vioence. The evidence was that on the #ateria day theaccused !erson had been seen at a funera and at a bar dressed in ahe#et+ which was readiy identi5ed by the !rosecution witness. Theevidence of identi5cation by the bar owner was re&ected by the triacourt on the grounds that no uestion were !ut to this witness to eicitreasons for identi5cation. The stoen #otor vehice was found outsidethe bar and in it was found a#ongst other things the he#et e,hibited at

the tria. 8n a!!ea the issue was whether the evidence of identi5cationwas !ro!ery disaowed on the grounds that no uestions were !ut tohi# to eicit reasons for identi5cation. %nd the court hed that it is notestabished !ractice to uestion a witness who has #ade anidenti5cation at a !arade as to his reasons for doing so. "o##entsvountariy #ade by the witness are often received as !art of theidenti5cation. But answers to uestions woud be of ess vaue and ofdoubtfu ad#issibiity. %nd essentiay I a# &ust #a/ing the !oint that I#ade earier$ that it is not usua !ractice to begin to as/ a !ersonuestions at an identi5cation$ why did you identify that !erson But ifthey do vounteer state#ents those wi be received as !art of the

identi5cation. %nd the authority for that !re!osition is the case of$imon Muso%e*

The second way of identifying is through 5nger!rints. %nd 5nger!rintsare !rovided for at section '=. If you oo/ at section '= it ta/s aboute,!ert witnesses. It ta/s about 5nger!rinting. %nd 5nger!rints #ay beta/en aso for !ur!oses of co#!arison. *o 5nger!rints shoud be anotherway of identifying other than an identi5cation !arade.

The third one is foot!rints. Qou can use foot!rints and here what is doneis a co#!arison of foot#ar/s. Qou woud oo/ for instance for the soi

ty!e on the shoes. Qou have seen cases where an o7ence co##ittedand the ony evidence they #ight have is that the !erson was wearing a!articuar /ind of shoes which for#ed a !articuar /ind of i#!ression andthe evidence woud be to co#!are the soi ty!e at the scene of cri#ewith the soi ty!e on the shoe and to see whether the foot #ar/s eft onthat soi are the sa#e as the ones that are contained in the shoes thatthe !erson sus!ected wore. %nd the case to oo/ at here is the case of v Maganga 1G3K 2 E%"% KG.

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The fourth way of identi5cation is by use of !oice dogs. %nd theuestion has arisen here whether this is reiabe. %nd the case in !oint is6endo and another v '4 where it was stated evidence ofidenti5cation by !oice dogs is ad#issibe and can corroborate other

identi5cation. But the dog #ust uaify as an e,!ert. *o you have tobring its training to court+ and that has to be ta/en into account inweighing the vaue of its evidence.

Before we eave the whoe area of identi5cation it is i#!ortant todistinguish between identi5cation and recognition. Identi5cation refersto a situation where one is trying to re#e#ber whether the !erson youare seeing is the sa#e !erson you saw at the scene of cri#e+ whereasrecognition refers to the situation where one /nows the !erson+ you/now the !erson !ositivey+ and you saw the# so you recogni(ed the#when you saw the#. Qou are not trying to re#e#ber whether the !erson

you saw at the scene of cri#e is the sa#e !erson. Qou are saying you/now that !erson and that is the !erson you saw. Cecognition is #orereiabe than identi5cation. %nd the case to oo/ at here is the case ofeuben Taabu Anononi v 1G=0 )enya Law Ce!orts !age KG. Qoushoud oo/ at that case on the whoe uestion of recognition versusidenti5cation.

8ther issues of #i,ed fact and o!inion+ a!art fro# identity reated as wehave said to he! es!eciay where one is testifying as to their ownheath. *o when a !erson says that they are sic/+ this is o!inion as Ihave !ointed out. Because the !erson does not go into the detai of the

causes of the iness or the inca!acity resuting fro# this iness. Thecause of iness and inca!acity resuting fro# the iness wi be #atterseft to e,!erts but that does not re#ove fro# you the ca!abiity ofo!ining on your being sic/. The other e,a#!e we have said is s!eed.8ne can say whether or not a !articuar #otor vehice is being driven ata !articuar s!eed+ you do not need to be a roc/et scientist to tewhether a vehice is being driven at a fast s!eed. The !ractice+ however+is not to convict on the evidence of singe witnesses. *o on uestions ofs!eed even though a !erson wi 5nd that the vehice was #oving at afast s!eed+ conviction shoud not be based on the evidence of singewitnesses. This is !rovided for at section '3 3 of the Trac 87ences

%ct.

Therefore we are ta/ing about identi5cation. Ce#e#ber withidenti5cation there are di7erent ways of identifying. Qou can useidenti5cation !arade+ you can use 5nger!rints+ you can use foot!rints+and you can use !oice dogs.

The second one we have said is heath+ and we have aso ta/ed abouts!eed. The ne,t is age.

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Ae6itnesses often testify as to their own age. But this is a fact u!on whichsuch a !erson cannot have 5rst-hand /nowedge of that age. Becauseyou /now age can ony be !roved by the testi#ony of a witness other

than the !erson in uestion who was !resent at birth+ or the !roductionof a birth certi5cate. *o when you testify as to your age+ you are givingan o!inion+ even when you testify as to the age of !ersons at whosebirth you were not !resent+ you are giving an o!inion. %nd of course you/now that age is a !ri#e factor in certain cases. For instance if you wantto distinguish between an indict#ent for ra!e and de5e#ent age isgoing to be a factor. 8r if you want to estabish at what age thatcri#inaity attaches to a !erson9s act+ that is critica and so you #ayhave instances where o!inion of a !erson9s age is being given. %nd ofcourse if you want to you #ay actuay ca for !eo!e that were therewhen the !erson was born. %nd nor#ay this is what is done. Qou either

bring a birth certi5cate or have !eo!e testify as to age.

There is aso into,ication as #i,ed facts and o!inion. %nd here theevidence is based u!on observation+ which you can give without anyscienti5c chec/ being carried out. %nd of course we go bac/ to the caseof Odindo v ' Ce#e#ber 8dindo was !er#itted to te the court whatthis #an coud not do but he was not !er#itted to o!ine on whether the!erson was ca!abe of controing a #otor vehice or not. But to be abeto te that a !erson is o!erating under the inuence of acoho this is notthe ti#e either. By observation+ facts and inferences+ you have facts onhow the !erson is wa/ing+ they nor#ay wa/ straight but now they are

not !ro!ery focused+ they are !robaby tottering aroundR those /inds of observations. % a !erson that you /now is not reay short sighted+ thatdoesn9t see# to be seeing very far. *o you shoud revisit here when youare oo/ing at into,ication the case of /dindo v 7 to see &ust what /indof o!inion wi be ad#itted and which wi not be aowed as far asinvestigation is concerned.

@FE&E O-INIONS A&E AD/ISSIBLE A&E CASES @FE&E O-INIONSA&E SO LIKELY TO BE CO&&ECT%nd the 5na category of circu#stances where o!inions are ad#issibeare cases where o!inions are so i/ey to be correct that the court dee#s

this convenient and ti#e saving to ad#it the#. %nd e,a#!es hereo!inions as to handwriting of a !erson by !erson acuainted with such!ersonYs handwriting. %nd this is !rovided for at section K01Uo!inionas to handwriting of a !erson by a !erson acuainted with such !erson9shandwriting. Because re#e#ber+ handwriting is a #atter for e,!erts. *owhen you have a !erson acuainted with a handwriting be aowed too!ine as to whose handwriting is before the court or is under !roof+ it is

61



an e,ce!tion to the genera rue. Qou are aowing this !erson to bringwhat they /now to bear on the deter#ination.

The second e,a#!e is contained at section K1 1. 8!inion as to thee,istence of a genera rights or custo# by !ersons i/ey to /now of it.

6ho woud be the !ersons to /now of the e,istence of custo#ary aw6ho are the re!ository of custo#sR *o you woud be going to !eo!ewho have a wor/ing /nowedgeabe+ a fa#iiarity of genera the rights orcusto#s.

Thirdy+ o!inion as to usages+ tenets+ constitution+ and govern#ent ofany association body or organi(ation given by !ersons having s!ecia#eans of /nowedge thereon. This is !rovided for at section K2. *o hereyou are conte#!ating a situation where the whoe uestion about saythe artices of faith of so#e cut. *o the o!inion of !ersons who woudhave /nowedge of those s!ecia #eans of /nowedge. *ay you are a

#e#ber or you are actuay a senior !erson in the cut+ then you wi beaowed to o!ine on those artices of faith or the constitution or the tenetof that body+ organi(ation+ etc.

%nd fourthy+ o!inion as to the reationshi! of one !erson to another+e,!ressed by conduct or evidence of !ersons who are best !aced to/now it. *o for instance+ if the uestion is whether Z and Q are #arried+the fact that they were usuay by their friends as husband and wifewoud be reevant and ad#issibe o!inion because that is an o!inion asto a reationshi! by a !erson who has s!ecia /nowedge. %nd that is!rovided for at section K3.

LA@ O EVIDENCE Lect!#e 8 1th >arch03

CO&&OBO&ATION

The evidence %ct does not de5ne corroboration. But the ter# refers toevidence which su!!orts so#e other evidence that an accused hasco##itted the o7ence with which he is being charged. It is evidencewhich is reevant+ ad#issibe+ and credibe and inde!endent and whichi#!icates the accused !erson in a #ateria !articuar. %nd this isde5nition given by )eane in his boo/+ The >odern Law of Evidence+ 1GG'Edition

In the case of D11 v 5ilbourne G1G3 1 %LL EC ''0; 1G3 %" 20+Lord Ceid asserts that Sthere is nothing technica in the idea ofcorroboration when in the ordinary a7airs of ife one is doubtfu whetheror not to beieve a !articuar state#ent. 8ne naturay oo/s to seewhether it 5ts in with other state#ents or circu#stances reating to the

62



state#ent. The better it 5ts in+ the #ore one is incined to beieve it. The doubted state#ent is corroborated to a greater or esser e,tent bythe other state#ents or circu#stances with which it 5ts in.

%nd he goes on to say that+ A%ny ris/ of conviction of an innocent

!erson is essened if conviction is based u!on the test of #ore than oneacce!tabe witness.

Essentiay what a we are trying to do here is to de5ne whatcorroboration is. %nd we are saying that it is evidence which is o7ered tostrengthen other evidence. %nd a these things we are saying about it5tting in with others is basicay fortifying that state#ent. %nd thereason that you woud need forti5cation for evidence is if that !articuarevidence is given in dubious circu#stances or it is given by a categoryof witnesses who #ay not be very creditworthy. %nd basicay that is &ustthe conte,t within which we discussing this issue.

6hat were the facts in the D11 v 5ilbourne %nd this wi he! us tosee instances in which the need for corroboration #ight arise. Theres!ondent was convicted of one o7ence of buggery+ another o7ence ofatte#!ted buggery and 5ve counts of indecent assaut on two grou!s ofboys. The 5rst four counts reated to o7ences in 1G0 and it was withregard to one grou! of boys and the second set+ that is the three others+were co##itted in 1G1 against a second grou! of boys. The defence!ut forward was one of innocent association. In essence what theaccused was saying is that he didn9t indecenty assaut the boys; hedidn9t behave towards the# in an untoward #anner+ that he innocenty

associated with the#.

The &udge directed the &ury that they woud be entited to ta/e theuncorroborated evidence of the second grou! of boys if they weresatis5ed that the boys were s!ea/ing the truth as su!!orting evidencegiven by the 5rst grou! of boys. *o here you have two sets of evidence. The one set given by one grou! of boys. Ce#e#ber we said that o7encewas co##itted in 1G0+ the other one in 1G1. %n what the &udge isteing the &ury here is that if they are convinced that the second grou!of boys are teing the truth+ then they can use that evidence to su!!ortthe evidence that was given by the 5rst grou! of boys. In essence that

the evidence of the second grou! of boys coud corroborate theevidence of the 5rst grou! of boys.

The accused was convicted. The "ourt of %!!ea however uashed theconviction and the #atter went to the :ouse of Lords. %nd the :ouse ofLords hed that the &udge9s direction was !ro!er and the res!ondent was!ro!ery convicted since the sworn evidence of a chid victi# coud becorroborated by evidence of another chid victi# of aeged si#iar

63



#isconduct. %nd this is so where the evidence is ad#issibe andindicative of the accused !erson9s guit.

I shoud !oint out that this is not the !osition in this country. In thiscountry the evidence of one chid cannot corroborate the evidence of

another chid. The "ri#ina Law %#end#ent Bi+ which I beieve hasbeen !ubished again this year+ see/s to get to the !osition where theevidence of a chid victi# can be corroborated by the evidence ofanother chid victi#. %nd this has been as a resut of ca#!aigns bydi7erent actors and es!eciay FIM% in a case they had where a #an wasaccused of having de5ed his twin daughters and the court rued that thetwo girs coud not corroborate each other9s evidence+ which #eant thatbecause there was no other inde!endent testi#ony to fortify theevidence of the one chid or the other chid+ the accused coud not beconvicted . The evidence was seen as not sucient to sustain aconviction. 8f course other issues were raised in that case as to whether

you coud oo/ for corroboration in other circu#stances. For instance+there was evidence that the two girs were found to have a venereadisease that their father had which woud o7er the corroboration+ otherthan &ust the evidence of the chidren.

In the sa#e case+ Lord :aisha# stated that the word corroboration#eans no #ore than evidence tending to corroborate other evidence.%nd he goes on to says that in his view it is evidence which is !artyad#issibe and aso reevant. It is evidence that is credibe and reevant.%nd it is evidence which if beieved con5r#s the avaiabe evidence inthe reuired !arts. %nd here the assu#!tion is that not a evidence is

going to need corroboration. But the evidence that needs corroboration+the evidence that is going to corroborate it has to be evidence that isad#issibe and evidence that is reevant and aso it has to be evidencethat is beieved con5r#s what evidence you have before the court. It issu!!osed to con5r# su!!ort or strengthen other evidence renderingthat other evidence #ore !robabe than it is standing on its own.

The sa#e !oint on what corroboration is+ is discussed in D11 v5ilbourne G1G3 1 %LL EC ''0; 1G3 %" 20 1G1 2 )B K=+ where"hief @ustice Cead says+ AEvidence in corroboration #ust be inde!endenttesti#ony which a7ects the accused by connecting or tending to

connect hi# with the cri#e. In other words+ it #ust be evidence whichi#!icates hi#+ that is which con5r#s in so#e #ateria !articuar notony the evidence that the cri#e has been co##itted but aso that the!risoner co##itted it.

%nd right there then in the rendition of D11 v 5ilbourne4 v(as%erville and in thin/ in D11 v +ester4 right there you have a cearde5nition of what corroboration is.

64



*o wi now #ove to discuss what the rationae is. But even before thecourt goes on to answer the uestion whether evidence needs to becorroborated+ it has to consider 5rsty whether the evidence it hasbefore it is credibe. Before you begin to oo/ for fortifying+

strengthening+ con5r#ing evidence+ you have to be convinced that theevidence you have before you is credibe because no a#ount ofcorroboration can render incredibe evidence credibe. That is a !rinci!eof aw and you shoud oo/ the case of v 'i2%ering ara2 5osgey' Itis authority for the !ro!osition that no a#ount of corroboration woudrender incredibe evidence credibe. *o the court has 5rst to inuire as towhether the evidence that it has before it is credibe before it even goeson to oo/ for fortifying evidence+ strengthening or con5r#ing evidence.

*econdy+ the corroborating evidence #ust aso be credibe. It shoud becredibe. %nd again of course re#e#ber we said it has to be

inde!endent. It has to be credibe and inde!endent and shoud not be#ere re!etition of the evidence on record. %nd here again the !rinci!eto oo/ out for is the !rinci!e at section 1'3 of the Evidence %ct to thee7ect that Ano !articuar nu#ber of witnesses sha+ in the absence ofany !rovision of aw to the contrary+ be reuired for the !roof of anyfact.

*o essentiay you can !rove your case by the evidence of one witness. Qou do not need a reuisite or s!eci5c nu#ber of witnesses. That beingthe case then you do not &ust co#e to court to rehash evidence that ishas been stated before. The evidence that is co#ing in to corroborate

has to be inde!endent+ it has to be credibe on its own. It shoudn9t be a#ere re!etition of the evidence on record.

%nd thirdy+ e,ce!t where statutes !rovide otherwise+ each case standson its own facts and it is therefore not !ossibe to say in advance whichevidence wi go to corroborate the other in a !articuar case. Becauseevery case e,ce!t where a statute e,!ressy says otherwise+ wi standon its own facts. It is not !ossibe to !redeter#ine or to /now in advancewhich evidence wi go to corroborate the other in a !articuar case. It isa a #atter of !ractice and e,!erience+ turning on the facts of each!articuar case.

%s a genera rue+ there is no reuire#ent that evidence be corroboratedor that a tribuna of fact be warned of the danger of acting onuncorroborated evidence. *o as a generay rue reay there is noreuire#ent for corroboration. %nd re#e#ber again we are going bac/to the !rinci!e at section 1'3 that there is no reuire#ent that youbring in the evidence of a s!eci5c nu#ber of witnesses. Qou can &usthave one witness carrying the day.

65



% !erson is free to adduce evidence corroborating other evidencetendered and this #ay he! es!eciay where their case is wea/. But thecourt has the &urisdiction to !revent ad#inistration of su!eruousevidence for reason of cost and ti#e. Essentiay what we are saying is+

as a genera rue there is no reuire#ent for corroboration or that the &udge shoud warn the &ury that it shoudn9t convict+ or on the dangers of convicting on corroborated evidence. That being said+ a !erson can bringin evidence to strengthen other evidence tendered es!eciay wheretheir case is wea/. But even in those circu#stances+ re#e#ber the courtdoes not have forever to sit and isten to !eo!e. *o it has &urisdiction tosay that that #atter has aready been testi5ed to and in the interests ofsaving ti#e and #oney coud actuay sto! you fro# bringing inevidence es!eciay where that evidence is su!eruous.

%nd a this is going to betray the #ain !rinci!e that we are #a/ing or

that we are stating that there is no reuire#ent for corroboration. %nd infact corroboration is going to be in #any cases a waste of the court9sti#e+ which then woud ead to the !oint that you ony as/ forcorroborating evidence where that is absoutey necessary. %nd as/ingfor corroboration or reuire#ent is an e,ce!tion to the genera rue. Li/ea rues of evidence the rue is arger than ife but the e,ce!tions areeven arger. There are e,ce!tions to this rue that corroboration is notreuired. %nd this fas generay into three categories$

1. 5rsty where corroboration is reuired as a #atter of aw. *othere #ay be instances where the aw reuires that certain

/inds of evidence be corroborated. %nd in those cases it wi bebecause of the nature of the evidence or because of the !ersonthat brings that evidence before the court.

2. 6here corroboration is not reuired as a #atter of aw but thetribuna of fact or &ury #ust be warned as a #atter of aw of thedanger of acting on uncorroborated evidence. E,a#!es arewhere you have acco#!ices testifying for the !rosecution+where you have evidence of co#!ainants in se,ua reatedo7ences.

3. There are those cases where corroboration is not reuired as a#atter of aw but courts have evoved !ractice to warnthe#seves of the dangers of acting on uncorroboratedevidence. E,a#!es are confessions which are retracted orre!udiated. It aso covers confessions by #entay handica!!ed!ersons and #ethods of identi5cation. It is the nature of theevidence that is being tendered that has #ade courts evovethis !ractice.

66



@FE&E LA@ &E.I&ES CO&&OBO&ATION

1. 87ence of !rocuration; *.' and '= <ena "ode for!rostitution and other i##ora !ur!oses; <rostitution is not ano7ence but !rocuration and iving o7 bene5ts of !rostitutions.

*ince the o7ences of !rocuration are easiy aeged and dicutto refute+ a !erson sha not be convicted of such an o7enceu!on the evidence of one witness ony. That evidence has to becorroborated in so#e #ateria !articuar which i#!icates theaccused... *ection 1' of the <ena "ode. ?nder *. 1'= which!rovides for !rocuration of de5e#ent by threat or fraud orad#inistering drugs+ a !erson sha not be convicted u!on thewitness of one !erson ony. In deaing with !rocuration it isreuired that the corroborating evidence #ust be i#!icatingthe accused. Evidence which eads the accused !erson to theo7ence charged. * "* 7oldstein 1G1' 11 "%C 22

2. *!eeding$ The o!inion of evidence of non-e,!ert is as agenera rue not ad#issibe. 8ne of the e,ce!tion to thisgenera rue however reates to s!eed. 6ith s!eed you cano!ine even though you are not an e,!ert because the o!inion isin/ed u! to what you !erceiver. *ection '33 of Trac %ct it isrecogni(ed that aowing for ad#ission of o!inion evidence iso!ening u! doors for wrong convictions+ there is danger inconvicting on o!inion evidence of non-e,!erts. This *ection!rovides that a !erson charged under the section sha not beiabe to be convicted soey on the evidence of one witness to

the e7ect that in the o!inion of the one witness+ the !ersoncharged was driving the vehice as such great s!eed. Theassu#!tion of the aw is that the o!inion of one or two !ersonsthat a vehice has e,ceeded the s!eed i#it is sucient to &ustify a conviction under this !rovision. It is reuired that theirevidence shoud reate to the s!eed of the vehice at the sa#e!ace and ti#e. (rightly "* 1earson 1G3= ' %EC 12+ there isaso the case of Nicholas "* 1enny, 1GK0 2 )B ' which hedthat the court coud convict on the evidence of a <oice 8cerwho had chec/ed a vehice s!eed fro# a s!eedo#eter of hisown car which was driven at an even distance behind the

defendant9s care+ i.e. there is no need for corroboration.CO$$)AND "* D11 1G== 3 %EC 12 where it was stated at!age 1' that it is !ain that the subsection is intended to!revent the conviction of defendant on evidence given by asinge witness of his unsu!!orted visua i#!ression of thedefendant9s s!eed. In this case an accident reconstructione,!ert had ins!ected the scene of the accident and had evencarried out tests on s!eed+ the court hed that this was not

67



soey the o!inion witness of one witness because the witnesshad aso carried out other testsR

3. -E&.&Y ?nder *ection 111 of <ena "ode a !erson cannot beconvicted of co##itting !er&ury or subornation of !er&ury soey

u!on the evidence of one witness. It is not &ust in &udicia!roceedings but aso where !erson #a/es fase state#ents onoath. The corroboration need ony reate to the fasity of thestate#ent in uestion. ?nder this *ection corroboration neednot invove a second witness or that it ta/es any !articuarfor#.

'. T&EASON o !erson charged with treason or any such feony#ay be convicted e,ce!t on his own !ea of guity or on theevidence in o!en court of two witnesses at east to one to oneovert act of the /ind of treason or feony charged or aeged or

the evidence to one witness to one overt act or one otherwitness to one overt act of treason or the sa#e /ind of feony.

K. CFILD&EN O TENDE& YEA&S under *ection 12' of theEvidence %ct+ notwithstanding the !rovisions of *ection 1G of"a! 1K Laws of )enya where the evidence of a chid of tenderyears is ad#itted+ in accordance with that *ection. 6here thecourt considers that a chid understands the nature of the oath+the chid wi be sworn. This section is deaing with instanceswhere a chid is swornR. The accused sha not be iabe to beconvicted on suchR 6ho is a chid of tender years+ this was

de5ned in the case of 5ibageni "* The %!!eant here wasconvicted of #urder+ the conviction was based on the evidenceof two young boys who had been ar#ed and they werebetween the ages of G and 1'. There was no ad#ission of theo7ence athough the fact was assu#ed at the tria. There wasno corroborating evidence and no warning was given asreuired. 8n %!!ea+ it was hed that the evidence of the twoboys was of so vita a nature that the court coud not say thatthe tria &udge9s faiure to co#!y with the reuire#ents forcorroboration was one which coud not have occasioned a#iscarriage of &ustice. The second 5nding was that the faiure

of the tria &udge to warn either hi#sef or the assessors of thedanger of convicting on the evidence of the two boys withoutcorroboration was an additiona ground for aowing the a!!ea.%t !age G' the court stated+ Sthere is no de5nition in the 8athsand *tatutory Mecarations %ct of the e,!ression chid of tenderyears for the !ur!ose of *ection 1G but we ta/e it to #en anychid of any age or a!!arent age of under 1K years in theabsence of s!ecia circu#stances. This de5nition is i#!ortant

68



e,aggerate or even invent the accused roe in the cri#e in order to#ini#i(e his own cu!abiity. *ection 1'1 !rovides that an acco#!icesha be aR.. The acco#!ice #ay be do this to shied hi#sef fro#iabiity.

Davies "* D11

The defendant with other youths attac/ed another grou! of youths with5sts. 8ne of the youths in the other grou!s died subseuenty of stabwounds. *i, youths were charged with the #urder but ony thedefendant was convicted. E was one of the si, youths charged but hewas convicted of the esser charge of co##on assaut. %t the tria ofthe defendant+ L testi5ed for the !rosecution as to the ad#ission by thedefendant of the use of /nife by hi#. The tria &udge did not warn the &ury of the danger of acce!ting this evidence without corroboration. TheMefendant9s conviction was ar#ed by the court of %!!ea. 8n %!!ea

to the :ouse of Lords+ it was hed that in a cri#ina tria+ where a !ersonwho is an acco#!ice gives evidence for the !rosecution+ it is the duty of the court to warn that athough it #ay convict u!on this evidence it isdangerous to do so uness it is corroborated. *econdy the court statedthat this rue+ athough a rue of !ractice now has the force of aw andthirdy where the &udge fai to warn as above+ conviction wi be uashed.It is in this case where the court de5ned as to who an acco#!ice is.

The court addressed its #ind to the uestion of who is an acco#!iceand o!ined that fro# the cases

1. <arties who are !artici!es cri#inis in res!ect of the actua cri#e

charged whether as !rinci!es or accessories before or after thefact.

2. Ceceivers of stoen goods $ " 'ennings 1G12 "%C 2'23. %cco#!ices+ !arties of another o7ences co##itted by the

accused in res!ect of which evidence is ad#itted under thesi#iar evidence rue. * v &arad 1G'K 30 "%C 1=

" Moorings " +asham 'iwa these cases are to the e7ect that an agent!rovocateur is not an agent i.e. a !erson sent by the !oice as an agent!rovocateur is not an acco#!ice and their evidence does not reuire

corroboration.

6hat evidence a#ounts to corroborationIt has to be reevant and ad#issibeIt has to be inde!endent:as to i#!icate the accused or in/ the accused with the o7ence visitthe case of v (as%er8eld .

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The reuire#ent of corroboration warning in the case of acco#!iceevidence e,tends to #atri#onia evidence 7aller "* 7aller which hedthat in divorce !roceedings an aduterer who gives evidence of his ownadutery is in the sa#e !osition as an acco#!ice in a cri#ina case andhence the reuire#ent for corroboration.

6ilson 5inyua 9 Another "* 1G=0 )LC

The %!!eant and another !erson were charged with #urder. )inyuadenied invove#ent but the second a!!eant confessed to his guit andstated that 6ison )inyua was aso invoved. %t the tria+ the second%!!eant ob&ected to the ad#ission of the confession after a tria withina tria the 2nd %!!eant confession was ad#itted even though the #a/erhad disowned it earier. )inyua was convicted on the basis of theconfession even though the tria court did not get corroboration for theconfession. 8n %!!ea+ the court hed that the 2nd %!!eant confession

was acco#!ice evidence which needed corroboration. The court wenton to say that re!udiated confessions shoud not for# the basis ofconviction without corroboration.

SEJ.AL OENCES corroboration has beco#e the rue of aw. The rue is that in cases where the accused is charged with a se,uao7ence+ the &ury shoud be directed that it is not safe to convict u!on theuncorroborated testi#ony of the co#!ainant but that if they aresatis5ed of the truth of such evidence+ they #ay after !aying attentionto that warning nevertheess convict. The corroboration reuire#ent inse,ua o7ences ste#s fro# the fact that the charge is easy to #a/e and

dicut to refute+ there is the very !resent danger that the co#!ainant#ay #a/e a fase accusation owing to se,ua neurosis+ &eaousy+ fantasy+s!ite or a gir9s refusa to ad#it that she consented to an act which sheis now dee!y asha#ed. The e7ect is to !rotect the !er!etrator againstthe woud be #aicious accusations eveed against a defenceess #aeathough whie trying to do this you have #ore guity !eo!e going free.

Maina "*

5ongwea " The co#!ainant was a #idde aged ady who give evidence that whie

she was going ho#e+ she was a#bushed and ra!ed. %fter the incidentshe said that the ra!ist fe asee! and she esca!ed whie the ra!ist wassee!ing and went to co#!ain to her sister+ the sister said that whenthe co#!ainant ca#e to her+ she was tre#bing+ had grass on her hairand she gave a descri!tion of the accused incuding the cothes he woreand a scar he had on the thigh whereu!on the accused was arrested andcharged. :e was convicted and on a!!ea the uestion was whetherthere was sucient corroboration. The court hed that there was no

71



sucient corroboration but that it woud sustain the conviction becausethe co#!ainant a!!eared a truthfu witness.

Nuguna 6angurimu "*

The co#!ainant here was a young gir who had gone to fetch 5rewoodwhen she was ra!ed. *he testi5ed that !rior to the incident that shewas a virgin. There was #edica evidence of bood on her !etticoat andthe shorts of the accused !erson had so#e bood with traces of se#en. There was no evidence that the bood on the accused shorts was thesa#e grou! as that on the !etticoat. % #edica e,a#ination on the girshowed that the co#!ainant had been used to having se,+ contrary toher assertion that she was a virgin. The uestion was whether there wassucient corroboration. The court hed that there was insucientcorroboration of the co#!ainant9s evidence and conseuenty the courtcoud not convict.

"* Ogendo 1G'0 10 )LC 2K6here a young ga was found to su7er fro# the sa#e se,uaytrans#itted disease as the aeged ra!ist it was hed that that #edicaevidence was sucient corroboration of the assertion that one wasra!ed.

Margaret "* 1G )LC 2

6here it was hed that though it is not a rue of aw that a !ersoncharged with a se,ua o7ence cannot be convicted on the

uncorroborated evidence of a co#!ainant+ it has ong been the custo#to oo/ for and reuire corroboration before a conviction for such ano7ence is recorded.

@FE&E TFE CO.&TS AS A /ATTE& O -&ACTICE &E.I&ECO&&OBO&ATION

oria "* * EA) :;:

% re!udiated and retracted

"* Turnbull 1G PB22'

"orroboration is not ordinariy reuired and where reuired

Identi5cation by singe witness at night;Ce!udiated and retracted confessions.

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+amisi s4o $allum "* This was a tria for #urder and the ony eye witness was the daughterof the deceased who was a deaf #ute. *he ca#e to court with a reativewho cai#ed that she coud receive infor#ation fro# the witnesses signand noises. The @udge overrued the evidence. 8n %!!ea+ it was hed

that such a !erson is a co#!etent witness if he or she can be #ade tounderstand the nature of an oath and if inteigence can be conveyed toand fro# hi#Jher by #eans of signs. This case is an authority for the!ro!osition that even deaf and du#b are co#!etent witnesses if theevidence can be co##unicated to the# through signs.

%!art fro# cases of genera co#!etence there are s!ecia cases ofco#!etence and these are cases where co#!etence is derived fro#statute.

The 5rst instance of s!ecia case of co#!etence is derived fro# the

accused !erson. %n accused !erson is a co#!etence witness for thedefense at every stage of the !roceedings whether he is charged aoneor &ointy with others. This is !rovided for at *ection 12 2 the accusedhas however to a!!y to be a witness and he has a right to /ee! sient. The reason is because before the ?) 1=G= "ri#ina Evidence %ct theaccused !erson was not a co#!etent witness at a. The s!ouse of anaccused !erson was aso not a co#!etent witnesses+ atheists andconvicts were not co#!etent witnesses. The 1=G= "ri#ina Evidence%ct #ade these grou!s of !eo!e co#!etent witnesses. Before that theywere dee#ed to be unworthy of credit.

The second s!ecia case of co#!etence is a s!ouse of an accused!erson. If a !erson is a awfu husbandJwife of an accused heJshe is aco#!etent witness of the defense at every stage of the tria. This is aso!rovided for at *ection 122

*ection 12 ' !rovides who is a husband or wife for the !ur!oses ofthis section. It is to the e7ect that it is a husbandJwife of a #arriage beit in a #onoga#ous or !oyga#ous #arriage.

*ection 121 *!ouses are co#!etent witnesses in civi cases and herethere is no underscoring on whose !art. It coud be for the defense or

the other !arty. There is a change fro# co##on aw where s!ouseswere not co#!etent witnesses and now they are co#!etent witnesses.

*ection 123 it is !rovided that s!ouses are co#!etent andco#!eabe witness for the !rosecution or defence in any case wherethe other s!ouses charged with

a The o7ence of biga#y;b %n o7ence against #oraity under "ha!ter 1K of the <ena

"ode; or

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c 6here the other s!ouse is charged with an o7ence a7ectingthe !erson or !ro!erty of the wife or husband or such !erson orthe chidren of either one of the# and not otherwise;

*ection 123 coses the category under which a husbandJwife is

co#!eabe and it is ony in those 3 instances that a s!ouse can be aco#!etent witness to testify against the other.

These !rovisions of the Evidence %ct buttress the accused !ersonsagainst sef-incri#ination.

ACCO/-LICES

*ection 1'1 of E.%

Essentiay acco#!ice evidence is ad#issibe and an acco#!ice is a

co#!etent witness and the usua !ractice is to 5nish with theacco#!ice case before caing on the acco#!ice to testify so that theacco#!ice does not give evidence in the ho!e that the court wi beenient with hi# de!ending on his testi#ony. The statute is cear that itis not necessariy the case that you wi side-ine evidence because it isgiven by an acco#!ice.

O--O&T.NITY

CFILD&EN O TENDE& YEA&S

*. 12K1 genera co#!etence. "hidren are co#!etent uness the courtconsiders the# inca!abe of understanding the uestions !ut to the#.6hat woud !revent the# woud be their tender age and the %ct doesnot give an age i#it beow or above which a !erson can testify.)ibageni D C

CO/-ELLABILITY

or#ay a co#!etent witness is co#!eabe. But where a witness9sco#!etence derives fro# statute and this is in instances where awitness was not aways a co#!etent witness+ then the statute that

#a/es hi# a co#!etent witness #ust aso dea with the issue of theirco#!eabiity.

*ection 12 1 2 3 it underscores co#!etence as we asco#!eabiity.

If a witness is co#!etent and co#!eabe they decine to give evidenceor to be sworn at the !eri of i#!rison#ent.

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*ection 12=$

?nder 12= when you go to court as a witness+ you #ust answer theuestion but the section cushions the witness because it !rovides thatany answer that a witness gives or is co#!eed to give by dint of giving

evidence to court sha not sub&ect such a witness to an arrest or!rosecution save for the o7ence of !er&ury.

*ection 1K2 of the "ri#ina <rocedure %ct !rovides the !rocedure to befoowed in the case of stubborn witnesses. It is to the e7ect thatwhenever any !erson a!!earing in court refuses to be sworn or bhaving been sworn refused to answer any uestion !ut to hi# or crefuses or negects to !roduce any docu#ent or thing+ which he isreuired to !roduced or d refuses to sign his de!osition without in anysuch case o7ering any sucient e,cuse for such refusa or negect+ thecourt #ay ad&ourn for = days !utting such !erson in custody uness he

sooner consents to do that which is reuired of hi#. <riviege #ayconstitute a sucient e,cuse.

6ith regard to husbands and wives s!ouses of accused !erson+ theywere not originay co#!etent+ statutes #ade the# co#!etent for thedefence at every stage and we ony have 3 instances when they areco#!eabe to give evidence

"* )a2worth+os%in "* Metro2olitan 1olice Commissiosner +os%in "* Metro2olitan

The husband here was charged with inicting !ersona in&ury on his wife. The in&ury was inicted whie the wo#an was cohabiting with thedefendant. The wo#an was reuctant to testify and the uestion waswhether she was co#!eabe. The court hed that is the co##on awwife was inco#!etent to testify against her husband+ she cannot beco#!eed to testify uness a statute #a/es a s!ecia !rovision forco#!usion. *. 123 inicting !ersona in&ury.

"* 5ihandi%a "* (lanchard

In the Banchard case the accused was charged with co##ittingbuggery on his wife+ the issue arose as to whether the wife was aco#!etent witness+ the court hed yes because the o7ence invovedin&ury to her !erson 123. The uestion has arisen as to why youe,cude s!ouse evidence in so#e and aow it in others. *o#e !eo!eargue that s!ouses are one and shoud not testify against one another

76



chid9s understanding is underta/en at the beginning of the tria. It isnot sucient for the court in the course of the &udg#ent to !oint outthat it understood the chid /new the nature of the oath or a!!reciatedthe duty of teing the truth. The enuiry has to be at the beginning andit has to be on record. The authority for this is the case of

Macharia "*

In this case the &udge !ointed out in the cause of &udg#ent that thecourt was satis5ed that the chidren /new the nature of the oath beforegiving evidence but there was no enuiry before giving the oath. Thecourt e,!icity stated that had there been no other evidence in this caseto corroborate the chidren9s evidence+ the conviction woud have beenthrown out. The conviction woud not have stood. 'ohn Mututi "* Oloo "*

These two cases state that reigious beief is funda#enta to the ta/ingof an oath so that you cannot swear anybody who has no reigious beief.*o if you have a chid who has no reigious beief+ such chid shoud notbe sworn. That is the aw in )enya. But since !eo!e don9t o!en theboo/ and they don9t ob&ect+ they so#eti#es swear by the wrong boo/

In Engand it has been said that reigious beief is not funda#enta to theta/ing of an oath by a chid. The authority here is the case of * "+ayes where the court stated that the i#!ortant consideration for a &udge in e,ercising his discretion to !er#it a chid to give evidence onoath is whether the chid sucienty a!!reciates the soe#nity of the

occasion and is sucienty res!onsibe to understand that the ta/ing ofan oath invoves teing the truth. The &udge need not be satis5ed thatthe chid is aware of the divine sanction of an oath.

EJA/INATION O @ITNESSES

The genera rue is that a witness sha be e,a#ined oray and in o!encourt. 8rdinariy evidence is adduced in the for# of uestions andanswers and it is the uestioning which is referred to as e,a#inationwhich #eans that it is a/in to the ordea.

E,a#ination of witnesses is covered in !arts 3 to of the Evidence %ctand the s!eci5c sections are fro# *ection 1''.

The !arty who cas a witness e,a#ines the witness with a view toadducing evidence in !roof of his case and this is what is referred to ase,a#ination in chief covered at *. 1'K1 thereafter the adverse !artyhas a right to e,a#ine that witness. If the adverse !arty e,ercises that

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right+ the e,a#ination is referred to as cross-e,a#ination *ection1'K2.

%fter cross-e,a#ination of a witness the !arty caing that witness+ the!arty who caed the witness #ay e,a#ine the witness again with a view

to cearing any a#biguities that #ay have arisen within the cross-e,a#ination and this e,a#ination is referred to as re-e,a#inationcovered at *. 1'K3.

Insofar as the e,a#ination in chief is concerned the !ur!ose is to obtainfro# the witness in as chronoogica a #anner as !ossibe+ evidence thatsu!!orts the case of the !erson caing hi# or her. The !ersone,a#ining the witness has to contro the direction of the e,a#ination+i.e. one has to su!!ress a too ta/ative !erson or bring the# bac/ whenthey go on a tangent without #a/ing the# fee inti#idated. Qou have tobe 5r# with your witness but !oite. If a witness oo/s inti#idated by

the !rocesses it is your duty to rea, the witness to ensure that theybring out evidence. 8f course when you are e,a#ining the witness youhave to bear in #ind the rues of evidence. If the witness is not ane,!ert witness+ you cannot ead o!inion evidence. Qou have to have athese to for# your e,a#ination in chief. If you see/ to go against therues of evidence the adverse !arty wi ob&ect and even if they don9t+the court #ay overrue you. Essentiay there is an assu#!tion that theocers of the court are ar#ed with rues of !rocedure.

@FAT TY-E O .ESTIONS CAN YO. ASK IN EJA/INATION INCFIE

*. 1K0 of the Evidence %ct is to the e7ect that eading uestions shanot if ob&ected to by the adverse !arty be as/ed in e,a#ination in chiefe,ce!t with the court9s !er#ission.

@FAT IS A LEADING .ESTION

*ection 1'G de5nes a eading uestion as any uestion suggesting theanswer which the !erson !utting it wishes and e,!ects to receive orsuggesting a dis!uted fact on any uestion as to which the witness is totestify. For instance in a case of theft+ so#ebody #ight as/ isn9t it

8nyango who you saw steaing fro# so and so9s house. Mid you see a!erson stea fro# so and so9s house.

?nder *ection 1K0 ob&ection fro# the adverse !arty is reuired for aeading uestion to be disaowed but in #ost cases+ the court wi ta/e itu!on itsef to disaow a such uestions. This is the case because #ostitigants have no ega counse so the court ta/es it u!on itsef the roe of disaowing eading uestions. The uestion #ight arise then as to why

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co#!e or not to co#!e the witness to answer the uestion+ the courtdecide whether a witness shoud answer a uestion that reates!ri#ariy to their credit this is !rovided for in *ection 1K. In e,ercisingthe discretion to co#!e or not to co#!e+ the court weighs the e,tent towhich the i#!utation casts on a !erson9s credit is !ro,i#ate to the suit.

*ection 13 gives ways of i#!eaching the credit of a witness in crosse,a#ination. Qou ca the witness to testify to the unworthiness of creditof a !articuar witness. Qou can aso ca !roof that a witness has beenbribed or that the witness has acce!ted the o7er of a bribe or any othercorru!t induce#ent to give evidence. Qou coud aso i#!each by!roving for#er state#ents ora or written #ade by the witness whichare inconsistent with any !art of the witness9s evidence.

Fourthy in a charge of ra!e+ or atte#!ted ra!e evidence can be broughtto show the co#!ainant was of generay i##ora character.

In cross-e,a#ining+ there is no genera #odus o!erandi. It de!ends onthe witness you are deaing with. <eo!e wi insist that you have a!oice ocer or !rofessiona witnesses+ !oice ocers tend to bearrogant es!eciay to &unior awyers and they are not easiy tra!!ed. The best way to dea with the# is to start where they east e,!ect youto start. If you have chidren+ they are good witness if they have notbeen coached they wi not te ies. Qou have to be carefu how tohande the# otherwise they can start to cry. 8ne has to be e,tre#eysensitive when handing chidren9s witnesses.

'ohn Mutito "*

The !rosecution witness !roduced ghasty !hotogra!hs of the #urderscene which o7ended the chid and the counse was cautioned by thecourt to sto! o7ending the chid.

If you have e,!erts and to avoid e#barrass#ent+ do not cross e,a#inethe# uness you are we versed with the sub&ect.

&E EJA/INATION

This is a second chance by the !erson caing a witness. It is not ano!!ortunity to ead further evidence. It ony aows the witness toe,!ain #atters referred to in the e,a#ination in chief and crosse,a#ination. Cee,a#ination nor#ay is to carify a#biguous #atters.%fter ree,a#ination cross e,a#ination is going to be aowed. *ection1'1.

*ection 1'2 e,a#ination in chief and cross e,a#ination #ust reateto reevant facts but cross e,a#ination need not be con5ned to..

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*ection 1'3 re-e,a#ination sha be directed to #atters referred to inthe cross e,a#ination.

*ection 1'' a !arty #ay with the !er#ission of the court reca a

!arty for re e,a#ination. This is reca+ there is a right of reca of a!articuar witness for further e,a#ination and the court in consideringwhether to aow reca for any of these !ur!oses has to considerwhether the interests of &ustice woud be better served by reca.

There are other rues at <art ID of the Evidence %ct and at *ection 1' itis !rovided that a !erson caed to !roduce a docu#ent does notbeco#e a witness by the fact that he has co#e to !roduce thedocu#ent. It is the docu#ent that the court is interested in and untiand uness a !erson is caed as a witness+ #ere reuire#ent of adocu#ent in court does not #a/e the one who !roduces the docu#ent a

witness.

evidence summarrised notes moi campus

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