LESSONS ONE: PLACE OF EVIDENCE IN LEGAL PHILOSOPHY

& EVOLUTION OF THE LAW OF EVIDENCE

• OUTLINE OF LESSON:
– Introductory Notes
– Place of Evidence in Legal Philosophy
– Common Law Evolution of the Law of Evidence in
England (the development of the exclusionary character
and underlying policy rationales)
– (Elusive) Codification of the Law of Evidence in England
– Reception and Codification of the Law of Evidence in
India
– Importation of the Indian Evidence Act into Kenya
– Enactment of the Kenyan Evidence Act
INTRODUCTORY NOTES: THE SUBJECT/PROVINCE OF EVIDENCE
LAW

• Evidence Law deals with the rules governing the

proof and disproof of matters in controversy before
various courts and tribunals.

• The rules to be learnt in the course will be primarily

those applicable in the superior courts and
magistrates courts.
INTRODUCTORY NOTES: THE SUBJECT OF EVIDENCE

• It should be noted at the outset that various

statutes, especially those establishing
administrative tribunals, invariably provide that
such tribunals are not bound by the rules of
evidence.
• The rules we shall learn in the course, therefore,
though commonly applied in the courts, are not
universally applicable across all types judicial or
quasi-judicial proceedings.
LESSONS ONE: PLACE OF EVIDENCE IN LEGAL PHILOSOPHY

• There are two main categorisations of legal rules,

substantive law and /procedural adjective law.
• The former confers legal rights and obligations
while the later prescribes procedural steps for the
enforcement of the rights or obligations
• The law of evidence is part of procedural or
adjective law.
LESSONS ONE : EVOLUTION OF THE LAW OF EVIDENCE IN ENGLAND

• The rules of evidence as we know them today largely

developed from the decisions of English common law
judges, through the system of precedent and stare
decisis.
• Accordingly, students are advised, with respect to each
topic that shall be covered, to endeavour to find the
interplay between the current statutory rules and the
common law.
LESSONS ONE : EVOLUTION OF THE LAW OF EVIDENCE IN
ENGLAND
• Although the law of evidence developed from common law,
there were subtle but significant differences/adaptations in the
application of the rules to civil and criminal cases respectively.
• To illustrate, the standard of proof in criminal cases was (and
still is) “beyond all reasonable doubt,” while in civil cases it was
(and still is) “on a balance of probabilities.”
• The rationale for a standard of proof is that judges/magistrates
and other fact finders often have to make decisions under
uncertainty. Accordingly, the rules as to standard of proof
specify the degree of certainty required for a verdict.
LESSONS ONE: EVOLUTION OF THE LAW OF EVIDENCE IN ENGLAND

• In civil cases, the underlying assumption was one of equality

between the plaintiff and the defendant (a mistake affecting one
side as serious as a mistake affecting the other). Decision
theory, therefore, holds that the civil standard of proof should be
set at a probability of just above 50%, i.e. on a balance of
probabilities.
• The presumption of equality did not apply to criminal cases,
because the censure involved in a finding of liability, as well as
the hard treatment which frequently followed such a finding,
pointed to a higher standard of proof.
 LESSONS ONE: EXCLUSIONARY CHARACTER OF EVIDENCE LAW

• Due in part to—

i. the fact that most (criminal) trials in England were held (and
still are) by lay magistrates (with lay jurors);
ii. the fear that evidence may be manufactured,
– there was a general tendency by common law judges to
reject certain types of evidence that other responsible
inquirers might otherwise have accepted.
• Accordingly, the development of the law assumed a
largely exclusionary approach to the admissibility of
evidence, with the result that the law of evidence
assumed a predominantly exclusionary character.
LESSONS ONE: EXCLUSIONARY CHARACTER OF EVIDENCE
LAW
• The exclusionary character of the law of evidence also arose
partly from the concern by senior judges that lay magistrates
and jurors might be too impressionable and place undue
weight/importance to certain types of evidence

– (e.g. hearsay evidence, character evidence and opinion

evidence).

• What many other responsible inquirers will accept as evidence,

therefore, will not necessarily also qualify as judicial evidence.
LESSONS ONE: EXCLUSIONARY CHARACTER OF EVIDENCE LAW

• The following dictum of amply demonstrates the

general exclusionary character of the law of

evidence:
LESSONS ONE: EXCLUSIONARY CHARACTER OF EVIDENCE LAW
• “the Solicitor-General maintained that, although the general rule may be
against the admission of private records to prove the truth of entries in
them, the trial judge has a discretion to admit a record in a particular
case if satisfied that it is trustworthy and that justice requires its
admission. That appears to me to be contrary to the whole framework
of the existing law. It is true that a judge has a discretion to exclude
legally admissible evidence if justice so requires, but it is a very
different thing to say that he has a discretion to admit legally
inadmissible evidence….No matter how cogent particular evidence may
seem to be, unless it comes within a class which is admissible, it is
excluded. Half a dozen witnesses may offer to prove that they heard
two men of high character who cannot now be found discuss in detail
the fact now in issue and agree on a credible account of it, but that
evidence would not be admitted although it might be by far the best
evidence available.”
– Lord Reid in Myers v DPP [1965] A. C. 101 at p. 1024
LESSONS ONE: RATIONALE(S) FOR THE EXCLUSIONARY
CHARACTER OF EVIDENCE LAW
• In summary, relevant evidence may be excluded on any one
or more of the following policy reasons:

1. to preserve confidentiality between certain types of

persons (e.g. lawyers and their clients, at times,
spouses);
2. to preserve the integrity of a trial (e.g. in a criminal
case, for instance, illegally or unfairly obtained
evidence is often excluded);
LESSONS ONE: RATIONALE(S) FOR THE EXCLUSIONARY
CHARACTER OF EVIDENCE LAW
3. to promote accurate fact-finding;
4. where the prejudicial effect of the evidence
outweighs its probative value (e.g. a suspect’s
past criminal record in criminal trials);
5. where the evidence is not the best evidence, i.e.
where the evidence is not first-hand evidence
(see goal of accurate fact finding)
LESSONS ONE: SHORTCOMINGS OF THE EXCLUSIONARY
CHARACTER OF EVIDENCE LAW
• The exclusionary character of the law of evidence has
sometimes produced controversial and even unsatisfactory
results. One commentator described the law as:
– “Founded apparently on the propositions that all jurymen are
deaf to reason, that all witnesses are presumptively liars and
that all documents are presumptively forgeries, it has been
added to, subtracted from and tinkered with for two centuries
until it has become less of a structure than a pile of builders’
debris”
– See Harvey, The Advocate’s Devil (1958) 79, quoted in Cross
& Tapper on Evidence, 12th Edition at p. 2.
LESSONS ONE: CODIFICATION OF THE LAW OF EVIDENCE & ITS
IMPORTATION INTO KENYA

• Attempts to consolidate and codify the law of evidence

in England have not been successful, due mainly to the
significant differences in the way the rules apply
between civil and criminal proceedings.

• Although the codification enterprise has been

unsuccessful in England, it was done in India in 1872.
The result was the Indian Evidence Act, 1872.
LESSONS ONE: CODIFICATION OF THE LAW OF EVIDENCE &
ITS IMPORTATION INTO KENYA
• The application of Indian laws in Kenya was done through various
Orders-in-Council, made by the colonial office in London.

• The 1902 Order-in-Council, which established the High Court of

Kenya, stated that the jurisdiction of the court would be exercised in
accordance with certain scheduled Indian enactments and, in so far
as these did not extend or apply, in conformity with the substance of
the English common law, doctrines of equity and statutes of general
application in England as at 12th August 1897.
LESSONS ONE: CODIFICATION OF THE LAW OF EVIDENCE &
ITS IMPORTATION INTO KENYA

• Among the scheduled Indian laws that were to apply to Kenya

under the 1902 Order-in-Council were the Indian Penal Code,
the Criminal Procedure Code, the Civil Procedure Code, the
Evidence Act (of 1872) and the Contract Act.

• The Indian Evidence Act, 1872 was applied in Kenya until 10th
December 1963, when the current Evidence Act (Cap. 80) came
into force.
LESSON TWO: PRELIMINARY DEFINITIONS &
PRINCIPAL ITEMS OF JUDICIAL EVIDENCE
• ©MUTHOMI THIANKOLU

 Lecturer, University of Nairobi School of Law

 Advocate of the High Court of Kenya
 Partner, Muthomi & Karanja Advocates

• University of Nairobi School of Law (LLB II Class)

• Monday, September 22, 2014
• *NOTE: Students are strongly advised that this presentation is not a substitute for
attending lectures or reading the cases and materials set out in the Course Outline.
LESSON THREE: PRELIMINARY DEFINITIONS &
PRINCIPAL ITEMS OF JUDICIAL EVIDENCE
• Scope of the Lesson:
1. Evidence
• Prima facie evidence; Insufficient evidence &
Conclusive evidence
2. Facts
• Facts in Issue
• Facts which may be proved/need not be proved
by evidence
3. Relevance
LESSON THREE: PRELIMINARY DEFINITIONS &
PRINCIPAL ITEMS OF JUDICIAL EVIDENCE
4. Admissibility
5. Proof and Probative Force/Value
6. Categories of Judicial Evidence
– Testimony
– Hearsay
– Documents
– Things
– Facts as evidence of Other Facts (circumstantial
evidence)
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• The law of evidence is concerned with the
prove and disprove of disputed facts before
courts and tribunals.
• Section 3 (1) of the Evidence Act defines “fact”
as including-
– “(a) any thing, state of things, or relation of things,
capable of being perceived by the senses; and
– (b) any mental condition of which any person is
conscious”
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• Generally, a fact will not need proof if it is admitted
by the party against whom the existence of the fact
is asserted, or if the law exempts the person who
would ordinarily be required to establish the fact
from the burden of so doing.
• As we shall see in Lesson 12, some facts also need not
be proved by evidence (i.e. a party need not adduce
evidence of the existence of certain facts).
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• The phrase “facts in issue” refers to those facts whose
proof is necessary in order to establish the claim or
defence of a party, and have been alleged on the one
side and disputed on the other.
• For the most part, the nature and number of facts in
issue depends on (i) the substantive law on which
a case is based (say, the law of tort or the law
of contract); and (ii) the allegations made by
the parties in their pleadings rather than the law
of evidence.
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• Section 3 (1) of the Evidence Act defines
“facts in issue” as:
• “any fact from which, either by itself or
in connexion with other facts, the
existence, non-existence, nature or
extent of any right, liability or disability,
asserted or denied in any suit or
proceeding, necessarily follows.”
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• As is evident from the foregoing, the facts in issue in a
particular case will largely turn on the substantive law
on which the claim (i.e. the contested right, liability or
disability) is based.
• In a typical defamation suit, for instance, the facts in
issue will be those facts which go to the proof of
whether—
– (i) the statement complained about is defamatory
(as a matter of the substantive law of defamation);
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
– (ii) the statement refers to the plaintiff;
and
– (iii) whether the statement was published
to at least one person other than the
plaintiff.
• Examples of facts that will be in issue as a
matter of the law of evidence itself include:
– the competence or credibility of a witness; and
– the admissibility or cogency of certain items of
evidence.
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• In civil proceedings, the facts in issue are normally
identified by reference to the pleadings. To this end, a
plaintiff is expected to plead (and prove at the trial) all
material facts on which their case is based.
• Order 2 Rule 3 (1) of the Civil Procedure Rules, 2010
states:
– “subject to the provisions of this rule and rules 6, 7 and
8, every pleading shall contain, and contain only, a
statement in a summary form of the material facts on
which the party pleading relies for his claim or defence,
but not the evidence by which those facts are to be
proved, and the statement shall be as brief as the
nature of the case admits.”
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “FACT(S)” AND “FACTS IN ISSUE”
• In criminal proceedings where the defendant
pleads not guilty, the facts in issue are all
those facts which the prosecution must prove
in order to succeed, including the identity of
the accused, the commission of the actus
reus and the existence of the necessary mens
rea, and any facts which the accused must
prove in order to establish a defence other
than a simple denial of the prosecution case.
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “EVIDENCE”
• Section 3 (1) of the Evidence Act defines
“evidence” in the following terms:
– “evidence” denotes the means by which an
alleged matter of fact, the truth of which is
submitted to investigation, is proved or
disproved; and, without prejudice to the
foregoing generality, includes statements by
accused persons, admissions and observation
by the court in its judicial capacity.”
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “PROOF” AND “PROBATIVE FORCE”
• According to section 3 (2) of the Evidence
Act, a fact is proved when, after
considering the matters before it, the
court either believes it to exist, or
considers its existence so probable that a
prudent man ought, in the circumstances
of the particular case, to act upon the
supposition that it exists.
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “PROOF” AND “PROBATIVE FORCE”
• Equally, section 3 (3) of the Evidence Act
states that a fact is disproved when, after
considering the matters before it, the
court either believes that it does not
exist, or considers its non-existence so
probably that a prudent man ought, in
the circumstances of the particular case,
to act upon the supposition that it does
not exist.
PRELIMINARY DEFINITIONS & ITEMS OF JUDICIAL
EVIDENCE: “RELEVANCE” AND “ADMISSIBILITY”
• Although the terms “relevance” and “admissibility” are
often used together, and sometimes even
interchangeably, they refer to different things.
• Some evidence may be relevant but inadmissible (e.g.
hearsay evidence, evidence of the accused's bad
character in criminal proceedings, similar fact evidence
etc).
• The best definition of “relevancy” is arguably that
given by Lord Simon in DPP v Kilbourne [1973] A.C.
729 at 756:
– “evidence is relevant if it is logically probative or
disprobative of some matter which requires proof.”
 CATEGORIES OF JUDICIAL EVIDENCE:
• There are five principal types of judicial
evidence, namely—
1. Testimony;
2. Hearsay Evidence;
3. Documentary Evidence;
4. Things or Real Evidence; and
5. Circumstantial Evidence (i.e. facts as
evidence of other facts).
CATEGORIES OF JUDICIAL EVIDENCE: TESTIMONY

• Testimony comprises the oral statement of a

witness made on oath in open court offered as
evidence of the truth of what is asserted.
• Generally, testimony will be admissible as
evidence of the truth of what is asserted if it is
direct or first-hand evidence, i.e. if it constitutes
what the witness perceived with one of their five
senses:
– “oral evidence must in all cases be direct evidence…”
(Section 63 of the Evidence Act)
CATEGORIES OF JUDICIAL EVIDENCE: HEARSAY EVIDENCE

• Hearsay constitutes out of court statements (whether

oral, written or by conduct) when offered as the truth
of what is asserted.

• Generally, hearsay evidence is inadmissible as

evidence of the truth of what is asserted.

• The rationale for the exclusionary approach has been

explained as follows:
CATEGORIES OF JUDICIAL EVIDENCE: HEARSAY EVIDENCE

• “the rule against the admission of hearsay evidence is

fundamental. It is not the best evidence and it is not
delivered on oath. The truthfulness and accuracy of
the person whose words are spoken to by another
witness cannot be tested by cross-examination, and
the light which his demeanour would throw on his
testimony is lost.”
• See Teper v R [1952] A.C. 480 at 486.
CATEGORIES OF JUDICIAL EVIDENCE: HEARSAY EVIDENCE

• We shall study the rule against hearsay, and its

exceptions, in Lesson 8.
• NB: Hearsay evidence may be given to prove
that a statement was made, rather than to
prove the truth of the statement (see
Subramaniam v Public Prosecutor [1956] 1
W.L.R. 965 on allegation that terrorists (not
called as witnesses) had forced the appellant
to carry ammunition).
CATEGORIES OF JUDICIAL EVIDENCE: DOCUMENTARY
EVIDENCE

• This comprises testimony evidence given in written

form.

• Though not strictly speaking a separate item of

judicial evidence, there are special rules governing
the admissibility of documentary evidence. The rules
shall be the subject of Lesson 9.
CATEGORIES OF JUDICIAL EVIDENCE: THINGS OR
REAL EVIDENCE
• Real evidence comprises any material object, animate
or inanimate, produced in court for purposes of
proving a fact in issue.
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• If only facts in issue were open to proof or disproof, many
legitimate claims and defences would fail-as there is
hardly any direct (or eye-witness) evidence of the facts in
issue in many disputes. The rules on relevancy come in
handy to avoid this.
• At common law, the need to admit indirect evidence was
particularly impelled by the fact that many categories of
persons were ineligible to testify, including the parties to
the case and their spouses, anyone interested in the
outcome of the proceedings, the accused and his spouse-
See Cross & Taper at p. 31.
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• Circumstantial evidence, therefore, refers to refers to any fact
from the existence of which the court may infer the existence
of a fact in issue.
• To illustrate, evidence that the accused person was seen with
a blood-stained knife near a scene where a deceased person
was stabbed to death, only moments after the fatal injury, may
be relevant in a murder charge against the accused person.
• It is said that the line between circumstantial evidence and
speculation is neither clear nor sharp (Richard Evans Ltd v
Astley [1911] A.C. 674) and that no useful purpose is served by
a comparison of the merits of direct and circumstantial
evidence.
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• Generally, courts approach circumstantial evidence with
caution, because of the fear that such evidence may be
manufactured to cast suspicion on another.
• In Teper v R [1952] A.C. 480, the appellant was charged
with maliciously and with intend to defraud setting fire to
a shop belonging to his wife, which he had insured at an
inflated value and in which he carried on the business of a
dry goods store.
• There was no direct evidence identifying the appellant
had set the shop on fire. A police constable testified, for
purposes of identification of the accused (as the arsonist),
that:
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
– “I heard a woman’s voice shouting, ‘your place burning and
you going away from the fire’; immediately then a black car
came from the direction of the fire, and in the car was a fair
man resembling the accused. I did not observe the number
of the car. I could not see the fire from where I was
standing.”
• In cross-examination, the constable said he did not know
who or where the woman was. The woman was not a
witness at the trial.
• It was common ground that the incident described by the
constable happened at a distance of more than a furlong
(about 200 metres) from the site of the fire, and some 26
minutes after the fire was started.
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• The appellant’s conviction was set aside because (inter alia)
the circumstantial evidence was inconclusive for purposes of
identification. Lord Normand explained (at p. 489):
– “The crown has to rely on circumstantial evidence only to
connect the appellant with the commission of the crime.
Circumstantial evidence may sometimes be conclusive, but
it must always be narrowly examined, if only because
evidence of this kind may be fabricated to cast suspicion on
another…It is also necessary before drawing the inference
of the accused guilt from the circumstantial evidence to be
sure that there are no other co-existing circumstances
which would weaken or destroy the inference.”
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• The general rule (in criminal proceedings) is that a conclusion
of guilt should not be drawn exclusively from circumstantial
evidence unless the circumstantial evidence is incompatible
with the accused’s innocence.
• In James Mwangi v Republic [1983] KLR 327, the appellants were
convicted of robbery with violence in respect of a raid on a bank
in Naivasha, Kenya.
• The prosecution case depended entirely upon
circumstantial evidence (that the appellants had been
found in possession of “ a lot of money” whose source they
could not explain), as none of the five men was identified
by anyone at the scene of crime, and the money could not
positively be identified as that stolen from the bank. It was
held that:
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• “1. In a case depending on circumstantial evidence,
in order to justify the inference of guilt, the
incriminating facts must be incompatible with the
innocence of the accused, the guilt of any other
person and incapable of explanation upon any
other reasonable hypothesis than that of guilt.
• 2. In order to draw the inference of the accused’s
guilt from circumstantial evidence, there must be
no other coexisting circumstances which would
weaken or destroy the inference…. [c.f. Teper v R].
CATEGORIES OF JUDICIAL EVIDENCE: CIRCUMSTANTIAL
EVIDENCE (FACTS AS EVIDENCE OF OTHER FACTS)
• 3. It was wrong to shift the burden of proving
innocent possession of the allegedly stolen money
to the first appellant. There was nothing wrong
with him having a large sum of money and he did
not have to explain how he had come to be in
possession of it.
• 4. The prosecution had failed to establish the
circumstances from which the conclusion of guilt
could be drawn and in the absence of establishing
such facts, there could not be any hypothesis of the
guilt of the first appellant.”
LESSON THREE: RELEVANCE, ADMISSIBILITY
& WEIGHT OF EVIDENCE
• ©MUTHOMI THIANKOLU

 Lecturer, University of Nairobi School of Law

 Advocate of the High Court of Kenya
 Partner, Muthomi & Karanja Advocates

• University of Nairobi School of Law (LLB II Class)

• Saturday, September 27, 2014
• *NOTE: Students are strongly advised that this
presentation is not a substitute for attending lectures or
reading the cases and materials set out in the Course
Outline.
LESSON THREE: RELEVANCE,
ADMISSIBILITY & WEIGHT OF
EVIDENCE
• Outline of Lesson:
1. Meaning of “relevance” and
“admissibility.”
2. General rule as to relevance and
admissibility.
3. Examples of relevant but inadmissible
evidence.
4. Sections 5-16 of the Evidence Act
5. res gestae (facts forming part of the same
transaction).
6. similar facts Evidence.
7. Evidence obtained through Illegal, Unfair
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• The best definition of “relevancy” is arguably
that given by Lord Simon in DPP v Kilbourne
[1973] A.C. 729 at 756:
• “evidence is relevant if it is logically
probative or disprobative of some matter
which requires proof.”
– The respondent was convicted of buggery and
indecent assault on two groups of boys, the
attacks on the respective groups occurring a
year apart.
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• The main question was whether
uncorroborated evidence of second group of
boys was admissible in support of the
evidence of the first group of boys.
• The respondent had, in response to the
charges, pleaded the defence of “innocent
association.”
• It was held (on appeal) that the evidence of the
second group of boys was relevant and
admissible because it was probative of the
facts in dispute and indicative of the guilt of
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• Evidence is deemed relevant, therefore, if it
makes a matter which requires proof (a fact
in issue) more or less probable.

• Under the exclusionary rules of the law of

evidence, evidence must be sufficiently
relevant to be admissible. Put differently,
courts are usually only concerned with
relevant evidence.
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• Although the terms “relevance” and
“admissibility” are often used together, and
sometimes even interchangeably, therefore,
they refer to different things.

• Put differently, logical relevancy and legal

relevancy (or admissibility) are not
conterminous.
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• To illustrate, the law in some cases rejects as
the basis of an inference matters which logic
might accept (e.g. evidence of disposition). In
other cases, the law prescribes as conditions
of legal proof arbitrary requirements which
have no logical bearing on the issue in
controversy (e.g. search before proof of
secondary evidence of private documents).
MEANING OF “RELEVANCE” AND
“ADMISSIBILITY”
• Although logical relevance is not
conterminous with legal relevance (or
admissibility), the law will, in the majority of
cases, accept as evidence those matters
which are indicated as such by the ordinary
course of human experience.
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
• The general rule with regard to relevance and
admissibility is that:
– “all evidence that is sufficiently relevant to
an issue before the court is admissible and
that all that is irrelevant, or insufficiently
relevant, should be excluded” __ see Cross
& Taper, at p. 64. See also Hollington v F.
Hewthorn & Co Ltd [1943] 2 All ER 35 at 39:
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
– “nowadays, it is relevance and not competency
that is the main consideration; and, generally
speaking, all evidence that is relevant to an
issue is admissible, while all that is irrelevant is
excluded.”
• NB: the main issue was whether the defendant’s
conviction for driving without due care and
attention was relevant in civil proceedings for
negligence. It was held that the criminal
conviction was not relevant.
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
• Due to the exclusionary character of the law of
evidence, the general rule that all relevant evidence is
admissible is subject to numerous exceptions,
because:
• “our law undoubtedly excludes evidence of many
matters which anyone in his own daily affairs of
moment would regard as important in coming to a
decision ”__Per Darling J. in R v Bond [1906] 2 KB 389
at p. 410.
• The following are the most frequently occurring
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
1. Hearsay: NB subject to certain exceptions, to be
specifically studied in Lesson 8.

2. Opinion: Witnesses are generally not allowed to

inform the court of the inferences they draw
from facts perceived by them. They must
confine their testimony to an account of such
facts. In Hollington v F. Hewthorn & Co Ltd
[1943] 2 All ER 35 at 40, for instance, Goddard
LJ stated that:
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
• “It frequently happens that a bystander has a complete
and full view of an accident; it is beyond question that
while he may inform the court of everything that he saw,
he may not express any opinion on whether either or
both parties were negligent. The reason commonly
assigned is that this is the precise question the court has
to decide; but in truth it is because his opinion is not
relevant. Any fact that he can prove is relevant, but his
opinion is not. The well-recognized exception in the case
of scientific or expert witnesses depends on
considerations which, for present purposes, are
immaterial.”
GENERAL RULE WITH REGARD TO
“RELEVANCE” AND “ADMISSIBILITY”
3. Character: generally, evidence that the accused is
of bad character is irrelevant (more on this in
Lesson 10).
4. Conduct on Other Occasions: Generally, evidence
may not be given of a party’s misconduct on other
occasions if its sole purpose is to show that he is
a person likely to have conducted himself in the
manner alleged by his adversary on the occasion
under inquiry.
SECTIONS 5-16 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• The Evidence Act contains some
important rules on relevance and
admissibility, at sections 5-16 (inclusive).
• Section 5 sets out the general rule on
relevance and admissibility while the
other sections address relevancy and
admissibility of certain types of evidence.
• We highlight some of the rules in the
ensuing parts of this presentation.
SECTION 5 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• Section 5 of the Evidence Act provides-
– “Subject to the provisions of this Act and of
any other law, no evidence shall be given in
any suit or proceeding except evidence of the
existence or non-existence of a fact in issue,
and of any other fact declared by any
provision of this Act to be relevant.”
SECTION 6 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• Facts which, though not in issue, are so
connected with a fact in issue as to form part
of the same transaction , whether they
occurred at the same time and place or at
different times and places
• In Nguku v Republic [985 KLR 412,
evidence had been given that the
appellant, being a police officer involved
in the investigation of a theft in which the
complainant was implicated, solicited and
received a bribe from the complainant on
the promise that he (the appellant) would
“clear” the case.
SECTION 6 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• The Appellant argued (inter alia) the events
alleging the soliciting of a bribe by the
appellant were inadmissible as amounting to
evidence of bad character (soliciting a bribe)
in the course of his trial for a different
offence (receiving a bribe).
• Held (inter alia): The events involving the
soliciting of a bribe by the appellant were
sufficiently connected with the facts in issue,
namely the events involving the receiving of
the bribe, as to form part of the same
transaction and the evidence of both of
those events was admissible.
SECTION 7 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• Facts which are the occasion, cause or
effect, immediate or otherwise, of relevant
facts or facts in issue, or which constitute
the state of things under which they
happened or which afforded an
opportunity for their occurrence or
transaction.
SECTION 8 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• Any fact which shows or constitutes a motive
or preparation for any fact in issue or relevant
fact.
– See Republic v Nyamawi & Another, Malindi
Crim. Case No. 6 of 2003 [2005 eKLR, on
statements showing the 2nd accused’s
motive in killing the deceased—the 2nd
accused had threatened to “finish” the
deceased for testifying against him in
SECTION 9 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• Facts necessary to explain or introduce a fact
in issue or relevant fact, or which support or
rebut an inference suggested by such a fact, or
which establish the identity of any thing or
person whose identity is relevant, or fix the
time or place at which any fact in issue or
relevant fact happened, or which show the
relation of parties by whom any such fact was
transacted.
SECTION 10 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
5. Statements and actions referring to common
intention with respect to any conspiracy
(section 10)
• NB: Statements made by a conspirator
who is acquitted are inadmissible as
against a co-conspirator.
– See Asira v Republic [1986] KLR 227, where
a bank official charged together with the
appellant had been acquitted of conspiracy
and the appellant convicted in respect of the
same conspiracy, involving stealing a
cheque and enchasing it at the bank.
SECTIONS 11-16 OF THE EVIDENCE ACT ON
RELEVANCE AND ADMISSIBILITY
• Facts inconsistent with or affecting the probability
of a relevant fact or a fact in issue (section 11);
• Facts affecting the existence of a right or custom
(section 13);
• Facts showing statement of mind or feeling (e.g.
intention, negligence, ill-will etc) towards a
particular person, when such statement of mind or
feeling is in issue or relevant (section 14);
• Facts showing whether an act was accidental or
intentional or done with a particular knowledge or
intention, where such formed part of a series of similar
occurrences, in each of which the person doing the act
was concerned (section 15); and
• Facts showing that a particular act was done in the
ordinary course of business (section 16).
 THE DOCTRINE OF RES GESTAE
• A fact may be relevant to a fact in issue
because it throws light on it by reason of
proximity in time, place, or circumstances.
• Where this is so, the relevant fact is said to
be part of the res gestae.
• “res gestae” simply means a transaction.
• The doctrine of res gestae is mainly
concerned with the admissibility of
statements made contemporaneously with
the occurrence of some act or event into
which the court is inquiring.
 THE DOCTRINE OF RES GESTAE
• Historically, the doctrine of res gestae,
which is inclusionary in nature, was
developed as an exception to and to
mitigate the injustice and inflexibility of the
(exclusionary) rule against hearsay.
• In order to be admissible as part of the res
gestae, the words sought to be proved by
hearsay evidence should be, if not
absolutely contemporaneous with the
action or event in issue, at least be—
 THE DOCTRINE OF RES GESTAE
– “so clearly associated with it in time, place
and circumstances, that they are part of the
thing being done, and so an item or part of
real evidence and not merely a reported
statement.” __ Teper v R [1952] A.C. 480
• See also R v Bedingfield (1879) 14 Cox C.C.
341, where attempts to adduce a hearsay
statement as part of res gestae failed because
the statement in question had been uttered
after the transaction in question (the slitting of
a woman’s throat) “was all over.”
JUSTIFICATION/RATIONALE FOR ADMISSION OF
HEARSAY EVIDENCE UNDER THE DOCTRINE OF RES
GESTAE

• The justification for the reception of hearsay

evidence under the doctrine of res gestae is
the light which hearsay statements admitted
under the doctrine shed upon the act or event
in issue. In its absence and taken in isolation,
the act or event in issue may not be fully
understood and may even appear meaningless,
inexplicable and unintelligible:
JUSTIFICATION/RATIONALE FOR ADMISSION OF
HEARSAY EVIDENCE UNDER THE DOCTRINE OF RES
GESTAE
• “the rule [against the admission of hearsay
evidence] admits of certain carefully
safeguarded and limited exceptions, one of
which is that words may be proved when
they form part of the res gestae…It appears
to rest ultimately on two propositions, that
human utterance is both a fact and a means
of communication, and that human action
may be so interwoven with words that the
significance of the action cannot be
understood without the correlative words,
and the dissociation of the words from the
action would impede the discovery of
THE DOCTRINE OF RES GESTAE: STATUTORY
RECOGNITION
• The evidence Act contains provisions that
approximate the common law doctrine of res
gestae, namely—
– Section 6 (statements which, though not in
issue, were part of the same transaction as
the fact in issue. NB: s. 6 goes beyond res
gestae to the extent that it permits
admission of facts occurring at different
times and places from the fact in issue); and
– section 33 (a) (statements by a deceased
person relating to the cause of their death).
THE DOCTRINE OF RES GESTAE: STATUTORY
RECOGNITION
• Under Section 33 of the Evidence Act,
statements, written or oral, of admissible
facts made by a person who is dead, or who
cannot be found, or who has become
incapable of giving evidence or whose
attendance cannot be procured without an
amount of delay or expense which in the
circumstances of the case appears to the
court unreasonable, are themselves
admissible in the following cases—
THE DOCTRINE OF RES GESTAE: STATUTORY
RECOGNITION
• “(a) When the statement is made by a person
as to the cause of his death, or as to any of the
circumstances of the transaction which
resulted in his death, in cases in which the
cause of that person’s death comes into
question and such statements are admissible
whether the person who made them was or
was not, at the time when they were made,
under expectation of death, and whatever may
be the nature of the proceeding in which the
cause of his death comes in question.”
• (b)…
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (R V BEDINGFIELD [1879] 14
COX C.C. 341)
• In R V BEDINGFIELD, a woman run out of her
estranged boyfriend’s with a cut throat saying “see
what Harry (Bedingfield) has done to me.”
• A question arose as to whether this (hearsay)
statement was admissible in evidence.
• Cockburn J. held that the statement was not part
of the transaction because it was uttered after the
transaction was “all over.” Accordingly, the judge
held, the statement was not part of the res gestae.
• NB: The correctness of the Bedingfield decision is
highly contestable, and would today not stand in
view of the provisions of sections 6 and 33 (a) of
the Evidence Act.
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (R V RAMADHANI ISMAEL
[1950] ZLR 100)
• In R v Ramadhani Ismael, a girl who had
allegedly been raped by the accused unlocked
the door and ran to her parents’ house, which
was only a few steps from the accused’s
house, immediately after the ordeal.
• The girl held her father’s hand, took him to the
accused’s house and pointed to the accused
person saying, “daddy, this is the Bwana.”
• An issue arose as to whether the girl’s
statement was part of the transaction (i.e. the
rape).
• Held: (following R v Bedingfield) the statement
was not part of the transaction.
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (R V PREMJI KURJI [1940]
E.A.C.A. 58)
• In R v Premji Kurji, the accused was charged
with murder. He had been found standing over
the deceased’s body, with a dagger dripping
with blood.
• The prosecution adduced evidence that a few
minutes before, the accused had been seen
assaulting the deceased’s brother with a
dagger and said words to the effect “I have
finished with you, I am now going to deal with
your brother.”
• The question was whether this statement was
admissible as forming part of the transaction
(i.e. the murder).
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (TEPER V R [1952] A.C. 480

• In Teper v R, the appellant had been charged

with maliciously and with intend to defraud
setting fire to a shop belonging to his wife,
which he had insured at an inflated value and
in which he carried on the business of a dry
goods store.
• There was no direct evidence identifying the
appellant had set the shop on fire. A police
constable testified, for purposes of
identification of the accused (as the arsonist),
that:
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (TEPER V R [1952] A.C. 480

• “I heard a woman’s voice shouting, ‘your

place burning and you going away from the
fire’; immediately then a black car came from
the direction of the fire, and in the car was a
fair man resembling the accused. I did not
observe the number of the car. I could not see
the fire from where I was standing.”
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (TEPER V R [1952] A.C. 480

 The issue was whether the hearsay evidence of

the woman’s utterances (going to identification)
were part of the transaction (i.e. the arson) and
hence admissible under the doctrine of res
gestae.

 Held: (inter alia) the words spoken by the

woman did not form part of the res gestae and
were not therefore excepted from the
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (R V RATTEN [1972] A.C. 378)

• In R v Ratten, the accused was charged with

the murder of his wife. His defence was that he
was cleaning his gun and it accidentally went off,
mortally injuring his wife.
• There was nobody at the scene of crime.
• The prosecution sought to tender evidence of a
girl who worked at a telephone exchange who
said that a distressed woman had placed a call
from the accused’s house at about the time of
the murder.
• The accused protested that the evidence
constituted inadmissible hearsay.
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES (R V RATTEN [1972] A.C. 378
• The girl further testified that the woman was
begging to have the police called over and before the
operator could link the woman with the police, the
phone hang up on the woman's side.
• The prosecution sought to adduce the telephone
girl’s testimony as evidence of a commotion during
which the accused killed his wife.
• Held: (criticising the decision in R v Bedingfield)
The evidence of the telephone operator was
admissible as it was not hearsay. Even if it was
hearsay, the evidence would be admissible under the
doctrine of res gestae.
• Moreover, the evidence of the telephone operator
contradicted the evidence of the accused to the
effect that the only telephone cal outside his house
at the material time was a call from an ambulance.
THE DOCTRINE OF RES GESTAE: SELECTED
ILLUSTRATIVE CASES

• NB: Although the doctrine of res gestae

normally arises in criminal cases, it is also
applicable to civil cases.

– See Holmes v Newman [1931] 2 Ch. 112, where

the doctrine was applied to a civil dispute in
relation to statements made by a deceased
person against their proprietary interest in a
building.
 SIMILAR FACTS EVIDENCE

• Generally, evidence that a person has a

disposition or propensity towards
wrongdoing, or of specific acts of
misconduct, which may or may not have
resulted in previous convictions, is
inadmissible if the sole reason the
evidence is sought to be adduced is to
show that he is likely to have behaved in
the same manner on the occasion in
question.
• The rationale for the general rule,
 SIMILAR FACTS EVIDENCE

1.First, admitting such evidence would be unfair

to the accused person;
2.Second, admitting such evidence would cause
undue prejudice to the accused; and
3.Thirdly, admitting such evidence would
effectively increase the burden the accused
person has when they come to court, as he
would have to defend his entire life.
 SIMILAR FACTS EVIDENCE

• NB: Similar facts evidence may be adduced (inter

alia)—
1. if it has a substantial connection with the facts
in issue (but it cannot be led merely to show a
connection);
2. where the issue is whether the acts charged
against the accused were designed or
accidental;
3. to rule out defences that may be available to the
accused such as honest intention or lack of
knowledge.
– NB: Even where similar facts evidence is
admissible, the judge still retains a discretion to
exclude it if it is prejudicial to the accused person.
SIMILAR FACTS EVIDENCE: SECTION 15 OF THE
EVIDENCE ACT

• Section 15 of the Evidence Act provides:-

–“When there is a question whether an act
was accidental or intentional, or done
with a particular knowledge or intention,
the fact that such act formed part of a
series of similar occurrences, in each of
which the person doing the act was
concerned, is relevant.”
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
• In John Makin & Sarah Makin v Attorney
General for New South Wales [1893] A. C.
57, Mr. and Mrs. Makin were convicted of
the murder of an infant named Amber
Murray, whom they had adopted.
• The Appellants had represented to the
mother of the infant that they wished to
adopt it as their own child, but they did not
mind receiving a small premium of £3.
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
• The mother of the infant gave them the child
upon payment of the premium . The premium
was insufficient for the support of the child,
except for a limited period.
• The Makins pleaded that they had had a bona
fide intention to adopt the baby, and that it
had died accidentally.
• There was no direct evidence to show that
they had murdered the deceased infant.
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
• To counter the defences of bona fide adoption and
accidental death, the prosecution adduced evidence
that—
1. the Makins had adopted several other babies
under similar circumstances (for a small
fee/premium) whom they could not account for;
and
2. bodies of several other infants had been found
buried (in a similar manner as the body of Amber
Murray) at the backyards of three residences
previously occupied by the Makins.
• The Makins appealed against conviction, arguing
that the trial judge had erred in admitting evidence of
the finding of other bodies than the body of the child
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
• Held ( by Lord Herschell LC, at p. 65):
1. It is not competent for the prosecution to
adduce evidence tending to show that the
accused has been guilty of criminal acts
other than those covered by the
indictment, for the purpose of leading to
the conclusion that the accused is a
person likely from his criminal conduct or
character to have committed the offence
for which he is being tried.
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
2. The mere fact that the evidence adduced
tends to show the commission of other
crimes does not render it inadmissible if it
be relevant to an issue before the jury, and it
may be so relevant if it bears upon the
question whether the acts alleged to
constitute the crime charged in the
indictment were designed or accidental, or
to rebut a defence which would otherwise
be open to the accused.
SIMILAR FACTS EVIDENCE: ILLUSTRATIVE
CASES
3. Their Lordships “cannot see that it was
irrelevant to the issue to be tried by the jury
that several other infants had been received
from their mothers on like representations,
and upon payment of a sum inadequate for
the support of the child for more than a very
limited period, or that the bodies of infants
had been found buried in a similar manner in
the gardens of several houses occupied by
the prisoners.”
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
The significance of the Makin case is that
it attempted to delimit the scope for
admissibility of similar facts evidence.
The thrust of the judgment is that similar
facts evidence cannot be adduced just to
show disposition.
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
Two important questions arise from the second
holding in the Makin case, namely-
1. Whether the prosecution should wait until a
defence is raised or whether the prosecution
could raise similar facts evidence even before
the defence is raised (answered in the negative
by Viscount Simons in Harris v DPP [1952] A.C.
694 and Sinclair VC in Mohammed Saeed Akrabi
v R [1956] 23 EACA 512); and
2. Whether the Makin case provides an exhaustive
list of circumstances under which similar fact
evidence is admissible (also answered in the
negative by Viscount Simmons in in Harris v
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
In Mohammed Saeed Akrabi v R [1956] 23 EACA

512, two boys, aged 9 and 11 years respectively,

had testified on oath that the Appellant, who was

the headmaster of the school they attended, had

taken hold of their hands without their consent

and rubbed them up and down against his penis.

SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
The children testified that the offences took
place when they went to the appellant’s office to
change exercise books.
The prosecution called three other boys from
the same class who gave evidence that the
appellant had on previous occasions done
exactly the same to them as he was alleged to
have done to the complainants.
The trial magistrate admitted this evidence
under sections 14 and 15 of the Aden Evidence
Ordinance (similar to our section 15?) to show
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
The trial magistrate, having satisfied himself that
the children understood the nature of an oath,
and that their evidence was “utterly and entirely
truthful,” convicted the appellant on two counts
of use of criminal force with intent to outrage
modesty.

The evidence of the children was not

corroborated.
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
The appellant challenged the conviction, arguing
that—
1. the conviction could not stand on the
uncorroborated evidence of two young boys
even though the magistrate had warned
himself of the danger of acting on their
uncorroborated evidence;
2. evidence of other offences of a similar nature
which were not charged should not have
been admitted; and
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
3. Although the trial magistrate stated in his
judgment that he would have convicted
even without the evidence of the other
offences not charged, he could not have
failed to have been influenced by it in
arriving at his conclusion as to the guilt of
the appellant (NB: the Makin court declined
to deal with the issue of whether the
conviction would have stood without the
similar fact evidence, having already found
that the evidence was admissible).
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
Held:
1. while it is a sound rule in practice not to
act on the uncorroborated evidence of a
child, this is a rule of practice and not of
law;
2. evidence of similar offences not charged
is admissible where there are reasonable
grounds for expecting that the accused
will set up a defence of accident or
mistake.
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
From the foregoing, it is clear that similar facts
evidence could be raised in anticipation of a defence
that would otherwise be available to the accused,
and that the prosecution need not await until the
defence is actually pleaded. This can also be
confirmed from the speech of Lord Simmons in
Harris v DPP [1952] A.C. 694 (quoted at p. 515 of the
Mohammed Saeed Alkrabi case) that:
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
“the substance of the matter appears to me to be that the
prosecution may adduce all proper evidence which tends
to prove the charge. I do not understand Lord
Herschell’s words (in Makin’s case) to mean that the
prosecution must withhold such evidence until after the
accused has set up a specific defence which calls for
rebuttal. Where, for instance, mens rea is an essential
element in guilt, and the facts of the occurrence which is
the subject of the charge, standing by themselves, would
be consistent with mere accident, there would be nothing
wrong in the prosecution seeking to establish the true
situation by offering, as part of its case in the first
instance, evidence of similar action by the accused at
another time which would go to show that he intended to
do what he did on the occasion charged and was us
SIMILAR FACTS EVIDENCE:
ILLUSTRATIVE CASES
 NB:
 as stated, even where similar facts evidence
is admissible, the court has discretion to
disallow it if its prejudicial effect outweighs
its probative value.
 In summary, admissible similar facts
evidence falls into three categories
depending on what it is directed towards,
namely to show state of mind or motive,
identity of the perpetrator of an act and
whether the act is just a mere coincidence,
act of nature or miracle.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 In R v Francis [1874] L. R. 128, the accused
was charged with attempting to obtain
money by false pretences, by representing a
certain ring to be a diamond ring.

 In defence, he said that he had no

knowledge that the ring he was purporting
to sell was not a diamond ring and was
worthless.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 Held: Evidence that two days prior to the
event in issue the accused had obtained an
advance from a pawnbroker upon a chain
which he represented to be a gold chain, but
which was not so, and endeavoured to
obtain from other pawnbrokers advances
upon a ring which he represented to be a
diamond ring, but which, in the opinion of
witnesses was not so, was relevant to rebut
his defence of lack of knowledge.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 In R v Bond [1969] 2 K.B. 389, a doctor was
charged with using some instruments on a
woman with the intent to procure an abortion. He
denied the intent, saying he was using the
instruments to examine the woman.
 The prosecution sought to adduce evidence that
Dr. Bond had previously used the same
instruments on another woman occasioning an
abortion and the girl on whom he was accused of
using the instruments on testified that he had
told her words to the effect that he had made
dozens of girls happy and could do the same to
her.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 The defence protested that this evidence
was prejudicial and irrelevant.
 Held: The evidence was admissible
because it showed the doctor’s intention
in purporting to examine the woman and
rebutted his assertion that he was using
the instruments to examine the woman.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 In R v Armstrong, the accused was charged with
murdering his wife by administering arsenic
poison, which was found in his house tied up in
packets containing fatal doses.
 In defence, the accuse declaimed that he used
the position to kill weeds as a gardening aid.
There was no evidence that he had actually
administered the poison on his wife.
 The prosecution sought to lead evidence that a
few weeks after the accused’s wife’s death, he
had attempted to murder another man by giving
him arsenic poison.
SIMILAR FACTS EVIDENCE: State of
mind or Motive
 Held: The fact that the accused was
subsequently found not merely in
possession of but actually using for a
similar deadly purpose the very poison
that caused the death of his wife was
evidence from which the jury might infer
that the poison was not in his possession
at the earlier date (i.e. the date of his
wife’s death) for an innocent purpose.
SIMILAR EVIDENCE:
FACTS
Identification of Perpetrator of An
Offence
 Where it is shown that a particular act has been done
but it is not certain who did it, similar facts evidence
may help in identifying the perpetrator where the act
in issue is part of a series of strikingly similar acts
done in a similar manner.
 The best illustration of the rule is perhaps the
decision in R v Straffen [1952] 2 Q.B. 911 (CA). On
Apr. 29, 1952, the appellant escaped from a mental
hospital for four hours.
 The next day, the dead body of a young girl was
found on the roadside, indicating that she had died
from manual strangulation. Medical evidence
showed that her death had taken place during the
period the appellant was at large.
SIMILAR FACTS EVIDENCE:
Identification of Perpetrator of An
Offence
 It was established that straffen had strangled
two girls at a different place two months earlier
and also left their bodies by the roadside.
 When the police went to interview Straffen, he
said “I did not kill the girl.”
 He was convicted on the basis of the evidence of
the manual strangulation of the other two girls,
and the striking similarity between the manner in
which they had been killed and dumped and the
manner in which the girl in question had been
killed and dumped.
 He appealed.
SIMILAR FACTS EVIDENCE:
Identification of Perpetrator of An
Offence
 Held: “when a person charged with an
offence enters a general plea of not guilty to
the change, such plea involves an in issue
of identity and evidence is accordingly
admissible of other offences previously
committed by the accused which, from the
similarities between the circumstances in
which they were committed and the method
employed I their commission and those of
the offence with which the accused person
is then changed, tend to establish that they
were committed by the same individual”.
SIMILAR FACTSEVIDENCE: Proof of
the Commission of an Offence
 Similar facts evidence may be adduced to proof
the commission of an offence where it is not
clear whether the act in issue was done or
happened by accident or design, miracle or just
mere coincidence.
 In R v Smith (1915), 11 Cr. App. R 229, Mr. Smith
married his first wife and insured her life, the
policy being in his favour. He made a
representation to his personal doctor that his
wife was epileptic.
 A few months later, the first wife’s dead body
was found floating the bath tap and a few moths
later the insurance policy was paid out.
SIMILAR FACTSEVIDENCE: Proof of
the Commission of an Offence
 Smith subsequently married two more women,
taking an insurance policy in his favour against
the life of each, and each of whose dead body
was subsequently found floating in the bath tub.
 Mr. Smith was charged with murdering the first
wife on the basis of the subsequent deaths of
wives 2 and 3 in similar circumstances.
 Held: the coincidence was too fantastic to be
credible. The evidence of the death of the other
women was admissibly because it ruled out the
possibility that the drowning of the deceased
was an accident.
SIMILAR FACTSEVIDENCE: Proof of
the Commission of an Offence
 The following dictum (by Lord Reading CJ
(at p. 233), explaining why the evidence of
the deaths of the other women was
admissible) is quite illustrative:
 “If you find an accident which benefits a person
and you find that the person has been
sufficiently fortunate to have that accident
happen to him a number of times, benefitting
him each time, you draw a very strong,
frequently irresistible inference that the
occurrence of so many accidents benefiting him
is such a coincidence that it cannot have
happened unless it was design”
ILLEGALLY & UNFAIRLY OBTAINED OBTAINED
EVIDENCE

1. The mandatory inclusionary approach at

common law:
 (R v Leatham; Kuruma s/o Kaniu v R; R v
Sang etc)
 Apparent change of direction in Mohammed
Nur Koriow v Attorney General & other
recent cases
 Article 50 (4) of the Constitution of Kenya,
2010
2. The mandatory exclusionary approach in
LESSON FOUR: BURDEN & STANDARD OF PROOF
• ©MUTHOMI THIANKOLU
 Lecturer, University of Nairobi School of Law
 Advocate of the High Court of Kenya
 Partner, Muthomi & Karanja Advocates

• University of Nairobi School of Law (LLB II Class)

• Saturday, September 27, 2014
• *NOTE: Students are strongly advised that this presentation
is not a substitute for attending lectures or reading the
cases and materials set out in the Course Outline.
 BURDEN & STANDARD OF PROOF
(SCOPE/OUTLINE OF THE LESSON)
 Burden of Proof:
General Meaning of “Burden of Proof”
1. The legal burden
2. The Evidential Burden
Incidence of the Legal and Evidential Burdens
The Shifting of the Legal and Evidential Burdens
 Standard of Proof:
Civil Cases
Criminal Cases
Special/sui generis cases
 BURDEN & STANDARD OF PROOF
(GENERAL MEANING OF “BURDEN OF PROOF”)

 Generally, the phrase “burden of proof” means

the obligation to prove.

 It describes the duty which lies on one or other

of the parties to a case to establish the facts

upon a particular issue (Kyalo, M. (2011).

 BURDEN OF PROOF
(THE LEGAL & EVIDENTIARY BURDENS)

A typical trial normally involves two

principal types of burden, namely—

the legal burden; and

the evidential burden.

 BURDEN OF PROOF
(THE LEGAL BURDEN)
 The legal burden is the obligation imposed on a
party by a rule of law to prove a fact in issue (See
Adrian Kean, p. 67).
 Simply put, the legal burden of proof is is the
obligation to establish the facts and contentions
which will support a party’s case, or persuading
the tribunal of the correctness of a party’s
allegations.
– “When a person is [legally] bound to prove the
existence of any fact it is said that the burden of
proof lies on that person” see s. 107 (2) of the
Evidence Act.
 BURDEN OF PROOF
(THE LEGAL BURDEN)
The question of who bears the legal burden
of proof in a typical case usually turns,
therefore, on rules of law and pleadings.
The legal burden is also invariably referred
to as the ultimate burden, the probative
burden, and the burden of proof on the
pleadings.
 BURDEN OF PROOF
(THE LEGAL BURDEN)
 Whether a party has discharged the legal
burden is decided only once by the trier of fact,
usually at the end of the case when both parties
have called all their evidence.
 The penalty for failure to discharge the legal
burden of proof in a case is the certainty of
losing the whole action/case.
 NB: The standard of proof required to discharge
the legal burden depends on whether the
proceedings are criminal or civil (more on this
in ensuing slides of this presentation)
 BURDEN OF PROOF
(THE EVIDENTIAL BURDEN)
The phrase “evidential burden” refers to the
obligation on a party to produce evidence
capable of supporting, but not necessarily
proving, a fact in issue (see Halsbury's Laws
of England).
The evidential burden is also commonly
known as the “burden of adducing evidence.”
 BURDEN OF PROOF
(THE EVIDENTIAL BURDEN)
NB: Failure to discharge the evidential
burden carries with it the RISK (but not the
certainty) of failure on the whole or some
part of the action.
 BURDEN OF PROOF
(THE EVIDENTIAL BURDEN)
 The evidential burden is considered at two
stages:
firstly, at the beginning of the proceedings in
order to determine which party begins the
suit; and
secondly, at any time during the trial to
determine whether enough evidence has
been adduced in support of an asserted fact
for it to become a justiciable issue. A
justiciable issue is one which requires the
opposing party to adduce evidence in
rebuttal.
 BURDEN OF PROOF
(THE EVIDENTIAL BURDEN)
NB:
1. Unlike the legal burden, the evidential burden
is a question of mixed law and fact and shifts in
the entire course of proceedings. Put
differently, the evidential burden does not rest
on one party designated by the pleadings but
on the party against whom the tribunal at the
time the question is to be determined, would
give judgment on a prima facie basis.
2. It is said that the evidential burden shifts from
one party to another as the trial progresses
according to the balance of evidence given at
any particular stage, but it may be more
accurate to say that it is the need to respond to
the other party’s case that changes.
 THE INCIDENCE OF THE LEGAL BURDEN
(GENERAL RULES)
 The legal burden of proof in both civil and
criminal cases normally rests upon the party
desiring the court to take action.
 The general rule as to the incidence of the legal
burden of proof is commonly expressed in the
terms “he who asserts must prove.”
– “Whoever desires any court to give judgment
as to any legal right or liability dependent on
the existence of facts which he asserts must
prove that those facts exist” (see s. 107 of the
Evidence Act)
 THE INCIDENCE OF THE LEGAL BURDEN
(GENERAL RULES)
• Accordingly, the plaintiff (the prosecution in criminal
cases) must satisfy the court that the conditions which
entitle him to an award have been satisfied.
• In respect of a particular allegation, the legal burden of
proof lies upon the party for whom the substantiation
of that particular allegation is an essential of his case.
• NB: Most cases involve more than one fact in issue and the
legal burden of proof in relation to those issues may be
distributed between the parties to the action (see Adrian
Kean, p. 67). To illustrate, in a negligence claim, the
legal burden of proof in respect of duty, breach of duty
and damage is upon the plaintiff, and in respect of
contributory negligence is upon the defendant.
 INCIDENCE OF THE LEGAL BURDEN
(GENERAL RULES)
• Generally, therefore, if certain facts are
essential to the claim or defence of a party,
that party must prove them. Put differently, a
party bears the legal burden of proof with
respect to those facts that are essential to its
claim or defence.
– “The burden of proof as to any particular
fact lies on the person who wishes the court
to believe in its existence, unless it is
provided by any law that the proof of that
fact shall lie on any particular person” See
s. 109 of the Evidence Act
 INCIDENCE OF THE EVIDENTIAL BURDEN
(GENERAL RULE)
Generally, the evidential burden of proof
falls on the party who would fail if no
evidence at all, or further evidence, as the
case may be, was adduced by either side:
“The burden of proof in a particular suit or
proceeding lies on that person who would
fail if no evidence at all were given on
either side” see s. 108 of the Evidence Act.
 INCIDENCE OF THE EVIDENTIAL BURDEN
(GENERAL RULES)
• In practice, the evidential burden will rest
initially upon the party bearing the legal
burden.
• As the weight of the evidence given by either
side during the trial varies, however, the
evidential burden shifts to the party who
would fail without further evidence.
• If the party bearing the legal burden fails to
adduce evidence, he has failed to discharge
his burden and there will be no need for the
other party to respond.
 INCIDENCE OF THE LEGAL & EVIDENTIAL BURDENS
(EXCEPTIONS TO THE GENERAL RULES)
• The general rules that govern the incidence of
the legal and evidential burdens are subject to
the following exceptions:
– Where there is a rebuttable presumption of law
in favour of one party, the burden of rebutting it
lies on the other party (more on this in Lesson
12);
– where the truth of a party’s allegation lies
peculiarly within the knowledge of his opponent,
the burden of disproving it often lies upon the
latter, though there is no general rule of law to
this effect (see Halsbury’s);
 THE INCIDENCE OF THE LEGAL BURDEN
(CRIMINAL CASES)
• The general rule at common law is that in
criminal cases the legal burden of proving any
fact essential to the prosecution’s case rests
upon and remains with the prosecution
throughout the trial.
• The following dictum of Lord Sankey LC in
Woolmington v DPP [1985] A. C. 462 HL at pp.
481-2 confirms the general rule:
• “Throughout the web of the English criminal law
one golden thread is always to be seen - that it is
the duty of the prosecution to prove the
prisoner's guilt subject to what I have already
said as to the defence of insanity and subject also
to any statutory exception. If, at the end of and
on the whole of the case, there is a reasonable
doubt, created by the evidence given by either
the prosecution or the prisoner, as to whether
the prisoner killed the deceased with a malicious
intention, the prosecution has not made out the
case and the prisoner is entitled to an acquittal…
• “No matter what the charge or where the trial, the principle
that the prosecution must prove the guilt of the prisoner is part
of the common law of England and no attempt to whittle it
down can be entertained…It is not the law of England to say, as
was said in the summing-up in the present case: "if the Crown
satisfy you that this woman died at the prisoner's hands then he
has to show that there are circumstances to be found in the
evidence which has been given from the witness-box in this case
which alleviate the crime so that it is only manslaughter or
which excuse the homicide altogether by showing it was a pure
accident.”
 THE INCIDENCE OF THE LEGAL BURDEN
(CRIMINAL CASES)
• The prosecution must prove both negative as
well as positive allegations that may be
essential to its case.
• To illustrate, the prosecution bears the legal
burden of proving absence of consent on a
charge of rape or assault (Adrian Kean, p. 70).
 THE INCIDENCE OF THE LEGAL BURDEN
(EXCEPTIONS FOR CRIMINAL CASES)
• The legal burden may lie on the accused person
in certain circumstances, especially where—
1. where a statute places the legal burden of
proof on a particular issue on the accused
person (it is debatable whether such
statutory reversal is inconsistent with the
constitutional right to a fair trial (Article
50));
2. where the fact in issue is especially within
the knowledge of the accused person (section
111 of the Evidence Act NB: a similar rule
applies to civil cases under section 112);
 THE INCIDENCE OF THE LEGAL BURDEN
(EXCEPTIONS FOR CRIMINAL CASES)
3. where the accused asserts the existence of
circumstances bringing the case within any
exemption or exception from, or
qualification to, the law creating the offence
with which the accused is charged (section
111 of the Evidence Act);
4. Where the accused pleads the defences of
insanity or intoxication (section 111 of the
Evidence Act).
 THE INCIDENCE OF THE LEGAL BURDEN
(STATUTORY EXCEPTIONS FOR CRIMINAL CASES)
 The general rule that the legal burden lies with
the prosecution in criminal cases is subject to
any express or implied statutory exceptions.
Examples include—
section 20 (2) of the Public Order Act (Cap.
56): “…it is hereby declared that the burden
of proving lawful or reasonable excuse or
lawful authority shall be upon the person
alleging the same, and accordingly in any
proceedings for an offence under this Act or
any regulations made thereunder it shall not
be incumbent on the prosecution to prove the
lack of any such excuse or authority.”
 THE INCIDENCE OF THE LEGAL BURDEN
(STATUTORY EXCEPTIONS FOR CRIMINAL CASES)
 Section 22 (3) of the Sexual Offences Act (on incest):
“An accused person shall be presumed, unless the
contrary is proved, to have had knowledge, at the time
of the alleged offence, of the relationship existing
between him or her and the other party to the incest.
 Section 153 (2) of the Penal Code: “Where a male
person is proved to live with or to be habitually in the
company of a prostitute or is proved to have exercised
control, direction or influence over the movements of a
prostitute in such a manner as to show that he is
aiding, abetting or compelling her prostitution with
any other person, or generally, he shall unless he
satisfies the court to the contrary be deemed to be
knowingly living on the earnings of prostitution.
 THE INCIDENCE OF THE LEGAL BURDEN
(CRIMINAL CASES)
Whether the above statutory exceptions still
hold remains to be seen, in view of the
constitutional provision that the right to a fair
trial is among the rights which cannot be
limited (see Article 25 (c) of the Constitution)
Generally, therefore, that an accused person in
a criminal trial bears no legal burden in
respect of the essential ingredients of an
offence, be they positive or negative, and
whether or not he denies any or all of them.
 THE INCIDENCE OF THE LEGAL BURDEN
(CIVIL CASES)
The general rule with regard to civil cases is
that the legal burden of proof lies on the party
who asserts the affirmative of an issue (based
on the pleadings). In a negligence suit, for
instance, the plaintiff bears the legal burden
of proving duty of care, breach of such duty
and the loss suffered in consequence.
In considering who asserting the affirmative
of an issue, however, the judge should
consider the substance and not merely the
literal grammatical language used in the
pleadings.
 THE INCIDENCE OF THE LEGAL BURDEN
(CIVIL CASES)
 In Soward v Leggatt (1836) ER 269, for instance, the
plaintiff sued his tenant and pleaded that the latter
“did not repair” the premises in question. The tenant
pleaded that he “did well and sufficiently repair” the
premises in question.
 Held: notwithstanding that the defendant’s pleading
was the grammatical affirmative, the burden of proof
lay on the plaintiff, i.e. landlord.
 In Abrath v North Eastern Railway (1886) 11 App Cas
247 HL, a suit for malicious prosecution, the plaintiff
pleaded that the defendant instituted proceedings
against him without reasonable and probable cause.
 Held: the burden was on the plaintiff to prove not only
the malicious prosecution but also prima facie the
want of reasonable and probable cause.
 STANDARD OF PROOF
(CIVIL CASES)
In civil proceedings, the party bearing the
legal or evidential burden must prove his
case on a balance of probabilities (some
authors describe the applicable standard
as the preponderance of the evidence or
preponderance of probabilities).
 STANDARD OF PROOF
(CRIMINAL CASES)
 The standard of proof required of the
prosecution in criminal cases is “proof beyond
all reasonable doubt” (see Woolmington v DPP).

 Proof beyond reasonable doubt, however, is not

synonymous with certainty or satisfaction. This
was confirmed by Denning J. (as he then was) in
Miller v Minister of Pensions [1947] 2 All ER 372
at pp. 373-374:
 STANDARD OF PROOF
(CRIMINAL CASES)
“the degree [of proof in criminal cases] is well
settled. It need not reach certainty but it must
carry a high degree of probability. Proof beyond
reasonable doubt does not mean proof beyond a
shadow of doubt. The law would fail to protect
the community if it admitted fanciful
possibilities to deflect the course of justice. If
the evidence is so strong against a man as to
leave only a remote possibility in his favour,
which can be dismissed with the sentence “of
course it is possible but not in the least probable”
the case is proved beyond reasonable doubt but
nothing short of that will suffice.”
 STANDARD OF PROOF
(CRIMINAL CASES)
NB: where the legal or evidential burden
on an issue lies on the accused person, he
only needs to proof the relevant fact(s) on
a balance of probabilities, not beyond
reasonable doubt.
 STANDARD OF PROOF
(SUI GENERIS CASES)
The question of the applicable standard of
proof may be difficult in proceedings that are
not entirely civil or criminal, sui generis
proceedings and quasi-criminal proceedings.
There is no general rule as to the applicable
standard of proof in such cases and hence the
applicable rules can only be learnt by way of
illustration. To illustrate:
 STANDARD OF PROOF
(ILLUSTRATIONS FOR SUI GENERIS CASES)
 The standard of proof required of election offences (and
election petitions in general) is higher than on a balance of
probabilities, but lower than proof beyond all reasonable
doubt as required in criminal cases.
 (see Joho v Nyange & Another (No. 4) [2008] 3 KLR (EP) 500
and Raila Odinga & Others v The Independent Electoral &
Boundaries Commission & Others [2013] eKLR. The
rationale for this is that election offences approximate
criminal charges and hence the ordinary civil standard of
proof on a balance of probabilities would be
inappropriate).
 STANDARD OF PROOF
(ILLUSTRATIONS FOR SUI GENERIS CASES)
 An allegation of fraud or professional
misconduct normally requires a degree of proof
higher than the ordinary civil standard of
balance of probabilities.
 BURDEN & STANDARD OF PROOF
(SELECTED ILLUSTRATIVE CASES)
 In Sharma & Another v Uganda [2002] 2 EA 589
(SCU), the appellant had pleaded the defence of
alibi, which was rejected by the trial judge on
the ground that the defence did not create any
doubt in his mind as to the presence of the
accused at the murder scene.
 Held: It was the duty of the prosecution to
disprove the alibi and place the accused at the
scene of crime.
 BURDEN & STANDARD OF PROOF
(SELECTED ILLUSTRATIVE CASES)
 In Ssentale v Uganda [1968] EA 366, the
Appellant was convicted of robbery with
violence on a charge of attacking the
complainant and by violently removing and
running off with her sweater.
 He appealed on the ground that there was no
proper evidence of identification and that the
magistrate had not properly directed herself on
the question of burden of proof relating to an
alibi that he had raised.
 BURDEN & STANDARD OF PROOF
(SELECTED ILLUSTRATIVE CASES)
 Held: An accused who puts forward an alibi as
an answer to a charge does not assume any
burden of proving that answer. Accordingly, the
trial magistrate had misdirected herself on this
point.
LESSON FIVE—COMPETENCE & COMPELLABILITY OF
WITNESSES
• ©Muthomi Thiankolu

– Branton Court, Maisonette A6

– Ndemi Lane, Off Ngong Road
– P. O. Box 19893-00100 Nairobi Kenya
– Tel: +Tel: +254-20-2467-437
– Cell: +254-720-781-449
– Email: [email protected]
 LESSON 5—COMPETENCE & COMPELLABILITY OF
WITNESSES
• SCOPE OF THE LESSON:
1. Meaning of “Competence” and “Compellability”
2. General Rule as to Competence and
Compellability;
3. Historical Development of the law on competence
& compellability of witnesses;
4. Exceptions to the general rule as to Competence
and Compellability:
Accused persons;
Spouses;
Children;
Persons of unsound mind
Sovereigns and diplomats;
Bankers.
• A witness is said to be competent if he/she may be
called to give evidence, i.e. if, as a matter of law, they
are qualified/permitted to give evidence.
• A witness is said to be compellable if, being
competent, he may be compelled (by the court) to give
evidence.
• A witness must first be shown to be competent before
they can be compelled to give evidence.
• A competent and compellable witness may
nonetheless be entitled, on grounds of public policy or
privilege, to refuse to answer some or all of the
questions put to them.
 At common law, there were numerous rules which
operated to prevent a wide variety of persons from
giving relevant evidence.
 The are still some persisting qualifications on the
competence of certain categories of persons to give
evidence, which will form the main focus of this
lesson.
We highlight, in the ensuing few slides of this
presentation, the development of the rules as to
the competence and compellability of—
non-Christians and atheists;
Parties;
persons interested in the outcome of legal proceedings,
Convicts; and
spouses of parties to proceedings.
1. Non-Christians & Atheists:
At common law, the evidence of non-
Christians and atheists was excluded by
virtue of the requirement that witnesses
testify on oath on the Gospel.
The rule was modified in the 18th Centure for
Non-Christians. Atheists, on the other hand,
were allowed to testify for the first time vide
the Evidence Further Amendment Act 1869.
(See Adian Kean at p. 99).
In Kenya, the modern law on the issue (of oaths,
which rendered non-Christians and Atheists
incompetent) is set out in section 15 of the
Oaths and Statutory Declarations Act (Cap. 15)
which empowers a court to administer:
 an oath (to those witnesses who subscribe to
a religious belief and who have no objection
to taking an oath); or
a solemn affirmation to those witnesses who
are atheist or for religious or other reason
are opposed to taking an oath.
2. Convicts:
 At common law, persons who had previously been
convicted and sentenced for certain infamous
crimes were not allowed to testify.
 The incompetence of convicts was modified by the
Civil Rights Act 1828 and abolished by the Evidence
Act 1843.
3. Persons Interested in the Outcome of
Proceedings:
 At common law, persons who had personal
pecuniary or proprietary interest in the outcome of
legal proceedings were incompetent to testify in
such proceedings. The incompetence was
abolished by the Evidence Act 1828.
4. The Parties & their Spouses:
Parties to legal proceedings were incompetent
to testify at common law, in both civil and
criminal proceedings. In criminal cases, the
incompetence of the accused person to testify
was justified on the risk of his being compelled
to incriminate himself.
The spouse of a party to either civil or criminal
proceedings was also incompetent to testify at
common law, whether the evidence in question
related to events which occurred before or
during the marriage.
 The incompetence of spouses was justified on (inter
alia) the following assumptions:—
 the spouse of a party to legal proceedings had an
interest in the outcome of the proceedings;
 a spouse would tend to be biased in favour of the
other spouse;
 the harshness of compelling one spouse to give
evidence against the other;
 allowing spouses to testify would disturb marital
harmony; and
 the theoretical unity of the spouses (it being
assumed that they were one and the same person,
the husband).
 A spouse’s incompetence survived the termination
of the marriage in so far as the evidence in
question related to events which occurred during
the marriage.
 The disability of parties to testify in legal
proceedings was abolished by the Evidence Act
1851 and the Evidence Further Amendment Act
1869.
 The disability of spouses to testify in civil proceedings
was abolished by section 1 of the Evidence
Amendment Act 1853.
 The rule as to the incompetence of spouses to testify
in criminal proceedings was modified by the Criminal
Evidence Act 1898, which made distinctions between
the spouse of the accused person giving evidence for
the defence and for the prosecution.
 Section 1 of the Criminal Evidence Act 1898 (which
seems to be pari materia with section 127 of the
Kenyan Evidence Act) made the accused’s spouse
competent (but not compellable) as a witness for the
accused and for any person jointly charged with the
accused subject to the consent of the accused.
 Progressive developments over the years (mostly in the
form of statutory interventions) have wilted down most of
the common law exclusionary rules that tended to
disqualify many people from giving evidence.
 Today, broadly speaking, there are two general rules on
competence and compellability of witnesses:
 the first (which relates to competence) is that any
person is a competent witness in any proceedings (see
section 125 (1) of the Evidence Act).
 the second (which relates to compellability) is that all
competent witnesses are compellable.
 The ensuing parts of this presentation will explore the
modern law on the competence and compellability of
selected categories of persons.
 Section 125 (1) of the Evidence Act sets out the
following general rule as to the competence of
witnesses:
“all persons shall be competent to testify unless
the court considers that they are prevented from
understanding the questions put to them, or
from giving rational answers to those questions,
by tender years, extreme old age, disease
(whether of body or mind) or any similar cause.”
 Section 128 of the Evidence Act, on the other hand,
provides the following general rule as to the
compellability of witnesses:
 “A Witness shall not be excused from answering any
question as to any matter relevant to the matter in
issue in any suit or in any civil or criminal proceeding
upon the ground that the answer to such question will
incriminate, or may tend directly or indirectly to
incriminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a
penalty or forfeiture of any kind, but no such answer
which a witness is compelled to give shall subject him
to any arrest or prosecution, or be proved against him
in any criminal proceeding, except a prosecution for
giving false evidence by such answer”
In Kenya, the modern law on the competence
and compellability of parties and their spouses
is set out in section 127 of the Evidence Act.
For criminal cases, some additional and
important rules are also to be found in Article
50 of the Constitution of Kenya 2010.
Section 127 (1) of the Evidence Act states that:
“In civil proceedings the parties to the suit, and
the husband or wife of any party to the suit,
shall be competent witnesses.”
• Section 127 (2) of the Evidence Act states that :
– “In criminal proceedings every person
charged with an offence, and the wife or
husband of the person charged, shall be a
competent witness for the defence at every
stage of the proceedings, whether such
person is charged alone or jointly with any
other person.”
Under section 127 (3) of the Evidence Act, the accused
person’s spouse is a competent and compellable
witness for the prosecution, without the accused’s
consent, in cases where the accused is charged with—
bigamy;
offences under the Sexual Offences Act; or
an act or omission affecting the person or property
of the spouse or the children of either of them.
In all other cases, according to the second paragraph
to the proviso to section 127 (2), the accused person’s
spouse can only be called as a witness upon the
application of the accused person.
 In summary, today—
1. any party to civil proceedings may give evidence
himself and, if he wishes, compel any other party to
those proceedings to give evidence.
2. an accused person and his spouse are now
competent, but not compellable, witnesses for the
defense (see section 127 (2) of the Evidence Act).
3. an accused person’s spouse is generally not a
competent witness for the prosecution, save for cases
where the accused is charged with any of the offences
listed in section 127 (3) of the Evidence Act. For the
cases listed under section 127 (3), the accused’s
spouse is both a competent and compellable witness
for the prosecution.
 NB:
1. paragraph (iii) of the proviso to section 127 (2) of
the Evidence Act states that the failure of the accused
person or his/her spouse to testify shall not be made
the subject of any comment by the prosecution
2. under Article 50 (2) (i) of the new Constitution, an
accused person has the right to remain silent and
not to give evidence at the trial.
3. Where a party or his spouse elects or is compelled to
give evidence, they are liable to be cross-examined
by the adversary just like any other ordinary
witness.
4. At common law, and contemporary English law, the
word “spouse” for purposes of any rules as to
competence and compellability of witnesses is
normally understood to refer to a wife or husband of
a monogamous and de jure (as opposed to de facto)
marriage (See R v Khan (1986) 84 Cr App Rep 44,
CA). The rules in section 127 of the Kenyan
Evidence Act as to the competence and
compellability of spouses, however, apply to spouses
of both monogamous and polygamous marriages, as
well as spouses to a party married under native or
tribal custom (for a controversial pre-independence
decision on this on this, see R v Amkeyo).
At common law, an accomplice (that is a person who
participates criminally in the commission of the crime
charged) was a competent witness for the prosecution,
subject to the requirement that their evidence be
corroborated.
The common law requirement for corroboration n of
accomplice evidence was based on the assumption that
the accomplice would almost inevitably tailor the
evidence to exonerate himself.
In Kenya, the modern law on the competence of
accomplices is set out at section 141 of the Evidence Act.
Section 141 of the Evidence Act provides that an
accomplice shall be a competent against an accused
person, and a conviction shall not be illegal merely
because it proceeds upon the uncorroborated evidence
of an accomplice.
NB: Although section 141 allows a court to convict on
the uncorroborated evidence of an accomplice,
appellate courts will normally overturn a conviction
solely or substantially based on such evidence.
In Mwangi v Republic [2008] 1 KLR 1134, the
appellants were jointly charged with the offences of
robbery with violence and rape contrary to sections
296 (1) and 140 of the Penal Code respectively.
A woman who had been arrested and charged with
robbery in connection with the occurrences of the
material night testified that the second appellant
had told her that he had a plan and asked her to find
out if the complainant’s husband was present.
The trial magistrate took into account the
woman’s evidence as that of a reliable witness.
Held (on second appeal):
1. The trial court should have treated the woman’s
evidence as that of an accomplice, and it had been a
serious misdirection to treat her evidence as that of a
reliable witness;
2. The woman’s evidence should have been held to be
untrustworthy for the reason that she was likely to
swear falsely in order to shift blame from herself and
being a participant of the crime, she could easily
disregard the sanctity of the oath to tell the truth.
At common law, the competence of children to
give sworn evidence depended on “the sense and
reason they entertain of the danger and impiety
[i.e. sinfulness or wickedness] of falsehood” (see
Adrian Kean 4th Edition at p. 110).
The requirement that at section 19 of the Oaths
and Statutory Declarations Act that children of
tender years be shown to understand “the nature
of an oath” before they can give sworn evidence
(see ensuing slides), therefore, is arguably
informed by the religious importance attached to
an oath in the common law days.
In England, the courts have recognized that
contemporary societies may not attach much divinity to
the oath. In R v Hayes [1971] WLR 234, for instance, it
was held that the important consideration is not whether
the child understood the nature of an oath but rather—
“whether the child has sufficient appreciation of the solemnity of
the occasion and the added responsibility to tell the truth, which is
involved in taking an oath, over and above the duty to tell the truth
which is an ordinary duty of normal social conduct.”
In England, the requirement that a child witness should
be shown to understand the duty to speak the truth is
also now understood to mean the duty to tell the truth as
a matter of normal social conduct rather than the duty to
tell the truth as a matter of piety (see Adrian Kean, 4th
Edition at p. 111).
The modern law on the competence and
compellability of children is set out in
sections 124 and 125 (1) of the Evidence Act
as read with section 19 of the Oaths and
Statutory Declarations Act.
In summary, the effect of the above sections
is that:-
1. A child of tender years who is incapable of
understanding the questions put to them or
giving rational answers thereto is not a
competent witness (s. 125);
2. Where any child of tender years called as a
witness does not in the opinion of the court
understand the nature of an oath, his evidence
may be received if, in the opinion of the court,
the child is possessed of sufficient intelligence to
justify the reception of the evidence, and
understands the duty of speaking the truth (s. 19
of Cap. 15).
3. Where the unsworn evidence of a child of tender
years is admitted (under s. 19 of Cap. 15), the
accused shall nonetheless not be convicted on
such evidence unless it is corroborated by other
material evidence in support thereof implicating
him (s. 124);
4. Where in a criminal case involving a sexual
offence the only evidence is that of the alleged
child victim of the offence, the court shall receive
the evidence and proceed to convict the accused
person if, for reasons to be recorded in the
proceedings, the court is satisfied that the
alleged child victim is telling the truth (proviso
to s. 124);
 In Oloo v Republic [2009] KLR 416, trial magistrate
had convicted the appellant on a charge of robbery
with violence contrary to section 296 (2) of the penal
code.
 The trial magistrate had relied, in arriving at the
convicted, on the evidence of three child witnesses
aged between 13 and 17 years.
 The Appellant appealed to the High Court. The state
counsel appearing for the prosecution conceded the
appeal in the High Court, stating in part that the
evidence against the appellant was inadequate and
suspect.
 The High Court nonetheless disagreed with the
appellant and the state counsel and dismissed the
appeal, prompting the appellant to file a second and
final appeal to the Court of Appeal.
 The second appeal was based partly on the
contention that both the trial magistrate and
the High Court had erred in convicting him on
the uncorroborated evidence of a child.
 Held (by the Court of Appeal):
1. The Children Act at section 2 defined a child
of tender years as a child under the age of ten;
2. Section 19 of the Oaths and Statutory
Declarations Act provided that the evidence
of a child of tender years called as a witness,
who in the opinion of the Court did not
understand the nature of an oath, could be
received if in the opinion of the Court such a
child was possessed of sufficient intelligence
to justify the reception of the evidence and
understands the duty of telling the truth.
3. The trial court should have, out of caution, formed
an opinion on a voire dire examination whether the
child understood the nature of an oath before she
could be sworn. Failure to do so could have
occasioned a miscarriage of justice had that been the
only witness on the issues that were before the
Court.
4. Where a witness who did not understand the nature
of the oath was made to swear, her evidence would
have higher probative value than if the same
evidence was given unsworn.
5. Corroboration of the evidence of a child of tender
years was only necessary where such a child gave
unsworn evidence (Johnson Muiruri v Republic
[1984] KLR 445).
6. In law, the evidence of a child of tenders years
given on oath after a voire dire examination
required no corroboration but the court had to
warn itself that it should in practice not base a
conviction on it without looking and finding
corroboration for it.
7. The evidence of a child of tender years not given
on oath had, in law, to be corroborated.
8. Even if the evidence of one of the children was
inadmissible, there was still evidence from the
other witnesses. Accordingly, the appeal would
be dismissed.
The combined effect of the case law, section 119 of the
Oaths and Statutory Declarations Act and sections 124
and 125 of the Evidence Act, therefore, is that:
1. an ordinary child (i.e. a child other than one of
tender years and who in the opinion of the court is
possessed of sufficient knowledge to understand
the nature of an oath) is a competent witness, to
be sworn like any other ordinary witness. No
corroboration is required in respect of the
evidence given by such a child;
2. a child of tender years who is not possessed of sufficient
knowledge to understand the nature of an oath is a competent
witness if in the opinion of the court he is possessed of
sufficient intelligence to justify the reception of his evidence,
and understands the duty of speaking the truth. Such a child
is to give unsworn evidence, but their evidence requires
corroboration if a conviction is to be entirely founded on it;
3. a child of tender years who (i) is not possessed of sufficient
knowledge to understand the nature of an oath; (ii) is not
possessed of sufficient intelligence to justify the reception of
his evidence; and (iii) does not understand the duty of
speaking the truth is not competent as a witness;
4. Except in the case of sexual offences, an accused person
cannot be convicted solely on the unsworn evidence of a child
witness. As regards sexual offences, an accused person can be
convicted on the uncorroborated evidence of a child victim “if,
for reasons to be recorded in the proceedings, the court is
satisfied that the alleged victim is telling the truth.”
In practice, courts determine, at the earliest possible
moment, whether a child is possessed of sufficient
knowledge to understand the nature of an oath or to
justify the reception of their evidence by asking the child
preliminary questions (e.g. “How old are you?” “Do you go
to church?” “Do you go to school?” “What class/grade are
you in?” etc.).
Normally, a trial judge/magistrate will record that he has
examined the child and formed the view that the child is
possessed of sufficient knowledge to justify the reception
of their evidence, understands the nature of an oath or
the duty to speak the truth and is telling the truth.
Where this is not done, an appellate court will most
likely overturn the decision reached by the trial
judge/magistrate if the decision is solely or largely based
on the child’s evidence.
NB: although the modern law of evidence
requires that certain types of evidence be
corroborated, the general rule is that there is no
requirement for corroboration of evidence.
The general rule that corroboration of evidence
is not necessary is implicit in section 143 of the
Evidence Act, which provides:
“No particular number of witnesses shall, in the
absence of any provision of law to the contrary,
be required for the proof of any fact”
At common law, the proper test of the
competence of a mentally handicapped
person is whether that person has a sufficient
appreciation of the seriousness of the
occasion and a realisation that taking the
oath involves something more than the duty
to tell the truth in ordinary day to day life
(see Adrian Kean, 4th Edition at p. 114).
Lunacy or mental handicap/illness will not,
therefore, necessarily make a person
incompetent as a witness.
An interesting question might arise with regard
to the competence of a witness persons who is
not medically ill or permanently insane but
whose mental capacity is temporarily impaired
by drink or drugs.
According to Adrian Kean (4th Edition, p. 114), a
witness whose intellect is temporarily impaired
by reason of drink or drugs (and thereby
rendered unable to understand the nature of the
oath) may become competent after an
adjournment of suitable length (to permit the
effect of the drink or drugs to wear off).
In Kenya, the rule on the competence of
lunatics as witnesses (which appears to be
based on the common law) is to be found at
section 125 (2) of the Kenyan Evidence Act,
which provides that:-
“A mentally disordered person or a lunatic
is not incompetent to testify unless he is
prevented by his condition from
understanding the questions put to him and
giving rational answers to them”
In R v Hill (1851) 2 Den 254 (discussed at p. 114
of Adrian Kean, 4th Edition), a lunatic, labouring
under a delusion that he had a number of spirits
about him which were continually talking to him,
but with a clear understanding of the obligation
of the oath, was held competent to give evidence
for the prosecution on a charge for
manslaughter.
 The case of R v Hill (1851) 2 Den 254 (discussed at p. 114
of Adrian Kean, 4th Edition) established the following
three principles with regard to the competence of
persons of unsound mind to give evidence:
1. if in the opinion of the judge a proposed witness, by
reason of defective intellect, does not understand the
nature and sanction of an oath, he is incompetent to
testify;
2. a person of defective intellect who understands the
nature of an oath may give evidence and it will be left
to the jury to attach such weight to his testimony as
they see fit; and
3. if the evidence of a person of defective intellect is so
tainted with insanity as to be unworthy of credit, the
jury may properly disregard it.
Generally, heads of foreign sovereign states
and diplomatic officials enjoy immunity from
criminal, civil and administrative jurisdiction
of receiving states. The immunity, however,
can be waived by the sending state.
As a general rule, heads of foreign sovereign
states and diplomatic officials are competent,
but not compellable, to give evidence.
In Kenya, the rules as to the competence and
compellability of diplomatic officials is to be
found in Articles 31 and 32 of the Vienna
Convention on Diplomatic Relations (c.f. section
4 and the First Schedule to the Privileges and
Immunities Act, Cap. 179).
The rules as to the competence and
compellability of of consular officials, on the
other hand, are to be found in Articles 41-44 of
the Vienna Convention of Consular Relations (c.f.
section 5 (1) and the 2nd Schedule to Cap. 179).
Article 31 (1) and (2) of the Vienna Convention on Diplomatic
Relations provides for diplomatic immunity as follows:
“1. A diplomatic agent shall enjoy immunity from the
criminal jurisdiction of the receiving state. He shall also
enjoy immunity from its civil and administrative
jurisdiction, except in the case of:
(a) a real action relating to private immovable property
situated in the territory of the receiving State, unless he
holds it on behalf of the sending State for the purposes of the
mission;
(b) an action relating to succession in which the diplomatic
agent is involved as executor , heir or legatee as a private
person and not on behalf of the sending State;
(c) an action relating to any professional or commercial
activity exercised by the diplomatic agent in the receiving
State outside his official functions.
2. A diplomatic agent is not obliged to give evidence as a
witness.”
Article 32 of the Vienna Convention on Diplomatic
Relations provides for waiver of diplomatic immunity in
the following terms:
“1. The immunity from jurisdiction of diplomatic agents and of
persons enjoying immunity under Article 37 may be waived by the
sending State.
2. The waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a
person enjoying immunity from jurisdiction under Article 37 shall
preclude him from invoking immunity from jurisdiction in respect
of any counter-claim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or
administrative proceedings shall not be held to imply waiver of
immunity in respect of the execution of the judgment, for which a
separate waiver shall be necessary.”
Article 43 of the Vienna Convention on Consular Relations, on
the other hand, provides for immunity of consular officers and
employees:
“1. Consular officers and consular employees shall not be
amenable to the jurisdiction of the judicial or administrative
authorities of the receiving state in respect of acts
performed in the exercise of consular functions.
2. The provisions of paragraph 1 of this Article shall not,
however, apply in respect of a civil action either:
(a) arising out of a contract concluded by a consular
officer or a consular employee in which he did not
contract expressly or impliedly as an agent of the sending
State; or
(b) by a third party for damage arising from an accident
in the receiving State caused by a vehicle, vessel or
aircraft.”
Article 44 of the Vienna Convention on Consular
Relations (titled “liability to give evidence”) provides as
follows:
“1. Members of a consular post may be called upon to attend as
witnesses in the course of judicial or administrative proceedings.
A consular employee or a member of the service staff shall not,
except in the cases mentioned in paragraph 3 of this Article,
decline to give evidence. If a consular officer should decline to do
so, no coercive measure or penalty may be applied to him.
2. The authority requiring the evidence of a consular officer shall
avoid interference with the performance of his functions. It may,
when possible, take such evidence at his residence or at the
consular post or accept a statement from him in writing.
3. Members of a consular post are under no obligations to give
evidence concerning matters connected with the exercise of their
functions or to produce official correspondence and documents
relating thereto. They are entitled to decline to give evidence as
expert witnesses with regard to the law of the sending State.”
The general rule in both civil and criminal cases
is that the evidence of any witness should be
sworn, the only major exception being the
evidence of children-which may be received
unsworn (see section 17 of the Oaths and
Statutory Declarations Act).
A witness is sworn by taking either an oath or an
affirmation.
An affirmation is normally made by a witness
who objects to be sworn, either because they do
not have a religious belief or because their
religious belief forbids them from taking an oath
(see section 15 of the Oaths and Statutory
Declarations Act).
The format of an affirmation is prescribed at
section 16 of the Oaths and Statutory
Declarations Act in the following terms:
“I, A.B., do solemnly, sincerely and truly
declare and affirm that….,”
An affirmation is, for all intents and
purposes, of the same effect as an oath (see
section 15 of the Oaths and Statutory
Declarations Act).
1. At common law, a witness called only to produce a document
may give unsworn evidence provided that the identity of the
document is either not disputed or can be established by other
witnesses. Also, counsel acting for one of two parties who
have reached a compromise may give unsworn evidence of its
terms;
2. Save for the limited exceptions where witnesses are allowed to
give unsworn evidence, a conviction or judgment founded on
unsworn evidence may be set aside as a nullity (see Adrian
Kean, 4th Edition at p. 115).
3. A witness who having taken an oath or affirmation willfully
makes a statement material to the proceedings in question
which he knows to be false or does not believe to be true
commits the offence of perjury. Under section 108 of the Penal
Code, however, one may still be charged with the offence even
where the false evidence is not given on oath.
4. Witnesses usually take the oath upon such holy
book as is appropriate to their religious belief.
5. Although the requirement of the oath at common
law was based on religious assumptions as to its
effect on a witness’ conscience, the validity of the
modern oath is not affected by absence of
religious belief. Put differently, once a witness
accepts to take the oath, and proceeds to take it,
it remains valid notwithstanding that the
witness who took it had no religious belief (see
section 21 of the Oaths and Statutory
Declarations Act).
6. In England, it has been held that the validity of an
oath does not depend on the intricacies of the
particular religion which is adhered to by the
witness but on whether the oath is one which
appears to the court to be binding on the conscience
of the witness and, if so, whether it is an oath which
the witness himself considers to be binding on his
conscience. Accordingly, in R v Kemble [1990] 3 All
ER 116 CA, where a Muslim had taken an oath using
the New Testament, the oath was held valid
notwithstanding that under the strict tenets of Islam
no oath taken by a Muslim is valid unless taken on a
copy of the holy Koran in Arabic.
• ©MUTHOMI THIANKOLU
 Lecturer, University of Nairobi School of Law
 Advocate of the High Court of Kenya
 Partner, Muthomi & Karanja Advocates
• University of Nairobi School of Law (LLB II Class)
• Monday, October 13, 2014
• *NOTE: Students are strongly advised that this presentation
is not a substitute for attending lectures or reading the
cases and materials set out in the Course Outline.
 LESSON 6—PUBLIC POLICY & PRIVILEGE

 Scope of the Lesson:

1. Public Policy
 Meaning & nature.
 Selected Provisions of Cap. 80
 Scope for exclusion of Evidence on Public Policy
 Selected Illustrative Cases.
2. Privilege
 Meaning & nature
 Selected Provisions of Cap. 80
 Types
 Selected Illustrative Cases.
 PUBLIC POLICY: MEANING & NATURE
 There are two interests that typically underlie every litigation:
1. first, a party to litigation has an obvious interest in the admission of
any and every item of evidence which supports his case or defeats his
opponent’s case. This interest coincides with the public interest that
justice should be done between litigants by the reception of all
relevant evidence. This public interest is thought to be the
underlying rationale for the rules of discovery and inspection in civil
litigation.
2. secondly, there is a public interest that sometimes impels the
withholding of evidence, especially where its disclosure would harm
a competing public interest that is considered more important than
the administration of justice between the particular litigants who are
before the court.
PUBLIC POLICY: MEANING & NATURE
 When the above two kinds of public interest clash and
the latter prevails over the former, relevant and
otherwise admissible evidence may be excluded at the
trial and relevant documents are exempted from the
duty to allow inspection on discovery. Where
otherwise relevant and admissible evidence is
withheld/excluded after the consideration of these two
conflicting interests, the evidence is said to be
withheld/excluded by reason of public interest/policy.
 PUBLIC POLICY: MEANING & NATURE
 There is no exhaustive definition of public policy or
exhaustive list of circumstances when the adduction of
evidence will be precluded on grounds of public policy.
 Indeed, “public policy” is such an indeterminate and
variable expression that a judge remarkably described
it as—
– “a very unruly horse, and when once you get astride
it you never know where it will carry you. It may
lead you from the sound law. It is never argued at
all but when other points fail.”
– Per Burrough J. in Richardson v Mellish (1824) 130
ER 294 at p. 303)
 PUBLIC POLICY: MEANING & NATURE
 Generally, a document will be precluded from
disclosure on grounds of public interest based on
whether—
it belongs to a “class” of documents which by
their nature ought to be withheld from
production; or
its “contents” are of such a nature that the
document ought to be withheld from production.
 PUBLIC POLICY: MEANING & NATURE

• Public policy was considered by Ringera J. (as he then

was) in Christ for all Nations v Apollo Insurance Co. Ltd

[2002] 2 E. A. 366 (a dispute on the vacation of an

arbitral award on grounds of public policy), in which he

stated that in Kenya an act is contrary to public policy if

it is either:
 PUBLIC POLICY: MEANING & NATURE
• “ (a) Inconsistent with the constitution or other laws of
Kenya, whether written or unwritten; or (b) inimical to
the national interest of Kenya; or (c) contrary to justice
or morality. The first category is clear enough. In the
second category I would without claiming to be
exhaustive include the interests of national defence and
security, good diplomatic relations with friendly
nations, and the economic prosperity of Kenya. In the
third category, I would, again without seeking to be
exhaustive, include such considerations as whether the
award was induced by corruption or fraud or whether it
was founded on a contract contrary to public morals.”
PUBLIC POLICY: SCOPE FOR EXCLUSION OF
EVIDENCE
 Claims for exclusion of evidence on grounds of public interest normally come
under the second category given by Ringera J. (as he then was), that is:
1. national defence and security;
2. good diplomatic relations and international comity (contents of
confidential documents addressed to or emanating from foreign
sovereign states, or concerning the interests of such states in relation to
international territorial disputes between them, should not be ordered
by the courts to be disclosed by a private litigant without the consent of
those states, as the order for disclosure might be against the public
interest in the maintenance of international comity); and
3. the economic prosperity/interests of the country.
PUBLIC POLICY: SCOPE FOR EXCLUSION OF
EVIDENCE
 Claims for exclusion of evidence on grounds of public policy may
also revolve around:
4. Crime detection: it is in the public interest to protect the
identity of informers and whistle blowers, not only for their
safety, but also to ensure that the supply of information about
criminal activities does not dry up. See Marks v Beyfus (1890)
Q.B.D. 494. See also Adrian Kean, p. 488.
– This rule applies not only to informers but also prevents the
identification of premises used for police surveillance and
the owners and occupiers of such premises (see R v Rankine
[1986] 2 All ER 566). The rule, however, may be relaxed in a
criminal trial if strict enforcement would likely result in a
miscarriage of justice (see R v Rankine [1986] 2 All ER 566).
PUBLIC POLICY: SCOPE FOR EXCLUSION OF
EVIDENCE
5. Judicial disclosures: Where a litigant wishes to prove what was said in
earlier litigation, the court record and a properly proved transcript,
where available, is usually the best means of proof.
– Although in principle anyone who witnessed the proceedings may
be called as a witness, superior judges cannot be called to give
evidence relating to a trial; it is against the public interest that the
conduct of judges should be made the subject of cross-
examination in relation to proceedings before them.
– NB: Magistrates and Arbitrators can be compelled to give
evidence with regard to occurrences at proceedings before them,
but they cannot be asked questions about the reasons for their
award
PUBLIC POLICY: SCOPE FOR EXCLUSION OF
EVIDENCE
6. Proper functioning of the public service; and
7. Confidential relationships: There are many important
relationships which depend on the assumption that
confidences will be respected, e.g. the relationship
between a doctor and a patient, a journalist and source
and a priest and penitent.
PUBLIC POLICY: SCOPE FOR EXCLUSION OF
EVIDENCE
• The authorities indicate that confidentiality is not,
strictly speaking, a sufficient ground of public interest
immunity.
• Evidence may nonetheless, depending on
circumstances, be withheld/excluded if its adduction
would breach the confidence (see British Steel
Corporation v Granada Television Ltd, discussed in the
ensuing parts of this presentation).
 NB: Generally, it is the government and its officers who
will seek the withholding of evidence on the claim that
its disclosure would harm the public interest.
 PUBLIC POLICY: DEVELOPMENT OF THE MODERN
LAW
 At common law, judges permitted the withholding of relevant
evidence and materia the disclosure of which could harm (inter
alia)—
 national defence; or
 good diplomatic relations; or
 the proper functioning of the public service
 At common law, judges had a discretion to call for and inspect
documents in respect of which public interest immunity was
claimed in order to satisfy themselves of the merits of such a
claim.
 PUBLIC POLICY: DEVELOPMENT OF THE MODERN
LAW

 The courts temporarily abandoned the above common

law approach and took the rule to the most
exclusionary extreme in the war years (see Duncan v
Cammell Laird & Co Ltd , discussed below).
 Contemporary decisions, however, indicate that the
courts will not simply endorse a claim (almost always,
by the government) that the disclosure of evidence
would harm the public interest.
 PUBLIC POLICY: DEVELOPMENT OF THE MODERN
LAW

 Today, just like the common law days, the courts

now attempt to strike a balance between the two
public interests before ruling on the disclosure or
admissibility of the evidence/documents—by
calling for and inspecting documents in respect of
which public interest immunity is claimed in order
to satisfy themselves of the merits of such a claim.
PUBLIC POLICY: SELECTED RELEVANT PROVISIONS
OF CAP. 80 & THE NEW CONSTITUTION

 The exact scope for the withholding of evidence on

grounds of public policy may have to be revisited in view
of the provisions of the new Constitution. To illustrate:
• Article 35 (1) of the Constitution provides, inter alia, that
“every person has the right of access to information held
by the state” and “information held by another person
and required for the exercise or protection of any right or
fundamental freedom.”
• Article 35 (3) of the Constitution provides that the state
“shall publish and publicise any important information
affecting the nation.”
PUBLIC POLICY: SELECTED RELEVANT PROVISIONS OF CAP.
80 & THE NEW CONSTITUTION
• Article 50 (2) of the Constitution provides that
every accused person has the right to a fair trial,
which includes the right to—
1. “have adequate time and facilities to prepare a
defence”
2. “be informed in advance of the evidence the
prosecution intends to rely on, and to have
reasonable access to that evidence”
– “adduce and challenge evidence”
• Section 131 of the Evidence Act provides that:
PUBLIC POLICY: SELECTED RELEVANT PROVISIONS
OF CAP. 80 & THE NEW CONSTITUTION
• “Whenever it is stated on oath (whether by
affidavit or otherwise) by a Minister that he has
examined the contents of any document forming
part of any unpublished official records, the
production of which document has been called for
in any proceedings, and that he is of the opinion
that such production would be prejudicial to the
public service, either by reason of the content
thereof or of the fact that it belongs to a class
which, on grounds of public policy, should be
withheld from such production, the document shall
not be admissible.”
PUBLIC POLICY: SELECTED RELEVANT PROVISIONS
OF CAP. 80 & THE NEW CONSTITUTION

• Section 131 of the Evidence Act, therefore, seeks

to limit the disclosure of documents containing
secrets of the state the disclosure of which
would harm the public interest.
• As stated, the exact scope of the section may
have to be revisited in view of the provisions of
the new Constitution, which provide for
freedom of information and a higher threshold
for transparency in the conduct of public affairs.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES

 In Duncan & Another v Cammell Laird & Co. Ltd [1942] A. C.

624 HL, the submarine Thetis sank and killed 99 persons. A
suit for negligence was brought against the government
contractors who had built the submarine.
 The Plaintiffs sought discovery and inspection of certain
documents, including a contract with the Admiralty for the
hull and machinery, and salvage reports.
 The Board of Admiralty directed the defendants to object to
the production of the documents on the grounds of public
interest.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES

 Held:
1. A court of law should uphold an objection taken by a
public department, called on to produce documents in
a suit between private citizens, if on grounds of public
policy they ought not to be produced.
2. Documents otherwise relevant and liable to pro-
duction must not be produced if the public interest
requires that they should be withheld.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
3. The test [whether the documents should be withheld]
may be found to be satisfied either—
by having regard to the contents of the particular
document; or
by the fact that the document belongs to a class
which, on grounds of public interest, must as such be
withheld from production. *compare this with the
wording of section 131 of the Evidence Act)
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES

4. It is essential that the decision to object should

be taken by the minister who is the political
head of the department concerned and that he
should have seen and considered the contents
of the documents and himself formed the view
that on grounds of public interest they ought
not to be produced.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
5. An objection validly taken to production on the
ground that it would be injurious to the public
interest is conclusive.

6. The mere fact that the minister or the

department does not wish the documents to be
produced is not an adequate justification for
objecting to their production.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
6. Production should only be withheld when the public
interest would otherwise be damnified, as where
disclosure would be injurious to national defence or to
good diplomatic relations, or where the practice of
keeping a class of documents secret is necessary for
the proper functioning of the public service. In such a
case the court should not require to see the
document, for the purpose of ascertaining whether
disclosure would be injurious to the public interest.
7. When the Crown is a party to a suit, discovery of
documents cannot be demanded by the other party as
of right, although in practice, for reasons of fairness
and in the interests of justice, all proper disclosure
and production would be made.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 In Asia Petroleum Co. Ltd v Anglo-Persian Oil Co. Ltd [1916]
1 K.B. CA, the defendants, acting on instructions from the
Board of Admiralty, objected to the production of a letter to
their agents containing information concerning the
government’s plans in respect of its campaign in Persia
during the first World War.
 Held: The objection would be upheld, not because the
document was confidential or official, but because the
information which it contained could not be disclosed
without injury to the public interest.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 NB:
1. The extreme nature of the rule laid down in Duncan
v Cammell Laird & Co Ltd was far from satisfactory
and gave rise to considerable criticism because it
enabled executive claims to public interest
immunity to succeed notwithstanding that
disclosure involved only the smallest probability of
injury to the public service, whereas non-disclosure
involved the gravest risk of injustice to a litigant.
2. Due to the criticism (See Ellis v Home Office,
discussed in the ensuing parts of this presentation),
by the 1950s, the courts had started witling down
the rule laid down in Duncan v Cammel Laird & Co.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
In Ellis v Home Office [1953] 2 Q.B. 135, the
Home Office succeeded in an objection to the
disclosure of police and medical reports
concerning the mental condition of a prisoner
who had violently assaulted the plaintiff, a
fellow prisoner who sought damages against the
Home Office.
Devlin J. confessed to an uneasy feeling that
justice had not been done, and something more
than an uneasy feeling that justice had not been
seen to be done.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
• In Re Grosvenor Hotel, London (No. 2) [1965] Ch
1210, the British Railways Board, respondents to an
application for a grant of a new lease of business
premises, opposed the grant of a new tenancy on
the ground that they intended to occupy the
holding for the purposes of a business to be carried
on by them therein.
• The Minister stated in an affidavit that he had
personally examined and considered the
documents, and formed the view that they
belonged to a class of documents, which "on
grounds of public interest” ought to be withheld
from Production.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 Held:
1. (per Lord Denning M.R. and Salmon L.J.) the objection of a
Minister to the production of a class of documents was
not conclusive (contrast with Duncan v Cammel Laird).
2. (per Lord Denning M.R. and Salmon L.J.) if the court was
of the opinion that the objection was not taken in good
faith, or that there were no reasonable grounds for the
claim of privilege, it would override the objection and
order production, but that residual power of the court
would only be exercised in exceptional and rare cases.
3. (Per Lord Denning M.R.) the court can, if it thinks fit, call
for the documents and inspect them itself so as to see
whether there are reasonable grounds for withholding
them: ensuring, of course, that they are not disclosed to
anyone else.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
4. (Per Lord Denning M.R.) It is rare for the court to
override the Minister's objection, but it has the ulti-
mate power, in the interests of justice, to do so. It is
the judges who are the guardians of justice in this
land.
5. (Per Salmon L.J.) the residual power of the court to
override the executive where Crown privilege is
claimed for a class of documents would be used very
sparingly, but it is a useful and necessary power, and
should not be abdicated if the courts are to preserve
their function of protecting the vital interest of the
public in seeing that justice is done.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
6. where a Minister was objecting to all documents in a
particular class even though none of them contained
any information which, if revealed, would injure the
public interest, he should describe the nature of the
class and the reason why the documents should not
be disclosed.
7. although the affidavit of the Minister was ambiguous
and incomplete, on balance the interests of justice did
not require the production of the documents and that
accordingly the Minister's objection to their
production should be upheld and the appeal
dismissed.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 In Conway v Rimmer [1968] A.C. 910, the plaintiff, a former
probationary police constable, began an action for
malicious prosecution against his former superintendent.
 In the course of discovery, the defendant disclosed a list of
documents in his possession or power, admittedly relevant
to the plaintiff's action, which included four reports made
by him about the plaintiff during his period of probation,
and a report by him to his chief constable for transmission
to the Director of Public Prosecutions in connection with
the prosecution of the plaintiff on the criminal charge (for
stealing a an electric torch), on which he was acquitted,
and on which his civil action was based.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES

 The Secretary of State for Home Affairs objected to the

production of the documents on the ground that each
fell within a class of documents the production of
which would be injurious to public interest.
 Held:
1. the documents should be produced for inspection
by the House of Lords, and if it was then found
that disclosure would not be prejudicial to the
public interest or that any possibility of such
prejudice was insufficient to justify their being
withheld, disclosure should be ordered.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES

2. when there is a clash between the public interest that

(i) harm should not be done to the nation or the
public service by the disclosure of certain documents;
and (ii) the administration of justice should not be
frustrated by the withholding of them, their
production will not be ordered if the possible injury to
the nation or the public service is so grave that no
other interest should be allowed to prevail over it,
but, where the possible injury is substantially less, the
court must balance against each other the two public
interests involved.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
3. when the Minister's certificate suggests that the
document belongs to a class which ought to be withheld,
then, unless his reasons are of a kind that judicial
experience is not competent to weigh, the proper test is
whether the withholding of a document of that particular
class is really necessary for the functioning of the public
service. If on balance, considering the likely importance of
the document in the case before it, the court considers
that it should probably be produced, it should generally
examine the document before ordering the production.
4. in the present case, it was improbable that any harm
would be done to the police service by the disclosure of
the documents in question, which might prove vital to the
litigation.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
5. (per Lord Morris of Borth-y-Gest, referring to the
decision in Duncan v Cammel Laird & Co Ltd)
though precedent is an indispensable foundation
upon which to decide what is the law, there may
be times when a departure from precedent is in
the interest of justice and the proper development
of the law.
*NB: This decision formally overruled the decision
in Duncan v Cammel Laird & Co. Ltd.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 In Balfour v Foreign and Commonwealth Office
[1994] 2 All ER 588 CA, the claimant was
dismissed from his post as Vice-Consul in
Dubai, and complained to the industrial
tribunal of unfair dismissal.
 The claimant sought disclosure of documents
in the possession of the Foreign Office.
 The Respondent claimed immunity on the
ground that disclosure of the material in the
documents relating to the security and
intelligence services (national security) would
be contrary to the public interest.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 Held:
1. Although there must always be vigilance by the courts
to ensure that public interest immunity of whatever
kind is raised only in appropriate circumstances and
with appropriate particularity, once there is an actual or
potential risk to national security demonstrated by an
appropriate certificate, the court should not exercise its
right to inspect the documents.
2. (quoting Lord Diplock in CCSU v Minister for the Civil
Service) National Security is the responsibility of the
executive arm of government…a matter on which those
on whom the responsibility rests, and not the courts of
justice, must have the last word. It is par excellence a
non-justiciable question. The judicial process is totally
inept to deal with the sort of problems which it
involves.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 In Marks v Beyfus (1895) 25 QBD 494, the plaintiff claimed
damages for malicious prosecution. In the course of the trial,
he asked the DPP to name his informants, but the judge
disallowed the question.
 The Court of Appeal upheld the judge’s decision to disallow the
question. Lord Esher stated (at pp. 496-7):
 “I do not say it is a rule which can never be departed from; if
upon the trial of a prisoner the judge should be of the
opinion that the disclosure of the name of the informant is
necessary or right in order to show the prisoner's innocence,
then one public policy is in conflict with another public
policy, and that which says that an innocent man is not to
be condemned when his innocence can be proved [by the
disclosure of the identity of the informant] is the policy that
must prevail. But, except in that case, this rule of public
policy is not a matter of discretion; it is a rule of law.”
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 In British Steel Corporation v Granada Television Ltd [1981] A.
C. 1096 HL, the appellant, a television company, received from
the respondent’s employee, on a promise of confidentiality as
to source, copies of secret documents from the plaintiff’s files.
 The appellant used some of the documents in a current affairs
TV programme on a national steel strike that was of great
concern to the government and the general public.
 The respondents applied for an order for delivery up of
the documents and copies thereof.
 The appellant delivered the documents but mutilated
them by cutting off anything on them which might have
led to identification of the source.
 The respondent then applied for an order that the
appellants should disclose the names of those who
supplied the documents to them.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 Held:
 The media and journalists who write for them have no
immunity based on public interest which protects them
from the obligation to disclose in a court of law their
sources of information, when such disclosure is necessary in
the interests of justice.
 although the media and journalists had no immunity, it
remained true that there might be an element of public
interest in protecting the revelation of the source for there
was a public interest in the free flow of information, which
would vary from case to case.
 in the present case, the balance of interests was strongly in
the respondents' favour since to confine them to their
remedy against the appellants and to deny them the
opportunity of a remedy against the source would be a
significant denial of justice.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 In Attorney General v Mulholland [1963] 2 Q.B. 477, the
appellants, who were journalists, refused to disclose before a
tribunal investigating certain spying offences the source of
information relating to articles they had published about
certain officers of the admiralty.
 The chairman of the tribunal certified that each appellant,
being in attendance before the tribunal as a witness, had
refused to answer questions which the tribunal required him
to answer and which in the opinion of the tribunal were
relevant and necessary for them to answer.
 The Attorney General instituted criminal proceedings against
the journalists in respect of the refusal to answer the questions
as to the sources, and the trial judge ordered the attachment
of the property of one and sentenced the other to six months
imprisonment. On appeal—
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 Held: there is no privilege known to the law by
which a journalist can refuse to answer a question
which is relevant and is one which in the opinion
of the judge is proper for him to be asked.

 The following dicta by Lord Denning MR (at pp.

489-90) is noteworthy:
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 “The only profession that I know which is given a privilege from disclosing
information to a court of law is the legal profession, and then it is not the
privilege of the lawyer but of his client. Take the clergyman, the banker or
the medical man. None of these is entitled to refuse to answer when
directed to by a judge...the judge will respect the confidences which each
member of these honourable professions receives in the course of it, and
will not direct him to answer unless not only it is relevant but also it is a
proper and, indeed, necessary question in the course of justice to be put and
answered. A judge is the person entrusted, on behalf of the community, to
weigh these conflicting interests — to weigh on the one hand the respect
due to confidence in the profession and on the other hand the ultimate
interest of the community in justice being done or, in the case of a tribunal
such as this, in a proper investigation being made into these serious
allegations. If the judge determines that the journalist must answer, then no
privilege will avail him to refuse.”
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
 NB:
1. Following the above decision, the UK Parliament enacted
the following rule at section 10 of the Contempt of Court Act
1981:
 “No court may require a person to disclose, nor is any person
guilty of contempt of court for refusing to disclose, the source of
information contained in a publication for which that person is
responsible, unless it be established to the satisfaction of the
court that disclosure is necessary in the interests of justice or
national security or for the prevention of disorder or crime.”
2. The rule at section 10 of the UK’s Contempt of Court Act
1981, though not found in any Kenyan legislation, it is
arguably embodied Article 34 of the new Constitution.
SCOPE FOR EXCLUSION OF EVIDENCE ON GROUNDS OF PUBLIC
POLICY: SELECTED ILLUSTRATIVE CASES
3. Although the court ordered Granada to supply
information as to the identity of their source, Lord
Wilberforce accepted ( at page 1168) that evidence could
be withheld on grounds of confidence:
– “Courts have an inherent wish to respect this confidence, whether it
arises between doctor and patient, priest and penitent, banker and
customer, between persons giving testimonials to employees, or in
other relationships. A relationship of confidence between a
journalist and his source is in no different category: nothing in this
case involves or will involve any principle that such confidence is
not something to be respected. But in all these cases the court may
have to decide, in particular circumstances, that the interest in
preserving this confidence is outweighed by other interests to
which the law attaches importance.”
 A witness is said to be “privileged” when he may validly
refuse to answer a question or to supply information
relevant to the determination of an issue (fact in issue)
in judicial proceedings (Cross & Tapper, p. 415).
 Just like public policy, the effect of privilege, therefore,
is to deprive the court (in effect, the opposing party) of
relevant evidence.
 PRIVILEGE: MEANING & NATURE
 There are two broad types of privilege, namely:
Official privilege, which flows from the official
status of a person in relation to official
information (e.g. judges, magistrates, police
officers etc).
Private privilege, which may further be divided
into (i) privilege against self incrimination; (ii)
legal professional privilege; (iii) privilege of
statements made “without prejudice” as part of
an attempt to settle a dispute; (iv) privilege of
spousal communications etc).
1. Privilege is personal in nature; it applies to a particular person
or class of persons. Put differently, it is the person who is
privileged, not the information. Accordingly, if the information
in possession of the person enjoying privilege falls into the
hands of a third party who is not privileged, the third party may
adduce evidence of it (See Cross & Tapper, p. 415). In Calcraft
v Guest [1898] 1 Q.B. 759, the defendant to a suit for a right of
fishery, after judgment had been given for the plaintiff,
accidentally discovered certain documents prepared for the
defence of a previous suit dealing with the same subject-
matter, which suit was defended at the cost of a predecessor in
title of the plaintiff's.
 PRIVILEGE: GENERAL MATTERS TO NOTE
Held:
i. (following Minet v Morgan (1873) L. R. 8 Ch.
361) the documents remained privileged;
ii. (following Lloyd v Mostyn (1842) 10 M. & W.
478) the defendant was not precluded on
the ground of privilege from giving
secondary evidence of contents of the
documents (the originals having been
handed over by the defendant’s lawyers to
the plaintiff to whom they belonged).
 PRIVILEGE: GENERAL MATTERS TO NOTE
 In R v Tompkins (1977) 67 Cr App Rep 181, an
incriminating note from the accused to his counsel
was found on the floor of the court and handed to
counsel for the prosecution. The note had been
dropped inadvertently. The Court of Appeal upheld
the judge’s ruling allowing the prosecution to show
the note to the accused and to cross-examine him
as to matters referred to in it.
 NB: Secondary evidence cannot be given if it consists of
documents brought into court by an opponent or his
lawyer and then improperly obtained by trickery, fraud
or other unfair means (ITC Film Distributors v Video
Exchange Ltd [1932] Ch 431)
 PRIVILEGE: GENERAL MATTERS TO NOTE
2. Due to the personal nature of privilege, a party will not
necessarily be entitled to succeed on appeal when a witness’s
claim to privilege has been wrongly rejected or accepted (Cross
& Tapper, p. 416). Appellate courts, however, frequently disturb
a lower court’s decision on a question of privilege where the
person claiming the privilege is a party (as opposed to merely a
witness) to the suit.
3. No adverse inference should normally be made from
claiming privilege, although it is hard to believe that, in
practice, none is ever drawn (Cross & Tapper, p. 416).
4. Since privilege involves withholding information from
the court at the expense of what may be abstract justice
for one of the parties, there should be good cause,
plainly shown, for the existence of any privilege (Cross &
Tapper, p. 416).
 PRIVILEGE: SELECTED PROVISIONS OF CAP. 80

 Part II of Chapter V of the Evidence Act (titled

“Compellability and Privilege of Witnesses”)

provides for various types of privileges.

 We explore some of them in the ensuing parts of

this presentation.
 PRIVILEGE AGAINST SELF INCRIMINATION

The privilege against self-incrimination has a

common law origin. It is traceable to the Star
Chamber, where accused persons were
interrogated on oath.
The interrogation on oath lead to the emergence
of the rule that the accused could not testify in a
criminal case, and the idea that no one should
be forced to jeopardize his life or liberty by
answering questions on oath.
 PRIVILEGE AGAINST SELF INCRIMINATION

 At common law, the privilege against self-incrimination operated

to permit a witness in legal proceedings to refuse to answer
questions the answers to which might tend to incriminate him by
exposing him to subsequent criminal proceedings. The rule also
protected a party against pre-trial processes tending to compel
the disclosure of self-incriminating evidence (inspection or
interrogatories)
 The idea that no one should be compelled to incriminate himself
has survived to modern times and evolved into a rule that is
jealously guarded in virtually all modern democratic legal
systems. Article 50 (2) (l) of the Constitution of Kenya 2010, for
instance, provides that every accused person has the right to a
fair trial, which includes:
“the right to refuse to give self-incriminating evidence.”
 PRIVILEGE AGAINST SELF INCRIMINATION
(GENERAL Matters to Note)
1. The privilege against “self-incrimination” only applies
to the person giving evidence; the person cannot
refuse to answer questions on the ground that to do
so would incriminate or tend to incriminate strangers.
2. In England, section 14 (1) (b) of the Civil Evidence Act
1968 has extended the privilege to questions tending
to incriminate a spouse, but there is no similar rule in
criminal cases.
3. In English law (and presumably, Kenyan law) the
privilege against self-incrimination can be claimed not
only by natural persons but also by any entity having
legal personality, but this is not the case in the United
States (Cross & Tapper, 12th Edn at p. 426).
 PRIVILEGE AGAINST SELF INCRIMINATION
(GENERAL Matters to Note)
4. A person cannot claim to be privileged from answering
questions on the ground that the answers will expose
him to civil liability, whether at the suit of the
government or of any other person. Similarly, a
witness cannot claim to be privileged from answering
questions on the ground that the answers would
expose him to other unpleasant consequences, e.g.
liability to bankruptcy or professional disciplinary
proceedings.
5. The privilege against self-incrimination only applies to
answering a question, it does not prevent the relevant
question from being asked.
 PRIVILEGE AGAINST SELF INCRIMINATION
(GENERAL Matters to Note)
6. At common law, authorities contradicted on whether witness
could claim privilege from answering questions that would tend
to incriminate him under a foreign law/jurisdiction. In England,
the matter has been put to rest in Brannigan v Davison [1997]
A.C. 238, where the Privy Council held that no sovereign state
could contemplate its domestic law being frustrated by the law
of another sovereign state expressed through the operation of
the privilege against self-incrimination. In the UK, this
interpretation has been reinforced by section 14 (1) (a) of the
Civil Evidence Act 1968, which expressly confines the privilege
against self-incrimination to “criminal offences under the law of
any part of the United Kingdom and penalties provided for by
such law.” In Kenya, it remains to be seen whether the
privilege can be claimed on the ground that the answer to the
question would incriminate the witness under a foreign
law/jurisdiction, but most likely the matter would be decided
along the lines of Brannigan v Davison.
PRIVILEGE AGAINST SELF INCRIMINATION: SECTION 128
OF THE EVIDENCE ACT
 Section 128 of the Evidence Act, titled “Compellability of
Ordinary Witnesses,” provides that:
 “A witness shall not be excused from answering any
question as to any matter relevant to the matter in issue
in any suit or in any civil or criminal proceeding, upon
the ground that the answer to such question will
incriminate, or may tend directly or indirectly to
incriminate, such witness, or that it will expose, or tend
directly or indirectly to expose, such witness to a penalty
or forfeiture of any kind, but no such answer which a
witness is compelled to give shall subject him to any
arrest or prosecution, or be proved against him in any
criminal proceeding, except a prosecution for giving
false evidence by such answer.”
PRIVILEGE AGAINST SELF INCRIMINATION: SECTION 128
OF THE EVIDENCE ACT
 The underlying rationale is to encourage witnesses to speak the
truth while in court, with the assurance that any answers they
give cannot be used to found any proceedings against them,
except proceedings for perjury.
 Technically, section 128 would contradict Article 50 (2) (l) of the
Constitution where the witness claiming the privilege against
self-incrimination is also the accused person. This is because
section 128 states that the witness “shall not be excused from
answering any question..” while the constitution gives the
witness (accused person) “the right to refuse to give self-
incriminating evidence.” in substance, however, there is no
contradiction between the section and the constitution,
since answers given under the section cannot subsequently
found the basis for a criminal prosecution.
 PRIVILEGE OF JUDICIAL OFFICERS: SECTION 129 OF
CAP. 80
 Section 129 of the Evidence Act, titled “Privilege of Court,”
provides as follows:
 “No judge or magistrate shall, except upon the special order
of some court to which he is subordinate, be compelled to
answer any questions as to his own conduct in court as such
judge or magistrate, or as to anything which came to his
knowledge in court as such judge or magistrate, but he may
be examined as to other matters which occurred in his
presence whilst he was so acting.”
 The underlying rationale behind section 129 is judicial
independence. Judges and magistrates ought to be able to freely
and independently carry out their functions without having to
worry about being unnecessarily dragged to court to answer for
their conduct during the discharge of their official duties.
PRIVILEGE OF COMMUNICATIONS DURING
MARRIAGE: SECTION 130 OF THE EVIDENCE ACT
 Section 130 of the Evidence Act, titled “Privilege of
Communications during Marriage,” provides as follows:
“No person shall be compelled to disclose any
communication made to him or her during marriage, by
the other spouse; nor shall a person be permitted to
disclose such communication without the consent of the
person who made it, or of his or her representative in
interest, except in suits between the parties to the
marriage or in any of the cases referred to in
paragraphs (a), (b) and (c) of section 127 (3).”
 NB:
1. The privilege of marital communications applies to both
monogamous and polygamous marriages, as well as
tribal or customary marriages.
PRIVILEGE OF COMMUNICATIONS DURING MARRIAGE:
SECTION 130 OF THE EVIDENCE ACT
2. A close reading of section 130 indicates that the privilege of
marital communications cannot be unilaterally waived by a
spouse who is desirous of giving evidence of such
communications. A spouse who is desirous of giving evidence
of marital communications made by the other spouse during
marriage must obtain the consent of the other spouse before
giving evidence of those communications.
3. The privilege of marital communications does not apply to—
• Proceedings between the spouses; or
• Proceedings in which one spouse is charged with the offence
of bigamy;
• Proceedings in which one of the spouses is charged with an
offence under the Sexual Offences Act; or
• Proceedings in respect of an act or omission affecting the
person or property of either spouse or the children of either
of them.
PRIVILEGE OF OFFICIAL COMMUNICATIONS : SECTION 132
OF THE EVIDENCE ACT

 Section 132 of the Evidence Act, titled “Privilege of Official

Communications,” provides as follows:
“No public officer shall be compelled to disclose
communications made by any person to him in the course of
his duty, when he considers that the public interest would
suffer by the disclosure.”

 The underlying rationale, just like in section 131 (discussed

under public policy) is to ensure free flow of information
among public officers.
PRIVILEGE OF INFORMATION RELATING COMMISSION OF
OFFENCES: SECTION 133 OF THE EVIDENCE ACT
 Section 133 of the Evidence Act provides:
“No judge, magistrate or police officer shall be
compelled to say whence he got any information as
to the commission of any offence, and no revenue
officer shall be compelled to say whence he got any
information as to the commission of any offence
against the law relating to the public revenue or to
income tax, customs or excise.”
 As discussed in the lesson on public policy, the idea is
to encourage citizens to report crime without the fear
that their identities will be revealed.
 Communications and advice passing between a lawyer
and a client about ongoing or contemplated legal
proceedings need not be given in evidence or disclosed
by the client, and may not be given in evidence or
disclosed by the lawyer without the client’s consent.
 Legal professional privilege also applies to:
1. legal advice given outside the context of litigation;
2. communications by the client to the lawyer for
purposes of obtaining legal advice;
3. communications by a lawyer or client with third
parties;
4. communications to salaried legal advisers in that
capacity;
Justified on the ground that they are
professionally qualified members of professional
bodies with disciplinary powers to enforce their
rules, and owe a duty to the court. See Alfred
Crompton Amusement Machines Ltd v Customs
& Excise Comrs.)
5. documents created for litigation and not
communicated to anyone.
 At common law, legal professional privilege was traditionally regarded
only as a rule of evidence, and operated only to prevent compulsory
disclosure of the privileged communications or advice. Today, the
rule is more or less considered a substantive rule of law and, in some
jurisdictions, a fundamental human right. In R v Derby Magistrates’
Court ex parte B [1995] 4 All ER 526, it was held (by Lord Taylor) that:
 “Legal professional privilege is thus much more than an ordinary
rule of evidence, limited in its application to the facts of a
particular case. It is a fundamental condition on which the
administration of justice as a whole rests.”
 The case involved a prosecution for murder in which the Appellant
and his step-father were involved. The Appellant was tried for the
murder and acquitted (after claiming he had acted under duress
from the step-father). The step-father was then charged with the
murder, and unsuccessfully sought access to the Appellant’s
communications with his lawyer in advance of the first trial.
LEGAL PROFESSIONAL PRIVILEGE: SECTION 134 OF THE
EVIDENCE ACT
 Section 134 of the Evidence Act states as follows:
“No advocate shall at any time be permitted, unless
with his client’s express consent, to disclose any
communication made to him in the course and for
the purpose of his employment as such advocate, by
or on behalf of his client, or to state the contents or
condition of any document with which he has
become acquainted in the course and for the
purpose of his professional employment, or to
disclose any advice given by him to his client in the
course and for the purpose of such employment.”
 LEGAL PROFESSIONAL PRIVILEGE
(General Matters to Note)
1. Legal professional privilege does not apply to someone
without formal legal professional qualification
performing the functions of a legal adviser (e.g. an
accountant, a legal aid officer, a probation officer, a
personnel consultant, a tax consultant etc. See Cross
& Tapper, 12th Edition at p. 439).
2. Legal professional privilege only applies to
communications and advice, a lawyer can be
compelled to disclose the identity of his client or
potential client (See Cross & Tapper, 12th Edition at p.
439).
 LEGAL PROFESSIONAL PRIVILEGE
(General Matters to Note)
3. Legal professional privilege does not prevent the
disclosure of facts observed (as opposed to
communications) by either party in the course of the
advocate-client relationship. In R v Jack (See Cross &
Tapper, 12th Edition at p. 440), for instance, a lawyer was
permitted to testify on his observations as to his client’s
attitude towards her husband as manifested during an
interview for advice on separation, when he husband was
subsequently tried for the wife’s murder).
4. At common law, legal professional privilege only applied to
communications made in confidence, but this requirement
is not set out statute (see section 134 of the Evidence Act,
which does not mention the idea of confidence).
 LEGAL PROFESSIONAL PRIVILEGE
(General Matters to Note)
5. Under section 135 of the Evidence Act, legal professional privilege
extends to interpreters, clerks and servants of advocates.
6. Under section 134 (1) (a) and (b), legal professional privilege does not
extend to communications made in furtherance of any illegal purpose
or any fact observed by the advocate in the course of the advocate-
client relationship showing that any crime or fraud has been
committed since the commencement of the advocate-client
relationship.
 The rationale for the exception is that if the law were otherwise, a
man intending to commit a crime or fraud might safely take legal
advice for the purpose of enabling himself to do so with impunity.
 In R v Cox and Railton (1884) 14 QBD 153, a solicitor was asked to
disclose what passed between the accused persons and himself
when they consulted him with reference to drawing up a bill of
sale that was alleged to be fraudulent.
 Held: if a client applies to a lawyer for advice intended to guide
him in the commission of a crime or fraud, the legal adviser being
ignorant of the purpose for which his advice is wanted, the
communication between the two is not privileged.
 LEGAL PROFESSIONAL PRIVILEGE
(General Matters to Note)
7. If a lawyer participates in his client’s criminal purpose, he
is deemed to have ceased acting as a lawyer, and hence no
privilege attaches to communications between him and
the client (see Gemini Personnel Ltd v Morgan and Bank
Ltd [2001] NZLR 14).
8. Legal professional advice only arises where there is an
advocate-client relationship or such a relationship is at
least contemplated. The mere fact that the person to
whom the communication is made happens to be an
advocate, therefore, will not in and of itself be sufficient
to establish the privilege. indeed, section 134 of the
Evidence Act talks of communications to an advocate “in
the course and for the purpose of his employment as such
advocate” (See also Cross & Tapper, 12th Edition at p. 445)
 LEGAL PROFESSIONAL PRIVILEGE
(General Matters to Note)
9. Legal professional privilege exists for the benefit and
protection of the client, not the advocate.
Accordingly, the client can waive the privilege.
10.Since the purpose of legal professional privilege is to
encourage the fullest possible disclosure between legal
adviser and client, it follows that no privilege can arise
between the two, but only in respect of disclosure to
third parties. Accordingly, a client cannot make a
claim against his lawyer and at the same time take
advantage of legal professional privilege to the
lawyer’s disadvantage.
 LEGAL PROFESSIONAL PRIVILEGE
(General Matters to Note)
11. Where a presumptively privileged document is
voluntarily offered to an opponent to read, the
privilege is deemed to have been waived whether or
not he reads it.
12.A party who extensively relies on a privileged
document in the preparation or presentation of his
case, say in an affidavit, may be deemed to have
waived the privilege (see Quiticorp Industries Group
Ltd v Hawkins [1990] 2 NZLR 175).
13.Legal professional privilege continues even after the
termination of the advocate-client relationship.
 PRIVILEGE RELATING TO BANKERS BOOKS: SECTION
140 OF THE EVIDENCE ACT
 Section 140 of the Evidence Act provides as
follows:
 A bank, or officer of a bank, shall not, in any legal
proceedings to which the bank is not a party, be compelled
to produce any banker’s book the contents of which can be
proved under the provisions of Chapter VII. No bank or
officer of a bank shall be summoned or called as a witness to
prove any matters, transactions or accounts recorded in a
banker’s book except by order of a judge or magistrate made
for special cause.
 PRIVILEGE: SELECTED ILLUSTRATIVE CASES
 In Omari s/o Hassan v R [1956] 23 EA 550, the Appellant was
convicted of murder partly on the evidence of two statements
by the deceased that the accused was one of the persons who
had attacked him and partly on a statement by his counsel that
the Appellant’s refusal to testify in the proceedings was against
his professional advice.
 Held:
 Although the judge was entitled to take into account the
Appellant’s refusal to give evidence on oath, such refusal
could not bolster a weak case or relieve the prosecution of
the duty to prove its case beyond all reasonable doubt (c.f.
Article 50 (2) (i) of the new Constitution on the accused
person’s right to remain silent and not to testify at the trial);
 The disclosure by the advocate that the Appellant had
refused to follow his advice was a breach of professional
confidence and the trial judge should not have allowed it to
affect his mind.
 PRIVILEGE: SELECTED ILLUSTRATIVE CASES
 In Duchess of Argyll v Duke of Argyll & Others
[1967] Ch 302, the plaintiff had been divorced
by her husband (the 1st Defendant) on account
of her adultery.
 The plaintiff applied for an injunction to restrain
the ex-husband and a Sunday newspaper from
publishing information of secrets relating to her
private life, personal affairs and private conduct
communicated to the ex-husband by the
plaintiff in confidence during the subsistence of
their marriage.
 PRIVILEGE: SELECTED ILLUSTRATIVE CASES
 Held:
1. with the object of preserving the marital relationship, it was the
policy of the law that communications, not limited to business
matters, between husband and wife should be protected against
breaches of confidence, so that, where the court recognized that
such communications were confidential and that there was a danger
of their publication within the mischief which it was the policy of the
law to avoid, it would interfere;
2. on the facts, publication of some of the passages complained of
would be in breach of marital confidence;
3. it being the policy of the law to preserve the close confidence and
mutual trust between husband and wife, subsequent adultery by one
spouse resulting in divorce did not relieve the other spouse from the
obligation to preserve their earlier confidences; and
4. accordingly, the plaintiff's adultery did not entitle the first defendant
to publish the confidences of their married life, and an injunction
would be granted restraining him from so doing.
 PUBLIC POLICY & PRIVILEGE: GENERAL MATTERS TO
NOTE
1. The circumstances under which evidence may be withheld
on grounds of privilege or public policy may, and often do,
overlap. Accordingly, it is difficult to strictly classify the
relevant cases under either privilege or public policy.
Indeed, whenever evidence is excluded on considerations
of public policy, it is often said to be excluded on grounds
of “crown privilege” or “public interest immunity.”
2. Privilege is personal in nature; it exists to protect a specific
person or class of persons. Public interest immunity, on
the other hand, exists to protect the interest of the wider
society.
PUBLIC POLICY & PRIVILEGE: GENERAL MATTERS TO NOTE
3. The personal nature of privilege means that a party will not necessarily
succeed on an appeal when the claim to his own, or his opponent’s, witness
has been wrongly rejected or accepted by a lower court. Appellate courts,
however, often disturb a trial court’s decision when the trial court wrongly
accepts or rejects a party’s (as opposed to merely a witness’) claim to
privilege.
4. No adverse inference should be drawn against a witness or a party for
claiming privilege (See Adrian Kean 4th Edition at p. 510 and Cross & Tapper
12th Edition at p. 416. See also Wentworth v Lloyd (1864) 10 HL Cas 589).
5. At common law, lawyers are the only professionals that enjoy privilege from
disclosing communications made to them by their clients, and even then the
privilege is the client’s rather than the lawyer’s (Attorney General v
Mulholland [1963] 2 Q.B. 477). Some countries (notably Australia, New
Zealand, Canada and some states in the US) have made statutory
interventions to accord privilege to communications between doctors and
their patients, priests and penitents and bankers and their customers (see
Cross & Tapper at pp. 465-6), but the position at common law still prevails in
England. Although these other professionals do not legally enjoy privilege,
however, the courts will in practice respect the confidential nature of
communications between them and their “clients,” mostly as a matter of
public policy (see Attorney General v Mulholland [1963] 2 Q.B. 477).
 DISTINCTIONS BETWEEN PUBLIC POLICY & PRIVILEGE
– Although the same set of facts may establish the
conditions for exclusion of evidence either on grounds of
public policy or privilege, there are three important
distinctions between public policy and privilege (See
Adrian Kean, 4th Edition at pp. 509-510):
 First, since privilege is personal in nature, it can be
waived by the person otherwise entitled to withhold
evidence or answer questions on account of privilege.
On the other hand, public interest immunity cannot be
waived where the conditions for withholding evidence
on grounds of public policy are met. In Air Canada v
Secretary of State for Trade (No. 2) [1983] 1 All ER 910,
Lord Fraser confirmed this distinction by holding that
“public interest immunity is not a privilege which may
be waived by the crown or by any party.”
 DISTINCTIONS BETWEEN PUBLIC POLICY & PRIVILEGE:
 Second, where a person satisfies the conditions
for claiming privilege, he is entitled (as of right) to
refuse to answer the question or disclose the
document in issue and the court cannot overrule
the claim to privilege. On the other hand, even
where a person satisfies the conditions for
claiming public policy/interest as a justification
for withholding evidence or refusing to answer
questions, the court may still overrule the claim
after balancing the particular weight of the claim
to public interest immunity against the value of
the evidence at the trial.
 DISTINCTIONS BETWEEN PUBLIC POLICY & PRIVILEGE:
 Third, since privilege is personal in nature; it is a
person or class of persons that is privileged, not the
information. Accordingly, secondary evidence of the
matters that are sought to be proved through a witness
who claims privilege (if available from other
witnesses/sources) is admissible (see Calcraft v Guest,
discussed in the preceding slides of this presentation).
On the other hand, the matters in respect of which a
valid claim for public interest immunity is made cannot
be proved by secondary evidence or other means.
LESSON 7: THE COURSE OF EVIDENCE & EXAMINATION
OF WITNESSES
• ©Muthomi Thiankolu

• Branton Court, Maisonette A6

• Ndemi Lane, Off Ngong Road
• P. O. Box 19893-00100 Nairobi Kenya
• Tel: +Tel: +254-20-2467-437
• Cell: +254-720-781-449
• Emails: [email protected] ; [email protected]
LESSON 7—THE COURSE OF EVIDENCE &
EXAMINATION OF WITNESSES
• SCOPE OF THE LESSON:
– Nature of the (English) adversarial system
of justice
– Course of Evidence & Examination of
Witnesses (sections 145, 146)
• Examination-in-Chief
• Cross-Examination of Witnesses
• Re-Examination of Witnesses
The common law system of justice entails the
elucidation of facts by means of questions put by
parties or their lawyers to witnesses mainly
summoned by them, and mainly in the order of
their choice, before a judge acting as an umpire
rather than as an inquisitor (i.e. as a disinterested
adjudicator who does not conduct his own
investigation).
See East of England Ambulance Service v Sanders [2015] ICR
293.
This system, in which the judge merely plays the
role of umpire, is referred to as “adversarial” or “
accusatorial” system of justice.
The adversarial system is followed in most
common law countries, and is based on the
assumption that justice is achieved when the
more effective adversary is able to persuade the
trier of fact that their version of the facts in
issue is the correct one.
Kenya follows this adversarial system of
justice.
In Kenya, the rules as to examination of
witnesses are set out in Parts III—IV of the
Evidence Act (sections 145-176).
Section 145 of the Evidence Act provides for
three types of examinations of witnesses,
namely:
Examination-in-chief: i.e. the examination of a
witness by the party who calls him;
Cross-Examination: i.e. the examination of a
witness by the adverse party or by any other party to
the proceedings; and
Re-examination: i.e. an examination of a witness,
after cross-examination, by the party who called
him.
Section 146 (1) of the Evidence Act provides, as a
general rule, that—
witnesses shall first be examined-in-chief;
then, if the adverse party so desires, cross-
examined; and
then, if the party calling them so desires, re-
examined.
We highlight selected rules for each type of
examination in the ensuing parts of this presentation.
Examination-in-Chief is the questioning of a
witness by the party who has called/brought
the witness.
During examination-in-chief, the party calling
a witness, or his advocate, will seek to elicit
evidence which supports his version of the facts
in issue.
1. A witness favourable to the party calling him, even
if not particularly forthcoming, may not be asked
leading questions;
2. A witness who has difficulties in recollecting the
events to which his evidence relates is permitted to
refresh his memory by reference to a former
written statement that he has made, but may NOT
be asked in-chief about former statements made
by him and consistent with his evidence in the
proceedings;
3. A witness who gives evidence that is unfavourable
to the party who has called him may NOT be asked
by that party questions designed to impeach his
credibility, unless that party has first obtained the
leave of the court to treat the witness as hostile.
 A party calling a witness and seeking to elicit
evidence supporting his case often faces a
witness who, although favourable, is not
particularly forthcoming.
 In such cases, the party calling the witness may
be sorely tempted to put words into the
witness’s mouth and thereby explain what he
wants the witness to say.
 The general rule in examination-in-chief,
however, is that a witness may not be asked a
leading question (see section 150 (1) of the
Evidence Act).
 Leading questions are defined in section 149 of the
Evidence Act as:
1. those so framed as to suggest the answer sought
(e.g. “did X hit you in the face with his fist?”); or
2. those so framed as to assume the existence of
facts yet to be established. If, for instance,
evidence has not yet been given of an assault, it
would be improper to ask in chief “what were you
doing immediately before X hit you?”
 NB: Evidence elicited by leading questions is
admissible, but the weight which can be attached to it
may be reduced accordingly.
 In Moor v Moor [1954] 2 All ER 458, a wife petitioner in an
undefended divorce petition was asked a series of leading
questions in chief.
 Some of the questions she was asked were:
1. “did you suspect that your husband was having
relations with someone else?” and
2. “As a result of those suspicions did you leave your house
in October 1936?”,
3. to which she replied an expected answer; “yes”
 The trial judge declined to exercise his discretion in the
wife’s favour (on the ground that she had equally been
guilty of adultery and had started the chain of events that
led to the breakdown of the marriage) and dismissed the
divorce petition.
 Held (on appeal, by Lord Evershed MR): to adduce
evidence in undefended divorce suits (read all
suits) in the form of “yes” or “no” to a series of
leading questions was irregular and had the effect
of making the answers either not at all impressive
or far less impressive than they otherwise would
be, and it as for the trial judge to stop this
irregular method of conducting such cases.
 NB: Leading questions may be asked in chief—
1. On formal and introductory maters, such as
the name and address, as opposed to the facts
in issue (section 150 (2) of the Evidence Act);
2. On facts that are not in dispute;
3. Where the party calling the witness has
obtained the leave of the court to treat the
witness as hostile.
 The general rule at common law was that a witness
could not be asked in-chief whether he had formerly
made a statement, oral or written, consistent with his
present testimony (see Cross & Taper p. 299-300).
 The witness could not also narrate or refer to a former
consistent statement, save for the limited purpose of
refreshing his memory.
 The rationale for the rule was simple: doing otherwise
would have made it very easy to manufacture
evidence. It was also thought that the rule served to
save time, since the giving of the evidence of such a
statement would only serve to duplicate the evidence
given on oath.
 At common law, however, evidence of previous
consistent statements was admissible in-chief in the
following instances:
1. by complainants in sexual offences, where it was said
that a victim of rape ought to raise “hue and cry” “as
soon as could reasonably be expected” (see Cross &
Taper at pp. 301 and 302. See also R v Lillyman
[1896] 2 Q.B. 167);
2. to rebut suggestions/allegations that the witness has
fabricated their testimony;
3. statements on accusation of an offence (admissions
and confessions);
4. statements made by accused on discovery of
incriminating articles (in cases of theft, handling
stolen goods. Any statements made by accused, if he
testifies to the same effect, are admissible as
evidence of consistency);
5. previous identification of the accused; and
6. statements admissible as part of the res gestae.
 NB: Under section 165 of the Kenyan Evidence Act,
evidence may be given as to a witness’s previous
consistent statements if an issue is raised as to the
consistency of the witness:
 “In order to show that the testimony of a witness is
consistent any former statement made by such witness,
whether written or oral, relating to the same fact at or
about the time when the fact took place, or before any
authority legally competent to investigate the fact,
may be proved.”
 NB: a witness can be cross-examined as to previous
inconsistent statements, to impeach their credibility
(see ss. 153 of the Evidence Act, which is an exact replica
of section 5 of the English Criminal Evidence Act 1865.
See also section 163 (1) (c) of the Evidence Act).
An unfavorable witness is one who,
although he displays no hostile animus to
the party calling him, fails to come up to
proof or gives evidence unfavaurable to the
case of that party.
A hostile witness, on the other hand, is a
witness who in the opinion of the judge
shows no desire to tell the truth at the
instance of the party calling him, to whom
he displays a hostile animus.
 A party seeking to elicit evidence in support of
his version of the facts in issue may call a
witness who fails to come up to proof or who
gives evidence in support of his adversary’s
version.
 In such instances, the party may naturally be
tempted to attack the credibility of the witness.
 The general rule at common law, however, is
that a party is not permitted to impeach the
credit of his own witness. Further, the general
rule holds, a party is not permitted to call
evidence concerning his own witness’s bad
character, convictions, prior inconsistent
statements or bias.
 The rationale for the rule as been given in the
following terms (See Adrian Kean, at p. 144):
 “it would be repugnant to principle, and likely to
lead to abuse, to enable a party, having called a
witness on the basis that he is at least in general
going to tell the truth, to question him or call other
evidence designed to show that he is a liar.”
 At common law, and under section 161 of the
Evidence Act, however, a judge may, as a matter
of discretion, allow cross-examination of a
hostile witness by the party calling him.
 The application to treat a witness as hostile may
be made at any time during the witness’s
evidence.
 A witness may be hostile for a variety of
(mostly selfish or ulterior) reasons.
 The dictum of Erle CJ in Melhuish v Collier
(1850) 15 Q.B. 879 at 890 (quoted in Cross &
Taper at p. 310) explains, by way of
illustration, why the courts might give leave to
treat one’s witness as hostile :
 “There are treacherous witnesses who will hold out
that they can prove facts on one side in a cause and
then, for a bribe or for some other motive, make
statements in support of the opposite interest. In
such cases, the law undoubtedly ought to permit the
party calling the witness to question him as to the
former statement, and ascertain, if possible, what
induces him to change it.”
 The authorities indicate, however, that
whether or not a witness is hostile is a matter
for the discretion of the trial court (leave will
not necessarily be granted as a matter of
course, even where hostility is established).
 The authorities further indicate that a judge’s
refusal to grant leave to treat a witness as
hostile will seldom be overturned on appeal
(see Rice v Howard [1886] 16 QBD 681 and
Price v Manning [1889] 42 Ch D 372 CA).
 NB: Although a party may not attack the
credibility of his own unfavourable witness (e.g.
by cross-examining or pointing to the witness’s
bad character or incredibility), he is nonetheless
allowed to contradict the witness by calling other
evidence that supports his version of the facts in
issue, even if that other evidence is inconsistent
with the testimony of the unfavourable witness.
 In Ewer v Ambrose (1825) 3 B & C 746, for
instance, the defendant called a witness to prove a
partnership, but the witness proved the contrary.
It was held that the defendant could rely on the
testimony of other witnesses in support of the
existence of the partnership. Harlroyd J held:
“if a witness proves a case against the party
calling him, the latter may show the truth
by other witnesses. But it is undoubtedly
true, that if a party calls a witness to prove
a fact, he cannot, when he finds the witness
proves the contrary, give general evidence
to show that the witness was not to be
believed on his oath, but he may show by
other evidence that he is mistaken as to the
fact which he is called to prove.”
 Traditionally, the common law attached more weight
to the answers given by witnesses in court on oath or
affirmation than to oral or written statements
previously made by them.
 Witnesses, however, often experience difficulty in
recollecting events to which their evidence relates,
especially when those events took place a long time
ago.
 At common law, such witnesses may in the course of
giving evidence refresh their memory by reference to
a document (e.g. a diary, log book, account book etc)
subject to the following conditions:
 1. The document must have been made or verified
by the witness contemporaneously with the
events in question;
2. The document must be produced for inspection
by either the court or the opposing party (see
section 169 of the Evidence Act); and
3. The document must be an original, otherwise the
leave of the court will be necessary (see section
167 (3) of the Evidence Act).
 In Kenya, the modern rules on the refreshing of
memory are set out in section 167 of the Evidence Act.
 Section 167 (1) of the Evidence Act provides that:-
  “A witness may, while under examination, refresh
his memory by referring to any writing made by
himself at the time of the transaction concerning
which he is questioned, or made so soon afterwards
that the court considers it likely that the transaction
was at that time fresh in his memory.”
 Section 167 (2) of the Evidence Act, on the other hand,
provides that—
 “A witness may, while under examination, refresh his
memory by referring to any writing made by any
other person and read by the witness within the time
mentioned in sub-section (1), if when he read it he
knew it to be correct”
 NB:
1. Section 167 refers to witnesses “under
examination”. The section suggests that the
statutory rules on refreshing of memory are not
limited to any stage of examination (whether in-
chief, cross or reexamination).
2. A witness who refreshes his memory by reference
to a document may be cross-examined by the
adverse party on the contents of the document
(see section 169 of the Evidence Act)
3. Where a witness refreshes their memory by
reference to a document, it is the oral testimony of
the witness whose memory is refreshed, rather
than the document, which constitutes the
evidence in the case.
 Even where a witness is cross-examined on a
document used to refresh his memory, the cross-
examination will not make the document part of
the evidence. The document may nonetheless
become relevant and admissible in evidence (see
Adrian Kean, at p. 129) where:
1. the cross examination involves a suggestion
that the witness has subsequently fabricated
the document (the document becomes
admissible to rebut the suggestion); or
2. it is inconsistent with the evidence of the
witness (it becomes admissible to show the
inconsistency. See also section 11 of the
Evidence Act).
3. Even where the documents becomes
admissible as stated above, it is admitted
not as evidence of the facts contained
therein but rather as evidence of the
witness’s consistency, or as the case may be
inconsistency, going only to his credit.
 In Maugham v Hubbard (1828) 8 B & C 14, a
witness called to prove that he had received a
sum of money looked at an unstamped
acknowledgment signed by himself and
thereupon gave evidence that he had no doubt
that he had received the money, although he
had no recollection of having done so.
 Held: The witness’s oral evidence sufficed to
establish receipt of the money, the written
acknowledgment not being evidence in the
case because it was not stamped.
• In R v Lillyman [1896] 2 Q.B. 167, the appellant was
charged with the offence of attempted rape and
indecent assault upon a girl who had complained to
her mistress.
• An issue arose as to whether evidence of the
complaint made to the mistress was admissible in-
chief.
• Held: the fact that a complaint was made by the girl
shortly after the alleged occurrence, and the
particulars of such complaint, may be given in
evidence on the part of the prosecution, not as
evidence of the facts complained of, but as evidence
of the consistency of the conduct of the complainant
with the story told by her in the witness box, and as
negativing consent on her part.
• In R v Athwal & Another [2009] 1 WLR 2430, the
defendants, a mother and her son, were charged with
the murder of the second defendant’s wife in
December 1998.
• The prosecution case was that they had lured the
victim to India, accompanied by the first defendant,
and that she had been murdered there.
• At trial in 2007, a witness, another of the first
defendant’s daughters-in-law, gave evidence that
shortly before the trip to India she had been present at
a family meeting at which the first defendant had said
that she had decided to take the victim to India to get
rid of her, and that shortly after the first defendant’s
return from India the first defendant had told her that
the victim had been killed there by a friend of her
brother’s.
• The witness had given the same account to
police for the first time in a witness statement
made in October 2005.
• The witness was cross-examined on the basis
that her evidence was pure fabrication.
• The prosecution sought to re-examine her to
establish that she had first given her account to
her father and sister soon after the first
defendant’s return from India in 1998.
• The trial judge ruled that the effect of the cross-
examination had been to suggest recent
fabrication, that therefore the witness could be re-
examined to rebut that suggestion, and that her
father and sister should be permitted to give
evidence of the circumstances in which the
witness had first given her account to them.
• The trial judge then proceeded to convict the
appellants.
• Held (dismissing the appeal): the witness's
previous consistent statements were admissible to
rebut the suggestion of recent fabrication.
• In R v Oyesiku [1971] 56 Cr App Rep 240, the
accused was convicted of assaulting a police
officer. In cross-examination, it was put to the
accused’s wife, who had given evidence that the
police officer was the aggressor, that her
evidence had been recently fabricated.
• Held: The trial judge had improperly refused to
admit evidence of a previous statement
consistent with the accused’s wife’s testimony
and made by her to a solicitor after her
husband’s arrest but before she had seen him.
• In Rice v Howard [1886] 16 Q.B. 681, the defendant's
counsel, in order to show that a witness called by him
was hostile, and to obtain leave to treat him as such
under s. 22 of the Common Law Procedure Act 1854,
asked the judge to look at an affidavit made by the
witness in a former action.
• The judge, being of opinion that there had been
nothing in the witness's demeanour, or in the way he
had given his evidence, to show that he was hostile,
refused to look at the affidavit.
• Held (on appeal): the discretion given to the judge
under s. 22 of the Common Law Procedure Act, 1854,
was absolute, and the Court had no jurisdiction to
review his decision
• In Price v Manning [1889] 42 Ch D 372 CA, counsel
for the Plaintiff called the Defendant as a witness
to prove a point in his case.
• The Defendant was then cross-examined by his
own counsel.
• In his re-examination, the Plaintiff's counsel
attempted to put questions to the defendant in the
nature of cross-examination, but the trial judge
refused to allow this to be done.
• The plaintiff appealed, arguing that the Judge was
wrong in disallowing the questions, as the
Defendant was of necessity a hostile witness, and
in that case the Plaintiff had a right to cross-
examine him.
• Held:
1. A party to an action who calls an
opponent as a witness has no right to
cross-examine him, however hostile he
may be, without the leave of the Judge;
and
2. Whether the witness is a litigant or not,
it is a matter of discretion in the Judge
whether he shows himself so hostile as to
justify his cross-examination by the
party calling him.
• In R v Pettit [1983] Q.B. 25, the appellant was
charged with two offences of assault
occasioning actual bodily harm to his eight-
month-old baby.
• His wife made a witness statement which was
prejudicial to him. She was called as a
prosecution witness at his trial, but during her
evidence in chief she gave answers inconsistent
with her statement.
• The judge granted a prosecution application to
treat her as hostile, and she was cross-
examined on her witness statement.
• The appellant was convicted.
 Held (allowing the appeal):
a wife retained her right not to give evidence
against her husband until, with full
knowledge of that right, she took the oath at
the trial of her husband;
once the wife had started to give evidence,
she was to be treated as an ordinary witness
and, if the nature of her evidence warranted
it, she could be treated as a hostile witness;
 the wife had not sufficiently appreciated her right to
refuse to give evidence against her husband; although
the judge had advised the jury to disregard her
evidence and directed them that her statement did not
constitute evidence, it was possible that the jury were
affected by the contents of the wife's statement and,
accordingly, the conviction was unsafe and
unsatisfactory.
 it is desirable that where a wife is called as a
witness for the prosecution of her husband, the
judge should explain to her in the absence of the
jury, that before she takes the oath she has the
right to refuse to give evidence, but that if she
chooses to give evidence she may be treated like
any other witness.
 Cross-examination serves two principal purposes:
 to elicit information concerning the facts in issue or
relevant to the issue that is favourable to the party on
whose behalf the cross-examination is conducted; and
 to cast doubt upon the accuracy, credibility or veracity
of the witness.
 NB: see section 154 of the Evidence Act.
 The above purposes are central to accurate fact
finding and fairness of proceedings. Perhaps that is
why Article 50 (2) (k) of the Constitution says that
the right to a fair trial includes the right to “adduce
and challenge evidence.”
 The importance of cross-examination in the
adversarial system of justice has variously been
emphasized by different commentators:
 “the best known purpose of cross-examination is to
test the credibility of the witness. But there can be a
number of other purposes as well: for example to
provide a more complete story than the edited one
presented during direct examination, to explore the
weakness in the logic of the opponent’s case, and to
gain concessions about facts, thereby making them
as irrefutable as possible. Cross examination thus is
seen as a strategically powerful resource in litigation
as well as in arbitration.”
 Vijay K. B. (2011) Judicialisation of International
Commercial Arbitral Practice: Issues of Discovery and
Cross Examination, 1 (1) Lapland Law Review , 15-29 at
p. 22.
“cross examination is beyond doubt the

greatest legal engine ever invented for the

discovery of truth”____Wigmore on Evidence,

3rd Edition, Vol. V para 367.

 A good legal practitioner should note the
following about cross-examination:
a lawyer should not cross-examine unless they
must. The answer as to whether one should
cross-examine should depend on whether the
intended cross-examination can achieve any of
the two principal purposes of cross-
examination set out in the preceding slide; and
a lawyer should never ask in cross-examination
a question whose answer they do not know.
The general rules on relevance and
admissibility of evidence apply to cross-
examination. Accordingly—
 a witness cannot be cross-examined, for
instance, on an inadmissible confession
(see R v Brophy [1982] A.C. 476) and
Wong-Kam-Ming v R [1980] A.C. 247) or
other inadmissible evidence; and
the rule against hearsay applies to
answers given in cross-examination.
 Cross-examination is not limited to the matters
raised during a witness’s examination-in-chief.
The scope of cross-examination is, generally,
unlimited (see section 146 (2)).
 The rationale for the unlimited scope of cross-
examination has recently been explained in the
following terms:
 “…the learned [trial] Judge proceeded on the basis, in the
event erroneous, that the Election Petition Rules had
somehow diminished the importance and critical place of
cross examination...There is no basis for such a view.
There is equally no basis for the notion that Rule 15 (3)
confines or limits cross examination to such issue as a
witness deposed to in the filed affidavit. Were that the
case, the trial of election petitions would be rendered a
travesty of justice wherein deponents would swear only to
scanty and safe matters secure in the knowledge that
what they concealed would remain suppressed by such
curtailment of cross examination. Such perverse
consequence cannot reasonably be said to have been
expressed or intended by the Rules Committee”
 _Per Kiage JA in Ferdinand Ndung’u Waititu v Independent
Electoral & Boundaries Commission & 8 Others (Civil Appeal
No. 324 of 2013)
Cross-examination, therefore, may extend to anything,
including—
1. Accuracy or veracity of the testimony given in-chief
(section 154(a)
2. character and credibility of the witness (section 154
(c), subject to the qualifications in sections 157 and
158);
3. previous inconsistent statements (at common law,
witnesses may be cross-examined on their previous
inconsistent statements. See Cross & Tapper at p. 318.
See also sections 153 and 163 (1) (c) of the Evidence
Act. NB: the attention of the witness must be drawn to
the statement before it can be proved for the purpose
of contradicting him); and
4. facts inconsistent with the witness’s testimony.
 NB: Although the scope of cross-examination is
generally unlimited, the court has powers to—
 forbid indecent or scandalous questions, although
such questions may have some bearing on the
questions before the court, unless they relate to
facts in issue or to matters necessary to be known
in order to determine whether or not the facts in
issue existed (section 159);
 forbid insulting or annoying questions, or
questions that are in the opinion of the court
needlessly offensive in form (section 160); and
 regulate the proceedings and time and curb
excessive cross-examination.
 As a general rule, all witnesses are liable to be
cross-examined not only by the opponent of
the party calling him but also by any other
party to the case (see Cross & Tapper at p. 316,
Halsbury’s Laws of England, 3rd Edn vol 15 at p.
443 and Adrian Kean, p. 149 see section 173).
 There are three main exceptions to the above
general rule, namely:
1. a person who is not sworn, being called merely to
produce or verify a document (see section 147 of the
Evidence Act);
2. a witness called by the judge or magistrate (such a
witness may nonetheless be cross-examined with the
leave of the judge or magistrate. Leave will normally
be given where the witness called by the judge has
given evidence that is adverse to the party seeking to
cross-examine. See Coulson v Disborough [1894] 2
Q.B. 316, CA)
3. a witness who is not examined in-chief because he
has been called by mistake.
 Although all witnesses are liable to be cross-examined as a
general rule, the court has discretion to disallow cross-
examination if, in its view, there is no relevant matter upon
which the witness can contribute (see R v Mahmood [2005]
EWCA Crim 3426).
 Where a witness refuses to attend court for cross-
examination, the court may, if the refusal impedes the course
of justice—
1. sanction the party who called the witness by
withdrawing the witness’s evidence/testimony from
consideration; or
2. prevent the party who called the witness from making
any argument/submissions on the testimony given by
the witness
(see Cross & Tapper at p. 316).
 Where it is intended to urge the court to
disbelieve a witness, the witness should be
cross-examined.
 Moreover, failure to cross-examine a witness
on some material part of his evidence, or at all,
may be treated as an acceptance of the truth of
that part or the whole of his evidence.
A cross-examiner is allowed to be hostile
and aggressive with a witness during the
cross-examination.
In practice, however, cross-examination
is most effective when done in a friendly
and respectful yet subtly firm manner,
without unnecessarily vexing or
badgering the witness.
 As stated, leading questions are allowed during
cross-examination (see section 151 of the
Evidence Act).
 Indeed, leading questions are a very effective
strategy for conducting cross-examination.
 Such questions should be targeted at receiving
an answer that either shakes the veracity or
accuracy of the witness’s testimony or shakes
their credibility.
 At common law, the right to cross-examine was so
critical that any judgment founded on a breach of
this right was generally deemed a nullity.
 In England, there have been recent statutory
incursions on cross-examination by the accused in
person, especially where the accused person
seeks to personally cross-examine a child witness
or a complainant in a sexual offence (see Cross &
Tapper at p. 315), but there is no similar
qualification under Kenyan law.
 In Kenya, it remains to be seen whether any
attempt to limit an accused’s right to cross-
examine in person would infringe on an accused
person’s constitutional right to “adduce and
challenge evidence” (see Article 50 (2) (k) of the
Constitution).
 Recent attempts by the High Court to limit the
right of cross-examination in election disputes,
and in particular to limit the right to the evidence
set out in the adversary’s witness statements, have
been condemned by the Court of Appeal (not clear
what the position of the Supreme Court is):
“cross-examination is a critically important part…a court ought to be
extremely slow and circumspect before interfering or curtailing its use for
to do so opens the court to charges of unfairness or even bias…This is
inevitable because in denying, limiting or inhibiting a party’s cross –
examination of an adverse witness, a judge may be seen as literally
grounding and mortally wounding the cross-examining party’s ability to
conduct his trial...the learned Judge fell into and proceeded on the basis of
the rather elementary error that cross examination should be confined to
matters that arose in examination-in-chief which in this case is the
evidence deposed to in the witness affidavits…so long as a matter is
relevant and admissible, a question can be led on it in cross examination.
Indeed…the potency and genius of cross examination lies in the ability to
bring up truths that the witness may have carefully tried to shield from
view by a sanitize form of deposition or examination-in-chief. This is the
true meaning and intent of section 146 (2) of the Evidence Act.”
 __Per Kiage JA in Ferdinand Ndung’u Waititu v Independent
Electoral & Boundaries Commission & 8 Others (Civil Appeal No. 324
of 2013).
“the trial Judge erred in law in declining to permit the
appellant to cross-examine DW8…in relation to Forms
35 and 36. By refusing cross-examination of the
witness on these Forms, the trial Judge erred in
invoking procedural technicalities rather than
substantive justice. The right to challenge any evidence
adduced against a party is an essential component of
the right to a fair hearing.”
__Per Visram, Odek & Jamila JJA in Dickson
Mwenda Kithinji v Gatirau Peter Munya & 2 Others
(Nyeri Civil Appeal No. 38 of 2013)
 As a general rule, the answers given by a witness
to questions put to him in cross-examination
concerning collateral facts are treated as final. Put
differently, the cross-examiner cannot, as a
general rule, contradict the witness’s answer by
other evidence, nor suggest to the witness that he
can (see Cross & Tapper at p. 320).
 The rationale behind the rule is to avoid a
multiplicity of issues.
 The test for deciding whether a matter is
collateral for purposes of the rule was given by
Pollock CB in Attorney General v Hitchcock (1847)
1 Exch 91 at 99 in the following terms:
“the test whether a matter is collateral or not
is this: if the answer of a witness is a matter
which you would be allowed on your own
part to prove in evidence—if it have such a
connection with the issues, that you would be
allowed to give it in evidence—then it is a
matter on which you may contradict him.”
 There are three exceptions to the rule that
answers given in cross-examination to
questions on collateral issues are final,
namely—
1. the fact that the witness is biased in favour of the
party calling him;
2. the fact that the witness has been convicted of a
crime; and
3. the fact that the witness has previously made a
statement inconsistent with his present testimony.
 In Wong-Kam-Ming v R [1980] AC 247, the defendant was
charged with murder and malicious wounding.
 The only evidence connecting him with the attack was his
own signed statement (confession) given to the police to the
effect that he had been present at the scene and had there
“chopped” someone with a knife.
 At the start of the trial the defendant challenged the
admissibility of the statement on the ground that it had not
been made voluntarily.
 The judge dealt with that issue of the admissibility of the
statement/confession in the absence of the jury by a voir
dire.
 At the voir dire, the defendant testified that the police had
offered inducements to him to make the
statement/confession, and that he had been forced to copy
out and sign it.
 Cross-examined by the Crown (at the voire dire), the
defendant admitted that he had been present at the scene
and involved in the attack.
 The judge ruled the statement (confession) inadmissible.
 The main trial continued and, in order to establish that the
defendant had been at the scene, counsel for the Crown
called two shorthand writers who had recorded the voir
dire to testify that in that proceeding, the defendant had
admitted being present.
 The judge ruled that the shorthand writers' testimony was
admissible.
 The defendant gave evidence and was cross-examined as to
discrepancies between his evidence and what he had said
at the voir dire.
 The defendant was therefore convicted of murder and
malicious wounding.
 Held (allowing the Defendant’s appeal):
 on a voir dire as to the admissibility of a defendant's
challenged statement the prosecution should not ask
questions in cross-examination of the defendant with
the object of establishing the truth of the statement and
that accordingly the Crown's cross-examination on the
voir dire was improper; and
 where on a voir dire a defendant's statement is ruled
inadmissible, the prosecution is not entitled at the trial
of the substantive case to adduce evidence as to what
the defendant said during the voir dire or to cross-
examine him on the basis of what he said;
 accordingly, the calling of the shorthand writers and the
Crown's cross-examination were substantial
irregularities which resulted in evidence being wrongly
placed before the jury without which they could not
have convicted and, therefore, the defendant's
convictions on all counts should be quashed.
 In Coulson v Disborough [1894] 2 QB 316, CA, the
plaintiff was a domestic servant, and was engaged
to be married to the defendant’s son.
 The plaintiff was spending some hours one
evening at the defendant's house, and while she
was there the defendant charged her with stealing
some money.
 The plaintiff was then taken to a police station
where upon conducting a search, the money was
found on her person.
 In her defence, the plaintiff claimed that the
defendant’s son had given her the money the same
evening in payment of a debt which he owed her.
 The plaintiff was tried for the alleged theft and was
acquitted. She then sued the defendant for malicious
prosecution.
 The defence (to the suit for malicious prosecution) was
that the defendant had reasonable and probable cause for
what he had done, and that he did not act maliciously.
 At the trial, after the witnesses on both sides had been
examined, and counsel on both sides had addressed the
jury, the jury expressed a wish that the defendant's son,
who was in Court, but who had not been called by either
party as a witness, should be called.
 The judge called the defendant’s son as a witness and
asked him whether he had given any money to the plaintiff
on the evening in question. The son answered both
questions in the negative.
 The plaintiff's counsel asked the judge to allow
him to cross-examine the son; but the learned
judge refused the application.
 Held (on appeal).
a judge has power to call and examine a witness
who has not been called by either of the parties,
and, when he does so, neither party has a right
to cross-examine the witness without the leave
of the judge;
 If the evidence of a witness given in answer to
questions put to him by the judge is adverse to
either of the parties, leave should be given to
that party to cross-examine the witness, upon
his answers, but a general cross-examination
ought not to be permitted.
 The purpose of re-examination is explain,
where appropriate, such apparent gaps in the
witness’s testimony as may have come out
during the cross-examination.
 Generally, re-examination must be limited to
the issues raised during the cross-examination;
if one introduces new matters during re-
examination, the adverse party may be
allowed to conduct further cross-examination
on the new matters. Section 146 (3) of the
Evidence Act provides as follows:
“The re-examination shall be directed to the
explanation of matters referred to in cross-
examination; and, if new matter is, by
permission of the court, introduced in re-
examination, the adverse party may further
cross-examine upon that [new] matter”
 Generally, the rules governing examination-in-
chief apply to re-examination. In particular:
 leading questions must not be asked in re-
examination (see section 150 (1) of the Evidence
Act).
 previous consistent statements cannot be put to a
witness in re-examination, unless rendered
admissible by the terms of the cross-examination or
for purposes of refreshing memory.
 ©MUTHOMI THIANKOLU
Lecturer, University of Nairobi School of Law
Advocate of the High Court of Kenya
Partner, Muthomi & Karanja Advocates
 University of Nairobi School of Law (LLB II Class)
 Friday, October 31, 2014
 *NOTE: Students are strongly advised that this
presentation is not a substitute for attending lectures or
reading the cases and materials set out in the Course
Outline.
Meaning of “Document”
Proof of the contents of a document
General requirement as to Primary Evidence;
When Secondary Evidence is admissible
Proof of Due Execution of a document
Proof of Due Attestation
Presumptions relating to documents
Extrinsic Evidence
 The best definition of “document” for purposes of
evidence law is perhaps that given by Darling J. in R v
Daye [1908] 2 K.B. 333 at 340:
“…any written thing capable of being evidence is
properly described as a document…it is immaterial
on what the writing may be inscribed. It might be
inscribed on paper, as is the common case now; but
the common case once was that it was not on paper,
but on parchment; and long before that it was on
stone, marble, on clay, and it might be, and often
was, on metal”
Adrian Kean further states (4th Edition at p. 198):
“Today’s equivalent of paper is often a disc, tape
or film and conveys information by symbols,
diagrams and pictures as well as by words and
numbers.”
For purposes of this subject, therefore, the
meaning of the word “document” should not be
limited to the conventional/ordinary meaning of
writing(s) on paper.
 The general rule at common law is that a party seeking
to rely upon the contents of a document must adduce
primary evidence of those contents. In effect, this
means the party must adduce the original of the
document:
“Primary evidence means the document itself
produced for the inspection of the court” (see s. 65
of the Evidence Act).
 The general common law rule is reflected at section 67
of the Evidence Act:
“Documents must be proved by primary evidence
except in the cases hereinafter mentioned.”
 The rule is often regarded as the only remaining
instance of the ‘best evidence rule,’ under which a
party must produce the best evidence that the nature
of the case will allow.
 The rationale for the rule is to reduce the risks of fraud,
mistake and inaccuracy which might result from prof
by either production of a copy of the document or
parol evidence of its contents.
 NB: According to section 65 of the Act:
1. where a document is executed in several parts, each
part is primary evidence of the document;
2. where a document is executed in counterpart, each
counterpart being executed by one or some of the
parties only, each counterpart is primary evidence
as against the parties executing it;
3. where a number of documents are all made by one
uniform process, as in the case of printing,
lithography or photography, each is primary
evidence of the contents of the rest; but where
they are all copies of a common original they are
not primary evidence of the contents of the
original;
4. micro-films of a document, reproductions of the image,
images embodied in such micro-films, facsimile copies of a
document and images of a document derived or captured from
the original document are deemed to be documents and are
admissible in any proceedings without further proof of
production of the original, as evidence of any contents of the
original or of any facts stated therein of which direct evidence
would be admissible;
5. a statement contained in a document and included in printed
material produced by a computer (i.e. a printer printout) is
deemed to be a document and admissible in any proceedings
without further proof of production of the original, as evidence
of any contents of the original or of any facts stated therein of
which direct evidence would be admissible if it meets the
conditions set out in section 65 (6).
 NB:
there a party to litigation has made an informal
admission concerning the contents of a document,
the admission constitutes primary evidence of the
contents and is admissible in evidence against him
(see Slattery v Pooley (1820) 6 M & W 664, discussed
in Adrian Kean, 4th Edn at p. 201);
the rule as to production of primary evidence only
applies where one seeks to rely on the contents of
the document; it does not apply where one merely
wishes to prove the fact of the existence of the
document.
 If the law were to strictly insist on primary evidence of a
document, many cases would fail, especially where the
original is lost or is in the possession of the party against
whom the document is sought to be proved.
 Accordingly, section 68 (1) of the Evidence Act provides for
the admissibility of secondary evidence of the existence,
condition or contents of a document in the following cases:
1. when the original is shown or appears to be in the
possession or power of—
– the person against whom the document is sought
to be proved; or
– a person out of reach of, or not subject to, the
process of the court; or
– any person legally bound to produce it;
and when, after the notice required by section 69
has been given, such person refuses or fails to
produce it;
2. when the existence, condition or contents of the original
are proved to be admitted in writing by the person
against whom it is proved, or by his representative in
interest;
3. when the original has been destroyed or lost (see
Sugden v Lord St. Leonard's [1876] Probate 154), or
when the party offering evidence of its contents cannot,
for any other reason not arising from his own default or
neglect, produce it in a reasonable time;
4. when the original is of such a nature as not to be easily
movable (e.g. a tombstone or a wall. See Mortimer v
M’Callan (1840) 6 M & W 58);
5. when the original is a public document within the meaning of
section 79, i.e. a document forming the acts or records of the
acts—
– of the sovereign authority; or
– of official bodies and tribunals; or
– of public officers, legislative, judicial or executive, whether of Kenya or
of any other country; or
– public records kept in Kenya of private documents.
• NB:
– The rationale for this exception relating to public documents is that
production of the originals of public documents might entail a high
degree of public inconvenience (see Adrian Kean at p. 205). Secondary
evidence of public documents is normally given by way of certified
copies.
– Section 68 (2) (c) of the Evidence Act says that a certified copy is the
only type of secondary evidence that would be admissible in relation to
public docuements.
6. when the original is a document of which a certified
copy is permitted by the Evidence Act or by any
written law to be given in evidence (see sections 80
and 81 of the Evidence Act);
– NB: section 68 (2) (c) says that in this case, a certified
copy is the only type of secondary evidence that would
be admissible.
7. when the original consists of numerous accounts or
other documents which cannot conveniently be
examined in court, and the fact to be proved is the
general result of the whole collection.
 Secondary evidence of the contents of a document may take the form of
a copy, a copy of a copy or oral evidence.
 At common law, where secondary evidence is admissible, there is a
general rule that “there are no degrees of secondary evidence” (see
Adrian Kean, 4th Edn at p. 203). Put differently, at common law, there is
no obligation to tender ‘the best copy’ rather than an inferior copy or a
copy of a copy, and oral evidence of the contents is admissible even if a
copy or some other more satisfactory type of secondary evidence is
available. This rule is to be found at section 68 (2) (a) of the Act, but
there are qualifications (at section 68 (2) (c)) with regard to public
documents and documents in respect of which certified copies are
allowed.
 Although any form of secondary evidence is admissible for the cases
covered by the common law rule and section 68 (2) (a) of the Evidence
Act, less weight may attach to inferior forms of secondary evidence.
 the purpose of the Notice to Produce a Document provided for
under section 69 of the Evidence Act is not to notify the other
partly that reliance will be placed on the document so that he can
prepare evidence to explain or confirm it, but merely to give him
sufficient opportunity to produce the original if he wishes or, if he
does not, to enable the party giving the Notice to adduce
secondary evidence (see Adrian Kean 4th Edn at p. 303);
 a party who fails to comply with a Notice to Produce and thereby
obliges his adversary to give secondary evidence cannot
subsequently rely on the original;
 a party who complies with a Notice to Produce may require the
party who served the Notice to put the original document in
evidence. Accordingly, a party who serves a notice to produce
merely as a means of inspecting a document runs the risk, should
its contents prove unfavourable to his case, of being compelled to
use it.
Proof of due execution of a document normally
entails showing that the document was written or
signed by the person by whom it purports to have
been written or signed.
There are many ways of proving the due execution
of a document, including:
1. direct oral evidence by the maker or signatory himself that he
made or signed the document; or
2. direct oral evidence by any other person who witnessed the maker
or signatory of the document make or sign it; or
3. admissible hearsay to the effect that the maker or signatory made
or signed the document, as the case may be; or
4. the opinion of a person who, although not a witness to the
execution of the document, is acquainted with the handwriting of
the maker or signatory of the document; or
5. the comparison of the document in question with another
document which is proved or admitted to have been signed by the
person in question (see sections 48 and 76)
 There is a general common law rule, applicable to both civil
and criminal proceedings, that a document will only be
admitted in evidence upon proof of due execution (see
Adrian Kean, 4th Edn at p. 208). In practice, the rule is
seldom applied to public documents, as the due execution
of such documents is governed by presumptions (see, for
instance, section 77 (2) of the Evidence Act).
 Rules analogous to the above general rule are to be found
in sections 70 to 76 of the Evidence Act.
Section 70 provides:
“If a document is alleged to be signed or to have
been written wholly or in part by any person, the
signature or the handwriting of so much of the
document as is alleged to be in that person’s
handwriting must be proved to be in his
handwriting.”
Section 76 provides:
“(1) In order to ascertain whether a signature,
writing or seal is that of the person by whom it
purports to have been written or made, any
signature, writing or seal, admitted or proved to
the satisfaction of the court to have been written
or made by that person, may be compared by a
witness or by the court with the one which is to
be proved, although that signature, writing or
seal has not been produced or proved for any
other purpose.
(2) The court may direct any person present in court to
write any words or figures for the purpose of enabling
the court to compare the words or figures so written
with any words or figures alleged to have been written
by such person.
(NB: This subsection envisions the comparison
of “words or figures,” not signatures. See court
record in William Kabogo Gitau v George Thuo &
2 Others, Election Petition No. 10 of 2008).
(3) This section applies with necessary modifications to
finger impressions.”
 The law often requires that documents not only be signed
or sealed (i.e. executed) but also that the signature or seal
be witnessed (or attested) by a person other than the one
signing/sealing/executing the document. Common
examples include deeds, wills and other testamentary
documents and documents transferring an interest in land.
 Where attestation is required by law, proof of due
execution of a document often requires evidence of
attestation.
 Generally, where a document is required by law to be
attested, at least one of the attesting witnesses must be
called. Section 71 of the Evidence Act provides:
“If a document is required by law to be attested it shall
not be used as evidence until one attesting witness at
least has been called for the purpose of proving its
execution, if there is an attesting witness alive and
subject to the process of the court and capable of giving
evidence:
Provided that it shall not be necessary to call an
attesting witness in proof of the execution of any
document which has been registered in accordance
with the provisions of any written law, unless its
execution by the person by whom it purports to have
been executed is specifically denied.”
 Where all the attesting witnesses are dead, insane or
beyond the jurisdiction of the court or untraceable,
secondary evidence of attestation by proof of the
handwriting of one of the attesting witnesses is
required.
 NB: at common law, the proof of a will requires that
one of the attesting witnesses, if available, be called to
proof its due execution. Where such a witness is
available, no other evidence will suffice to prove the
due execution of the will.
 In practice, the due execution of a document is
frequently admitted or presumed, thereby rendering
proof of handwriting and attestation unnecessary.
 The Evidence Act has some noteworthy provisions on
presumptions relating to documents, namely:-
1. Section 77 (2): presumption as to the genuineness of the
signatures of government analysts, medical practitioners,
ballistic experts, document examiners and geologists;
2. Section 78 (1): presumption as to the genuineness of the
signatures of officers appointed by the Director of Public
Prosecutions (NB: previously, Attorney General) appearing
on a certificate in the form given in the Schedule to the Act
(relating to photographic evidence);
3. Section 83: presumptions as to genuineness of certified
documents;
4. Section 84: presumption as to genuineness of documents
purporting to be records of evidence given in a judicial
proceeding;
5. Section 85: presumption as to the due making or tenor of
all written laws or notices purporting to be published by
the Government Printer or contained in a copy of the
Kenya Gazette;
6. Section 86: presumption as to the genuineness of every
document purporting to be the London Gazette, the
Edinburg Gazette, or the official gazette of any country of
the commonwealth, a newspaper or journal or a
document directed by any law to be kept by any person;
7. Section 89: presumption as to the publishing and
accuracy of maps or plans purporting to be made or
published by the authority of the Government, or any
department of the Government, of any country in the
Commonwealth;
8. Section 90: presumption as to the genuineness of
every book purporting to be printed or published
under the authority of the government of any country
or to contain any of the laws of that country, and of
every book purporting to contain reports of decisions
of the courts of any country;
9. Section 91: Presumption as to the due execution of
every document purporting to be a power of attorney;
10. Section 94: presumption that every document called
for and not produced after notice to produce was
attested, stamped and executed in the manner
required by law; and
11. Section 96: presumption as to the due execution and
attestation of documents older than 20 years where
such documents are produced from any custody
which the court in the particular case considers
proper.
 Part II of the Stamp Duty Act (Chapter 480 of the Laws of Kenya)
requires that certain documents (as set out in the Schedule) be
stamped (e.g. company memoranda and articles of association,
charges & mortgages, transfers etc).
 Section 19 (1) of the Stamp Duty Act provides as follows:
– “Subject to the provisions of subsection (3) of this section
and to the provisions of sections 20 and 21, no instrument
chargeable with stamp duty shall be received in evidence in
any proceedings whatsoever, except –
• (a) in criminal proceedings; and
• (b) in civil proceedings by a collector to recover stamp
duty, unless it is duly stamped.”
 As a general rule, extrinsic evidence (often referred to as
“parol evidence” because it is usually oral, although it may
consist of other documents) is inadmissible when it would,
if accepted, have the effect of—
adding to; or
varying; or
contradicting, the terms of a judicial record, a
transaction required by law to be in writing, or a
document constituting a valid and effective contract, or
other transaction.
 The general rule is most frequently invoked with regard to
contracts, but it extends to all the other matters set out
above.
 The rules as to (in)admissibility of extrinsic evidence are
set out in Part VI of the Evidence Act.
 Section 97 (1) of the Evidence Act states:
“When the terms of a contract, or of a grant, or of any
other disposition of property, have been reduced to the
form of a document, and in all cases in which any matter
is required by law to be reduced to the form of a
document, no evidence shall be given in proof of the
terms of such contract, grant or other disposition of
property, or of such matter, except the document itself,
or secondary evidence of its contents in cases in which
secondary evidence is admissible under the provisions
of this Act.”
Section 98 of the Evidence Act further provides:
“When the terms of any contract or grant or
other disposition of property, or any matter
required by law to be reduced to the form of a
document, have been proved according to
section 97, no evidence of any oral agreement or
statement shall be admitted as between the
parties to any such instrument or their
representatives in interest for the purpose of
contradicting, varying, adding to or subtracting
from its terms:
Provided that-
i. any fact may be proved which would invalidate any
document, or which would entitle any person to any decree or
order relating thereto; such as fraud, intimidation, illegality,
want of due execution, want of capacity in any contracting
party, want or failure of consideration, or mistake in fact or
law;
ii. the existence of any separate oral agreement as to any matter
on which a document is silent, and which is not inconsistent
with its terms, may be proved, and in considering whether or
not this paragraph of this proviso applies, the court shall have
regard to the degree of formality of the document;
iii. the existence of any separate oral agreement constituting a
condition precedent to the attaching of any obligation under
any such contract, grant or disposition of property may be
proved;
iv. the existence of any distinct subsequent oral agreement to
rescind or modify any such contract, grant or disposition of
property may be proved, except in cases in which such
contract, grant or disposition of property is by law required to
be in writing, or has been registered according to the law in
force for the time being as to the registration of such
documents;
v. any usage or custom by which incidents not expressly
mentioned in any contract are usually annexed to contracts of
that description may be proved, if the annexing of such
incident would not be repugnant to, or inconsistent with, the
express terms of the contract;
vi. any fact may be proved which shows in what manner the
language of a document is related to existing facts.”
 The Evidence Act further provides for the following
exceptions to the rule against the admission of extrinsic
evidence:
 Evidence to explain a latent ambiguity (section 101);
 Evidence to show that a document applies to one or more of
several subjects, things or persons (section 102);
 Evidence to show that a document applies to one of several sets
of facts (section 103);
 Evidence to explain the meaning of special words (section 104);
 In Bank of Australasia v Palmer [1897] A. C. 540, the bank had
agreed to offer an overdraft facility (for £2,000.00) to the
Respondent on certain written terms.
 The Respondent had sued the bank in the lower court for
dishonouring a cheque he had drawn during the currency of the
overdraft facility.
 The issue was whether the trial judge was in error in admitting
evidence of a conversation which had taken place between the
Respondent and a manager of the Appellant, and a document
which did not form part of the agreement but to which the bank
had appended the Plaintiff’s name after the agreement had
already been made.
 The Appellant appealed, contending that evidence of the
conversation was inadmissible in so far as it was offered in
contradiction of the written agreement between the Appellant
and the Respondent.
 Held (dismissing the appeal): Parol evidence cannot be
said to be improperly admitted as contradicting or
varying a written agreement when it relates to the
circumstances under which the plaintiff’s name as
appended to a document which was not part of the
agreement, but which was placed before him for
signature by the defendant after the agreement had been
concluded.
 NB: It was common ground between the parties that
parol evidence could not be adduced to add to, subtract
from, vary or modify the terms of a written contract (see
p. 545), and therefore the Court did not have to rule on
this aspect of the case.
 In Re Rees, Williams v Hopkins [1950] Ch 204, a
testator by his will appointed his friend and his
solicitor (thereinafter referred called his trustees) to
be executors and trustees thereof.
 He devised and bequeathed the whole of his property
“(subject to payment of my funeral and testamentary
expenses and debts) unto my trustees absolutely,
they well knowing my wishes concerning the
same…”
 An issue arose as to whether extrinsic evidence was
admissible to show that the testator had orally
expressed that he intended the trustees (i.e. the
friend and solicitor) to take the property beneficially.
 Held:
extrinsic evidence is not admissible to show that a gift
to a person in a will which is fiduciary on the face of it is
intended as a beneficial disposition in favour of that
person;
on true construction of the will, the gift was to the
trustees as trustees and evidence was not admissible to
show that the testator intended them to take the estate
absolutely and beneficially, subject to an obligation to
give effect to the testator’s wishers communicated to
them during his life. Accordingly, the estate subject to
the purposes indicated by the testator was undisposed
of by the will and passed as an intestacy.
 In Angell v Duke (1875) 32 LT 320 (discussed in
Cross & Tapper at p. 681), the defendant agreed in
writing to rent a house to the plaintiff together with
the furniture therein.
 The plaintiff tendered evidence that, before the
execution of the writing, the defendant had orally
agreed to send in additional furniture.
 Held: Evidence of the oral agreement was
inadmissible because, having once executed the
writing, without making the terms of that agreement
part of it, the plaintiff could not afterwards set up the
agreement since it contradicted the restriction of the
written document to the furniture already in the
house.
 In Lilley v Pettit [1946] 1 K. B. 401, the Respondent had
been married to a serving soldier soldier in 1939 and
had no child up to November 1941, when her husband
went abroad. The husband was made a prisoner of war
at Singapore.
 On 15th May 1944, the respondent registered the birth
of a child as having been born on 1st May 1944, stating
that her husband was the father.
 The Respondent was charged with having made a false
statement relating to a birth contrary to section 4 of the
Perjury Act, 1911.
 The prosecution case was that the husband had been
called up for service at the beginning of the war, and that
the child must have been conceived while he was
overseas.
 A civilian staff officer at the War Office was called as a
witness and said he was in charge of the regimental
records relating to the Respondent’s husband. He testified
that the records were official records kept by a government
department and preserved at the regimental record office,
and that they were not documents to which the public had
access.
The respondent objected that the records the
records were inadmissible in evidence.
The Recorder of Cambridge held that the
documents were inadmissible and vacated the
Respondent’s conviction (by the Court of Summary
Jurisdiction sitting at Cambridge).
Held (dismissing the appeal by special case stated):
1. it is a settled rule at common law that public
documents are admissible as prima facie evidence of
the facts stated in them. However, the mere fact that
a document is an official document does not
necessarily mean that it is also a public document
within the meaning of the rule;
2. a document to be receivable in evidence as a public
document at common law must be one prepared for
the purpose of the public making use of it and with
the object that all persons concerned in it may have
access thereto;
3. the regimental records of a serving soldier, which are
kept for the information of the Crown and the
executive, and not for that of the members of the
public, who have no right of access to them, are not
public documents within the common law rule;
• ©Muthomi Thiankolu

• Branton Court, Maisonette A6

• Ndemi Lane, Off Ngong Road
• P. O. Box 19893-00100 Nairobi Kenya
• Tel: +Tel: +254-20-2467-437
• Cell: +254-720-781-449
• Emails: [email protected]; [email protected]
• Introductory Remarks

• Character Evidence

– Civil Proceedings

– Criminal Proceedings

• Selected Illustrative Cases

• The character of parties, witnesses and, sometimes, third
parties is central to the law of evidence.
• The concept of character, for purposes of evidence law,
embraces both disposition (i.e. propensity to act in a
relevant way) and reputation (see section 58).
• Courts often have to decide, especially criminal cases, on
the relevance and admissibility of character evidence.
This will normally happen when (i) the character is directly
in issue (e.g. in a defamation case); or (ii) goes to credit.
• In Kenya, the rules as to admissibility of character evidence are
set out in sections 55-58 of the Evidence Act.
• Section 58 of the Evidence Act defines “character” in the
following terms:
– “In sections 55, 56 and 57 the word “character” includes
both reputation and disposition; but, except as provided in
section 57, evidence may be given only of general
reputation and general disposition, and not of particular acts
by which reputation or disposition were shown” (see also R
v Rowton, discussed elsewhere in this presentation).
• The rule as to admissibility of character evidence in civil
cases is set out in section 55 of the Evidence Act:
• “(1) In civil cases, the fact that the character of any person
concerned is such as to render probable or improbable
any conduct imputed to him is inadmissible except in so
far as such character appears from facts otherwise
admissible.
• (2) In civil cases, the fact that the character of any person
is such as to affect the amount of damages, is admissible.”
• The general rule in criminal cases is that evidence of
the accused’s bad character is inadmissible while
evidence of his good character is admissible. This rule
is to be found in sections 56 and 57 of the Evidence
Act:

– “56. In criminal proceedings, the fact that the person

accused is of a good character is admissible.”
• “57. (1) In criminal proceedings the fact that the accused
person committed or been convicted of or charged with
any offence other than that with which he is then charged,
or is of bad character, is inadmissible unless–
– (a) such evidence is otherwise admissible as evidence
of a fact in issue or is directly relevant to a fact in issue;
or
– (b) the proof that he has committed or been convicted of
such other offence is admissible under section 14 or
section 15 to show that he is guilty of the offence with
which he is then charged; or
• (c) he has personally or by his advocate asked
questions of a witness for the prosecution with a view
to establishing his own character, or has given
evidence of his own good character; or
• (d) the nature or conduct of the defence is such as to
involve imputations on the character of the
complainant or of a witness for the prosecution; or
• (e) he has given evidence against any other person
charged with the same offence.
• Provided that the court may, in its discretion, direct that
specific evidence on the ground of the exception referred
to in paragraph (c) shall not be led if, in the opinion of the
court, the prejudicial effect of such evidence upon the
person accused will so outweigh the damage done by
imputations on the character of the complainant or of any
witness for the prosecution as to prevent a fair trial.
• (2) Notwithstanding the provisions of subsection (1),
evidence of previous conviction for an offence may be
given in a criminal trial after conviction of the accused
person, for the purpose of affecting the sentence to be
awarded by the court.”
• The obvious reason for the general exclusion of bad
character evidence is the prejudice it would normally
cause on the party against whom such evidence is led.
• The rationale for a general exclusion of evidence of
good character in civil cases, however, is less obvious.
The dictum of Baron Martin in Attorney General v
Radloff (1854) 10 Exch 84 at 97 gives some insights
into the underlying rationale:
• “In criminal cases evidence of the good character of
the accused is most properly and with good reason
admissible in evidence, because there is a fair and just
presumption that a person of good character would
not commit a crime; but in civil cases such evidence is
with equal good reason not admitted, because no
presumption would fairly arise, in the very great
proportion of cases, from the good character of the
defendant, that he did not commit the breach of
contract or of civil duty alleged against him.”
 As stated, an accused person is allowed to adduce
evidence of his good character (section 56). This
may be done:
in-chief by the accused himself or other defence
witnesses; or
in cross-examination of witnesses called for the
prosecution.
 An accused person who gives evidence of his own
good character, either in chief or by cross-
examination of prosecution witnesses, opens himself
to the risk of the prosecution being allowed to give
evidence of his bad character (see section 57 (1) (b)).
• In R v Rowton (1865) Le & Ca 520 CCR (discussed in
Adrian Kean, at p. 386), the accused, who was charged
with indecent assault on a boy aged 14 years, called
several witnesses to his character.
• His witnesses gave him “an excellent character, as a moral
and well-conducted man.”
• On the part of the prosecution, it was proposed to
contradict this testimony and a witness was called for that
purpose.
• The prosecution witness was asked, “what is the
defendant's general character for decency and morality of
conduct?"
• The prosecution witness replied:
– "I know nothing of the neighbourhood's opinion,
because I was only a boy at school when I knew
him; but my own opinion, and the opinion of my
brothers who were also pupils of his, is that his
character is that of a man capable of the grossest
indecency and the most flagrant immorality.”
• The accused was convicted. He appealed, contending
that the prosecution witness’s evidence of his bad
character was inadmissible.
• Held:
– when evidence of good character has been given in favour
of a prisoner, evidence of his general bad character can be
called in reply (c.f. section 57 of the Evidence Act);
– character evidence means evidence of general reputation.
Accordingly, evidence of character must be restricted to a
man's general reputation, and must not extend to the
individual opinion of the witness. (c.f. section 58 of the
Evidence Act).
– The evidence given by the prosecution witness was
inadmissible, as it was confined to the witness’ personal
opinion as to the reputation of the accused instead of the
accused’s general reputation.
• In R v Turner [1944] 1 K. B. 463, the appellant was
charged with the rape of a woman.
• He had put up the defence of consent, and cross-
examined the complainant in a manner suggesting that
the she had not only consented to coitus but also
offered to perform some indecent acts (masturbation)
on him.
• The main issue in the appeal was whether the nature of
the defence involved imputations on the character the
adduction of evidence of his bad character (past
convictions).
• Held:
1. the defence of consent in a rape case does not involve an
imputation on the character of the complainant within
proviso (f) (ii) to section 1 of the Criminal Evidence Act,
1898, so as to put the character of the accused in issue;
2. the appellant did not lose the protection of proviso (f),
since the questions in cross-examination and his own
evidence were directed to the proof of the complainant’s
consent and did no more than state the details or the
particulars of the conduct of the complainant ,which, from
the appellant’s version of the facts, showed that the act
complained of was not against her will.
• In Maxwell v DPP [1935] A. C. 309, the accused was
charged with manslaughter of a woman by performing
upon her an illegal operation (with a view to procuring a
miscarriage).
• The accused gave evidence of his good character,
whereupon counsel for the prosecution cross-examined
him about previous manslaughter charges in the following
terms:
• Question: This is the second time that sudden death has
come to a woman patient of yours, is it not?
• Answer: Yes.
• Question: The first time was in 1927?
• Answer: Yes.
• Question: And were you tried for manslaughter?
• Answer: Something like that; I could not tell you exactly.
• Question: You were acquitted by the Jury?
• Answer: Yes.
• The accused was convicted and sentenced to 20 months
imprisonment and hard labour. He appealed.
• Held: The questions put to the accused were inadmissible
inasmuch as the fact that the prisoner had been acquitted on a
previous charger of manslaughter was not relevant to the issue
before the jury and did not tend to impair the credibility of the
prisoner has a witness. Consequently, the conviction must be
quashed. (NB: See also R v Cockar [1959] 2 Q. B. 207)
• In Murdoch v Taylor [1965] A. C. 574, the Appellant was tried
with one L., who was previously of good character. Each was
charged with receiving cameras knowing them to have been
stolen.
• The Appellant gave evidence saying that he did not know what
was in a certain box while it was in L.’s possession.
• In cross-examination by L.’s counsel, the Appellant said that
the transaction in question was entirely L.’s responsibility.
• The Appellant’s criminal record was then revealed to the jury
before their verdict pursuant to the provisions of section 1 (f)
(iii) of the Criminal Evidence Act, 1898—on the ground that he
had given evidence against L.
• Both the Appellant and L were convicted. On appeal by the
Appellant—
• Held:
1. the conviction would be upheld because the Appellant had
given evidence against L (a co-accused);
2. “evidence against” means evidence which supports the
prosecution’s case in a material respect or undermines the
defense of a co-accused, and it is not necessary that the
witness should have a hostile intent against his co-accused;
and
3. What is said in cross-examination is just as much a part of the
witness’s evidence as what is said in examination in chief.