Evidence Law in Kenya

8/10/2019 Evidence Law in Kenya

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DRAFT COPY Charles Mwaura Kamau

Evidence Law in KenyaBy

Charles Mwaura Kamau LLB (HONS) LLM


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All Rights Reserved.

Books by the same author:

1. Foundations of Kenya's Company Law with Cases and Materials. (Amazon)

2. Basic Principles of Criminal Litigation in Kenya (Amazon)

3. Wisdom of Ages: A survival guide to Wealth, Peace & Happiness (Amazon)

4. CHINA: Understanding the Country and its People ( E-book Available at Amazon)

5. Principles of Kenyan Constitutional Law, (forthcoming, LawAfrica Publishers)

6. Mastering English as a Second Language (Amazon)

7. The Art of Great Lawyers (Scribd)


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Law of Evidence

Evidence law may be divided into three major categories:

(1) rules governing the substantive content of evidence,

(2) rules governing witnesses, and

(3) substitutes for evidence.

The Rules of Evidence apply to both criminal and civil cases.

Rules of evidence determine the admissibility of evidence, its weight,as well as the issue of credibility of witnesses.

NOTE

The Judge may analyse and dissect the evidence, but he may not either distort it or add to it.

General Principles of Evidence

A trial is a proceeding in which finding the truth may require an understanding of institutional practices with which many have little or no

dealing1

In a criminal trial, the administration of justice according to law means justice for the People and for the accused, and the admission in evidence

of matters which either side wishes to produce must be decided by the same principles of law.

At a fundamental level, the rules of evidence have the function of identifying and defining the evidence a court may receive in order to arrive atthe truth of the matter or issue in dispute, whether in a civil or criminal case.

Meaning of Evidence

Evidence is the means of proving a fact. It becomes necessary to present evidence in a case when the pleadings filed present factual issues.

1Park A Subject Matter Approach to Hearsay Reform (1987) 86 Michigan Law Review 51, 60-61.


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Factual issues arise when a party specifically denies material allegations in the adverse party's pleading. In order for the judge to resolve such

contradicting allegations the parties have to present evidence favoring their allegations.

Thus, whether a certain thing exists or not, whether a certain act was done or not, whether a certain statement was uttered or not, are

questions of fact that require evidence for their resolution.

Questions of fact exist when the doubt or difference arises as to the truth or falsehood of alleged facts. When questions of fact are not in

dispute either because all the factual allegations have been admitted expressly or impliedly, there is no need of conducting a trial, since there is

no need of presenting evidence anymore. Therefore the trial process is concerned mainly with the issue of production of evidence.

On the other hand, a question of law exists when the doubt or difference arises as to what the law is on a certain set of facts.

Legal issues are resolved by simply applying the law or rules applicable, or interpreting the law applicable considering the facts of the case.

Generally, no evidence need be presented on what the applicable law is. Everyone, including the judge, is presumed to know the law.

The study of the law on evidence involves two main problems, that is:

determining whether a given piece of evidence is admissible; and

the proper presentation of that evidence so that the court will consider it in resolving the issues and deciding the case

Burden of Proof on Preliminary Issues

As a general rule, the party offering evidence has the burden of persuasion on preliminary issues once an objection has been raised.

Paul Roberts and Adrian Zuckerman2tease out the matter as follows:

In cases where the relevance of a particular piece of evidence may be doubtful or contested it is incumbent upon counsel to make imaginative

arguments to persuade the judge that the evidence should be admitted. Counsel must seek to elaborate probative connections with other

evidence in the case and to frame the disputed evidence in contextual webs of meaning and significance for the fact finder. Evidence rejected on

one 'theory of relevance' (or 'story' about the disputed facts), may yet be admissible when re-presented as part of an alternative theory or story

that the judge finds more persuasive.

2Criminal Evidence (2nd Edn, 2010).


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Relevancy and materiality

To be admissible, evidence must be both relevant and material. Material evidence directly proves a fact in issue. Thus, the testimony of an

eyewitness to the commission of a crime is material; the evidence of motive or flight of the accused may be relevant. Evidence that is material

or relevant must also be competent to be admissible.

Relevancy describes the relationship between an item of evidence and the proposition it is offered to prove. In contrast, materiality

describes the relationship between that proposition and the issues in the casei.e., the consequential or material facts.

Admissibility

No matter how cogent particular evidence may seem to be, unless it comes within a class which is admissible, it is excluded.3In order to be

admissible the evidence must be legally relevant and not be subject to an exclusionary rule.

Further, for evidence to be admissible on the basis of relevance the court must first be satisfied that;

- the evidence bears a logical relationship to an issue in the case and,

- that in light of the other evidence in the case, it justifies the time and cost of its reception.

In other words, the evidence must have a probative value related to the facts at issue. The requirement that the probative value of the evidence

must relate to an issue before the court is sometimes referred to as the requirement of materiality.

Authority

Section 5 of Evidence Act holds that no evidence shall be given in any suit or proceeding except evidence of the existence or nonexistence of a

fact in issue, and of any other fact declared by any provision of the Act to be relevant.

NOTE

3Lord Reid inMyers v DPP [1965] AC 1001, 1024.


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It is not easy in all cases to readily draw the line of legal relevance; for instance the logical relevance of the evidence must also be balanced

against competing considerations affecting the efficiency and integrity of the judicial system, but confining the evidence to what is pertinent to

the issue is of great importance, not only as regards the individual case but also with reference to the expediency of the trial and keeping the

focus of the trial on the issues to be considered.

In its assessment of relevance the South African Law Reform Commission stated that legal relevance requires that the probative value of the

evidence outweigh any prejudice that may accrue as a result of its admission.

Prejudice in this context does not refer to the possibility of a finding of fact being made against a particular party; it refers to unfair prejudice

which includes not only procedural prejudice but also prejudice that arises out of the possibility of the fact finder being misled or unduly swayed

by a particular item of evidence.4

Courts discretion

The judge has the responsibility for determining the admissibility of evidence. In determining relevancy, the judge must rely on law and logic as

informed by experience or science. The judge ought to consider whether the evidence which it is proposed to adduce is sufficiently substantial,

having regard to the purpose to which it is professedly directed, to make it desirable in the interest of justice that it should be admitted.

The general approach of the English courts to the use of discretion in excluding evidence in the interest of fairness to the accused has been set

out authoritatively in the following terms:

The principles ofthe laws of evidence are the same whether applied at civil or criminal trials, but they are not enforced with the same rigidity

against a person accused of a criminal offence as against a party to a civil action. There are exceptions to the law regulating the admissibility of

evidence which apply only to criminal trials, and which have acquired their force by the constant and invariable practice of judges when presiding

at criminal trials. They are rules of prudence ...5

In Harris v. D.P.P. (1952)1 All E.R 1044.(H.L.) (Viscount Simon). Held that, the paramount duty of a judge, when trying a charge of crime is to set

the essentials of justice above the technical rule if the strict application of the latter would operate unfairly against the accused

NOTE

4South African Law Reform Commission Discussion Paper 113 Review of the Law of Evidence (Hearsay and Relevance)(2009) at 17.

5D.P.P. v. Christie, [1914] A.C. 545, at 564, 10 Cr. App. R. 141, at 164 (H.L.) (Lord Reading C.l.).


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The concept of fairness ought to be central in relation to the power of a court to exclude evidence. The question, however, is what fairness

requires and how much weight it should carry in answering questions of admissibility.6

The courts have the power to exclude evidence of little probative value but of gravely prejudicial effect, since it is the duty of the courts to

safeguard an accused person against the risk of wrongful conviction in consequence of the admission of such evidence.

REMEMBER

In an ideal world, it would be possible for the court to decide upon the relevance, and therefore the admissibility, of any particular piece of

evidence before it is led. But that will not always be possible. It may be that the court will have to hear the evidence before deciding that it

should be admitted. In this sense anything purporting to be evidence is therefore in some sense admissible.

Relevancy

Relevancy is the most pervasive concept in evidence law. It is the threshold issue for all evidence. If the evidence is not relevant, it is excluded.

Evidence led should be relevant to the issues in the case.

Stephens defines relevance as follows:

[Relevance connotes that] any two facts to which it is applied are so related to each other that according to the common course of events one

either taken by itself or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the

other7

The first and most general of the primary Rules of Evidence is this, that the evidence given be confined to matters which are in dispute or under

investigation.

Relevant evidenceis evidence that make the existence of a material fact more probable or less probable than it would be without the

evidence.(Preponderance of evidence).

For evidence to be relevant, it is not a must that it should have a direct bearing upon the proof of a crucial fact. Evidence that may assist in

establishing some other fact or issue from which an inference may be drawn is deemed relevant. So, for example, where a witness gives

6See Colvin Conceptions of Fairness in the Criminal Process Available at http://www.isrcl.org/Papers/Colvin.pdf

7James Fitzjames Stephen, A Digest of the Law of Evidence(12th Edn, 1948), Art 1


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evidence, casting doubt upon the credibility of another witness this may be relevant, even though it has no direct bearing upon the facts of the

present charge.

Explanatory or introductory facts are also relevant. This consists of 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, orfix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was

transacted, are relevant in so far as they are necessary for that purpose.8

Authority

Section 5to section 16of the Evidence Act sets out the parameters of relevance within which evidence may be admissible. This includes:

Facts forming part of the same transaction

Facts causing or caused by other facts

Facts relating to motive, preparation and conduct

Statements and actions referring to common intention

Facts inconsistent with, or affecting probability of, other facts

Facts affecting quantum of damages- this means In suits in which damages are claimed, any fact which will enable the court to

determine the amount of damages which ought to be awarded is relevant.

Facts affecting existence of right or custom

Facts showing state of mind or feeling- this includes, Facts showing the existence of any state of mind, such as intention, knowledge,

good faith, negligence, rashness, ill-will or good-will towards any particular person, or showing the existence of any state of body or

bodily feeling

Facts showing system- this means that when there is a question whether an act was accidental or intentional, or done with a particularknowledge 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.

Facts showing course of business

NOTE

8Section 9 Evidence Act


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Evidence may meet the relevancy standard but nevertheless be inadmissible because it fails to satisfy the requirements of some other provision

of the Rules of Evidence or it is excluded by Civil and Criminal Rules of Procedure, or by a constitutional provision (see for example confessions).

Therefore, while not all relevant evidence is admissible, evidence which is not relevant cannot be admissible

There is a difference between relevancy (admissibility) and sufficiency. Although the evidence as a whole must be sufficient each item ofevidence need only advance the inquiry.

Relevancy or materiality of evidence is a matter of logic, since it is determined simply by ascertaining its logical connection to a fact in issue in

the case. It is therefore inadvisable for a judge to ask an objecting counsel why an offered piece of evidence is irrelevant or immaterial. By his

inquiry, he shows his unfamiliarity with the issues in the case.

Relevance and exclusionary rules of evidence

Relevance is a principle used to test admissibility in the law of evidence. Thus, the American writer Thayer stated:

There is a principle, not so much a rule of evidence as a proposition, involved in the very conception of a rational system of evidence which

forbids receiving anything irrelevant, not logically probative9

Relevant and reliable evidence must always be admissible irrespective of its origin, because the object of a trial is to ascertain the facts in issue

and the evidence tendered assists in the ascertainment of the facts.

Nevertheless, relevance is not an absolute concept and it must take account of general experience.

NOTE

The issue of relevance as it pertains to the question of admissibility is more complex than determining whether a particular piece of evidence

should be admitted into the trial provided it is relevant in a general sense.

Thus, a piece of evidence may be relevant but may not be admitted as evidence because it does not attain the minimum threshold of cogency

which the law of evidence requires.10

This is a question of law for a court (a judge or judges) and the decision is usually made both on

9ThayerA Preliminary Treatise on Evidence at Common Law(1898) 265 at 271.

10See Tapper Cross and Tapper on Evidence (9th ed Butterworths, 1999), at 56.


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The hearsay rule is a general rule, subject to many exceptions, that testimony given by a witness concerning words spoken, statements made or

documents generated by a person who is not produced in court as a witness is inadmissible if the testimony is presented to prove the truth of

the facts which they assert.

The two main reasons given for this generally exclusionary approach are: the out-of-court statements cannot be tested by cross-examinationand they are not made under oath. In other words a witness must be available in court to be subjected to cross-examination.

12

NOTE

The principles underlying the exclusionary nature of the hearsay rule (notably, the inability to test such out-of-court statements by cross-

examination) apply equally to both civil and criminal proceedings

There are, however, a number of inclusionary exceptions to the hearsay rule, so that in some instances evidence may be admitted even where it

is not subjected to cross-examination.

An example of the application of the hearsay rule would be where a person wishes to testify in a criminal trial about a statement he overheard

being made by an untraceable person to the effect that the untraceable person said that she saw the accused fleeing the scene of the crime. If

this testimony is being presented to prove that the statement by the untraceable person is true, the hearsay rule states that this is inadmissible

as evidence.13

In addition to this example of the application of the rule to testimony about verbal out-of-court statements, the hearsay rule also applies to

written out-of-court statements, such as letters or other types of documentary records where the originator of the document is not available to

testify in court as to its authenticity.14

Scope of the Hearsay Rule

It is not always easy to draw a distinction between statements that fall within the ambit of the rule and those that fall outside it.

Oral Hearsay

12See Morgan Hearsay Dangers and the Application of the Hearsay Concept

(1948) 62 Harvard Law Review. 177,13

See the discussion of the English case R v Gibson (1887) 18 QBD 53714

See for example Myers v DPP [1965] AC 1001


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Spoken words as well as written statements may constitute hearsay depending on the purpose for which they are adduced in evidence.15

Written and Documentary Hearsay

It is well-established that the hearsay rule applies not merely to oral statements but also to written and documentary statements. This clearly

covers an exceptionally wide range of important documents, including letters, medical records, business records and public records such as birth

and death certificates.16

Statements by conduct

The exclusionary hearsay rule is also applicable to signs, gestures, drawings, charts and photographs. Each of these statements is identifiable

as being hearsay in nature. However, there is much less certainty as to whether the hearsay rule applies or should apply to statements or non-

verbal conduct which are not intended by their maker to assert that they are tendered to prove.17

Assertions

An implied assertion is a statement by conduct that is not tendered to prove the truth of its contents but is taken to allow an inference to be

drawn from it. Where a statement by conduct is intended to assert the truth of a fact, it is clear that this is, in general, inadmissible under the

hearsay rule. However, a more difficult issue is whether, and to what extent, the hearsay rule applies to statements by conduct where they are

not tendered to prove the truth of the contents but are tendered for the purpose of allowing the judge or jury to draw an inference from the

contents of the statement.18

Exceptions

The exceptions to the hearsay rule have the effect that certain out-of-court statements are deemed admissible.

The numerous exceptions to the hearsay rule are unsatisfactory in several respects. In many instances it is difficult to see why they apply to the

extent that they do. Therefore it is worth noting from the onset that, there is no overarching principle or justification to determine why the

15See R v Gibson(1887) 18 QBD 537.

16See Myers v DPP[1965] AC 1001.

17See Wright v. Doe d. Tatham (1838) 7 Eng. Rep. 559.

18See Wright v Doe d. Tatham (1838) 7 Eng. Rep. 559.Also seeR v Kearley.[1992] 2 AC 228. See also criticism of Kearly case by Roberts and Zuckerman

Criminal Evidence (Oxford, OUP, 2004) at 590.


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exceptions have been created. Indeed, it appears that many of the exceptions came into being as the need arose when the hearsay rule itself

proved inconvenient in a particular case.

Inclusionary Exceptions to the Hearsay Rule

This include admissions and confessions; spontaneous statements connected with the subject matter of the case (the res gestae rule); dying

declarations (admissible only in a murder and manslaughter case); certain statements of persons since deceased (including statements by

testators concerning the contents of their wills); public documents; and certain statements made in previous proceedings.

Admissions and confessions

One the most important, and oldest, exceptions to the hearsay rule concerns admissions and confessions. In a strict sense, the words

admission and confession are slightly different in meaning.The evidence act defines an admission as a statement, oral or documentary,

which suggests any inference as to a fact in issue or relevant fact.

Confessions are defined as words or conduct, or a combination of words and conduct, from which, whether taken alone or in conjunction with

other facts proved, an inference may reasonably be drawn that the person making it has committed an offence.19

In a criminal trial an admission or confession is regarded with unease because it often arises during police interrogation. The law therefore has

developed many specific rules concerning the admissibility of admissions and confessions.

Assuming compliance with these admissibility rules, the rationale for allowing the admission of a self-incriminating statement, in terms of being

an inclusionary exception to the hearsay rule, is that it is fairly presumed that no man would make such a confession against himself if the facts

confessed were not true20

Authority

The rules relating to admissions can be found from section 17to section 25of the Evidence Act. The rules relating to confessions are found from

section 25 to section32 of the Evidence Act.

Spontaneous statements connected with the subject matter of the case (the res gestae rule)

19Section 25 of the Evidence Act.

20See Grose J in R v Lambe (1791) 2 Leach 552, at 555


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The phrase res gestae (literally, things done) refers to the inclusionary exception by which a party is allowed to admit evidence which consists

of, among other things, everything that is said and done in the course of an incident or transaction that is the subject of a civil or criminal trial.

The res gestae exception is based on the view that, because certain statements aremade spontaneously in the course of an event, they carry a

high degree ofcredibility.

Lord Normand in the UK Privy Council case Teper v R[1952] AC 480, at 486-487 had the following to say in regard to the issue:

The rule against the admission of hearsay evidence is fundamental... Nevertheless, the rule 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 truth. But the judicial applications of these two propositions, which do not always combine harmoniously, have never been

precisely formulated in a general principle. Their Lordships will not attempt to arrive at a general formula, nor is it necessary to review all of the

considerable number of cases cited in the argument. This, at least, may be said, that it is essential that the words sought to be proved by hearsay

should be, if not absolutely contemporaneous with the action or event, at least 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.

Despite its long-established position in the law of evidence, the res gestae inclusionary exception has attracted some criticism. In the English

caseHolmes v Newman [1931] 2 Ch 112 the phrase res gestae was criticised because it providesa respectable legal cloak for a variety of cases

to which no formulae of precision can be applied. Likewise, in R v Ratten [1972] AC 378it was said that the expression res gestaeis often used

to cover situations that have been insufficiently analysed.21

Dying Declarations

A dying declaration, made with the knowledge of the imminence of death, is another important inclusionary exception because it may be

admitted to prove the circumstances in which the death occurred. Traditionally, the dying declaration inclusionary exception has never been

applied to civil claims; and, in criminal proceedings, it only applies to charges of murder and manslaughter.

The rule has its origins In the English case R v Woodcock, (1789) 168 ER 352 wherethe defendant had been charged with murder. The victim had

been badly beaten and, two days prior to her death, which occurred from the beating, she told a magistrate that her husband, the defendant,

21See also Cowen and Carter Essays on the Law of Evidence (1956) 4.


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was the perpetrator. The trial court, faced with the difficulty that hearsay was available but the witness was not, surmounted this by developing

the dying declaration exception to the hearsay rule. The Court stated:

[T]he general principle on which this species of evidence is admitted is that they are declarations made in extremity, when the party is at the

point of death, and when every hope of this world is gone; when every motive to falsehood is silenced, and the mind is induced by the most

powerful considerations to speak the truth; a situation so solemn, and so awful, is considered by the law as creating an obligation equal to that

which is created by a positive oath administered in a Court of Justice.

As is evident from this passage in R v. Woodcock, the belief was that these statements were, by their very nature, trustworthy since persons

were beyond the hope of recovery and were in fear of eternal punishment if they lied. Thus the law of dying declarations is based on the view

that the imminence of death is a substitute for the oath.

(4) Certain statements of persons now deceased

The common law also relaxed the hearsay rule for certain prior statements of persons who had died by the time civil or criminal proceedings

came to trial. There is no general test for admitting the hearsay statements of persons now deceased. Instead exceptions developed on an ad

hoc basis and were confined to specific situations. These are:

Declarations by deceased persons against a pecuniary or proprietary interest,

Written declarations by the deceased in the course of duty,

Declarations by a deceased person relating to pedigree (in effect, blood relationships),

Declarations by a deceased person explaining the contents of his or her will.

(5) Public documents

This exception is clearly based on both reliability and convenience. One of the leading English cases on this is the UK House of Lords decision

Sturla v Freccia (1880) 5 App Cas 623in which the exception was described as applying to a document that is made by a public officer for the

purpose of the public making use of it and being able to refer to it.

The following passage from the judgment


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of Lord Blackburn has often been cited with approval:

I do not think that public there is to be taken in the sense of meaning the whole world... an entry probably in a corporation book concerning a

corporate matter, or something in which all the corporation is concerned, would be public within that sense. But it must be a public document,

and it must be made by a public officer. I understand a public document there to mean a document that is made for the purpose of the public

making use of it, and being able to refer to it.

Typical examples therefore include certificates of birth, marriages and death and ordnance survey maps. It is likely that the public official who

made the original entries in question may be dead, unavailable or unable to remember the facts recorded in a later court hearing, so it is clear

that the rule was developed primarily on the basis of convenience. Equally, such documents can be presumed reliable, but of course it remains

possible for parties to challenge the facts contained in them.

Testimony in Former Proceedings

A statement made by a person while giving evidence, whether orally or by affidavit, is admissible in subsequent proceedings, between the same

parties concerning the same (or substantially same) subject matter if the witness is unavailable to give evidence. This constitutes an exception to

the hearsay rule because the circumstances in which the statement was made address the concerns underlying the hearsay rulethe statement

was made under oath and the party against whom the statement was made had an opportunity to cross-examine the witness. The requirement

of unavailability is met if the witness is dead, is too ill to attend court, has been prevented from attending by the party against whom the

evidence is to be admitted, is outside of the jurisdiction or cannot be located following intensive enquires.

NOTE

The use of hearsay may in some instances fail to comply with the constitutional right to fair procedures.

Primary and secondary evidence

Primary Evidence

This is the authentic document or item that is offered as proof in a lawsuit, as contrasted with a copy of, or substitute for, the original. Primary

evidence, more commonly known as best evidence, is the best available substantiation of the existence of an object because it is the actual item.

It differs from secondary evidence, which is a copy of, or substitute for, the original. If primary evidence is available to a party, that person must


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offer it as evidence. When, however, primary evidence is unavailablefor example, through loss or destructionthrough no fault of the party,

he or she may present a reliable substitute for it, once its unavailability is sufficiently established.

Secondary evidence isevidence that has been reproduced from an original document or substituted for an original item. For example, a

photocopy of a document or photograph would be considered secondary evidence.

Courts prefer original, or primary, evidence. They try to avoid using secondary evidence wherever possible. This approach is called the best

evidence rule.

Witnesses

The existence of a lynx-eyed Judge who is capable at a glance of ascertaining whether a witness is telling the truth or not is more common in

works of fiction than in fact on the Bench.22

The Best Evidence Rule

Best evidence rule

This is a rule of evidence that demands that the original of any document, photograph, or recording be used as evidence at trial, rather than a

copy. A copy will be allowed into evidence only if the original is unavailable.

The rule comes into play only when (a) the content of the writing, recording or photograph is itself the thing a party is trying to prove, or (b) a

party is trying to prove a matter by using a writing, recording or photograph as evidence of it.

An example of (a) would be where the party is trying to testify to the terms of a written contract. The contract itself would be the best evidence,

and the original would need to be produced.

An example of (b) would be where the witness is testifying about the a claim based on an invoice that shows the items purchased, dates of

purchase and prices. The original invoice would itself establish the claim and would be the best evidence of the transaction.

The rule would not apply to the following situations:

22Per Atkin LJin Socit d'Avances Commerciales (Socite Anonyme Egyptienne) v Merchants Marine Insurance Co (The Palitana)(1924) 20 Ll L Rep 140, at 152
http://www.answers.com/topic/evidencehttp://www.answers.com/topic/evidence


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A witness may testify that a document exists without producing the original, but any testimony about the documents content w ill require

production of the original.

REMEMBER

A witness may testify on personal knowledge about a matter even if there is a writing, recording or photograph that documents the same thing,

and the writing, recording or photograph need not be produced in such an event; but you must produce the original if you are trying to prove its

content.

Just because a document is original does not mean that it admissible. The document or recording must still meet authentication and hearsay

objections, and a foundation must be laid for admission of the photograph.

Exceptions

-Where the original document is lost or destructed

-where, original not obtainable or

-where original is in possession of an opponent

The so-called "best evidence rule" says that the highest possible degree of proof must be produced. A central concern of the law of evidence is

to ensure that unreliable categories of evidence are not used to resolve disputes and that the evidence adduced must be the best evidence

available.

The insistence on the production of the best evidence is a way of preventing the danger of weaker proofs being substituted for stronger ones.

In other words, primary evidence should take preeminence over secondary evidence.

Secondary evidence in essence is all that evidence which is inferior in its origin to primary evidence (i.e., not the best evidence). That does not

mean secondary evidence is always in error, but there is a greater chance of error. A copy of an original record provides secondary evidence, as

does oral testimony of the record's contents.


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Classifying evidence as either primary or secondary does not tell us anything about its accuracy or its ultimate value. This is especially true of

secondary evidence. Thus it is always a good idea to ask the following questions:

1. How far removed from the original is it (when it is a copy)?

2. What was the reason for the creation of the source which contains this evidence?

3. Who was responsible for creating this secondary evidence and what interest did he have in its accuracy?

Documentary Evidence

There is no definite interpretation of what a document is in the Kenyan Evidence Act. However, under Section 3(1) of Interpretation and

General Provision Act (Cap 2) a document includes:

any publication and any matter written, expressed or described upon any substance by means of letters, figures or marks or by more than one

of three means which is intended to be used or may be used for the purpose of recording that matter. It may be any communication inpermanent form.

Under section 79(1) the following documents are public documents:

Documents forming the Act or records of the Acts

of the sovereign authority; or

of official bodies or of tribunals ; or

public officers, legislative, judicial or executive whether of Kenya or any other country ;

Public records kept in Kenya of private documents

If the documents doesnt fall within the list of documents found in sec 79 (1a) and(b)which lists public documents then it a private document.

Authority

Tootal Broadcast Lee Co. Ltd v Alimohamed Haji Ahmed and Sons Ltd (1957) 24 KLR (2) 31


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One of the questions considered was in fact, a public document so that the rules regarding admission of certified copies applied.

The court held:

The documents on which the plaintiffs rely on purport to be copies of the registration certificates issued in respect of each design by the

controller general of Patents and Designs under the authority of Law (Sec 18 Registered Designs Act 1949 which reproduces Sec 57of the

Patents and Designs Act 1947) It seems to me, therefore, that the certificates of registration being a document issued by authority of Law by a

public officer must necessarily be a public document.

The court then went on to discuss questions of admissibility .Subsection 79 (i) (b) states that public records of private documents kept in Kenya

are Public documents. The fact that a document is registered doesnt make the document itself a public document; only the record of

registration in a public office.

Sec 80-81 of Evidence Actdeals with the issue of public documents.

NOTE

The distinction between public and private documents is important because of the differences in the rules governing admissibility and the

procedures to be followed.

Proof

Proof typically comes in the form of witness testimonytestimonial proof.

Proof may also consist of documentary evidence (e.g., written contract) or real evidence (e.g., murder weapon). Photographs, models,

blackboards, and charts may be used to illustrate testimonydemonstrative evidence

Direct and circumstantial evidence

Evidence may be direct evidence of a crucial fact (W saw A stab V). Or it may be circumstantial evidence , tending to establish some fact which

is not in itself essential to the offence but from which an inference may be drawn as to the likelihood of the existence of a crucial fact (a bloody

knife is found in A's dustbin). There is no necessary correlation between the strength of evidence and whether or not it is analysed as direct or


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circumstantial: a mass of evidence showing the blood-stained accused running from the scene of the crime and speaking to his earlier threats of

violence against the victim may be more compelling than a single witness who speaks to having seen the stabbing from some distance away.

Direct and Circumstantial Evidence

There are two types of evidence which may be used to determine the facts of a case: direct evidence and circumstantial evidence.

Example:

Suppose a man comes inside the building you are in and says to you, I just saw that it is raining outside. This is direct evidence of the fact that

it was raining when the man was outside. Now suppose that the man comes in and is holding a wet umbrella, and has water droplets on his

clothes. This is circumstantial evidence that it was raining when the man was outside. It requires you to make an inference from the facts (the

wet umbrella and the water on his coat) that it was raining.

The law allows either type of proof in a criminal trial.

For every item of evidence, direct or circumstantial, it is important to distinguish between two different probabilities:

(1) the probability that the defendant is guilty if the evidence is true- this probability measures theprobative value of an item of evidence. If

conditions allowed the eyewitness to accurately identify the defendant as the murderer, how probable does that make the defendants guilt?

(2) the probability that the evidence is true- this probability measures the reliability of an item of evidencewhether viewing conditions did, in

fact, allow the eyewitness to see the defendant commit the murder.

NOTE

The overall probative value of an item of evidence depends, at least in part, on its reliability: if the evidence is less than completely reliable, its

probative value is reduced.23

Direct evidence

This is where a witness testifies directly about the fact that is to be proved, based on what he claims to have seen or heard or felt with his own

senses, and the only question is whether the court believes the witness.

23Kevin Jon Heller, the cognitive psychology of circumstantial evidence,Michigan Law Review [Vol. 105:241


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The category of direct evidence thus includes eyewitness identifications and confessions.

Circumstantial evidence:

This is where the court is presented with evidence of other facts and then asked to draw reasonable conclusions from the information and facts

provided. For example, a witness might say that she sawXrun from the market carrying something in his hand with blood in his yellow shirt.

Another witness claims that the person who had stubbed the victim had a yellow shirt, even though the witness is not able to positively identify

the attacker. If the witnesses are to be believed, one might conclude that it was the accused who had stubbed the victim, even though the

evidence no one actually saw him stub the victim.

This evidence includes all forensic evidence, such as blood or fingerprints, as well as non-forensic evidence that does not by itself prove the

defendants guilt. The category of circumstantial evidence also includes all other evidence, testimonial or non-testimonial, that relies on

inference to prove the defendants guilt: real evidence, like the gun used in the crime or a shirt stained with the victims blood; partial

eyewitness identifications testimony about motive; and so on.

Classical Jewish law was profoundly skeptical of circumstantial evidence. For example in the Babylonian TalmudSanhedrin 23524

thefollowing

passage appears:

He[, the Judge,] says to them: Perhaps ye saw him running after his fellow into a ruin, ye pursued him, and found him sword in hand with blood

dripping from it, whilst the murdered man was writhing [in agony]: If this is what ye saw, ye saw nothing.

Such evidence was per se inadmissible in a criminal case; to convict, direct evidence of the defendants guiltspecifically, the testimony of two

witnesses who saw the defendant commit the crimewas required. The rationale for the rule, according to Talmudic scholars, was the need to

protect the innocent from unjust conviction: because of its probabilistic nature, not even the strongest circumstantial evidence could completely

prove the defendants guilt.25 Maimonides explained as follows:

Do not let this puzzle you, or think the law unjust. For among events which are within the bounds of possibility, some are very probable and

others highly improbable, and still others are in between the two . . . . If we do not give judgment even on the basis of a very strong presumption,

24(I. Epstein ed., Jacob Shachter trans., Soncino Press 1935)

25See Irene Merker Rosenberg & Yale L. Rosenberg, Perhaps What Ye Say is Based Only on ConjectureCircumstantial Evidence, Then and Now, 31 Hous. L.

Rev. 1371, 1378 (1995).


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the worst that can happen is that the sinner will be acquitted; but if we punish on the strength of presumptions and suppositions, it may be that

one day we shall put to death an innocent person; and it is better and more satisfactory to acquit a thousand guilty persons than to put a single

innocent man to death . . . .26

Modern Anglo-American law draws no distinction between circumstantial evidence and direct evidence in terms of weight or importance. Either

type of evidence may be enough to establish guilt beyond a reasonable doubt, depending on the facts of the case.

Wigmore for example says that it is out of the question to make a general assertion ascribing greater weight to one class or to the other.27

There are two things to keep in mind about circumstantial evidence:

The first one is that inferences and conclusions may be drawn only from facts that have been proved.

The second rule is that any inferences or conclusions which are drawn must be reasonable and natural, based on common sense and experienceof life. In a chain of circumstantial evidence, it is not required that every one of the inferences and conclusions be inevitable, but it is required

that each of them be reasonable, that they all be consistent with one another, and that together they establish the defendants guilt beyond a

reasonable doubt. In other words, the evidence must not only be consistent with the defendants guilt, it must be inconsistent with his

innocence.

Corroborative evidence

In Kenya he evidence Act does not define corroboration. However, Corroboration is evidence tending to confirm some fact of which other

evidence is given.

Obviously the more corroboration is present, the easier it is to prove a fact. In Director of

Public Prosecution v Kilbourne [1973] A.C. 729 Lord Simon stated:

262 The Commandments 270 (Charles B. Chavel trans., Soncino Press 1967).

271 John Henry Wigmore, Evidence 26, at 401 (3d ed. 1940). See also Holland v. United States348 U.S. 121, 140 (1954).


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Corroboration is therefore nothing other than evidence which confirms or supports or strengthens other evidence... It is, in short, evidence

which renders other evidence more probable.

A typical example would be a case of witness testimony evidence. One witness testifies she saw the accused leaving the crime scene, but her

testimony, by itself, may not be all that strong as evidence. However, when a second witness testifies independently, saying that he also saw the

accused leaving the crime scene, this new evidence corroborates the testimony of the first witness, making it stronger as evidence.

Corroborative evidence does not always have to be testimonial. It can sometimes be circumstantial.

Therefore, evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with

the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence

that the crime has been committed, but also that the accused committed it.

Corroboration as a matter of law

Offence of procuration; (S.47 48 Penal Code) for prostitution and other immoral purposes; Prostitution is not an offence but procuration and

leaving off benefits of prostitutions. Since the offences of procuration are easily alleged and difficult to refute, a person shall not be convicted of

such an offence upon the evidence of one witness only. That evidence has to be corroborated in some material particular which implicates the

accused Section 147 of the Penal Code. Under S. 148 which provides for procuration of defilement by threat or fraud or administering drugs,

a person shall not be convicted upon the witness of one person only.

Speeding: Section 43(3) of Traffic Actprovides that a person charged under the section shall not be liable to be convicted solely on the evidence

of one witness to the effect that in the opinion of the one witness, the person charged was driving the vehicle as such great speed. It is required

that the evidence should relate to the speed of the vehicle at the same place and time

Perjury: Under Section 111 of Penal Codea person cannot be convicted of committing perjury or subornation of perjury solely upon theevidence of one witness. It is not just in judicial proceedings but also where person makes false statements on oath. The corroboration need

only relate to the falsity of the statement in question.

Treason: under sectin 42 (2) No person charged with treason or any such felony may be convicted except on his own plea of guilty or on the

evidence in open court of two witnesses at least to one to one overt act of the kind of treason or felony charged or alleged or the evidence to

one witness to one overt act or one other witness to one overt act of treason or the same kind of felony.

Children: under Section 124 of the Evidence Act as amended byAct No 3 of 2006 evidence given by a child must be corroborated.


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Corroboration as a matter of Practice

Accomplices

In Davies v. D.P.P.the House of Lords made it clear that:

In a criminal trial where a person who is an accomplice gives evidence on behalf of the prosecution, it is the duty of the judge to warn (himself)

that, although they may convict upon his evidence, it is dangerous to do so unless it is corroborated.

In considering whether a case has been made out the judge ought to take into account all the circumstances of the particular case-including, but

not limited to, the strength of the other evidence against the accused.

This rule, although a rule of practice, now has the force of a rule of law.

The passage which has been quoted above refers specifically to an accomplice giving evidence on behalf of the prosecution but one of two co-

accused may incriminate the other when giving evidence on his own behalf.

An accomplice warning should be given in both cases, when a co-accuseds evidence incriminates the accused.

The test of incrimination is whether the co-accuseds evidence, or any part of it, undermines the defencebeing advanced, or tends to establish

or support the prosecution's case.

Authority:

InWilson Kinyua & Another V. R (1980) KLR in the casethe Appellant and another person were charged with murder. Kinyua deniedinvolvement but the second appellant confessed to his guilt and stated that Wilson Kinyua was also involved. At the trial, the second Appellant

objected to the admission of the confession after a trial within a trial the 2nd

Appellant confession was admitted even though the maker had

disowned it earlier. Kinyua was convicted on the basis of the confession even though the trial court did not get corroboration for the

confession. On Appeal, the court held that the 2nd

Appellant confession was accomplice evidence which needed corroboration. The court went

on to say that repudiated confessions should not form the basis of conviction without corroboration.


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In Davies v. Director of Public Prosecutions [1954] AC 378 Lord Simonds LC said that the rule applied only to witnesses for the prosecution and

that their Lordships were not concerned with the proper procedure as to warning and the like where one defendant gives evidence implicating

another.

In principle there is no reason for distinguishing between the two cases.

Rationale of the Accomplice Rule

These include:-

Even if a person is certain to be found guilty he may seek the avoidance or reduction of his punishment as a reward, not on the ground that his

role in the crime was a minor one (it may not be) but for enabling the crime to be brought home against the other criminals; and he may be

tempted to curry favour with the prosecution by painting their guilt more blackly than it deserves.

A person may wish to suggest his innocence or minor participation by transferring the blame to others;

If a person is informed against by an innocent witness he might (out of spite and revenge) accuse the informer of in fact taking part in the crime;

NOTE

A person is an accomplice if he is liable to prosecution in connection with the commission of the same offence as the principal offender.

Sexual offences

The rule is that in cases where the accused is charged with a sexual offence, the jury should be directed that it is not safe to convict upon the

uncorroborated testimony of the complainant but that if they are satisfied of the truth of such evidence, they may after paying attention to that

warning nevertheless convict. The corroboration requirement in sexual offences stems from the fact that the charge is easy to make and

difficult to refute.

Authority:

Margaret V. R(1976) KLR 267 it was held that though it is not a rule of law that a person charged with a sexual offence cannot be convicted on

the uncorroborated evidence of a complainant, it has long been the custom to look for and require corroboration before a conviction for such an

offence is recorded.


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NOTE

while evidence as to DNA is certainly real evidence , and may establish beyond any reasonable doubt that a particular person has been at a

particular place, or associated in some way with a particular person, it is still circumstantial, in the sense that it cannot by itself establish what he

did when he was there.

Evidence of bad character

similar fact evidence

In general terms evidence that the accused has, before or after the facts alleged in the instant charge, acted in a similar way to that charged

BEST EVIDENCE RULE

The Best Evidence Rule is applicable only to documents. When the subject of inquiry is the contents of a document, no evidence shall be

admissible other than the original writing itself. If a writing is offered not to prove its contents but to prove some other fact, e.g., that the writingexists, or that it is done on sheepskin, or the size of the paper it is written on, it is, for purposes of evidence, only object evidence. To determine

the admissibility of object evidence, the best evidence rule does not apply. Hence, the original writing need not be presented.

The existence or condition of that writing may be proved, at once, by any other evidence, like oral testimony.

The Parole Evidence Rule applies only to contractual documents.


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Judicial Notice

Not everything alleged in a party's pleading is required to be proved.

Certain matters may be so well known to the court that to compel a party to prove it would be a waste of time and effort.

Courts may take judicial notice of matters which are: (a) of public knowledge, (b) capable of unquestionable demonstration, or (c) ought to

be known to judges because of their official functions.

Oral evidence

One question often asked is whether a witness may be allowed to testify by narration. While the general rule is that material and relevant

facts are elicited from a witness by questions put to him, it still rests within the sound discretion of the trial judge to determine whether a

witness will be required to testify by question and answer, or will be permitted to testify in narrative form.

"There is no legal principle which prevents a witness from giving his testimony in narrative form if he is requested to do so by counsel. A

witness may be allowed to testify by narration if it would be the best way of getting at what he knew or could state concerning the matter at

issue. It would expedite the trial and would perhaps furnish the court a clearer understanding of the matters related as they occurred.

Moreover, narrative testimony may be allowed if material parts of his evidence cannot be easily obtained through piecemeal testimonies.

But if in giving such testimony, the witness states matters irrelevant or immaterial or incompetent, it is the right and duty of counsel

objecting to such testimony to interpose and arrest the narration by calling the attention of the court particularly to the objectionable

matter and, by a motion to strike it out, obtain a ruling of the court excluding such testimony from the case.

Opinion Evidence

The opinion rule remains one of the chief exclusionary rules of evidence today and provides that witness testimony in the form of opinion or

inference is inadmissible in both civil and criminal proceedings, and witnesses are confined to giving evidence of facts.

It is a long standing rule of our law of evidence that, with certain exceptions, a witness may not express an opinion as to a fact in issue...It is for

the tribunal of fact judge or jury as the case may be to draw inferences of fact, form opinions and come to conclusions.


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The opinion of an ordinary witness is thus seen as having no useful bearing on the case. The rationale is that the rule ensures that possible

hazards such as, prejudice, faulty reasoning and inadequate knowledge, which might be introduced if a witness were allowed to give opinion

evidence, are avoided.

Expert witness

A key element of the law of evidence as it applies in courts is that witnesses are generally allowed to give only relevant and factual evidence;

they are not permitted to express their opinion on their evidence. For example, if a person sawXhitting Y who consequently dies,she could give

evidence in court about what happened but would not be permitted to give an opinion about whether, for example, it was the blow that caused

death. That opinion can only be given by an expert pathologist.

Therefore, even though the ultimate issue, whether of criminal or civil liability, is a matter for a court to decide, not for any witness. In a criminal

trial the ultimate issue of innocence or guilt may turn on a complex technical issue such as DNA evidence, mobile phone tracing evidence, or theinterpretation of medical evidence.

Therefore, the admissibility of expert evidence is the principal exception to the rule prohibiting opinion evidence. Thus, an opinion may be given

by a witness who has expertise in a particular area that is relevant to the issue at hand. The purpose of this exception is that such evidence

provides the judges with the necessary specialist criteria for testing the accuracy of their conclusions, and enables them to form their own

independent judgment by applying these criteria to the facts proven in evidence.

In order to adduce expert evidence, the party will need to prove that the evidence is needed in the circumstances and that the person in

question is suitable to give expert evidence on the issue. The burden of proof of expertise rests on the party wishing to adduce the witness in

evidence. t is ultimately the decision of the court to allow evidence of experts. The two main requirements that a party must satisfy in order tobe permitted to adduce expert evidence in court are;

It must be shown that the expert evidence is necessary and relevant in the circumstances

It must be established that the witness is a qualified expert

Authority


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Buckley v Rice Thomas (1554) Plowden 124; 75 ER 182 Saunders J

If matters arise in our law which concern other sciences or faculties, we commonly apply for the aid of that science or faculty which it concerns.

Which is an honourable and commendable thing in our law, for thereby it appears that we do not despise all other sciences but our own, but we

approve of them and encourage them as things worthy of commendation.28

Folkes v Chadd(1782) 3 Douglas 157 is regarded as the seminal precedent that established the admissibility of expert testimony and confirmed

that expert witnesses could testify directly as a witness for either party.

Dangers of opinion evidence

In Modern law courts most opinion experts have become Guns for hire.Thus it is not uncommon to find experts tailoring their opinion to fit

with the interests of the highest bidder.

Severn, King and Company v Imperial Insurance Company 1820illustrates the types of problems that could arise with expert testimony, such as

conflicting opinion of experts.

In that case the plaintiffs sugar factory had been destroyed by fire and they took a civil case against the defendant insurance company to

recover their losses when the company refused to pay out compensation.

The defendants argued that they were entitled to refuse to pay out as their contract with the plaintiffs had been rendered void by the fact that

the plaintiffs had, without informing t he insurance company, introduced a new method of sugar purification three months prior to the fire, and

that this method was considerably more dangerous than the previous method used.

At trial, the case essentially consisted of conflicting evidence from a torrent of distinguished men of science on either side testifying as to the

dangers involved in the different methods of sugar refining, arguments backed up with contradictory definitions, observations and experimentsand conflicting evidence.

According to Dallas CJ:

28Holdsworth A History of English Law Vol. 10 (2nd ed Methuen & Co Ltd 1945) at 212.


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[the experts] left the court in a state of utter uncertainty; and the two days during which the results of their experiments had been brought into

comparison, were days not of triumph, but of humiliation to science.

Similar criticisms were made about the practice of shoppingfor partisan or biased experts by Jessell LJ in Thorn v Worthing Skating Rink Co:

A man may go, and does sometimes, to a half-a dozen experts. I have known it in cases of valuation within my own experience at the Bar. He

takes their honest opinions, he finds three in favour and three against him; he says to the three in his favour, will you be kind enough to give

evidence?

In short, in many cases the expert, instead of playing the independent and impartial role has become ...a very effective weapon in the parties'

arsenal of tactics.29

different categories of evidence that can be given by expert witnesses30

i)Expert evidence of opinion, based on facts that have been adduced before the court.

ii)Expert evidence to explain technical or complex subject areas or the meaning of technical terminology.

iii)Expert evidence of fact, on an issue that requires expertise to fully comprehend observe and describe.

iv)Expert evidence of fact, on an issue that does not require expertise in order to fully observe, comprehend and describe, but which is a

necessary preliminaryto the giving of evidence in the other four categories.

v)Admissible hearsay of a specialist nature.

NOTE

These categories however undoubtedly overlap and evidence sought to be given in a particular case may easily fit into a number of different

categories.

29Lord Woolf, Access to Justice, Interim Report (1995) and Lord Woolf, Access to Justice, Final Report (1996)

30Hodgkinson & James Expert Evidence: Law and Practice (2 nd ed Sweet & Maxwell 2007)


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If, on the proven facts, a judge or jury can form their own conclusions without help, then the opinion of an expert is unnecessary. In such a case,

if it is dressed up in scientific jargon it may make the judgment more difficult. The fact that an expert witness has impressive scientific

qualifications does not by that fact alone make his opinion any more helpful than that of the jurors themselves; but there is a danger that they

may think it does, common knowledge matters and matters of human nature and behaviour within the limits of normality are not susceptible to

expert evidence.

In borderline cases the court may decide to allow expert evidence where it is unsure if it can make a sound or fully informed decision without it.

REMEMBER

In the law of evidence, the main exception to the rule against allowing a witness to given opinion evidence is that an opinion can be given by an

expert in an area of expertise outside the scope of knowledge of the court, in particular the finder of fact.

In reaching a conclusion, the expert is permitted to rely on prior studies, statistics and research, academic literature and works of reference in

their field of expertise. This has been termed non-specific hearsay.

Evidence of Bad Character

Similar fact evidence

This is Evidence to show that a party, especially the accused, has on previous occasions misconducted himself in a way similar to the misconduct

being alleged against him in the proceedings before the court. The evidence frequently takes the form of a previous conviction. In general, the

prosecution may not offer similar-fact evidence as part of its case unless it can be shown to be relevant to an issue before the jury, for example

by rebutting some defence advanced by the accused.

The similar facts rule imposes ethical constraints on deliberation at a trial. In criminal cases, it protects the integrity of a guilty verdict by

forbidding the fact-finder from reasoning that the accused is guilty because his past shows that he is the sort of person who cannot help

committing the kind of crime in question.

It can be used only indirectly, as evidence of his motivational disposition, to support an explanation of his action that is already suggested by

other sufficiently strong evidence.


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Illegally obtained evidence

This is evidence which is obtained by means or acts which are illegal or against the law. For example, evidence obtained in violation of the

constitution and in breach of other statutes.

A common way in which evidence is obtained illegally is through illegal searches and illegal seizures e.g. breaking into somebodys house and

obtaining evidence, through deception, threats, bribes inducement or trickery.

The principles governing the admissibility of illegally-obtained evidence are based on conflicting policy objectives:

The first objective was underlined in the classic judgment of Holmes J., a dissent from the majority view of the United States Supreme Court,

which held that the use in evidence of private telephone conversations obtained by wiretapping did not infringe the fourth and f ifth

amendments to the American Constitution:

We must consider the two objects of desire both of which we cannot have and make up our minds which to choose. It is desirab le that criminals

should be detected and to that end that all available evidence should be used. It also is desirable that the Government should not itself foster and

pay for other crimes, when they are the means by which the evidence is to be obtained ....We have to choose, and for my part I think it a less evil

that some criminal should escape than that the government should play an ignoble part.32

In other words the citizen is entitled to be protected from illegal or irregular invasions of his liberties by the authorities.

The rationale for the second objective has been expounded in equally emphatic terms by Cardozo J on behalf of the New York Court of Appeals:

The pettiest peace officer would have it in his power through over-zeal or indiscretion to confer immunity upon an offender for crime the mostflagitious. A room is searched against the law and the body of a murdered man is found. If the place of discovery may not be proved the other

circumstances may be insufficient to connect the defendant with the crime. The privacy of the home has been infringed and the murderer goes

free.

In other words, the interest of the State to secure that evidence bearing upon the commission of a crime and necessary to enable justice to be

done shall not be withheld from Courts of law on a merely formal or technical ground.

32Lawrie v. Muir. [19501 S.L.T. 37. at 39-40 (Ct. Just. 19491


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The above statements elucidate the two approaches to illegally obtained evidence

1. Mandatory Exclusion

2. Mandatory inclusion

Mandatory Inclusions (UK Position)

Authority

In R V. LeathamJustice Compton was of the opinion that:

it matters not how you get it, if you steal it even, it would be admissible in evidence

This case was quoted with approval inKuruma v. The Queen, [1955] A.C. 197. at 203, [1955] 1 All E.R. 26 where The Privy Council(Lord

Goddard), in its opinion given on an appeal from Kenya, asserted:

that the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible

and the court is not concerned with how the evidence was obtained.

Nonetheless, it is worth noting that the circumstances under which Kurumawas decided were questionable as it was during the emergency

period and thus the courts were more inclined to favour any approach that led to conviction of those they considered mau mauterrorists.

In R V. Sang [1979] 2 AER P 1222 The House of Lord held that

1. A Judge in a criminal trial always has discretion to refuse to admit evidence if its prejudicial effect outweighs its probative value;

2. Except in the case of admissions, confessions and evidence obtained from an accused after the commission of an offence, a Judge has no

discretion to refuse to admit relevant admissible evidence merely because it had been obtained by improper and unfair means.

3. The use by the police of an agent provocateur or an informer to obtain evidence was not a ground on which the discretion should be

exercised. Such a factor may however be considered in mitigating the sentence imposed on the accused.

4. The defence of entrapment had no place in English Law and could not be accepted by a Judge as a ground for exercising the discretion to

exclude the prosecutions evidence of the commission of the crime.


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Mandatory Exclusion (US position)

In the United States where the development of the law has taken place within the framework of fundamental rights enshrined in the

Constitution.

The fourth amendment to the American Constitution declares:

The right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated

and no Warrants shall issu but upon probable cause. Supported by Oath or affirmation and particularly describing the place to be searched and

the persons or things to be seized.

In Weeks v. United States. 232 U.S. 383 at 393 (1914) the Supreme Court held that:

If letters and private documents can thus be seized and held and used for evidence against a citizen accused of an offence the protection of the

Fourth Amendment is of no value and so far as those thus placed are concerned might as well be stricken from the Constitution

The idea being that such evidence is fruit of the poisonous tree.

The American Law Institute proposed a qualification to the automatic exclusionary rule which would permit its invocation without discretion

only if the violation was "gross, wilful, and prejudicial" to the accused.33

Alternative approach

The constitution (Kenya)

Article 50 (4) the constitution of Kenyaholds that,

Evidence obtained in a manner that violates any right or fundamental freedom in the Bill of Rights shall be excluded if the admission of that

evidence would render the trial unfair, or would otherwise be detrimental to the administration of justice.

This article suggests that Kenya has opted to take the alternative middle ground option

33see A MODEL CODE OF PRE-ARRAIGNMENT PROCEDURE, s. 160.7(2)(a) (1975).


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Examples of constitutional provisions that may be infringed

Requirement for a fair trial

In determining whether the proceedings as a whole were fair, regard must also be had to whether the rights of the defence have been

respected. It must be examined in particular whether the applicant was given the opportunity of challenging the authenticity of the evidenceand of opposing its use. In addition, the quality of the evidence must be taken into consideration, including whether the circumstances in which

it was obtained cast doubts on its reliability or accuracy.

Right to privacy

The constitution protects persons against being subjected to the search of their person or property without their consent. It also protects

against entry to peoples property by others without their consent. This can be extended to the use of covert listening devices.

Prohibition against torture and inhuman or degrading treatment or punishment

This enshrines one of the most fundamental values of democratic societies. Even in the most difficult circumstances, such as the fight against

terrorism and organised crime, the Constitution prohibits in absolute terms torture and inhuman or degrading treatment or punishment,

irrespective of the suspects conduct.

Right to silence and the privilege against self-incrimination

The right not to incriminate oneself, in particular, presupposes that the prosecution in a criminal case seek to prove their case against the

accused without resort to evidence obtained through methods of coercion or oppression in defiance of the will of the accused.

Public interest concerns cannot justify measures which extinguish the very essence of an applicants defence rights, including the privilege

against self-incrimination.

Judges discretion

Where evidence is procured by illegal action, it is a matter for the trial judge to decide, in his discretion, whether to admit it or not, subject, in

cases where the evidence is admitted, to review by an appellate court.


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In People v. O'Brien, [1965]I.R. 142 (S.C. 1964) the Irish court was of the opinion that:

The courts in exercising the judicial powers of government of the State must recognise the paramount position of constitutional rights and must

uphold the objection of an accused person to the admissibility at his trial of evidence obtained or procured by the State or its servants or agentsas a result of a deliberate and conscious violation of the constitutional rights of the accused person.

The subjective attitudeof the person responsible for the unlawful search may affect the result. It is probably relevant to consider

whether the motive of the officer conducting the search was proper or improper. Reprehensible neglect on the part of the person

making the search in regard to compliance with the procedure required by the law could conceivably tilt the balance in favour of

exclusion of evidence.

Naturally, a deliberate illegality is less easily excused than an accidental illegality. If the unlawful act is intentional, the further question

arises whether it is the result of an ad hoc decision or whether it represents a settled or predetermined policy.

The adequacy or paucity of the grounds on which the search was made is a pertinent factor.

It would ordinarily make a difference whether or not a defendant in criminal proceedings has been deliberately misled by the person

embarking on the search. For example, The Australian courts have taken the view that:

if the police not only make on an accused person a demand with which he is not bound to comply, but in addition give him to understand that

compliance is legally necessary, and he complies believing that he has to comply, then this court should discourage such conduct in the most

effective way, namely, by rejecting the evidence.35

The Privy Council, in its opinion delivered on an appeal from Kenya, mentioned, as a ground for excluding relevant evidence which had beenobtained by a trick.36

However, consider the sentiments of Lord MacDermott L.C.] who expressed the view that :

35Regina v. Ireland (No. I l. [1970] S.A.S.R. 416 (S.c.).

36Kuruma Y. The Queen, [1955] A.C. 197. at 203, [1955] 1 All E.R. 26, ut 239 (P .c.) (Kenya) (Lord Goddard).


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there is no ground for saying that any evidence obtained by any false representation or trick is to be regarded as oppressive and left out of

consideration. Detection by deception is a form of police procedure to be directed and used sparingly and with circumspection; but as a method it

is as old as the constable in plain clothes and, regrettable though the fact may be, the day has not yet come when it would be safe to say that law

and order could always be enforced and the public safety protected without occasional resort to it.37

Further, The English Court of Appeal has stated that evidence should not be excluded merely because a trick or misrepresentation has been

used to secure that evidence.38

NOTE

A distinction is sometimes drawn between evidence obtained unfairly and that obtained illegally. As a rationale underlying this distinction, it has

been suggested that illegally-procured evidence should be excluded more readily than unfairly-obtained evidence because illegal acts usually

affect both guilty and innocent adversely, while tricks do not.

Problems connected with the use of unfair means in obtaining evidence have frequently arisen in the setting of activities instigated by an agent

provocateur.

Evidence obtained through an agent provocateur, although not susceptible to exclusion either by virtue of a rule of law or as a matter of

discretion, should be evaluated with caution. As is the case with accomplice, the evidence of an agent provocateuris better when corroborated.

Confessions

A confession that is obtained as a consequence of the deception or inducement of the person confessing is not admissible even though it is

relevant.

In order to determine whether the applicants right not to incriminate himself has been violated, the Court may have regard to the following

factors:

the nature and degree of compulsion used to obtain the evidence

37Regina v. Murphy, [1965]N.1.L.R. 13S (H.C.).

38Sang, (1979)2 W .L.R. at451 (C.A.)(Rosklli L.L).


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the weight of the public interest in the investigation

punishment of the offence at issue

the existence of any relevant safeguards in the procedure; and

the use to which any material so obtained is put.

Nevertheless, it is a recognized principle of evidentiary law that if, in the course of [an inadmissible] confession, the party [confessing] state

where ... goods or a body may be found, and they are found accordingly, this is evidence, because the fact of finding proves the truth of the

allegation and his evidence in this respect is not vitiated by the hopes or threats which may have been held out to him.

The applicable rationale is that the reason of rejecting extorted confessions is the apprehension that the prisoner may have been thereby

induced to say what is false: but the fact discovered shows that so much of the confession as immediately relates to it is true

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. Similarly,testimonial trustworthiness of evidence procured during an illegal search is unaffected by the mode of its discovery.

Reliability of confessions

Reliability may be assessed by examining the internal and intrinsic quality of what was said: how does it look, how does it sound, how does it

compare with what was known about what actually happened.

Reliability may also be assessed by examining the nature of the speaker, eg whether they have a mental problem. The authoritative work by Gisli

Gudjonsson, The psychology of Interrogations, Confessions and Testimony40

gives a series of tests which could be very useful in measuring the

reliability of confessions.

Other issues

Modes of excluding inadmissible evidence

39Rex v. Butcher. 168 E.R. 235 n (Assizes 1798).

40Published by John Wiley and Sons, Chichester, West Sussex, 1992


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There are two ways of excluding inadmissible evidence. One is by objection and the other is by a motion to strike out.

Objections

An objection or motion to strike is used to exclude evidence an advocate believes is inadmissible.

Failure to make a timely and specific objection forfeits the right to raise the issue on appeal.

Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by the

magistrate/judge in her deliberations, and by a reviewing court determining the sufficiency of the evidence.

Specific objectionsin objecting the advocate must give a statement of the specific grounds upon which the objection is unless the grounds are

apparent from the context. For instance, objection, hearsay is a specific objection pointing out that the evidence is hearsay and thus

inapplicable. It is always advisable for the advocate to indicate which particular portion of evidence is objectionable.

An objection that is not sufficiently specific is called a general objection.

Irrelevancy, immateriality or incompetency, are the general grounds for objection. The first two are valid grounds for objection without need of

specification or explanation.

Objections to evidence may be formal or substantive.

Formal objections

These are based on the defective form of the question asked.

For Example: leading questions, misleading questions, double or multiple questions, vague; ambiguous; indefinite or uncertain questions,

Repetitious questions, or those already answered (unless it is cross-examination), Argumentative questions, which challenge a witness's

testimony by engaging him in an argument.

NOTE

Leading questions, which suggest to the witness the answer desired. To avoid asking leading questions begin one should begin questions with

begin with the proper interrogative pronouns, such as who, what, where, why, and how,


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Leading questions are allowed of a witness undercross-examination; and when the witness is unwilling or hostile, after it has been demonstrated

that the witness had shown unjustified reluctance to testify or has an adverse interest or had misled the party into calling him to the witness

stand.

Substantive objections

These are based on the inadmissibility of the offered evidence.

For example

irrelevant; immaterial, best evidence rule, parol evidence rule, disqualification of witness, privileged communication, res inter alios acta,

hearsay, opinion, evidence illegally obtained , private document not authenticated

NOTE

The ruling by the court on an objection must be given immediately after an objection is made, unless the court desires to take a reasonable time

to inform itself on the question presented; but the ruling shall always be made during the trial and at such time as will give the party against

whom it is made an opportunity to meet the situations presented by the ruling.

Thus, an objection to a question asked of a witness must be at once resolved by the court by either sustaining or overruling the objection. Unless

the objection is resolved, the examination of the witness could not be expected to continue since in all likelihood the next question would

depend on how the objection is resolved.

If the issue raised by the objection is a particularly difficult one, it would be proper for the judge to perhaps declare a brief recess to enable him

to quickly study the matter. The reason for sustaining or overruling an objection need not be stated.

Motion to Strike

In some instances, a witness may answer before counsel can object, or a questions tendency to elicit an objectionable response will not become

apparent until the response is given. Even though the Court has heard the answer, it is nevertheless important to ask the judge to strike the

response because such a ruling precludes opposing counsel from referring to the stricken material in closing argument, or the judge from basing

his ruling on such evidence.

Cross examination


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Cross-examination has been described as the most effective method for testing a witnesss evidence.41On his part Wigmore wrote:

Cross-examination is greatest legal engine ever invented for the discovery of truth42

By revealing inconsistencies and highlighting errors cross-examination, could assist in identifying dishonest witnesses. Nonetheless, one should

note that the witness may be an honest one and is making inaccurate statements in response to suggestive leading questions, the stress of thecourtroom scenario or many other reasons.

Reliance on the oath

One of the reasons advanced as to

Evidence Law in Kenya

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