MT. KENYA UNIVERSITY FACULTY OF LAW
THE LAW OF EVIDENCE I - READING LIST AND COURSE OUTLINE BOOKS AND STATUTES
All students are advised to have and continuously consult the following:-(1) The Kenya Evidence Act (Cap. 80).
(2) Cross and Tapper on Evidence by Colin Tapper (3) Evidence for Magistrates Vols. 1 & 2 by P. Durand. The following are recommended for additional reading: (1) Wigmore on Evidence vols. 1-X.
(2) Evidence in East Africa by H.F. Morris. (3) Sarkar on Evidence
(4) A preliminary Treaties on Evidence at the Common Law by J.B. Thayer.
The law journals should also be consulted for various learned articles pertaining to the law of evidence.
WEEK ONE
1. INTRODUCTION
Cross and Tapper on Evidence Pages 1 to 60 Evidence Act Cap 80 Section 1 to 4
-The place of evidence in legal philosophy; -Law of evidence and legal reasoning.
2. HISTORICAL
-Early modes of trial in England and the resultant evolution of law of evidence. -Importation of English Law of evidence in colonial India.
-From India to East Africa
-The Kenya Evidence Act, 1963; Its conclusiveness. WEEK TWO
3. PRELIMINARY DEFINITIONS AND PRINCIPAL ITEMS OF JUDICIAL EVIDENCE
a) -Facts
-Relevancy -Admissibility
-Proof, probating forms
-Evidence, insufficient evidence prima facie evidence, conclusive evidence, and presumptions.
b) -Testimony -Hearsay -Documents -Things
Facts ……….of other facts (circumstancial evidence). c) -Classification of evidence
d) –Facts which may be proved/ need not be proved by evidence. CASES
Republic vs Hardy (1794) 24 State JR 199 Republic vs Sims (1946) 1 ALL ER 697,701 Republic vs Yaccob (1981) 72 CR APP 311
Joy vs Phillips Mills and Company Limited (1916) 1 KB 849 C.M.C Aviation Limited vs Cruisair Ltd. (No. 1)
1978 K.L.R. 103.
Salam Dean v R. 1966 ENA. 272
Amber May v. R. Cr. App. No. 24 of 1979 (unreported C.A.) Peter Kuibita Paul v. R. Cr. App. No. 71 of 1978
(Unreported C.A)
Bartlett vs Smith 12 LJ Ex 287 R vs Reynolds (1950) KB 606
Metro Politan RY vs Jackson (1877) 3 App . cas 193 Payne vs Harrison (1961) 2 Q.B 403 and 2 ALL ER 873 Cozens vs Brutus (1973) 2 ALL ER 1297
Herniman vs Smith (1928) AC 305. WEEK THREE
4. RELEVANCE AND ADMISSIBILITY
Cross and Tapper on Evidence Pages 69 to 79 Evidence for Magistrates Durand Pages 1 to 23 Evidence Act Cap 80 Section 3 to 16
Wigwore on Evidence vol 1 ss 9 and 10 -Philosophy and Empiricism
-Meaning of relevance -Meaning of Admissibility
-Res Gestae forming part of the same transaction. CASES
DPP vs Kilbourne (1973) AC 729 Ellis (1926) 6B&C 145
Ratten vs R (1972) AC 378
R vs Premji Kurji (1940) 7 EACA 58 Rvs Mulji Jamnadas (1946) 13 EACA Stanley Musinga vs R (1951) 18 EACA 211 R vs Gokaldas Kanji (1949) EACA 116 R. v. Patel /1957/ E.A. 416 (K)
Mohammed Saed Akrabi vs R (1956) 23 EACA 512 Homes v. Newman 1931 Ch. 112.
R. v Christie 1914 A.C. 545
R. v. Bedingfield (1879) 14 Cox C.C. 341. Teper v. R. 1952 A.C. 480.
Agassiz v. London Tramway Co. Ltd., 1872 27 L.T. 492. R. v Johnson (1847) 2 Car & Kir 354.
R. v. Brabin & Another (1947) 14 EACA 80. R. v. Boyle & Merchant 1914 3K.B. 339. Lobo v R. (1926) 10 K.L.R. 55.
WEEK FOUR
5. SIMILAR FACTS EVIDENCE
-What is similar fact evidence? -Evolution of the concept -English and Other Jurisdictions -S. 15 and similar fact evidence.
-The Expansionist and the Contricti---Theories -Rationale of S. 15
CASES
Makin v. A.G. for N.S.W. /1984/ A.C. 57.
Mohamed Saeed Gkarabi v R. (1956) 23 EACA 512. The Quuen v Harold Whipp and Anor (1955) 28 KLR 243. John Makindi v. R. 1961 E.A. 327.
Yafesi Kayima v. R (1551) 18 EACA 288.
Brown v. Eastern & Midland Rail Co. (1989) 22 Q.B.D. 391 Noor Mohamed v R (1949 1 All E.R. 345.
R. v. Armstrong /1922/ 2 K.B. 55 R. v. Smith (1915) 11 Cr. App. Re. 220. Achieng v Republic (1972) E.A 37. R. v. Bond (1960) 2 K.B. 389.
R. v. Francis (1874) L.R. 2 C.C.R. 128. R. v. Bell /1911/ A.C. 47.
R. v. Sims/ 1946/ 1 K.B. 531 /1946/ 1 All E.R. 697. R. v Straffen/ 1952/ 2 Q.B. 911.
Thomson v. R. /1918) A.C. 221. R. v. Fitz Patrick / 1962/ 3 All E.R. 84 R. v. Ollis (1940) 24 Cox C.C. 554.
Harris v. D.P.P /1952/ A.C. 694; /1952/ 1 All E.R. 1044 Boardman v. D.P.P /1974/ 3 All ER
R. v. Mortimer 1936 25 Cr., App. R. 15 R. v. Mansfield 1978 1 ALL E.R. 137 (C.A) R. v Scarrot 1978 1 ALL E.R. 672 (C.A) R. v. Barrington 1981 1 ALL E.R. 1132. ARTICLES:
i) Gooderson, 1956 Cambridge L.J. ………… AND 1957 Cambridge L.J 55 ii) Elliot, Guide to similar facts, pts I & II 1983 Crim L.R. 284 352
WEEK 5 AND WEEK 6
6. BURDEN AND PROOF
Cross and Tapper on Evidence Pages 129 to 186 Evidence for Magistrates Durand Pages 24 o 59 Evidence Act Cap 80 Section 107 - 119
-What is burden of proof?
-Burden of Proof v. Burden of adducing evidence (i.e. legal burden v. evidential burden). ARTICLES
(i) Birch, ‘ the Hunting of the Shark’ 1988 Crim. L.R. 221 (ii) Denning (1945) LQR 380
CASES
Murimi v. R. /1967/ E.A.. 542 (CA). Bhat v. B /1957/ E.A. 332 (CA).
R. v. Raotes ‘Kenya’ Ltd. /1958/ E.A. 13 (K) Remat Ahmed v. R. /1959/ E.A. 804 (T)
Wabiro Alias Musa v. R. /1960/ E.A. 184 (CA).
Comr. of Customs v. S.K. Panachand / 1961/ E.A. 303 (CA). Besson v. Allibhoy (1906) 2 E.A.L.R. 8
Ryde v. Bushel /1967/ E.A. 517 (CA).
Amoar Mahiddin v. Sikuthani (1914) 2 U.L.R. 91. Fazi v. Mohamed 1968/ E.A. III (T).
Hakam Bibi v. Mistry Fatch Mohammed (1955) 28 K.L.R. 91. Kimani v. Gikanga (1965/ E.A. 735 (CA).
Uganda Native Trading Co. Ltd. V. Muwema (1958) 23 E.A.C. 62. Woolmington v. D.E.P / 1935/ A.C. 462.
Leonard Aniseth v R. /1963/ E.A. 206 (C.A). Saidi s/o Mwakawanga v. R. /1963/ E.A. 6(T).
CKale v. R. /1965 E.A. 555 (CA). Reed v. R. (1952) 1 T.L.R. (375.
R. v. Josephine Muthoni w/o Ithanga (1948) 23 K.L.R. (1) 71. Waera s/o Madova v. R. /1962/ E.A. 183 (K).
Cheminigwa v. R. (1956) 23 EACA 451. Malangu s/o Kieti v. R. /1959/ E.A. 797 (CA).
Nyameru s/o Kinyoboya v. R. (1953) 20 E.A.C.A. 192. R. v. Beard /1920/ A.C. 479.
Godiyana Baranga s/o Rugwire v. R. /1952/ E.A.C.A. 229. Nyakite s/o Oyugi v. R. /1959/ E.A. 4322.
R. v. Kamau s/o Njoroge (1939) 6 E.A.C.A. 133. R. v Kibiegor Arap Bargutwa (1939) E.A.C.A 135. R. v. Saiji K Kabila Kiunga / 1963/ E.A. I (T). Ottoman Bank v. Mawani /1965/ E.A. 464 (K)
Commissioner of Income Tax v. Bapoo 1958 E.A.. 223.
Vollabalas Shamsi et al v. Commissioner of Income Tax 1954 21 EACA 16.
Joseph Mbithi Maula & Anoth. V. R. Cr. Pp. No. 77 of 1979 (C.A. unreported CA.) Wangari Mathai v Andrew S. Mathai Civil Appeal No. 21 of 1979 (C.A. unreported). May v. O’Sullivan 1955 92 C.L.R. 654.
MATTERS ESTABLISHED OTHERWISE THAN BY EVIDENCE WEEK SEVEN
7. JUDICIAL NOTICE:
Cross and Tapper on Evidence Pages 81 to 91
Evidence for Magistrates Durand Pages 142 to 146 Evidence Act Cap 80 Section 59 -61
-What is Judicial Notice?
-What are the Underlying Principles? -Its place in the Law of Evidence. CASES
R. v Luffe (1807) 8 East 193
Re Oxford Poor Rate Case (1857) 8 E & B. 184 Burns v Edman /1970/ 2 Q.B. 541.
Mye v. Niblett /1918/ I.Q.B.23
Preston-Jones v. Preston Jones /1951/ A.C. 391.
Commr. of Customs v. S.K. Penachand /1961/ E.A. 303 (CA) Saleh Mohamed v. R. (1953) 20 EAC 141
Ryde v. Bushel /1967/ E.A. 817 (CA) Nazir v. R. /1962/ E.A 345 (CA) K.L.R. 91.
Brooke Bond (Kenya) Ltd. V. Chai Ltd. (1972) E.A. 10 Mohamed Taki v. R. 1961 E.A. 206
Gupta v. Continental Builders Ltd. 1978 K.L.R. 83.
WEEK EIGHT
8. PRESUMPTIONS
Sec 4,119 of Evidence Act Cap 80
-What are presumptions? Classifications of presumptions -of law + fact
-Continuance,Guilty knowledge,Intention,-Legality and
Accuracy,Legitimacy,Marriage,Place of presumptions in the judicial process and their impact on the law of evidence.
CASES
Re Taplin (1973) 13 ALL E.R. 105. A.G. v. Bradlaught /1885/14 Q.B.D. 667 Kanji & Kanji v. R. 1961 v E.A. 411. Morris v Kanaen /1946/ A.C. 459. Gordon v. Gordon /1903/ A.C. p.141. The Poulet Peerange Case /1903 / A.C. 395 Maturin v. A.G. /1938/ 2 ALL E.R. 214 Pazi v. Mohamed /1968/ E.A. III (T) Piers v. Piers (1849) 2 H.L. Cas. 331. Tweney v. Tweney /1946/ p. 180. Zus v. Uganda /1967/ E.A 420. Wanjiku v. Macharia (1968) E.A 216 Case v. Ruguru (1979) E.A. 55.
R vs Hepworth and Fearnley (1955) 2 QB 600 R vs Steane (1947) KB 997
Chard vs Chard ( 1956) 259
9. FORMAL ADMISSIONS
Cross and Tapper on Evidence Pages 91
-What are admissions and what are formal admissions? -Civil Cases
-Criminal Cases
RELEVANT FACTS WHICH MAY NOT BE PROVED WEEK NINE
10. ESTOPPEL
Cross and Tapper on Evidence Pages 92 to 110 Evidence for Magistrates Durand Pages 277 to 290 Evidence Act Cap 80 Section 120 to 123
- Principles of estoppel and rationale - Nature of estoppel – legal or evidential - Classification
CASES
Law v. Bouveries /1891/ 3 ch. 82.
Maritime Electric Co. Ltd. V. General Dairies Ltd. /1939/ A.C. 610.
Canada and Dominian Sugar Co. Ltd., v. Canadian National etc. 1947 A.C. 46. Greenwood v. Martin’s Bank /1933/ A.C. 51.
Jordan v. Money (1854) H.L.C 185
Central London Carty Trust v. High Trees House 1947 K.B. 130. Rajabali Hassan v. Hassanali Manji Haji 1961 E.A. 720.
Freeman v. Cooke (1848) 2 Exch. 654; 1843-60 ALL E.R. 185. Lowe v. Lambank /1960/ 1 W.L.R. 196.
Balwant Singh vs Kipkoech arap serem (1963) EA 651 Dukhiya vs Standard Bank of SA (1959) EA 958
Suyedu Binti Abdulla bin Mohammed vs Waki Commissioners Zanzibar (1949) 6 ZLR 227
Fatuma Binti Abdulrehman bin Mohammed El Ruwohia vs Abdulla bin Mohammed bins Salim El Ruweni (1949) 8 zlr 244
Conventry Sheppard & Cn. V. Cr. E. Ry (1885) 11 Q.B.D. 776. Combe v. Combe /1951/ 2 K.S. 215.
Nurdian Bandali v. Lombank (Tanganyika) Ltd. 1963 E.A. 307. Century Automobiles v. Hutchings Biemer /1965/ E.A. 304. Income Tax Co.. v. A.K. /1964/ E.A. 648 (K)
Chatrath v. Shah /1967/ E.A. 93 (C.A). Baker v. Dewey (1823) I B & C 704. Baker v. Dewey (1823) I B & C 704. Greer v. Kettle /1958/ A.C. 156 (HL). Carpenter v. Buller (1841) 6 M & W. 209. Jenabai Sachga v. Shamga 1953 E.A. 227 (Z). E.A. Power Co. v. Dandora Quarries 1967 E.A. 728. Projapat v. Ashok Cotton Co. 1964 E.A 309, 316 (U). Folkes & Co. v. Thakkrar /1959/ E.A. 36 (CA) Redseth V. Shaw /1967/ E.A. 833 (K).
Ravi Bin Mohamed v. Ahmed 1957 E.A. 782. Priestman v. Thomas (884) 9 A.D. 210.
Mills v. Cooper /1967/ 2 Q.B. 459. Bell v. Homes 1959 ALL E.R. 449.
Wood v. Luscombe /1964/ ALL E.R. 972. Brusden v. Hamphrey (1884) 14 Q.B.D 141.
Workington Harbour Board v. Trade Idemnity 1938ALL E.R. 101. Guest v. Warren (1854) 9 Ex. 379.
Raddolf v. Tuck /1962/ Q.G. 175.
Marginson v. Blackbirri B.C. 1939 2 K.G. 526, 1939 ALL E.R. 273. Thompson v. Thompson 1957 P 19; 1957 I ALL E.R. 161.
Hayward v. Hayword 1961 p. 152; 1961 I ALL E.R. 236. United Overseas Bank v Jiwani 1977 ALL E.R. 733. D.P.P. v. Humpreys /1977 A.C. 1
Chase International Investment Corporation and Another v. Laxman Keshra & Others 1978 K.L.R. 143.
Njuguna Wamuthi v. Simeon Koimburi Civil Appeal No. 31 of 1976 (C.A.. unreported).
Hollington v. Hewthorn & Co. 1943 K.B. 857. Robinson v. Oluoch 1971 E.A. 376.
Queens Cleaners Ltd. V. E.A.C & Another 1972 E.A. 229.
Meng Leeng Development Ltd. Vs. Jip Hon. Trading Co. Ltd 1985 I ALL E.R. 120. WEEK TEN (10)
11. PUBLIC MONEY , COMPETENCE, COMPELABILITY AND PRIVILEGE: Cross and Tapper on Evidence Pages 447 to 507
Evidence for Magistrates Durand Pages 92 to 120 Evidence Act Cap 80 Section 125-139
-Meaning and Rationale of privileges. -Question of public money.
-Classification of privilege – Public and Private. -Public Privilege – Court; Official Communication -Private – Husband and wife; professional.
CASES
Duncan v. Cammell, Laird & Co. Ltd. 1942 A.C. 624.
1942 ALL E.R. 587; III L.K.K.B. 406; 166 L T 366; 50 T.L.R. 242; 86 Sol. J. 287. Merricks v. Noth-Bower 1965 I Q.B. 57 (CA).
Re Grosvenor Hotel, London (No.2) 1965 Ch. 121 (CA). Conway v. Rimmer 1968 A.C. 910 (H.L.)
Raichura v. Sandai 1967 E.A. 624 (CA)
Rishen Chand Mohindra v. Mathra Dass (1941) 19 K.L.R. (2) 67. Kapnor Singh s/o Harman Singh v. R. (1951) 18 E.A.C.A 283. Njunja v. R. (1965) E.A. 773 (K).
Dhukale v. Universal TOT Co. et at. (1974) E.A. 395. Shah v. Rep. (1970) E.A 39
Omari s/o Hassan v. R. (1956) 23 E.A.C.A. 580. R. v. Amkeyo (1917) 7 E.A.L.R. 14.
R. v. Robin (1929) 12 K.L.R. 134.
R. v. Mwakio Asani s/o Mwanguku (1932) 14 K.L.R. 145. R. v. Toya s/o Mamure (1932) 14 K.L.R. 145.
R. v. Nyawa wa Nyawa (1933) 15 K.L.R. 99. Sankey v. Whiltlam (1978) 21 A.L.R. 505.
Robinson v. State of South Australia (No. 2) 1931 A.C. 704. Glasgow Corporation v. Central Land Board 1956 B.C. (H.C) 1 Nixon v. United States 418 U.S. 603, 41 L – ed. 2d. 1039.
Mudavadi v. Seme High Election Petition No. 12 of 1978 (Unreported). Purmah Cil Company Ltd. V. Bank of England 3 W.L.R. 722.
See Speeches of Lord Edmund Davies at p. 738 -746. Keith at p.746-751 and Scarman at p. 752-762.
British Steel Corporation v. Grandada Television Ltd. 19. 1 ALL E.R. 417.
R. v. King 1983 1 ALL E.R. 929.
Secretary of State for Defence & Another vs. Guardian Newspapers Ltd. 1984 3 ALL E.R 601
WEEK ELEVEN
12. PUBLIC POLICY AND ILLEGALLY OBTAINED EVIDENCE Cross and Tapper on Evidence Pages 539 to 561
-Meaning of illegally obtained evidence – legality strictor sensu, constitutionality and regularity.
-The common Law and American developments. -East Africa.
-Modern Law Review Vol. 28 1965.
-Dennis, ‘Re constructing the Law of Evidence’ (1989) Current Legal Problems 21.
CASES
Jeffrey v. Black 1978 1 ALL E.P 55. R. v. Sang 1979 2 ALL E.R. 1222. Mohan Cai Trivedi v. R. 1959 E.A. 355. NOTE
TWO WEEKS OF CATS (Oral and Written)
ONE WEEK FOR REVISON OF THE CAT (Last Week to Exams) JOINT CLASS
1 4 WEEKS OF STUDY ANDREW MUMA/2012
INTRODUCTION
What is evidence? Each writer on the subject approaches the answer to this question in a slightly different way. Generally speaking the term “evidence” has two different meanings; facts, and the means of proving those facts in a court of law. OSBORN, THE CONCISE LAW FICTIONARY (4th Edn.) gives the following
definition:-“All the legal means, exclusive of mere argument, which tend to prove or disprove any matter of fact, the truth of which is submitted to judicial investigation;...”
You, as the judicial tribunal, must be completely conversant with the law determining (1) what facts may be proved in court, and (2) how these facts may be proved, and you must first become aware of the different meanings of the term “evidence” as you will hear it used. For example, in the statement “From the evidence, I am convinced beyond reasonable doubt that ...”, the word, “evidence” means “facts proved in court”, and the sentence could be easily read, “From the facts proved in court, I am convinced beyond reason able doubt that ...”. Again, in s. (2.K.E.A.: “All facts, except the contents of documents, may be proved by oral evidence.” Here the words “oral evidence” refer to the means by which facts may be proved, i.e by spoken evidence, and not to the facts themselves.
It is also important to bear in mind that “evidence” is first tendered or offered to the court: that is to say the parties to the suit, through their witnesses, offer certain facts to the court
in support of their case. Moreover or not these tendered facts are accepted by the court, or admitted into evidence depends on what the facts are and the method by which they are tendered, and it is to this procedure that the law of evidence applies, although certain laws, particularly those relating to presumptions, also affect the question as to how these facts will be treated once they have been admitted.
The definition of “evidence” which is contained in the K.E.A. is found in s.3, the Interpretation section. This section is, in effect, your dictionary for the K.E.A., for whenever you need to know the definition of a word in the Act which is found in s.3 that is the meaning which you must give to the term, regardless of what you may have previously understood the term to mean, and whether or not it may be used in a different sense in ordinary conversation or even in another Act. The definition of “evidence”
reads:-“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 generally, includes statements by accused persons, admissions, and observations by the court in its judicial capacity;.
The word “evidence” is often found with an adjective which describes in legal terms the type of evidence. In as much as these terms appear frequently, not only in the K.E.A. but in the Reports, you must memorize and understand them completely. The following list is taken from OSBOTN, THE CONCISE LAW DICTIONARY:
1 Oral evidence : statements made by witnesses in court.
2 Documentary evidence: documents produced for inspection by the judge. (The question of what a document is discussed elsewhere).
3 Conclusive evidence: evidence of a fact whcih the court must take as full proof of it, and which excludes all evidence to disprove it.
4 Direct evidence: evidence of a fact actually in issue; evidence of a fact actually perceived by a witness with his own senses. (The definition of “direct evidence” inasmuch as it relates to oral evidence is found in s.63(2)K.E.A, and is discussed elsewhere).
5 Circumstantial evidence: evidence of a fact not actually in issue but legally relevant to a fact in issue.
6 Real evidence: evidence supplied by material objects produced for the inspection of the court. 7 Extrinsic evidence: oral evidence given in connection with written documents.
8 Hearsay evidence: evidence of a fact not actually perceived by a witness with his own senses, but proved by him to have been stated by another. (A mere complete definition is given in connection with s.33 K.E.A.).
9 Indirect evidence : circumstantial or hearsay evidence.
10 Original evidence: evidence which has an independent probative of its own. 11 Derivative evidence: evidence which derives its force from some other source. 12 Parol evidence: oral, extrinsic evidence
13 Prima facie evidence: evidence of a fact which the court must take as proof of such fact, unless disproved by further evidence.
14 Primary evidence: evidence which itself suggests that it is the best evidence, and which is rejected to be produced if available.
15 Secondary evidence: evidence which itself suggests the existence of better evidence, and which is rejected if primary evidence is avaiable.
(Note that in connection with documents and the proof of documents, primary and secondary evidence are defined in ss.65 and 66, K.E.A.)
Facts:
As a general statement we may say, with certain exceptions which we will consider later, that the court is concerned almost conclusively with the FACTS of the case and the means by which these facts say be proved. The court will then, of course, apply the relevant law to the admissible facts in order to reach a decision. “Fact” is defined in s.3 K.E.A. as follows: “fact”
includes:-a includes:-any thing, stincludes:-ate of things, or relincludes:-ation of things, cincludes:-apincludes:-able of being perceived by the senses; b any mental condition of which any person is conscious; “fact in issue” means any fact from
extent of any right, liability or disability, asserted or denied in any suit or preceeding, necessarily follows;
A “thing” under (a) above is a material object (a chair), or a fact (that man is 30 years old. A “state of things” is the state of affairs (hali ya mambo), and a “relation of things” is the relation facts bear to each other: the chair is in the room; he is my son, therefore I am his father. The senses are the special powers of the body by which a person is conscious of things, ie sight, hearing, smell, taste and feeling, “feeling” to include the definition of (b) above, the mental condition of which a person is conscious. Thus if a man through his senses “feels” or is conscious that another person is angry, happy, disturbed, etc, this is a fact. It is important to remember, however, that this type of fact arises from the physical manifestations of that feeling in the other person, that mental condition. If a person is angry, he shows his anger by frowning, clenching his fists, speaking certain words, acting in a certain way, etc, and if a witness states “he was angry”, he should be able to describe how the man acted, what he said; etc to support his feeling; to support the fact.
As we will see in the section on the burden of proof, a party to a suit or proceeding must prove the facts upon which he rests his case, i.e. he must prove the facts in issue. Each party will assert or allege that certain things are true, that certain facts exist, claiming that the existence of these facts means that the court should decide the case in his favour. In many cases the parties will assert an entirely different set of facts; the prosecution claims that the defendant assaulted Mr. X; the defendant alleges that he did not assault Mr. X. In some instances, particularly in civil cases, both parties will assert that even though only one agreed set of facts existed, the case should be decided in his favour e.g. in a contract case where there is an agreed set of facts and the parties assert that the law as applied should result in a particular decision. The question therefore arises as to when a fact is proved or disproved. The answer is found in s.3 K.E.A.
1 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.
2 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 probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist.
3 A fact is not proved when it is neither proved nor disproved.
The presumption of innocence.
The basic presumption underlying the criminal law of Kenya is the presumption of innocence, found in the Constitution of Kenya in Chapter II (Protection of Fundamental Rights and Freedoms of the Individual), Section 21(2)(a) as
follows:-21. (1) ...
(2) Every person who is charged with a criminal offence
-a sh-all be presumed to be innocent until he is proved or h-as ple-aded guilty; -and in connection therewith, subs.(7), which reads:-
(7) No person who is tried for a criminal offence shall be compelled to give evidence at the trial. These provisions are reflected in the K.E.A. and in the Criminal Procedure Code (hereinafter referred to as the C.P.C.)
Direct and circumstantial evidence
Evidence may generally be divided into direct evidence, and indirect, or circumstantial evidence. Direct evidence, in relation to oral evidence, is defined in s.63(2) K.E.A. as follows:(2) For the purposes of subsection (1) of this section, “direct evidence means
-a with reference to -a f-act which could be seen, the evidence of -a witness who s-ays he s-aw it; b with reference to a fact which could be heard, the evidence of a witness who says he heard it; c with reference to a fact which could be perceived by any other sense or in any other manner,
the evidence of a witness who says he perceived it by that sense or in that manner;
d with reference to an opinion or to the grounds on which that opinion is held, the evidence of a person who holds that opinion or, as the case may be, who holds it on those grounds.
Note that (a), (b) and (c) deal with facts, i.e. things, states of things or relations of things which are capable of being perceived by the senses, or mental conditions of which the witness was conscious, as set forth in s.3 (see p.iv), while subs (d) deals with the subject of the opinions of witnesses, based on facts which he has perceived. Opinions are admissible only under certain special conditions, which will be covered later.
Circumstantial evidence is defined in OSBORN, T E CONCISE LAW DICTIONARY.
A series of circumstances leading to the inference of conclusion of guilt. Evidence which although not directly establishing the existence of the facts required to be proved, is admissible as making the facts in issue probable by reason of its connection with or relation to them.
CROSS AND WILKINS, AN OUTLINE OF THE LAW OF EVIDENCE, p. 147 says:
An evidentiary fact is relevant to a fact in issue when, by itself, or together with other facts, it renders the existence of the fact in issue more or less probable.
SARKAR says on pp.
32-33:-All judicial evidence is either direct or circumstantial. By ‘direct evidence’ is meant when the principal fact is attested directly by witnesses, things or documents. (Note how this definition expands on the limited definition of direct evidence in s.63(2) relating solely to oral evidence; see p.v) To all other forms, the term ‘circumstantial evidence’ is applied, which may be defined that modification of indirect evidence, whether by witnesses, things or documents, which the law deems sufficiently proximate to a principal fact or facum ... to be receivable as evidentiary of it. Circumstantial evidence is evidence of circumstances as opposed to what is called direct evidence.
...Circumstantial evidence may be best under codified law of evidence applicable in Kenya. Unfortunately in many areas there is an unfortunate dearth of cases interpreting or applying the
various sections, whereas in other areas, notably the sections relating to confessions, there is an overbundance of cases. The question then arises as to the effect of reference to English or Indian decisions on the sections. See discussion, MORRIS, pp. 10-14. The sections themselves, where they constitute an extension of the English Law of evidence, have been strictly construed; see dicta, R. v. Lyangia bin Luwanya and Another, (1938), 5 E.A.C.A. 122, 123.
In considering the persuasive effect of English Decisions, the Court in R. v. Brabin and Another, (1947), 14 E.A.C.A. 80, 83
said:-“As regards the application of the Indian Evidence Act it has been argued rather tentatively that it was intended to be merely a codification of the English law of evidence and that, in interpreting it, English decisions must be followed. As true that the Indian Evidence Act is in the main a codification of the English law of evidence and, in so far as it is so, here and there in the Act are definite deviations from English Law and where these occur the Act must prevail over the English case law as the Act has become part of the legislation of the Colony as a comprehensive Evidence Code. See Wallace Johnson v The Kind (1940) A.C. 231.”
This statement was quoted in Mohamed Saed Akrabi v R., (1956), 23 E.A.C.A. 512, 515, and the Court then noted that since ss. 14-15 of the Aden Evidence Ordinance of the Englis law...” and considered a decision of the House of Lords.
For the purposes of the District Magistrate it is primarily the decisions of the Privy council, so long as it was the ultimate court of appeal for East African countries, the Court of Appeal for East Africa and the respective High Courts, which provide precedential case law for authority. This text attempts only to make reference to these authorities, although relevant English or Indian decisions may be quoted or referred to in the decisions, for it is highly unlikely in any event that adequate reference and research material will be available.
An inculpatory statement in a plea of “not guilty” is not evidence.
It should be noted that when a defendant is called upon to plead, and in the course of pleading makes an inculpatory statement i.e. one which incriminates him in some way, but
becuase the statement is not an unequivocal admission of guilt, resulting in a plea of not guilty being entered, his statement cannot be used as evidence against him. See, for example R v Pirmin, (1934), 2 E.A.C.A. 64; R v Njoroge wa Banha and Others, (1935), 16 K.L.R. (2) 135; Wachira s/o Wambogo v R (1954), 21 E.A.C.A. 396, and chapter on confession.
Application of the K.E.A.
Section 2
provides:-2. This Act shall apply to all judicial proceedings in or before any court other than Khadis court but not to affidavits presented to any court of officer nor to proceedings before an arbitrator.(*)
...
The words “or an African Court” were deleted by Act 17 of 1967, 1st Schedule, the Magistrate’s Courts Act; see Cotran, Integration of Courts and Application of Customary Law in Kenya, 4 East African Law Journal 14.
* Amended as to affidavits Act No. 10 of 1969, see p. 168A.
Evidence as related to procedure
“Evidence” being defined in the Act as the means by which an alleged matter of fact is proved or disproved (ss p.ii), it is obvious that the law of evidence is closely related to the law of procedure, both in civil and criminal cases. Indeed, several of the sections which are now found in the K.E.A. were originally found in the Criminal Procedure Code (Cap. 75). For example: the present section concerning the competency of the accused and husband or wife as witnesses in criminal cases and communications made during marriage (ss.127 and 130) were drawn from the former s.159 C.P.C., and the former s.195 relating to the reports by government analysts and geologists is now found, as amended, in s.77 K.E.A.. Part III of the Act is entirely precedural in
nature, dealing with the examination of witnesses, although the principles underlying the various sections have their origins in the basic concepts of fairness. They also deal with the means by which facts may be presented in court of law.
RELEVANCE & ADMISSIBILITY
RES GESTAE
‘Res Gestae’, it has been said, is a phrase adopted to provide a respectable legal cloak for a variety of cases to which no formula of precision can be applied’. The words themselves simply mean a transaction. Under the inclusionary common law doctrine of Res Gestae, a fact or opinion which is so closely associated in time, place and circumstances with some act or
event which is in issue that it can be said to form a part of the same transaction as the act or event in issue, is itself admissible in evidence. The justification given for the reception of such evidence is the light that it sheds upon the act or event in issue: in its absence, the transaction in question may not be fully or truly understood and may even appear to be meaningless, inexplicable and unintelligible. The importance of the doctrine, for present purposes, is its provision for the admissibility of statements relating to the performance, occurrence or existence of some act, event or state of affairs which is in issue. Such statements may be received by way of exception to the hearsay rule.
Res Gestae forms part of hearsay.
R V. BEDINGFIELD [1879] Vol. 14 Cox C.C. 341
A girl was living with her boyfriend until the relationship turned sour. The boyfriend allegedly cut her throat. She managed to run out even with a cut throat and managed to say ‘see what Harry (Bedingfield) has done to me’. In court the question arose as to whether this statement could be admitted in evidence. Lord Justice Cockburn was emphatic that it could not be admitted. He said that it was not part of the transaction, that it was said after the transaction was all over. (The transaction being the cutting of the throat) The Judge held that it was not admissible as part of the Res Gestae since it was something stated by her after it was all over.” The girl said after it was all over.
Under S. 33 of Law of Evidence Act, this would have been admitted.
33. Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, or whose attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable, are themselves admissible in the following cases—
(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. Such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes in question;
R V. Premji Kurji [1940] E.A.C.A 58
In this case the accused was charged with murder, the deceased had been killed with a dagger and there was evidence that the accused had been found standing over the deceased body with a dagger dripping with blood. The prosecution adduced evidence that a few minutes before, the accused had been seen assaulting the deceased’s brother with a dagger and he had uttered words to the effect that ‘I have finished with you, I am now going to deal with your brother’. The question was whether this statement was admissible as forming part of the transaction. Is that part of the same transaction as the murder. Were the words uttered part of the same transaction. It was held that they were part of the same transaction because when two acts of an accused person are so interwoven as to form part of the same transaction, it is not proper to shut out evidence of one of the acts even though it may involve introducing evidence of the commission of another offence.
R V. RAMADHANI ISMAEL [1950] ZLR 100
A Girl was living in the village with her parents and she was allegedly raped by the accused. After the rape incident, she unlocked the door and ran over to her parents’ house, a few paces away from the accused’s house. She got hold of her father’s hand and took him to the accused house. She pointed to the accused person and said ‘daddy, this is the Bwana’ and the question was whether this statement was part of the transaction. The transaction here is rape, which is already finished by the time she goes to call her daddy. Is it admissible? The court held that it was not part of the transaction. The transaction was already over.
Different courts have different conception of what forms part of the transaction. The court in this rape case adopted a conservative view of what formed the transaction.
TEPPER V. R [1952] A.C 480
In that case there was a fire some place and a house was burning and the lady was heard to ask somebody who looked like the accused some minutes later ‘your house is burning and you are running away’ the question was whether this statement was part of the transaction as the fact in issue being Arson. It was held to be part of the transaction.
R V. CHRISTIE 1914 AC 545
The accused was convicted of indecent assault on a boy. The boy gave un-sworn evidence in which he described the assault and identified the accused but made no reference to any previous identification. The House of Lords, by a majority of five to two, held that both the boy’s mother and a constable had been properly allowed to give evidence that shortly after the alleged act they saw the boy approach the accused, touch his sleeve and identify him by saying, ‘That is the man’. Evidence of the previous identification was admissible as evidence of the witness’s consistency, ‘to show that the witness was able to identify at the time’ and ‘to exclude the idea that the identification of the prisoner in the dock was an afterthought or mistake.
THOMPSON V. TREVANION 1693 Skin L.R. 402
This case had to do with statements made by participants in or observers of events. Thus in this case it was decided that what a wife said immediately upon the hurt was received and before she had time to devise or contrive anything for her own advantage was held to be admissible in evidence.
ALL THE ABOVE CASES HAVE SOMETHING TO DO WITH WHETHER THE STATEMENT IS PART OF THE FACT IN ISSUE.
R V. RATTEN [1972] A.C 378
Ratten was charged with the murder of his wife. He offered the defence of accident. He said that he was cleaning his gun and it accidentally went off injuring his spouse. There was nobody else at the scene of crime or at the point where this incident occurred and the prosecution sought to tender evidence of a girl who worked with the telephone exchange who said that a call had been made from the accused house at about the time of the murder. The girl said that the voice on the phone betrayed emotion, she was begging to have the police called over and before the operator could link the woman with the police the phone hang up on the woman side. The question was, was the statement by the telephone operator admissible as part of the transaction? Did it happen contemporaneously with the facts in issue? The court held that the evidence of the telephone operator was admissible and in explaining why the Privy Council explained that the important thing was not whether the words were part of the transaction but whether the words were uttered during the drama. The court also said that the particular evidence of the operator contradicted the evidence which was to the effect that the only telephone call outside from his house during the murder was a call for an ambulance.
Cap 80,Section 7
“7. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant.”
They will be those facts which will afford the opportunity to the facts in issue. The occasion may not be a fact in issue but it helps us understand the fact in issue or relevant facts.
CAUSE/EFFECT
John Makindi V. R EALR 327
The accused in this case was charged with the murder of a boy over whom he stood in loco parentis (foster father) to. In his defence the accused averred that the deceased was epileptic trying to explain away the injuries on the boy and how they may have occurred. Medical evidence showed that the boy had died due to severe bleeding in the head and a doctor testified that there were blood clots in the boy’s head which had opened causing a lot of blood to flow from the deceased’s head and therefore occasioning his death. The prosecution tendered evidence that the accused had previously beaten up this boy and had previously been convicted for beating up this boy and he had threatened the boy with further beatings on account of having been convicted. The question was whether evidence of previous beating was admissible. The court held that the evidence of previous beatings was admissible in the circumstances. Could the court admit the evidence of past beatings? The court held that the beatings of earlier beatings was admissible because having taken the evidence of blood clots at the head, it was important to know the cause of the blood clots and the evidence of the previous beatings was admissible as a fact leading to the bleeding and ultimate death.
The cause of things or relevant facts or facts in issue will be admitted to explain the cause of death. E.g. the opening of the blood clots and loss of lots of blood. The previous beatings showed us the cause and was thus admissible, so the cause of things and the cause of relevant issues will be admitted. They explain the cause of death like in this case.
STATE OF AFFAIRS
R V RABIN & ANOTHER [1947] Vol. 14 E.A.C.A 80
In this case there was a charge of corruption and the prosecution tried to lead evidence of a previous shady dealing in which the two persons whose conduct was in issue were involved. The question was whether the evidence was relevant. The court held that the evidence of the
previous shady dealings was relevant because it gave the state of things under which the bribe was given. It explained the state of things in which the transaction occurred. The transaction which is the fact in issue.
OPPORTUNITY
R V Premji Kurji R.V. (1940) 7 E.A.C.A. 40
The case shows that the accused had opportunity to commit the murder.
This case discusses Res Gestae. The deceased had been killed with a dagger, and evidence was admitted at the trial of the fact that just prior to the death of the deceased the accused had assaulted the deceased’s brother with a dagger and had uttered threats against the deceased. It was held that the accused had an opportunity, he had used the dagger only a few minutes before he used it to commit the murder.
Section 8
8. Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact.”
Facts which relate to motive, preparation or conduct of any fact in issue will be relevant.
Motive is that which makes a person do a particular thing or act in a particular way. For instance a person who is accused of rape may be motivated by lust or desire. A person who says they killed in self defence will be motivated by fear. Motive is what influences a person’s acts or conduct. For all voluntary acts, there will be a motivation and you need to look at a person’s conduct to explain away the motivation. Similarly any fact that would constitute preparation for a fact in issue is also going to be admissible. The planning or arranging means and measures necessary to commit an act or to do something. If it is a crime, it will be the type of measures one takes to help achieve the committing of that crime. For example if you intend to steal there will be surveillance involved. Hiring implements required to commit the crime.
Similarly any fact which shows the conduct of any party to the proceedings is relevant.
Section 8 (4)
8. (4) The word “conduct” in this section does not include statements, unless those statements accompany and explain acts other than statements.”
Statements are expressly excluded. You are not talking about statements but preparation. Under section 8 you are dealing with things that people do and not things that people say. If you want to bring in a statement, it would have to be associated with an act.
Section 9
9. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant insofar as they are necessary for that purpose.”
Facts, which explain or introduce facts in issue, are relevant.
It is only phraseology of Section 9 that differs from factors that have been explained in Section 6,7 and 8.
10. Where there is reasonable ground to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring,
as well for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it.”
The legislator is said to have been acting Ex Abundante Cautella - Out of an abundance of caution. This section deals with conspiracies. If there are reasonable grounds to believe that there is a conspiracy, then whatever is said or done by any person in reference to their common intention, after the time such intention was formed, is a relevant fact.
What does a conspiracy entail? It is where people sit, agree and form a common intention to do something. Common intention is the defining factor of the conspiracy.
It is relevant to prove
1. That it is a conspiracy; and
2. To prove that persons were parties to the conspiracy.
R V. KANJI 1949 VOL 15 EALR 116
It is stated with reference to S. 10 that a person who joins a conspiracy in law is responsible in law for all the acts of his fellow conspirators done in furtherance of the conspiracy whether done before during or after his participation. It is only after common intention is established.
STANLEY MUSINGA ET AL V. R [1951] 18 EACAR 211
Here the court said that “A person who joins a conspiracy is responsible in law for all the acts of his fellow-conspirators done in furtherance of the conspiracy, whether done before, during or after his participation.”
The time when, by act or declaration, reference is made to the common intention is not important so long as it is after that time when the intention is first entertained by one of the conspirators.
R V. MULJI JAMNADAS ETAL 1946 13 EACA 147.
The defendants were charged with a conspiracy to effect a lawful purpose by unlawful means, in that they toured the neighbourhood in a lorry to recruit labour for the Company’s Sugar Works, and that acting together they did on a number of occasions compel persons by the use of force and threats of force to get into the lorry and submit to being carried away on it for labour at the Sugar Works.
The defence argued that intimidating labour into employment was not an offence known to the criminal law of Uganda, and did not, therefore, constitute “unlawful means”. The Court noted, however, citing from ARCHBOLD, that a tort which is not a criminal offence is sufficient to satisfy the provision as to “unlawful means”, and upheld the convictions.
Section 11 - Facts which are inconsistent with or which affect the probability of other facts. 11. Facts not otherwise relevant are relevant—
(a) if they are inconsistent with any fact in issue or relevant fact; or
(b) if by themselves or in connexion with other facts they make the existence or non-existence of any fact in issue or relevant fact highly probable or improbable.
What kind of facts are relevant S. 11 (b) is the epitome of all that is found relevant in a fact in issue. Read S. 5 along with S. 11.
Section 12
12. In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant.”
Section 12 – Deals with the facts which affect the quantum of damages.
This Section is said to be a boon to ambulance chasers. E.g. contributory negligence your participation affects the amount of damages you receive.
If the plaintiff in a civil suit claims damages as compensation for injuries suffered, the amount of damages which will compensate him naturally becomes a fact in issue. Evidence which helps the court to determine the amount of damages is relevant. The following cases show various types of facts which the courts have considered in reaching an assessment.
M’IBUI V. DYER [1967] E.A. 315 (K)
“Wounding in course of arrest by private person on suspicion of felony. Psychological factors of malingering and “compensationists” taken into account, as well as aggravation of damages by element of injury to reputation.”
MU WANI [1964] E.A. 171 (U)WANGA V. JI
“The deceased was an African child and the court considered the amount of damages for the loss of service to the mother and grandparents, the father being deceased.”
Section 13.
13. Where the existence of any right or custom is in question, the following facts are relevant—
(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; or
(b) particular instances, in which the right or custom was claimed, recognized or exercised, or in which its exercise was disputed, asserted or departed from.
If what you have in issue is your right in custom, 13 (a) factors that show when customs were created, whether it is relevant and what kinds of arguments were made for the custom. (Locus classicus)
Relevance and admissibility
RELEVANCY AND ADMISSIBILITY
Chapter II of the K.E.A. deals with questions of relevancy and admissibility, and includes sections dealing with general rules, admissions, confessions, statements by persons who cannot be called as witnesses, statements in documents in civil proceedings, statements and special circumstances, judgments, opinions, character and the extent to which a statement is admissible. We will examine the relevancy of the types of evidence listed in the Chapter under separate headings, i.e. under what conditions these statements or other evidence are relevant and admissible in evidence. In this Chapter, however, we will deal only with the general rules of relevancy and admissibility.
a The Distinction Between Relevancy and Admiissibility
Section 3 defines admissibility
“admissible” means admissible in evidence.
In plainer terms, evidence is admissible if it may be presented in court and the court will consider the evidence in reaching its determination, “court” being defined in S. 3 as including “all judges and magistrates, and all persons, except arbitrators, legally authorized to take evidence.”
WIGWORE ON EVIDENCE (3rd Edn.), Vol. I, ss.9 and 10 sets forth two exioms, or propositions that commend themself to general acceptance, concerning admissiblity.
1. Have but facts having rational probative value are admissible and,
1. All facts having rational probative value are admissible, unless some specific rule forbids.
To have rational probative value, a fact must be so connected, directly or indirectly with a fact in issue in an action or other proceeding that it tends to prove or disprove the fact in issue. Any two facts so related to each other that according to the common occur of events one either taken by itesle or in connection with other facts proves or renders probable the past, present or future existence or non-existence of the other. OSBORN, CONCISE LAW DICTIONARY, taken from Stephen, the draughtsman of the I.E.A., 1872.
In simple terms, then, relevancy determines whether one fact is related to another, and a fact is relevant to a case when it is related to the facts in issue; see definition, p. (iv). If admissible in evidence, the relevant fact will help the court to determine whether the right or liability or disability which one party claims to exist (and the other party denies) actually does exist, and if so, to what extent.
Sections 5 - 15 K.E.A. cover the general rules of relevancy. Throughout the rest of the Act, the terms “admissible” and “inadmissible” are used, setting forth when and under what circumstances relevant facts may be admitted in evidence, or when they are excluded. Those sections which deal with instances when relevant facts may not be admitted in evidence, or may be admitted only under certain circumstances, are, “exclusionary rules.”
All facts to be admissible, must be relevant, but not all relevant facts are admissible.
b. General Restriction on the admissibility of Evidence.
In drafting the I.E.A., the principle of exclusion was followed, for only these facts which are specifically declared to be relevant are admissible. SARKAR, p. 38, quotes from Stephen (Digest, introd.).
“The great bulk of the law of Evidence consists of negative rules declaring what, as the expression runs, is not evidence. The doctrine that all facts in issue are relevant to the issue, and no others may be proved, is the unexpressed principle which forms the centre of and gives unity to all these express negative rules.”
This general approach is set forth in
s.5:-5. 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.
The general rule is, therefore, that no fact can be given in evidence unless it is either a fact which is (a) evidence of the existence or non-existence of a fact in issue, or (b) one which is declared to be relevant under ss.6 - 16. All other facts are irrelevant unless they are declared to be relevant by some other specific section of the Act or by some other law. Since, being irrelevant, they do not bear directly upon and facts in issue, they are not
admissible in evidence, this to save the time of the court and to keep from confusing the issue.
The decision on admissibility of evidence rests with the occurs, (See s.144). Questions concerning admissibility should be decided as they arise, and should not be delayed until judgment is given. When a party to the suit or proceeding objects to a question which has been asked, or to evidence which has been tendered, a decision on admissiblity should be made before the question is answered or the other evidence admitted. If objection is not taken at the time it is tendered, it is generally hold to have been waived, although it is the duty of the Magistrate to act on questions of admissibility.
c. What kinds of Facts are Relevant?
Section 6 - 16 K.E.A. deal with the relevancy of certain kinds of facts.
1. Facts forming part of the same transaction.
6. Facts which, though not in issue, are so connected with a fact in issue as to form part of the same transaction are relevant whether they occured at the same time and place or at different times and places.
Section 6 refers to facts which form part of the res gestae, defined in OSBORN, THE CONCISE LAW DICTIONARY
as:-“The facts surrounding or accompanying a transaction which is the subject of legal proceedings; or all facts so connected with a fact in issue as to introduce it, explain its nature, or form in connection with it one continuous transaction. Evidence of words used by a person may be admissible on the ground that they form part of the res gestae which might otherwise be inadmissible as hearsay.”
groups:-1. Acts consituting a series, for example when the series which is the fact in issue is the existence of a custom or usage, which by definition is a custom or usage only because it is done by a large number of people over a long period of time, the custom or usage may be proved by evidence of the acts done over a period. (See discussion s.51).
2. Acts or ommissions showing a continous fact, for example if the fact in issue is whether a person is insane, the continuous conduct of that person forms part of the res gestae, and evidence may be given of conduct over a period of time. Other examples of continous conduct would be abstanting oneself to avoid creditors, premises used for prostitution (s.155 P.C.), etc.
3. Acts which are part of one transaction, which has many illustratiers, both in civil and criminal cases.
Statements which the witness heard may also form part of the res gestae providing that (1) they are nearly contemporaneous, i.e. that they were made at the same time or nearly the same time as the transaction which is the fact in insure, (2) they are explanatory, ie that they explain the fact in issue (for example, if they explan a mental or physical condition at the time), (3) if they are not offered as evidence of the truth of the facts contained in the statements for then they would be hearsay as she statements were made by persons not called as witnesses. (See discussion, s.33). For example:
A is accured of the murder of S by beating him. Whatever was said or done by A or B is one by-standers at the beating, or so shortly before or after the beating as to form part of the transaction; is a relevant fact.
In this example the statements made by the by-standers and heard by the witness who repeats them in court are relevant only if the statements were uttered at the time of the transaction (the beating) or so soon therafter as to make it relatively certain that the
speaker was still operating under the stress of the occurrence and was not reflecting upon what he said. See R V Ratten.
A transaction is a group of facts so connected together as to be referred to by a ... legal crime, such a “crime”, a “contract”, a “wrong”, or any other subject to enquiry which may be in issue. Every fact which is part of the fact in issue even though that fact might not itself is in issue, is relevant, even though it might be hearsay were it not a part of the transaction.
Note that the transaction may consist of a single incident which only takes a very short period of time, as when A returns home and, finding his wife in bed with another man, loses his temper and strikes him with a stick, killing him, the transaction, from the discovery to the death, may, take only a few seconds. Or the transaction may consist of a large number of facts which occur at different times and different places, occupying a much longer period of time, e.g it engages in a long correspondence and personal negotiations with 3 concerning a contract, after which goods are shipped and a dispute arises over interpretation of the contract as it provides for the time of payment events which take place over perhaps a period of years. In both instances, however, the transaction may be referred to by a single legal term.
Note that this section and three following deal with circumstantial evidence: see pp.7 - ix.
Other examples of facts constituting the res gestae:
A is accused of waging war against the Government of Kenya by taking part in an insurrection in which property is destroyed, toops were attacked and goals broken open. The occurrence of these facts is relevant as forming part of the general transaction, though A may not have been present at all of them.
A sues B for a libel contains in a letter forming part of a correspondence. Letters between the parties relating to the subject out of which the label arose, and forming part of the correspondence in which it is contained, are relevant facts, though they do not contain the label itself.
The question is: whether certain goods ordered from B were delivered to A. The goods were delivered to several intermediate persons successively. Each delivery is a relevant fact.
Section 6 is explained and illustrated by ss.7, 8 and 9.
2. Facts causing or caused by other facts.
7. Facts which are the occassion, cause or effect, immediate or otherwise, of relevant fact or facts in issue, or which constitute the state of things under which they happened or which afforded any opportunity for their occurrence or transaction are relevant.
...
As a general rule, a fact is issue cannot be proved by showing that facts similar to it, but not part of the same transaction, have occurred at other times. There are, however, exceptions; see for example discussion of ss.14-15. Therefore if the fact in issue is whether the accused has committed a particular crime, that fact that he committed a similar crime is irrelevant for the purposes of showing that he committed the crime in question, for an accused is always cresumed to be innocent until he is proved or has pleaded guilty. (Constitution, sec. 21(2)(a), see p.(v). If, however, a previous corrupt transaction is such as to show the state of things under which the crime with which the accused is charged occurred, evidence of the previous transaction is admissible. In R. v. Brabin and Another, (1947), 14 E.A.C.A. Bc, on appeal from the High Court of Kenya, the charge was that the defendants, being persons employed by the Central Commodity Distribution Board obtained from one Hasham Kara 1000/= as an inducement for forbearing to show disfavour
to him in relation to the affairs of the Board. Evidence was admitted of a previous corrupt transaction between the defendants and Hasham Kara whereby, fice months previous to the transaction which was the fact in issue in this case, it was alleged that the defendants had demaned (and Hasham Kara had paid to them), 500/= as bribes to get his sugar supply, which had been stopped by the defendants, restored. On appeal, the defendants claimed that evidence of the earlier, transaction which had been admitted under s.7 I.E.A., had been admitted improperly. In its decision upholding the admission of the evidence, the Court
stated:-“The main fact in issue in the case was the obtaining of a bribe by the appellants jointly from Hasham Kara. In examining that issue one of the most importantly relevant elements in the ‘state of things’ under which the bribe was given was the relationship which existed at the time between the parties. If, for instance, the ‘state of things’ were that persons charged with demanding the bribe were at the time they demanded it total strangers to the person from whom they demanded it, that would be a very different ‘state of things’ from the position as alleged to be here, namely that the parties demanding the bribe on such terms with Hasham Kara that on a previous occasion only five months earlier bribes had been demanded and successfully extracted. It seems to us that under section 7 the fact that the appellants had on a previous and comparatively recent occasion successfully demanded and extracted bribes from Hasham Kara was relevant as showing the ‘state of things’ under which the fact in issue happened. Evidence of that fact was therefore by section 7 admissible.”
The court then quotes from R v. Boyle and Merchant, (1914), 3 K.B. 339 as
follows:-“There is ... an essential difference between evidence tending to show generally that the accused has a fradulent or dihonest mind, which evidence is not admissible, and evidence tending to show that he had a fraudulent or dishonest mind in the particular transaction the subject matters of the charge then being investigaged, which evidence is admissible. It has been laid down that there must be a nexus or connexion between the act charged and the facts relating to previous or subsequent transaction which it is sought to give in evidence to make such evidence admissible.”
Note that the Court here is not saying that evidence of previous crimes is admissible in every case, but only where there is a connection between the previous crime and the crime with which the accused is charged and for which he is being tried, and when the previous crime shows the “state of things” at the time of the ommission of the present alleged crime. Also, evidence of this “state of things” does not prove that the accused committed the crime with which he is charged, but only provides evidence of the circumstances under which the present alleged crime was committed.
R. v. Premji Kursi, (1940), 7 E.A.C.A. 58 discusses res gestae and ss.6 and 7 I.E.. in relation to a charge of murder. Here the deceased had been killed with a dagger, and evidence was admitted at the trial of the fact that just prior to the death of the deceased the accused had asaulted the deceased’s brother with a dagger and had uttered threats against the deceased. On appeal the accused argued that this was evidence of the commission of a separate offence and therefore inadmissible. The Court
said:-“It is true that it is not permissible to lead evidence of an accused having committed an offence of a similar nature in order to show that he is likely to have committed the particular offence with which he is charged and if this wounding had taken place in a different part of Zanzibar and were not connected with the murder this objection would of course be interconnected that the wounding of the deceased’s brother Jamnadas be regarded as part of the res gestae on the trial of the appellant for the murder of the deceased. The brother Jamnadas when wounded was working in the shop of his brother, the deceased, whilst the latter was in the godown of the shop nearby. After wounding Jamnadas the accused is alleged to have and ‘I have finished you and am going to show your brother’. Immediately afterwards the accused was seen at the godown standing over the deceased dagger in hand. As is explained in the notes to section 6 and 7 of the Indian Evidence Act and cases there cited in Woodroofe & Ali Amcer when two acts of an accused are so interwaven as to form part of the same transaction it is not proper to shut out evidence of one of the acts even though it may involve introducing evidence of the commission of another offence by the accused. The prosecution are entitled to put forward their whole story, otherwise it may be quite impposible
properly to appreciate the nature of and reasons for the act in respect of which the accused is being charged. Similarly under section 7 of the Evidence Act the fact that accused had a dagger and used it immediately before the alleged killing by him of the deceased with a dagger must be admissible as strong evidence of opportunity. We have no doubt that this evidence was rightly admitted.”
Included in the meaning of s.7 is evidence of opportunity without which an accused could not properly have committed the crime. On the other hand, advantage, i.e. showing that an accused would gain something to his advantage through the commission of a crime, is of almost no account.
Some examples illustrating
s.7:-1. The question is whether A is robbed B. The fact that, shortly before the robbery, B went to a fair with money in his possession and that he showed it or mentioned the fact he had it, to third persons, are relevant.
1. The question is whether A murdered B. Marks on the ground produced by a struggle at or near the place where the murder was committed, are relevant facts.
1. The question is whether A poisoned B. The state of B’s health before the symtems, arise when are claimed to be those caused by the poison, and the habits of B known to A, which would have given an opportunity to poison B, are relevant facts.
Example (a) is an instance of facts relevant as giving occassion or opportunity, (b) of facts constituting an effect of a transaction (as the marks would be the effect of the struggic, and (c) of facts constituting the state of things under which an alleged fact happened. See John Makindi v R. [1961], 332 (C.A).
